Court Rules Willfull Failure to Pay Child Support is Not a Specific Intent Crime Like Willful Failure to Pay Income Tax, Section7203 U.S. v. Colon-Ledee, Lexis 14370 (Dist. P.R. 2010)
U.S. v. Colon-Ledee, Lexis 14370 (Dist. P.R. 2010)
Colon-Ledee was charged with eight counts of bankruptcy fraud.
The government moved to introduce evidence that the Defendant had a prior conviction on April 10, 2000, for willful failure to pay child support in violation of 18 USC section 228(a)(i). The Defendant objected.
The government asserted that Fed. R. Evidence 609(a)(2) permitted it to attack the credibility
of a witness by admitting evidence that the witness has been convicted of a crime that involved dishonesty or false statement.
The government argued that the willful failure to pay child support required an intentional violation of a known legal duty as required in the case of the failure to file income tax returns. See 18 USC Section 7203.
The government cited cases that held that the failure to file a return constitutes a crime of dishonesty. Citing U.S. V. Wilson, 985 F.2d 348,351 (7th. Cir. 1993) and Dean v. Transworld Airlines, Inc. 924 F.2d. 805,811 (9th. Cir. 1991). However, the court observed that the Third Circuit disagreed. Cree v. Hatcher, 969 F.2d. 34,37-38 (3rd. Cir. 1992).
The Court held that the more reasoned approach was expressed in Hatcher and found that a conviction of 18 USC Section 228(a)(i) did not constitute a crime of dishonesty or false statement within the meaning of Rule 609(a)(2).
The Court also found that 10 years had elapsed and that the government would be also barred by Rule 609(b).
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