                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2007

USA v. Kukafka
Precedential or Non-Precedential: Precedential

Docket No. 05-1955




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                                               PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT




                           No. 05-1955




                UNITED STATES OF AMERICA

                                v.

                         IRA KUKAFKA,

                            Appellant




          On Appeal from the United States District Court
                    for the District of New Jersey
                       (D.C. No. 04-cr-00282)
           District Judge: Honorable Anne E. Thompson




          Submitted pursuant to Third Circuit LAR 34.1(a)
                        December 13, 2006


 Before: FUENTES and VAN ANTWERPEN,* Circuit Judges,
             and PADOVA,** District Judge.


      *
        Judge Van Antwerpen assumed senior status on October
23, 2006.
      **
        The Honorable John R. Padova, District Judge for the
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
                     (Filed: March 6, 2007)
George S. Leone
Sabrina G. Comizzoli
Mark E. Coyne
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

       Attorneys for Appellee

David E. Schafer
Office of the Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609

       Attorney for Appellant




                  OPINION OF THE COURT


FUENTES, Circuit Judge.

        In 1996, after fourteen years of marriage, Ira Kukafka
abandoned his wife and four children in New Jersey and fled to
Florida where he shared an apartment with his mother. Eight years
later, owing over $125,000 in outstanding child support, Kukafka
was indicted by a New Jersey Grand Jury for willful failure to pay
his support obligation in violation of the federal Child Support
Recovery Act, 18 U.S.C. § 228. Kukafka was convicted and
sentenced to two years in prison and $145,337 in restitution. On
appeal, Kukafka’s primary challenge is that, following the Supreme
Court’s decision in United States v. Morrison, 529 U.S. 598
(2000), the Child Support Recovery Act exceeds Congress’s power
under the Commerce Clause. He also contends that a provision in

                                -2-
his divorce judgment requiring him to obtain an ecclesiastical
divorce violates the Free Exercise Clause of the First Amendment.
Further, he claims that the District Court’s jury instruction on
willfulness improperly stated the government’s burden of proof.
We reject these contentions and will affirm the judgment of
conviction.

                          I. Background

       Ira Kukafka is a trained electrical engineer, with an
undergraduate degree from the City University of New York and
a Master’s degree from Fairleigh Dickinson University. He also
has several credits toward a PhD at the New Jersey Institute of
Technology. During the 1970’s and 1980’s, Kukafka worked as an
engineer for AT&T and then for the United States Army. In 1982,
he married Esther Bailey and moved to a house in Oakhurst, New
Jersey. The couple have four children.

        In 1984, Kukafka left engineering to go into the real estate
business with his father-in-law, Harry Bailey. After ten years, and
facing increasing financial difficulty, the partnership dissolved
because of a bad real estate venture. The bank foreclosed on
Kukafka’s house, which had been used as collateral for part of the
deal, forcing him and his family to move in with his in-laws. Over
the next two years, financial difficulties and family pressures led to
problems in Kukafka’s marriage. He worked only intermittently,
and two of his children were diagnosed with serious illnesses—one
with retinal blastoma resulting in the loss of an eye, and the other
with a congenital stomach disorder and a severe developmental
disability. In mid-1996, after a fight with his father-in-law,
Kukafka left his family to stay with his sister in New York. Soon
thereafter he moved to Florida and, from that time forward, had
only sporadic contact with his children.

       In 1997, Esther Bailey commenced divorce proceedings
against her husband. Kukafka did not contest the divorce and the
Superior Court of New Jersey entered a default Judgment of
Divorce (“Divorce Decree”). Among other things, the Divorce
Decree required Kukafka to pay $400 per week in child support,
$350 per week in alimony, for an ecclesiastical divorce, and to

                                 -3-
maintain health insurance for his children.

        From 1998 to 2004, Kukafka consistently failed to make
child support payments. He made no payments in 2004, the year
this action was commenced. During the period he was in default,
Kukafka was living with his mother and had no rent or basic living
expenses. Although he applied for various positions, his only
employment was one week of work in December 2000, for which
he earned about $2,900. Kukafka also earned sporadic income
from an assortment of odd jobs, such as providing driving service
to the elderly. Around this time, Kukafka was also diagnosed with
depression and diabetes.

       By August 2004, Kukafka had paid only $1,657 in child
support and owed $127,343 in outstanding payments. Except for
$157 in 2001, every payment Kukafka made was pursuant to court
order following contempt proceedings in Florida.1 These payments
were the minimum amount needed to avoid being sent to jail for
ninety days. During the contempt proceedings, Kukafka claimed,
among other things: that he should not have to pay child support;
that his ex-wife earned enough on her own to support their
children; that he was unable to obtain suitable employment; that he
was awaiting returns on several real estate ventures; that he was
pursuing needed licensing and education; and that his illnesses
prevented him from finding work. He was repeatedly admonished
to make efforts to find work and to pay the $400 per week
obligation.

      Ultimately, a grand jury indicted Kukafka on two counts of
knowing failure to pay child support. Count I charged Kukafka



       1
         In 1997, Esther Bailey began receiving welfare checks in
exchange for assigning her support collection rights to the State.
After she made this assignment, New Jersey requested that Florida
enforce Kukafka’s child support obligation and seek collection
from Kukafka. Under the Uniform Reciprocal Enforcement of
Support Act (“URESA”), and the more recent Uniform Interstate
Family Support Act (“UIFSA”), Florida agreed to enforce the child
support obligation.

                                -4-
with willful failure to make support payments from December 1997
until June 23, 1998 in violation of 18 U.S.C. § 228(a)(1). Count II
charged him with willful failure to provide support from June 24,
1998 until August 20, 2004 in violation of 18 U.S.C. § 228(a)(3).
After a two-week trial, a jury found Kukafka guilty of both counts
and made a supplementary finding that he had violated one or more
specific court orders. The District Court sentenced him to two
years in prison, one year of supervised release, $145,337 in
restitution, and a $200 special assessment. This appeal followed.
We have carefully reviewed the numerous issues Kukafka raises.
Of these, the four relating to the Child Support Recovery Act
warrant discussion. His other arguments are without merit and
require no further discussion.

                          II. Discussion

        The Child Support Recovery Act of 1992, as amended by
the Deadbeat Parents Punishment Act of 1998, Pub. L. No. 105-
187, 112 Stat. 618 (1998) (hereinafter “the Deadbeat Parents Act,”
or “the Act”),2 makes it a federal crime to willfully fail to pay a
child support obligation to a child in another state.3 The Act was
intended by Congress to strengthen state efforts to enforce child
support obligations against parents who flee across state lines.
Specifically, the Act “addresses the growing problem of interstate
enforcement of child support by punishing certain persons who
intentionally fail to pay their child support obligations.” See H.R.
Rep. No. 102-771, at 4 (1992). See generally United States v.
Kramer, 225 F.3d 847, 856 (7th Cir. 2000) (discussing the
legislative history of the Child Support Recovery Act). Congress
intended its 1998 amendments to further enhance these efforts by


       2
        The “operative language” of the statute remained the same,
and we rely on cases from both before and after 1998. United
States v. Bigford, 365 F.3d 859, 863-64 n.1 (10th Cir. 2004).
       3
        The Act punishes “any person . . . who willfully fails to
pay a support obligation with respect to a child who resides in
another State,” or “any person who . . . travels in interstate or
foreign commerce with the intent to evade a support obligation.”
18 U.S.C. § 228(a).

                                -5-
making certain violations punishable as felonies. See 144 Cong.
Rec. S5734-02 (1998) (statements of U.S. Senators discussing need
for more serious punishment for failure to pay child support).

       Kukafka was convicted under §§ 228(a)(1) and (a)(3).
Under § 228(a)(1), if a child support obligation remains unpaid for
longer than one year, or is greater than $5000, the offender is
subject to six months’ imprisonment. 18 U.S.C. § 228(a)(1), (c)(1).
Under § 228(a)(3), if the child support obligation remains unpaid
for longer than two years, or is greater than $10,000, the offender
is subject to two years’ imprisonment. 18 U.S.C. § 228(a)(3),
(c)(2). By their terms, these provisions apply only to “interstate”
support obligations.

       The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). See United States v. Tykarsky, 446 F.3d 458, 464 (3d Cir.
2006).

       A.     Commerce Clause

       Kukafka argues that the Deadbeat Parents Act exceeds the
scope of Congress’s power under the Commerce Clause and
violates the Tenth Amendment of the U.S. Constitution. Because
he challenges the constitutionality of the Act, we exercise plenary
review over the District Court’s assertion of federal jurisdiction.
United States v. Singletary, 268 F.3d 196, 198-99 (3d Cir. 2001).

        In United States v. Lopez, 514 U.S. 549 (1995), the
Supreme Court held that the Gun-Free School Zones Act of 1990
exceeded Congress’s authority under the Commerce Clause. The
Court identified “three broad categories of activity” that Congress
may regulate: (1) “the use of the channels of interstate commerce,”
(2) “the instrumentalities of interstate commerce, or persons or
things in interstate commerce,” and (3) “those activities that
substantially affect interstate commerce.” Id. at 558-59. Focusing
on the third category, the Court concluded that “possession of a
gun in a local school zone is in no sense an economic activity that
might, through repetition elsewhere, substantially affect any sort of
interstate commerce.” Id. at 567.

                                 -6-
       In United States v. Parker, 108 F.3d 28 (3d Cir. 1997), we
considered Lopez, as well as our own Commerce Clause precedent,
and held that the Deadbeat Parents Act was a constitutional
exercise of Congress’s power. We explained that:

       Failure to make required payments gives rise to a
       debt which implicates economic activity. This is an
       instance where “local activities . . . are . . . part of a
       national problem with a substantial impact upon
       interstate commerce.” It is significant that the
       legislative history underlying the Act establishes that
       state efforts have been inadequate to ensure that
       payments owed are actually made and that, as a
       result, annual obligations covered by the Act total
       billions of dollars. Finally, unlike the statute the
       Court reviewed in Lopez, the [Deadbeat Parents Act]
       involves an unbroken chain of interstate events
       which begins when one parent crosses state lines and
       ends with interstate collection efforts.

Id. at 31 (quoting United States v. Bishop, 66 F.3d 569, 584 (3d
Cir. 1995)). Based on this reasoning, we recognized that, although
failure to pay child support might be a local activity, it is part of a
national economic problem that substantially affects interstate
commerce. Consequently, we concluded that the statute “falls
within the scope of congressional authority under the Commerce
Clause.” Id. at 30.

        Kukafka contends that Parker was effectively overruled by
United States v. Morrison, 529 U.S. 598 (2000). In Morrison,
echoing “both the holding of Lopez and its underlying reasoning,”
the Supreme Court struck down portions of the Violence Against
Women Act (“VAWA”). United States v. Whited, 311 F.3d 259,
266 (3d Cir. 2002). In concluding VAWA was unconstitutional,
the Court emphasized that intrastate, “[g]ender-motivated crimes
of violence are not, in any sense of the phrase, economic activity.”
Morrison, 529 U.S. at 613. Although it did not adopt a categorical
rule, the Court reasoned that Congress could not regulate non-
economic conduct “based solely on that conduct’s aggregate effect
on interstate commerce.” Id. at 617; see also Whited, 311 F.3d at

                                  -7-
266.

        Focusing on the third Lopez category, “the Court provided
a framework to determine whether a law regulates intrastate
activity that has a substantial effect on interstate commerce.”
United States v. Gregg, 226 F.3d 253, 262 (3d Cir. 2000) (citing
Morrison, 529 U.S. at 609-13). Under this framework, a court
should consider: (1) “the economic nature of the regulated
activity;” (2) “a jurisdictional element limiting the reach of the law
to a discrete set of activities that additionally has an explicit
connection with or effect on interstate commerce;” (3) “express
congressional findings regarding the effects upon interstate
commerce of the activity in question;” and (4) “the link between
the regulated activity and interstate commerce.” Gregg, 226 F.3d
at 262. In assessing these factors, our task is to determine whether
a “rational basis” exists for concluding that the regulated activities,
taken in the aggregate, substantially affect interstate commerce.
See Gonzales v. Raich, 545 U.S. 1, 22 (2005).

        With this in mind, the Deadbeat Parents Act clearly
regulates an activity having a substantial effect on interstate
commerce. First, the activity regulated under the Act is
commercial, or economic, in nature. As characterized in Parker,
failure to fulfill a financial obligation “gives rise to a debt which
implicates economic activity.” 108 F.3d at 31. Second, by
regulating only obligations to out-of-state children, the Act
contains an explicit jurisdictional element that limits its reach to
interstate transactions. Id. at 30-31. Third, the Act was passed
after express legislative findings about the effect of unpaid child
support on interstate commerce. Indeed, when Congress passed the
Act, the amount of unpaid child support had reached into the
billions of dollars and amounted to a national problem adversely
affecting interstate commerce. See H.R. Rep. No. 102-771, at 4-6
(1992) (discussing economic impact of failure to pay interstate
child support). This same legislative history highlights the “link”
between the national problem addressed by Congress and the
legislation it passed. See Gregg, 226 F.3d at 262-63.

       We therefore have no trouble determining that a rational
basis exists for concluding that failure to make interstate child

                                  -8-
support payments substantially affects interstate commerce.
Accordingly, even after Morrison, the Deadbeat Parents Act falls
within Congress’s power under the third Lopez category.

        The constitutionality of the Deadbeat Parents Act is
unaffected by Morrison for the additional reason that the Act falls
under the second Lopez category, which was not addressed by
Morrison. See United States v. MacEwan, 445 F.3d 237, 244-45
(3d Cir. 2006). Under the second category, Congress may regulate
“persons or things in interstate commerce.” The child support
payments regulated by the Deadbeat Parents Act are “things,”
which are interstate in nature because they must normally be
transmitted through instrumentalities of interstate commerce “by
mail, by wire, or by electronic transfer.” Parker, 108 F.3d at 31.
Moreover, the “persons” targeted by the Act are those who, like
Kukafka, intentionally avoid payment by traveling across state
lines. See H.R. Rep. No. 102-771, at 5 (1992) (explaining that
“chances for successfully avoiding such payments increase
markedly when [parents] cross state lines.”). By targeting
interstate child support obligations alone, Congress has ensured the
Act regulates only those payments in interstate commerce and those
persons who avoid their obligations by traveling across state lines.

        The Act covers “persons or things” in interstate commerce,
even though it punishes only those who have “willfully fail[ed] to
pay a support obligation.” 28 U.S.C. § 228(a) (emphasis added).
That is, by criminalizing an individual’s willful failure to pay, the
Deadbeat Parents Act encourages the payment of interstate debts.
See H.R. Rep. No. 102-771, at 6 (stating that Act promotes
payment by “taking the incentive out of moving interstate to avoid
payment.”). In this way, the Act prevents “frustration of an
interstate commercial transaction that otherwise would have
occurred absent the defendant’s dereliction.” United States v.
Bailey, 115 F.3d 1222, 1229 (5th Cir. 1997). Such discouragement
of willful efforts to frustrate interstate commerce is a valid exercise
of congressional power under the Commerce Clause. See United
States v. Sage, 92 F.3d 101, 105-06 (2d Cir. 1996) (“If Congress
can take measures under the Commerce Clause to foster potential
interstate commerce, it surely has power to prevent the frustration
of an obligation to engage in commerce.”); United States v. Faasse,

                                  -9-
265 F.3d 475, 486-87 (6th Cir. 2001).

       We therefore conclude that the Deadbeat Parents Act
properly regulates “persons or things in interstate commerce.” See
United States v. King, 276 F.3d 109, 113 (2d Cir. 2002) (finding
the Act regulates a “thing in interstate commerce” even after
Morrison); United States v. Klinzing, 315 F.3d 803, 806-08 (7th
Cir. 2003) (same).4

       In sum, we reject Kukafka’s argument that Morrison
overrules our conclusion in Parker that the Act is constitutional.
Instead, we conclude that the Deadbeat Parents Act is a
constitutional exercise of congressional power under the second
and third categories of Lopez.5


       4
           In Parker we did not explicitly place the Deadbeat Parents
Act into Lopez’s second category. Nevertheless, the reasoning of
the cases adopted by Parker makes clear that, under the second
Lopez category, the Act regulates “things in interstate commerce.”
See Sage, 92 F.3d at 107 (“[The Act] may fairly be considered a
proper exercise of Congress’s power under the second category .
. . .”) (emphasis added); United States v. Mussari, 95 F.3d 787, 790
(9th Cir. 1996) (“The obligation of a parent in one state to provide
support for a child in a different state is . . . a thing in interstate
commerce and falls within the power of Congress to regulate.”)
(emphasis added); United States v. Hampshire, 95 F.3d 999, 1003
(10th Cir. 1996) (“Because the [Deadbeat Parents Act] regulates a
court-ordered obligation to pay money in interstate commerce . . .,
we conclude that Congress constitutionally exercised the power
bestowed upon it by the Commerce Clause . . . .”) (emphasis
added).
       5
          Because the Deadbeat Parents Act is a proper exercise of
Congress’s power under the Commerce Clause, Kukafka’s Tenth
Amendment challenge must fail as well. See Parker, 108 F.3d at
31 (“If Congress acts under one of its enumerated powers—here its
power under the Commerce Clause—there can be no violation of
the Tenth Amendment.”) (quoting Mussari, 95 F.3d at 791).
Notably, the Act does not attempt to regulate matters traditionally
left to the states, as it does not permit a federal court “to revise the

                                 -10-
       B.     Collateral Challenge

       Kukafka next argues that his indictment must be dismissed
because the Divorce Decree containing his child support obligation
includes a requirement that he obtain an ecclesiastical dissolution
of marriage—specifically, a “Get”. 6 He contends that this
provision interferes with his free exercise of religion under the
First Amendment of the Constitution. The District Court ruled that
Kukafka could not attack the indictment by collaterally challenging
the Divorce Decree. Our review is plenary. Singletary, 268 F.3d
at 198-99.

       The Deadbeat Parents Act requires that a defendant be
subject to a “support obligation,” which is defined as:

       any amount determined under a court order or an
       order of an administrative process pursuant to the
       law of a State or of an Indian tribe to be due from a
       person for the support and maintenance of a child or
       of a child and the parent with whom the child is
       living.

18 U.S.C. § 228(f)(3). According to this plain language, Kukafka
is subject to a state court order obligating him to pay for the
“support and maintenance of a child.” Kukafka does not contest
that he is subject to such an order.

       Rather, Kukafka challenges the provision in that order
requiring him to pay for a Get. He argues that, because of the
unconstitutionality of the Get provision, the entire Divorce Decree,
which contains the support obligation, must be invalid. Because
the decree is invalid, he claims, his indictment should be dismissed.


domestic relationship adjudicated by the State courts or to modify
any part of a State court decree.” Sage, 92 F.3d at 107; see also
United States v. Black, 125 F.3d 454, 462-63 (7th Cir. 1997).
       6
         A “Get” is a divorce under Jewish law—or a document a
rabbi signs to grant a divorce. Black’s Law Dictionary (8th ed.
2004).

                                -11-
        We see no merit to this collateral challenge. Regardless of
the constitutionality of the Get provision, Kukafka’s conviction is
based upon his support obligation, which is wholly unrelated to and
plainly separate from any obligation that he pay for the Get.
Clearly, a federal prosecution under the Deadbeat Parents Act is
not the appropriate arena in which to litigate the terms of
Kukafka’s divorce. To sustain a conviction, the Act does not
require a federal court to ensure the validity of each aspect of the
underlying court order containing the support obligation. See
United States v. Brand, 163 F.3d 1268, 1275-76 (11th Cir. 1998);
cf. United States v. Leuschen, 395 F.3d 155, 159 (3d Cir. 2005)
(“[18 U.S.C. §] 922(g)(1) prohibited Leuschen from possessing a
firearm on account of his 1989 state conviction, irrespective of the
validity of that conviction.”).7 If it did, a federal prosecution under
the Act would become an avenue for re-litigating substantive issues
of state family law. Congress certainly did not intend to entangle
the federal government in such matters that are traditionally the
province of state courts. See United States v. Molak, 276 F.3d 45,
50 (1st Cir. 2002) (“Domestic relations and family matters are, in
the first instance, matters of state concern, and it would be odd for
Congress to second-guess the determinations of the state courts as
to the appropriate scope of child support obligations.”) (citation
omitted); Bigford, 365 F.3d at 869 (“There is a strong common law
presumption that the federal government should not become
involved in determinations of substantive issues of family law.”).

       In sum, the constitutionality of the Get bears no relevant
relationship to the indictment in this case, and we see no reason to
indulge Kukafka’s effort to litigate this unrelated issue.
Accordingly, we reject his collateral challenge to prosecution under



       7
         Some courts have permitted challenges to the underlying
support obligation based on the state court’s lack of personal
jurisdiction. See Bigford, 365 F.3d at 872 (“[The Act] allows a
defendant to challenge a default child support order on the basis
that the state court that rendered the judgment lacked personal
jurisdiction over the defendant.”); Kramer, 225 F.3d at 857 (“[A]
defendant may challenge on collateral attack a default judgment
that is entered without personal jurisdiction.”).

                                 -12-
the Deadbeat Parents Act.8

        Our conclusion is supported by the fact that Kukafka has
failed to present any evidence that he ever contested payment of the
Get in state court proceedings. Indeed, as the government points
out, and Kukafka does not dispute, he has already paid for his wife
to obtain the Get. That payment, the only payment in this case that
he willingly made, provides no basis for a subsequent collateral
challenge to his federal prosecution under the Deadbeat Parents
Act.

       C.     Jury Charge

       Kukafka argues that the District Court erred in instructing
the jury on the willfulness element of the Deadbeat Parents Act.
Specifically, he objects to the District Court’s instruction that:

               [i]n determining whether the defendant acted
       willfully, you must first find that the defendant had
       the ability to pay the child support.
               ...
               This element of the offense is satisfied if you
       find that the defendant had the ability to pay any part
       of his child support, even if he did not have the
       entire amount which he was ordered to pay.

(App. at 1018.) Kukafka argues that the instruction lowered the
government’s burden of proof by allowing the jury to find a willful
violation “merely by determining that [he] had a spare quarter in
his pocket one day in the year . . . .” (Appellant’s Br. at 22.)
Although Kukafka objected to this instruction before the District



       8
        Notably, every court of appeals that has addressed merits-
based collateral challenges to prosecutions under the Deadbeat
Parents Act has reached the same conclusion. See United States v.
Kerley, 416 F.3d 176, 178 (2d Cir. 2005) (“Every circuit that has
addressed the issue has stated that defendants in [Deadbeat Parents
Act] prosecutions cannot collaterally challenge the substantive
merits of the underlying support order.”).

                                -13-
Court, he did so on a different basis;9 accordingly, our review is for
plain error. United States v. Zehrbach, 47 F.3d 1252, 1260 (3d Cir.
1995). In our review, we consider the totality of the instructions on
willfulness, not focusing on a particular paragraph in isolation. See
United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995).

        The “ability to pay” is not an element of a Deadbeat Parents
Act offense. Instead, “inability to pay . . . provides a defense to
liability . . . and the defendant is free to present evidence that . . .
his income was not sufficient, after meeting his basic subsistence
needs, to enable him to pay any portion of the support obligation.”
United States v. Mattice, 186 F.3d 219, 228-29 (2d Cir. 1999).
Kukafka presented such a defense, essentially asking the jury to
find that he did not act willfully because he was unable to pay.
Accordingly, the District Court properly instructed the jury that
“[i]n determining whether the defendant acted willfully, you must
first find that the defendant had the ability to pay the child
support.” This instruction conveyed to the jury that it could not
find willfulness unless it had determined that Kukafka could pay
the support obligation. See United States v. Smith, 278 F.3d 33, 40
(1st Cir. 2002) (“In the context of the record as a whole, the
instruction directed the jury to determine that Smith had the ability
to pay before it could find that he willfully failed to pay.”).




       9
          Kukafka argued to the District Court that it should have
instructed the jury on the Deadbeat Parents Act’s “rebuttable
presumption,” which the District Court did not do. See 18 U.S.C.
§ 228(b) (“The existence of a support obligation that was in effect
for the time period charged in the indictment . . . creates a
rebuttable presumption that the obligor has the ability to pay the
support obligation for that time period.”). He does not, however,
raise this issue on appeal. Accordingly, we only address Kukafka’s
contention that the District Court erroneously instructed the jury on
his ability to pay. We note that, to the extent that the District Court
erred by not instructing the jury on the rebuttable presumption,
such error would be harmless. It could only have benefitted
Kukafka to not have to overcome a rebuttable presumption that he
could pay the obligation.

                                 -14-
       Kukafka’s contention that the instruction misled the jury is
contradicted by the record. The jury instructions plainly show that
the District Court told the jury that Kukafka’s refusal to pay his
support obligation had to be “voluntary and intentional,” and that
Kukafka had to be aware of “the unlawful nature of his acts.”
Moreover, the Court explained that Kukafka had a right to keep
enough money to subsist and to meet his basic personal needs. The
Court did not invite the jury to convict Kukafka if it believed he
had some spare money on a given day. Accordingly, the District
Court’s instruction was not erroneous.

                     III. Kukafka’s Sentence

        Finally, Kukafka contends, and the government agrees, that
the District Court mistakenly imposed a two-year concurrent
sentence with a $100 special assessment for Count I of the
indictment. Count I charged a violation of 18 U.S.C. § 228(a)(1),
which carries a maximum prison sentence of six months and is a
Class B misdemeanor. See 18 U.S.C. § 228(c)(1); 18 U.S.C. §
3559(a)(7). A Class B misdemeanor carries a special assessment
of $10. See 18 U.S.C. § 3013(a)(1)(A)(ii). There is no challenge
to the two-year sentence imposed on Count II. Therefore, we will
remand the case to the District Court for the sole and limited
purpose of correcting the sentence regarding Count I to reflect the
applicable statutory provisions. See United States v. Dixon, 308
F.3d 229, 236 (3d Cir. 2002); 18 U.S.C. § 3742(f)(1).

                          IV. Conclusion

       For the foregoing reasons, we will affirm the judgment of
conviction, and will remand the case to the District Court to correct
the sentence on Count I only.




                                -15-
