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United States v. Venturella - 391 F.3d 120 (2d Cir. 2004)


Although "resides" usually denotes residence, it may also denote domicile. For the most part, "residence" and "domicile" are two perfectly distinct things. Residence is the act or fact of living in a given place for some time, while domicile is a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere. Domiciliaries are those who have a fixed, permanent and principal home and to which, whenever absent, they always intend to return. At the opposite end of the scale are transients, those persons who are just passing through a locality. In between these notions of permanence and transience are residents. Residency means an established abode, for personal or business reasons, permanent for a time. A resident is so determined from the physical fact of that person's living in a particular place. One may have more than one residence in different parts of this country or the world, but a person may have only one domicile. A person may be a resident of one locality, but be domiciled in another. 


After her divorce, defendant Jo-Ann Venturella's husband was granted custody of their two sons and defendant was ordered to pay $ 450 in child support every two weeks. Rather than have her paycheck garnished, defendant went on a leave of absence from her teaching job in New York and moved to Florida, where she obtained her teaching positions. She was later convicted in federal district court of knowingly and willfully failing to pay a past due support obligation greater than $ 10,000 with respect to minor children "residing" in another state, in violation of 18 U.S.C.S. § 228(a)(3). On appeal, defendant argued that the term "resides" denoted "domicile," and that the Government could not establish that she resided in Florida without proving she intended to live there permanently. 


Did the term "reside" denote "domicile" for purposes of 18 U.S.C.S. § 228(a)(3)?




The appellate court affirmed defendant's conviction. The court held that "resides" in § 228(a)(3) should be interpreted to mean the same as that term did in 18 U.S.C.S. § 922, the only other statute that used the term to define a crime, and therefore it had no element of an intent to remain. Further, requiring the Government to prove domicile could produce absurd results. 18 U.S.C.S. § 228's legislative history also indicated that it was not intended for the prosecution to prove a defendant's domicile. The district court's failure to hold § 228 unconstitutionally vague was not plain error.

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