09/05/96 UNITED STATES OF AMERICA v. ALLAN A. MUSSARI,
BLUE BOOK CITATION FORM: 1996.C09.677 (http://www.versuslaw.com)
[Editor's note: footnotes (if any) trail the opinion]
FOR PUBLICATION
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] UNITED STATES OF AMERICA,
[3] Plaintiff-Appellant,
v.
[4] ALLAN A. MUSSARI,
[5] Defendant-Appellee.
[6] UNITED STATES OF AMERICA,
[7] Plaintiff-Appellant,
v.
[8] DONALD W. SCHROEDER,
[9] Defendant-Appellee.
[10] No. 95-10479
[11] D.C. No. CR-95-00009-PGR
[12] No. 95-10513
[13] D.C. No. CR-95-00010-1-PGR
[14] OPINION
[15] Appeals from the United States District Court for the District
of Arizona
[16] Paul G. Rosenblatt, District Judge, Presiding
[17] Argued and Submitted August 12, 1996 -- San Francisco,
California
[18] Filed September 5, 1996
[19] Before: John T. Noonan, Jr. and David R. Thompson, Circuit
Judges, David Warner Hagen, *fn* District Judge.
[20] Opinion by Judge Noonan
[21] OPINION
[22] NOONAN, Circuit Judge:
[23] The United States appeals the dismissal of indictments charging
Donald W. Schroeder and Allan A. Mussari with violations of the Child
Support and Recovery Act of 1992, 18 U.S.C. S 228 (the CSRA). The cases,
which have been consolidated on this appeal, present the question of
whether Congress has power under the Commerce Clause to enact the
statute. In thoughtful opinions the district court held that it did not.
We come to the contrary conclusion and accordingly reverse and remand.
[24] THE STATUTE
[25] The text of the Child Support Recovery Act of 1992 states:
[26] (a) Offense.--Whoever willfully fails to pay a past due support
obligation with respect to a child who resides in another State shall be
punished as provided in subsection (b)
[27] (b) Punishment.--The punishment for an offense under this
section is--
[28] (1) in the case of a first offense under this section, a fine
under this title, imprisonment for not more than 6 months, or both; and
[29] (2) in any other case, a fine under this title, imprisonment for
not more than 2 years, or both.
[30] (c) Restitution.-- As used in this section--
[31] (1) the term "past due support obligation" means any amount--
[32] (A) determined under a court order or an order of an
administrative process pursuant to the law of a State 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; and
[33] (B) that has remained unpaid for a period longer than one year,
or is greater than $5,000; and
[34] (2) the term "State" includes the District of Columbia, and any
other possession or territory of the United States.
[35] 18 U.S.C. S 228.
[36] PROCEEDINGS
[37] On January 11, 1995 Mussari was indicted on the charge that from
November 1, 1988 to the present, "while residing in a different state,"
he, "with respect to his two children who reside in the State and
District of Arizona, wilfully and unlawfully failed to pay a past due
support obligation as ordered by the Maricopa County Superior Court,
State of Arizona, which obligation is greater than $5,000.00 and has
remained unpaid for more than one year," in violation of 18 U.S.C. S
228. On the same date Donald Schroeder was charged in the same fashion
with respect to his four children who reside in Arizona while he resided
"in a different state" and had allegedly failed since February 1, 1992
to pay support obligations as ordered by the Maricopa County Superior
Court.
[38] Mussari and Schroeder moved to dismiss the indictments. After
briefing, the district court on July 27, 1995 granted the motions. Its
analysis was as follows: The court presumed that a statute enacted by
Congress is constitutional. The court applied the criteria set out in
United States v. Lopez, _______ U.S. _______, 115 S.Ct. 1624 (1995) to
determine whether Congress had power under the Commerce Clause to enact
this statute. The court held that criminalization of the failure to pay
child support does not qualify as the regulation of the use of the
channels of interstate commerce, nor does it qualify as the regulation
of the instrumentalities of interstate commerce. If the CSRA were to be
upheld it would have to be as a regulation of activities having "a
substantial relation to interstate commerce." United States v.
Schroeder, 894 F. Supp. 360, 364 (D. Ariz. 1995); United States v.
Mussari, 894 F. Supp. 1360, 1364 (D. Ariz. 1995) (citing Lopez, 115 S.
Ct. at 1630).
[39] The court noted that the statute was criminal legislation in an
area in which many states had already enacted criminal statutes to
assure child support, but a number of states had not enacted criminal
statutes. The court observed: "To allow Congress to pass a national
criminal statute addressing this area would allow Congress to usurp the
authority of those States which have chosen specifically not to
criminalize failure to pay child support payments, for whatever reasons.
" 894 F. Supp. at 364; 894 F. Supp. at 1363. The court then addressed
the government's argument that the CSRA was directed at parents who had
deliberately moved interstate to avoid payment and the comment in the
legislative history that the CSRA's purpose was to "impose a criminal
penalty for flight to avoid payment of arrearages in child support. "
H.R. Rep. 771, 102d Cong., 2d Sess 5 (1992). The court observed the
statute did not require flight or any intention to avoid payment, and it
did not even require that the violator have moved into another state.
894 F. Supp. at 365; 894 F. Supp. at 1364.
[40] The court then took note of the argument that the statute was in
support of the federal government's program of Aid to Families with
Dependent Children (AFDC) since support money paid by parents was
subtracted from grants made under the program. The court found the
relationship between failure to pay support and AFDC did not provide a
basis for criminal legislation under the Commerce Clause. 894 F. Supp.
at 365-66; 894 F. Supp. at 1365-66.
[41] The court further noted that actual application of the CSRA
"would force federal courts to review and apply orders of state courts
in violation of principles of federalism and comity." 894 F. Supp. at
368; 894 F. Supp. at 1367. A defendant being prosecuted under the CSRA
could arguably defend the action by challenging the validity of the
underlying state court support order. Either the federal court would be
forced to review the support order or stay the federal pending criminal
case while the support order was collaterally attacked in state court.
[42] Finally, the court considered the defendants' objection that the
CSRA violated the Tenth Amendment. The court held that, because Congress
was exercising a power not enumerated in the Constitution, the CSRA was
a violation of the Tenth Amendment. 894 F. Supp. 368; 894 F. Supp. at
1367-68.
[43] The United States moved for reconsideration. On October 25,
1995, the court denied the motion with an order reviewing the
government's contentions. The court took into account the several
decisions of district courts elsewhere in the country upholding the
constitutionality of the Act and, in particular, noted United States v.
Hopper, 899 F. Supp. 389 (S.D. Ind. 1995). In Hopper the custodial
parent and child had moved out of Indiana while the defendant remained
in Indiana. The court indicated its disagreement with Hopper and took
the case as illustrative of the constitutional defect of the CSRA in its
application to a defendant who had not moved in interstate commerce.
[44] The court also observed that the United States had conceded in
its motion for reconsideration that the CSRA should not be analyzed as
regulating an activity that substantially affects interstate commerce,
observing that "plaintiff vociferously contends that the `affecting
commerce' category of activities which may be regulated by Congress
pursuant to the Commerce Clause does not apply in this matter." United
States v. Schroeder, 912 F. Supp. 1240, 1247 (D. Ariz. 1995); United
States v. Mussari, 912 F. Supp. 1248, 1255 (D. Ariz. 1995). Nonetheless,
the court took note of a report issued by the General Accounting Office,
cited by the government to show that the CSRA substantially did affect
interstate commerce. The court found this evidence unpersuasive. The
court commented: "The true focal point to establish interstate commerce
is clearly the requirement that the parent and child live in different
states, as the CSRA does. However, an exception to the use of diversity
to confer jurisdiction upon a federal court has been carved out in the
area of domestic relations." 912 F. Supp. at 1246; 912 F. Supp. at 1254
(citing Ankenbrandt v. Richards, 504 U.S. 689 (1992) and McIntyre v.
McIntyre, 771 F.2d 1316 (9th Cir. 1985)). Finding no constitutional
foundation for the congressional legislation, the court denied the
motion for reconsideration.
[45] The government appeals.
[46] ANALYSIS
[47] [1] Congress has the undisputed power "to regulate and protect
the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities." Lopez, 115 S. Ct. at 1629. The obligation of a
parent in one state to provide support for a child in a different state
is an obligation to be met by a payment that will normally move in
interstate commerce -- by mail, by wire, or by the electronic transfer
of funds. That obligation is, therefore, a thing in interstate commerce
and falls within the power of Congress to regulate. The frustration of
satisfaction of the obligation by the failure of the debtors to pay is
an impediment to interstate commerce that Congress can criminalize as it
has criminalized other impediments to interstate commerce. E.g., Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
[48] It is objected that the debtor himself is doing nothing in
interstate commerce, that Congress can't make him use the mails or write
a money order. The answer is short. Congress did not impose the
underlying obligation to pay. With that obligation in existence, the
difference in location of obligor and obligee requires that the
satisfaction of the debt be through interstate means. The power of
Congress is brought to bear on the things which now normally carry the
character of an interstate transaction. Congress does not punish mere
inaction. Congress has made criminal the conscious prevention of the
movement of money or credit in interstate commerce in satisfaction of
this class of obligations. The intentional refusal to satisfy the debt
is as much an obstruction of commerce between the states as any act of
extortion made unlawful by the Hobbs Act. See e.g., United States v.
Huynh, 60 F.3d 1386, 1389 (9th Cir. 1995).
[49] It is objected that the debtor could satisfy the debt by driving
to the child's home and delivering the money owed in person without any
use of an interstate method of payment. Of course, the delinquent parent
would himself have had to travel interstate. More fundamentally, the law
can regulate what is the norm, not the exception. A delinquent dad -- or
mom --, who scorns a court order from another state, is not apt to be a
person to deliver cash in person. If the debtor pays at all, it will be
from a distance, a distance that must, in order to bring this statute
into play, be set by residence in a state different from the child's.
[50] It is objected that a court order to pay child support is not
commerce, that it is regulation of a fundamental familial relation.
True, the court order arises from the family relation. Once in place,
the order creates a debt. Like any other debt, it is a thing of value,
one of millions of obligations that make up the stream of commerce
subject to congressional control.
[51] It is objected that the statute could come into play by the
child moving out of state rather than the parent doing so. This
hypothetical will not support a facial challenge to the statute as it is
applied in this case. But if the hypothetical is entertained, it
constitutes no objection to the constitutionality of the statute. It
doesn't matter whether the interstate character of the transaction is
created by the parent or the child. What matters is that an obligation,
already imposed by state law, comes to wear an interstate face. Then,
and only then, does the CSRA intervene and forbid frustration of the
obligation's satisfaction.
[52] It is objected that child support is peculiarly a matter within
the competence of the states because support of one's children is a
prime aspect of domestic relations. Undoubtedly such caution is
appropriate for a federal court exercising jurisdiction based on
diversity. Ankenbrandt v. Richards, 504 U.S. at 697. Here, however, we
are not confronted by a case of jurisdiction based on diversity but with
jurisdiction conferred by congressional employment of congressional
power under the Commerce Clause. Ankenbrandt has no application. Respect
for the competency of the states in matters of domestic relations is not
disparaged but manifested when the states are confronted with interstate
impediments to the fulfillment of domestic duties that the courts of the
states have imposed, and the states find themselves, if not helpless, at
least gravely impaired in pursuing the delinquent debts. See 138 Cong.
Rec. H7324, H7326 (daily ed. Aug. 4, 1992) (Statement of Congressman
Hyde); H.R. Rep. No. 771, 102 Cong., 2d Sess. 5 (1992); cf., U.S.
General Accounting Office, Fact Sheet for Congressional Requesters:
Interstate Child Support-- Mothers Report Receiving Less Support From
Out-Of-State Fathers 3 (1992) (finding out-of-state fathers far more
likely to fail to make child support payments than fathers who live in
same state as child).
[53] The district court thought that in the interest of federalism
and comity Congress should not criminalize behavior that some states had
left uncriminalized. Such a consideration may properly be taken into
account by a legislature. There is no doubt that Congress, in
furtherance of its control of an interstate activity, may criminalize
what a state has left without criminal sanction, e.g., drug laws. See
e.g., United States v. Rosenburg, 515 F.2d 190, 198 (9th Cir. 1975).
Comity may also, on occasion, indicate that a federal court enforcing
the CSRA stay its hand until a state court has interpreted a support
order. Such a possibility does not make the statute unconstitutional.
[54] [2] It was suggested by the district court that the CSRA
trenched on the powers reserved by the Tenth Amendment. If, however,
Congress acts under one of its enumerated powers -- here its power under
the Commerce Clause -- there can be no violation of the Tenth Amendment.
New York v. United States, 504 U.S. 144, 156 (1992). Article I and the
Tenth Amendment do not contradict but complement each other, fitting
together like two concave surfaces to make a constitutional whole.
[55] [3] The district court carefully discharged its duty to examine
the legislation challenged for its constitutional foundation and came to
a conclusion that was neither hasty nor unreasonable. Benefitting from
further briefing and the maturing of the arguments, we find the
constitutional objections unavailing and are bolstered in our judgment
by the convergence of our reasoning with that of the Second Circuit.
United States v. Sage, _______ F.3d _______, 1996 W.L. 450640 (2d Cir.
1996).
[56] Accordingly, the judgments of the district court are REVERSED,
and the cases REMANDED for trial.
***** BEGIN FOOTNOTE(S) HERE *****
[57] *fn* The Honorable David Warner Hagen, United States District
Judge for the District of Nevada, sitting by designation.
***** END FOOTNOTE(S) HERE *****
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19960905
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