9.5 -Federal Prosecution

State Authority:

None

Overview

Under the Child Support Recovery Act (CSRA) of 1992, it is a federal misdemeanor to willfully fail to pay child support as long as the non-custodial parent does not live in the same state as the child.  The Deadbeat Parents Punishment Act of 1998 added felony charges to the CSRA.  The Wyoming Child Support Program (CSP) utilizes this enforcement remedy only after all other enforcement actions have been exhausted and documented.  The CSP works closely with the federal Office of Child Support Services (OCSS) Project Save Our Children (PSOC) Coordinator and the United States Attorney’s Office (USAO) for the District of Wyoming in pursuing a federal prosecution. The OCSS PSOC Coordinator acts as the the liaison between the Wyoming CSP and the USAO, and the USAO is responsible for the prosecution of the case in the United States District Court of Wyoming.

Policy

Criteria

In order to prosecute a non-custodial parent utilizing the CSRA, the Wyoming USAO shall be able to prove the non-custodial parent:

• Had the ability to pay;

• Willfully failed to pay; 

• Knew of the child support obligation and past-due support which:

  • Has remained unpaid for longer than one year (or in the case of a felony prosecution, 2 years); or

  • The amount of the past-due obligation is greater than $5,000.00 (or in the case of a felony prosecution, is greater than $10,000); and

• The child resides in a state other than the one where the non-custodial parent lives.

In addition to the elements of the federal offense listed above, the USAO for the District of Wyoming also requires the following:

• The Wyoming CSP shall show all other reasonable enforcement remedies to collect child support from the non-custodial parent have failed.

• If all other enforcement remedies have not been taken, the Wyoming CSP must show, based upon the non-custodial parent’s previous conduct, that further enforcement efforts may be available but will likely prove futile.

• When reviewing cases for federal prosecution, the Wyoming USAO considers, among other factors, whether one or more of the following exist with respect to the non-custodial parent:

  • A pattern of flight from state to state or flight after service of process for a contempt action as described in 9.4 Contempt; 

  • A pattern of deception to avoid payments (e.g. change of employment, concealing assets or location, working “under the table”, or using false names and/or social security numbers);

  • Failure to make support payments after being held in contempt of court;

  • The failure to pay child support has a connection to other federal charges (e.g. bankruptcy fraud, bank fraud, federal income tax charges or other related criminal conduct); 

  • A particular circumstance exists which dictates the need for immediate federal intervention (e.g. the child has special needs, is handicapped, or is in severe financial distress); and

  • Other factors that indicate an egregious offender.

• While the federal statute does not preclude the prosecution of a case with the child(ren) are no longer minors, cases with minor child(ren) will be given priority over an arrears only case.

• All federal prosecution referrals will be made to the USAO by the State CSP Office not the District CSP Offices.

Referral to State CSP Office

Once the caseworker determines the child support case is appropriate for federal prosecution, the case worker will:

• Generate the Federal Prosecution Referral Sheet from POSSE;

• Contact the custodial parent to complete part of the Referral Sheet;

• Gather documentation required by the USAO that may include but is not limited to:

  • Certified copies of the original child support order, any modifications, and all contempt orders or Order to Show Cause orders; 

  • Proof of service in the case of a default order; 

  • All administrative orders; 

  • A District Court docket sheet; and

  • All pertinent correspondence to and from the obligor concerning the obligation;

• Complete the Referral Sheet;

• Send to the Federal Prosecution Liaison at the State CSP Office; and

• Update the custodial parent and POSSE with the federal prosecution referral.

Submission to USAO

Upon receipt of the District CSP Office federal prosecution referral, the Federal Prosecution Liaison in the State CSP Office will:

• Prepare an investigation file for the USAO consisting of 5 categories;

  • Documents;

  • Non-custodial parent’s ability to pay;

  • Custodial parent and child(ren) information;

  • Miscellaneous information; and

  • Case notes;

• Request a driver’s license photo if a photo is not provided by the District CSP Office; 

• Run a full credit report;

• Generate two POSSE reports – payments and arrears; 

• Gather wage information from FPLS or POSSE FCR screens; 

• Submit the investigation file to the USAO; and 

• Update POSSE with a case note showing referral for federal prosecution.

Once the case is submitted to PSOC, the Federal Prosecution Liaison in the State CSP Office will provide any information requested by PSOC and update the District CSP Office with any information provided by PSOC.  

Federal Criminal Prosecution Process

The process may take as long as 8 months to successfully prosecute and sentence a non-custodial parent for violating federal law.

USAO Review

When the USAO receives a federal prosecution referral from the State CSP Office, the USAO requests IRS documentation (e.g. tax returns, W-2s, and 1099s).  When the USAO receives the requested tax information, the USAO reviews the tax information in conjunction with the investigation file provided by the State CSP Office to ensure that the USAO can prove beyond a reasonable doubt a violation of the federal statute.

If the case does not meet the USAO requirements, the USAO will destroy the file and notify the State CSP Office.  The Federal Prosecution Liaison in the State CSP Office will update the District CSP Office, and the case worker will send a letter to the custodial parent notifying him or her that the USAO declined to accept the child support case for federal prosecution.

Prosecution of CSRA Cases

If the USAO believes there is enough evidence to proceed, the USAO will:

• • Inform the Federal Prosecution Liaison in the State CSP Office that the USAO is accepting the case;

  • Prepare an information (misdemeanor) and a supporting affidavit charging the non-custodial parent with a violation of the appropriate federal statute; and

  • File the charging document, affidavit and arrest warrant with the United States District Court for Wyoming.

The federal court will issue an arrest warrant for the non-custodial parent.  Due to concerns with officer safety and the risk that the non-custodial parent may flee to avoid arrest, the USAO will not inform the case worker or Federal Prosecution Liaison in the State CSP Office of an outstanding arrest warrant for the non-custodial parent.

Once the non-custodial parent is arrested, he or she will be taken to the nearest federal magistrate judge for an initial appearance where the magistrate judge will set a bond.  Additionally, the non-custodial parent may be required to appear for an identity hearing, or provide additional identifying information, so that the federal magistrate judge in the district where the non-custodial parent was arrested is assured the non-custodial parent is the correct person arrested.  

At the arraignment, the non-custodial parent may plead guilty or not guilty.  If the non-custodial parent pleads not guilty, a trial will be set within 70 days of the arraignment.  At trial, the USAO will typically call the following witnesses:

• Custodial parent;

• Federal Prosecution Liaison from the State CSP Office; 

• The District CSP Office case worker;

• IRS business records custodian; and

• Any other individuals (e.g. employer or co-workers) to establish an ability to pay.

In the appropriate case, the USAO may seek a grand jury indictment for a felony offense or file a complaint with a supporting affidavit.  In all felony cases, the USAO shall generally seek a grand jury indictment even if a complaint has been filed.

Possible Sentencing Options

The USAO for Wyoming has developed an informal policy concerning sentence recommendations for most CSRA violations.  This ensures that similarly situated CRSA violations, absent egregious or unusual circumstances, are treated similarly at the time of sentencing.  The USAO may recommend the following sentence to the federal court:

• 5-year unsupervised probation subject to a number of terms and conditions rather than incarceration;

• Payment of current support and an agreed-upon arrearage payment; and

• That the non-custodial parent will maintain steady employment and request a wage withholding for current support and arrears.

Enforcement of Federal Judgment

Federal Judgment

Once the USAO receives the federal judgment from the federal court, the USAO will send a copy of the judgment to the Federal Prosecution Liaison at the State CSP Office.  The Federal Prosecution Liaison will initially and on an on-going basis:

• Send a copy of the federal judgment to the District CSP Office and the Clerk of District Court;

• Update POSSE with the federal prosecution information; however, the federal judgment is NEVER entered on POSSE as a judgment1; 

• Add the case to the Project Save Our Children (PSOC) spreadsheet; 

• Send the judgment and any payment receipts to the Financial Litigation Unit (FLU) within the USAO; 

• Update the FLU with any new locate information; and 

• Update the State CSP Office tracking sheets.

Federal Restitution vs. State Civil Order/Judgment

The USAO has the sole authority to collect on a federal judgment; however, this does not prevent the Wyoming CSP from collecting child support including current support, post-federal judgment arrears (e.g. new arrears) or past arrears (e.g. those arrears that may be included in the federal restitution amount) utilizing civil enforcement tools as described in Chapter 9 Enforcement.

The USAO/FLU and the Wyoming CSP will work closely in a cooperative relationship to ensure coordination of enforcement actions when both entities are trying to collect child support from the non-custodial parent.  It is important to avoid double collection for the same amounts through both federal restitution and state civil collection.

Settlements

The USAO has no statutory authority to reduce or amend a restitution order finalized in a federal judgment and neither does the State of Wyoming.  Therefore, if a non-custodial parent makes a settlement offer to the District CSP Office and there is an outstanding federal judgment, the District CSP Office will contact the Federal Prosecution Liaison in the State CSP Office.  On a case-by-case basis, the District CSP Office, Federal Prosecution Liaison, and USAO will review settlement offers to determine whether to submit the proposed settlement to the Federal Court for approval.

Cross Reference

None

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1Only civil judgments from District Courts are loaded into POSSE.