                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1449
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the Southern
Otho Leonard Rater,                      * District of Iowa.
                                         *
             Appellant.                  *         [UNPUBLISHED]
                                    ___________

                              Submitted: December 22, 2003

                                   Filed: April 30, 2004
                                    ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

        After a bench trial, the district court1 convicted Otho Rater of five counts of
willfully failing to pay child support, in violation of 18 U.S.C. § 228(a)(3), and
sentenced him to concurrent terms of 15 months imprisonment and one year
supervised release. On appeal, Mr. Rater’s counsel has moved to withdraw, and has
filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing the government
failed to prove beyond a reasonable doubt that Mr. Rater acted willfully in failing to

      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
pay his support. Mr. Rater has not filed a pro se supplemental brief, but he has
moved separately to stay execution of his sentence, or for its early termination.

       The testimony and stipulated facts, viewed most favorably to the verdict, show
that Mr. Rater worked only sporadically and turned down or left jobs despite his
substantial past-due support obligations, and that Mr. Rater failed to seek
employment commensurate with his capabilities; his only regular voluntary payments
during the charged time period were de minimis, and were made to avoid further
orders of contempt in state court. Also, he had plotted with his girlfriend to disguise
assets. We believe this evidence was sufficient to permit a reasonable trier of fact to
conclude beyond a reasonable doubt that Mr. Rater acted willfully in violation of
section 228(a)(3). See United States v. Robinson, 217 F.3d 560, 564 (8th Cir.)
(standard of review), cert. denied, 531 U.S. 999 (2000); cf. United States v. Harrison,
188 F.3d 985, 987 (8th Cir. 1999) (defendant must have had ability to pay before he
can be found to have failed willfully to pay child support); United States v. Ballek,
170 F.3d 871, 873, 875 (9th Cir.) (absentee parent cannot avoid child-support
obligation by refusing to accept gainful employment; government need not prove
parent’s failure to accept employment was caused by desire to withhold payments or
any similar evil motive), cert. denied, 528 U.S. 853 (1999).

      Mr. Rater argued on appeal that his convictions were multiplicitous because
the facts that formed the basis for them would support a conviction for a single
offense only. See United States v. Street, 66 F.3d 969, 975 (8th Cir. 1995). Mr.
Rater, however, did not raise this issue in the trial court, and neither he nor his
counsel submitted a brief on the matter despite our direction to do so. We therefore
decline to address the issue.

      We have carefully reviewed the record under Penson v. Ohio, 488 U.S. 75, 80
(1988), and have found no nonfrivolous issues. Accordingly, we grant counsel’s



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motion to withdraw, and we affirm. We deny the pending pro se motions, and we
deny the government’s pending motion as moot.
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