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Prosecution of Nonsupport Cases under the Federal Child Support Recovery Act of 1992

AT-95-05

Published: April 20, 1995
Information About:
Other Public Partners, State/Local Child Support Agencies
Types:
Policy, Action Transmittals (AT)
Tags:
Criminal Non-support/PSOC

 ACTION TRANSMITTAL
 OCSE-AT-95-05
 April 20, 1995

   TO:         STATE AGENCIES ADMINISTERING CHILD SUPPORT
               ENFORCEMENT PLANS APPROVED UNDER TITLE IV-D
               OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED
               INDIVIDUALS.

   SUBJECT:    Prosecution of nonsupport cases under the federal
               Child Support Recovery Act of 1992 (CSRA) [18 U.S.C.
               228].  This Action Transmittal seeks to increase
               federal criminal prosecutions under CSRA and
               solicits the assistance of state IV-D agencies in
               identifying additional cases suitable for
               prosecution by the ninety-four U.S. Attorneys'
               districts.  CSRA prosecution is only possible in
               those cases where an obligor (1) lives in a
               different state from his or her child, (2) has
               past-due child support greater than $5,000 or which
               has remained unpaid for more than a year, and (3)
               has willfully taken steps to avoid support payments.


   ATTACHMENT: Instructions for State IV-D agencies to use
               to submit the additional cases requested by the
               Office of Child Support Enforcement (OCSE) for
               federal prosecution for nonsupport under CSRA.

   BACKGROUND: OCSE has previously issued a series of Dear
               Colleague letters regarding CSRA [DC-92-49, DC-93-
               39, DC-93-61, DC-94-48, DC-94-53, DC-94-56, and DC-
               94-58].  This Action Transmittal outlines the
               revised procedures for the submitting and processing
               of cases.

   INQUIRIES:  Stephen Grant, OCSE, 4th Floor, 370 L'Enfant
               Promenade S.W., Washington, DC 20447.

                                     /s/

                                David Gray Ross
                                Deputy Director
                                Office of Child Support Enforcement

Prosecutions of Federal Criminal Nonsupport Cases

DC-95-31
4/20/95

TO ALL STATE IV-D DIRECTORS

   RE:       Additional Prosecutions of Federal Criminal Nonsupport
             Cases

Dear Colleague:

This letter transmits the attached Action Transmittal which
solicits your assistance in identifying additional cases suitable
for federal criminal prosecution for failure to provide child
support under the Child Support Recovery Act of 1992 (CSRA)
(Pub. L. 102-521).

CSRA makes the willful nonpayment of child support a federal
crime if an obligor (1) lives in a different state from his or
her child and (2) has past-due child support greater than $5,000
or which has remained unpaid for more than a year.  Last summer,
OCSE and the Department of Justice (DoJ) began an initiative to
establish and/or strengthen channels of communication between
each of the state and local IV-D agencies and its counterpart
United States Attorney's district office regarding CSRA
prosecution.

OCSE's August 15, 1994, Dear Colleague letter [DC-94-48]
requested that states submit an initial wave of cases that were
good candidates for prosecution under CSRA.  OCSE is now asking
states to identify a second wave of cases [see attached Action
Transmittal] to help increase CSRA prosecutions throughout the
nation.

OCSE seeks cases where great efforts have been made in exhaustion
of all other remedies, where the element of willful nonpayment is
especially well-documented now or could be, and where criminal
prosecution will send a strong message to other absent parents
that enforcement of support obligations is a nationwide priority.

While participation in this special initiative is not a mandate,
OCSE highly encourages each state to participate.  Ideally, DoJ
hopes to begin successful prosecutions in each of the ninety-four
U.S. Attorney's districts during 1995.  OCSE is ready to accept
cases immediately.  We would like to receive all cases for this
wave by July.

As cases are submitted by state IV-D agencies, OCSE will utilize
all available federal databases to check for asset and other
information about the offending party.  Then OCSE and DoJ, based
upon review of the newly revised intake form and OCSE's cross
check of the income and other assets available to the obligor,
will select those cases which present the most viable candidates
for prosecution.  At that point, we will inform the states which
referred cases were forwarded and the reasons for nonselection of
the cases which were not forwarded.

Once cases have been forwarded to the U.S. Attorney's Office,
the Assistant U.S. Attorney assigned to handle CSRA prosecutions
for that district will contact local child support enforcement
officials directly so that the relationship is firmly established
and preparation for prosecution of the case may begin.

Also, OCSE and DoJ are also committed to continuing our efforts
to expand training and technical assistance efforts for
professionals working on child support enforcement.  We will
include workshops on the practical aspects of CSRA actions on
the agendas of national level child support and law enforcement
conferences.  To increase public awareness, we will also consider
a variety of outreach efforts for promoting CSRA actions as well
as other facets of the child support enforcement system.

I want to thank you again for your state's continuing efforts
to strengthen the child support enforcement system.  Child
support enforcement efforts are continuing along a broad front.
We look forward to working with you on further pursuing the most
egregious avoiders of support responsibilities through this
cooperative effort to step up federal criminal prosecutions.

                       Sincerely,

                            /s/


                       David Gray Ross
                       Deputy Director
                       Office of Child Support Enforcement

Attachment

CC:  ACF Regional Administrators
    CSE Regional Program Managers


                           TABLE OF CONTENTS


PAGE

I.           BACKGROUND                                                     p. 1

II.       BUILDING ON THE FIRST ROUND OF CASES         p. 1

III.      WORKING WITH DOJ ON CSRA CASES                   p. 2

IV.       INSTRUCTIONS                                                       p. 4


Attachments:

             Child Support Recovery Act Intake Form

             U.S. Attorney District Office Listing

I.           BACKGROUND

On October 25, 1992, the Child Support Recovery Act of 1992
(CSRA) was enacted, making it a federal crime to fail to pay
support for a child residing in another state [Child Support
Recovery Act of 1992, Public Law 102-521, 18 U.S.C. 228].  Since
the noncustodial parents are subject to criminal sanctions under
CSRA, this remedy is the response reserved only for some of the
most egregious cases.  Those obligor parents expected to qualify
under this statute should not currently be paying child support;
have past-due child support greater than $5,000 or which has
remained unpaid for more than a year; and have willfully taken
steps to avoid payments, i.e., unreported changes in employment,
concealing assets or location, using false identification, or
relocating out of state to avoid paying support.

On November 17, 1992, OCSE issued a Dear Colleague letter
[DC-92-49] describing the enactment of CSRA and outlining the
specific provisions of the Act relating to the elements of the
federal offense.  For the first offense under CSRA, the penalty
includes not more than 6 months imprisonment and/or fine of
$5000.  For the second offense, those increase to not more than
two years imprisonment and/or fine of $250,000.  Restitution by
the obligor parent in an amount equal to the past support
obligation is also required upon conviction.  In addition,
federal courts are specifically authorized to make compliance
with child support obligations a condition of probation in any
criminal matter.

This was followed by another memorandum issued August 25, 1993
[DC-93-39], attaching the "Prosecutive Guidelines and Procedures
for the Child Support Recovery Act" issued by Attorney General
Janet Reno on July 13, 1993.  In that memorandum, we stressed the
significance of establishing effective working relationships
between State IV-D agencies and U.S. Attorneys' offices.  We
encouraged IV-D agencies to take the initiative in contacting
their respective U.S. Attorneys concerning actions under the
federal law.  [A listing of U.S. Attorneys' offices is attached.]

In fall 1994, the federal government held training conferences
at which representatives of over half the states participated,
including representatives from state and county child support
enforcement offices, federal regional offices, U.S. Attorneys'
offices, and the Federal Bureau of Investigation.  This year,
DoJ and OCSE entered into a memorandum of understanding regarding
our efforts to expand federal criminal prosecution for
nonsupport.  As part of this agreement, an attorney from DoJ has
been detailed to OCSE two days a week to assist in this effort.

II.       BUILDING ON THE FIRST ROUND OF CASES

The initiative by OCSE and DoJ seeks to establish and/or
strengthen channels of communication between each of the state
and local IV-D agencies and its counterpart U.S. Attorney's
office.  On August 15, 1994, DC-94-48 requested that state IV-D
agencies each submit five cases to OCSE that were good candidates
for prosecution under CSRA.  Of the 260 cases sent in by 43
states, over 150 cases were selected by OCSE as having the
highest potential for successful criminal prosecution for
nonsupport and were referred to DoJ for prosecution.

While the majority of the 150 cases are still in the
investigatory stage, prosecution has begun in over thirty.  DC-
94-53 and DC-94-56 subsequently gave preliminary feedback to the
IV-D agencies on the initial round of cases and provided further
guidance on submission of cases.  OCSE is providing each IV-D
agency with an individual response on the status of cases from
the first round of referrals to OCSE.

OCSE is implementing a computerized CSRA case tracking system
which will allow OCSE to provide quarterly status reports to each
state on all CSRA cases, as well as information in response to
specific queries.  Not only will all new cases be part of
the tracking system, but those cases begun last summer will be
included as well.  OCSE cautions, however, that we will be able
only to provide IV-D agencies with public record information
(e.g., under investigation, indicted, convicted, or otherwise
closed) on the status of individual cases due to restrictions
relating to matters under criminal prosecution.

OCSE will be providing feedback on previously submitted cases to
each state shortly.  Generally, the cases which were not
forwarded to U.S. Attorneys' offices were screened out for
reasons involving both failure to follow basic guidelines as well
as provision of insufficient information.  To assist in your
selections of additional cases, recurring problems included that:

    *      the case was less than $5000 in arrears,

    *      both parents resided in the same state,

    *      children were past the age of majority,

    *      no mention was made of URESA actions or other
             enforcement efforts to exhaust remedies, or

    *      there was evidence of recent sizeable payments.

III.      WORKING WITH DOJ ON CSRA CASES

Whether or not to proceed with further investigation and the
filing of charges under CSRA is a decision for the Assistant U.S.
Attorney (AUSA) to whom a complaint has been made or to whom a
case has been referred by OCSE.  While many factors are involved,
proper screening and preparation by the IV-D agency is the best
guarantor that an individual case will be investigated and
prosecuted under CSRA.

While IV-D status is not a prerequisite, individual U.S.
Attorneys' offices may establish procedures whereby complainants
who seek prosecution under CSRA are referred to the State or
local IV-D program to explore use of all available enforcement
remedies available at the State level first.  It is a requirement
that all reasonably available remedies must have been exhausted
before CSRA prosecution is to be undertaken.

OCSE suggests, but does not require, that U.S. Attorneys
coordinate the preparation of CSRA case information with the
appropriate IV-D agency.  Establishment of procedures for
handling potential federal criminal nonsupport cases (both IV-D
and non-IV-D) is within the discretion of each U.S. Attorney and
a matter which we encourage States to explore in discussing
expectations and protocol with their respective U.S. Attorneys.

Regular and frequent communication of information about
significant case developments, between and by both the IV-D
agency and the U.S. Attorney, is essential.  The AUSA handling
the CSRA case must be apprised of updated or supplemental
information, particularly on information relating to receipt of
payments.

With regard to disclosure of information to AUSAs, information
concerning applicants and recipients of services under the IV-D
program may be disclosed for use in criminal prosecutions under
CSRA.  Federal regulations [45 CFR 303.21] provide that
information may be disclosed for purposes directly connected with
criminal proceedings conducted in connection with administration
of the IV-D program.

An area where particular care must be exercised is with federal
tax return information.  Section 6103(1)(6) of the Internal
Revenue Code permits the IRS to disclose return information to
federal, state, and local child support enforcement agencies for
the purpose of establishing and enforcing support obligations and
locating individuals owing support obligations.  However, the
child support enforcement agency may not disclose federal return
information to third parties or in litigation relating to
establishing or collecting child support obligations.

IV-D agencies may, on the other hand, use federal tax information
as a pointer, verify the information, and then pass the
verification (e.g., bank records) to the AUSA.  If the
information is verified by an independent source, the information
from the other source may be disclosed.  Additionally,
U.S. Attorneys can, in their own right, apply to federal court
for an ex parte order directing the IRS to disclose federal
income tax return information.

IV.       INSTRUCTIONS

Attorney General Reno has committed DoJ to aggressively pursue
more prosecutions under CSRA.  We have taken the lessons of our
experiences with the first group of CSRA cases now being
processed to make improvements and design a referral system which
we hope will meet current needs and provide for any needed
flexibility.

In addition to outlining additional measures to improve
prosecution under CSRA, this action transmittal solicits your
assistance in identifying additional cases suitable for CSRA
prosecution so that, ideally, there will be CSRA prosecutions in
each of the ninety-four U.S. Attorneys' offices.  For this phase
of the CSRA initiative, OCSE is now asking that each state, the
District of Columbia, and Puerto Rico identify a specified number
of cases to help increase CSRA prosecutions in each U.S.
Attorney's office this year.

As a major thrust of the criminal nonsupport initiative is
to establish the working relationships between each
jurisdiction's AUSA and the state and local IV-D agencies, the
number of cases which we are now requesting from each state has
been computed by multiplying the number of U.S. Attorneys'
districts in that state by four [see table below].  To the extent
possible, OCSE requests that states divide the cases forwarded
among the jurisdictions of the U.S. Attorneys' districts in their
state.  [See attached list.]


                   Attachment Not Included


While participation in this special initiative is not a mandate,
it is highly encouraged that each state participate.
Prosecutions in each jurisdiction during 1995 would send a clear
message that enforcement of support obligations is a nationwide
priority for both states and the federal government.  Criminal
prosecutions will help it be known that the consequences for
avoidance of support responsibilities can be severe, including
the loss of one's freedom.

As OCSE asks for an additional group of cases, we recognize that
last summer when we asked that cases be identified, states were
given insufficient time and everyone's expertise was still
growing.  The result was that not all states were able to
participate and that the cases submitted were not always those
most suitable for prosecution, particularly given the limited
availability of prosecutorial resources.

Each state IV-D agency should solicit and screen prospective
cases from their local offices.  Each IV-D agency should then
forward those cases most suitable for CSRA prosecution, with
consideration given to having a geographic distribution of cases
(ideally at least one per U.S. Attorney's district) and to
prosecuting the most egregious offenders.  OCSE seeks cases where
great efforts have been made in exhaustion of all other remedies,
where the element of willful nonpayment is especially well-
documented now or could be, and where criminal prosecution will
send a strong message to other noncustodial parents who are
attempting to avoid their support responsibilities.

Please submit this round of cases (with intake forms and any
attachments) to the attention of: Stephen Grant, OCSE, 4th Floor,
370 L'Enfant Promenade S.W., Washington, DC 20447.  States may
send in their cases when they are ready, but no later than July
for this wave of cases.  With the cooperation of OCSE, DoJ, and
all states, this initiative will meet Attorney General Reno's
goal of significantly increasing prosecutions under CSRA.

Attachments:

             Child Support Recovery Act Intake Form
             U.S. Attorney District Office Listing

                   Attachment Not Included


        Child Support Recovery Act Intake Form     [OCSE REVISED 4/95]

                          Form Not Included