U.S.A. v. Faasse

Citation265 F.3d 475
Decision Date07 March 2001
Docket NumberNo. 98-2337,98-2337
Parties(6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Timothy Gordon Faasse, Defendant-Appellant. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 98-00185, Robert Holmes Bell, Chief District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Michael R. Dreeben, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D. C., Thomas J. Gezon, Asst. U.S. Attorney, Grand Rapids, MI, Deborah Watson, UNITED STATES DEPARTMENT OF JUSTICE, APPELLATE SECTION, CRIMINAL DIVISION, Washington, D.C., for Appellee.

Christopher P. Yates, FEDERAL PUBLIC DEFENDERS OFFICE, Grand Rapids, Michigan, for Appellant.

Before: MARTIN, Chief Judge; MERRITT, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MARTIN, C. J., MERRITT, SILER, DAUGHTREY, COLE, CLAY, and GILMAN, JJ., joined. BATCHELDER, J. (pp. 494-505), delivered a separate dissenting opinion, in which BOGGS, NORRIS, and SUHRHEINRICH, JJ., joined.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In response to "the growing problem of interstate enforcement of child support," Congress passed the Child Support Recovery Act of 1992 ("CSRA"), Pub. L. No. 102-521, §2(a), 106 Stat. 340 (codified at 18 U.S.C. §228 (1994)), to "punish[] certain persons who intentionally fail to pay their child support obligations." H.R. Rep. No. 102-771, at 4 (1992). This case presents the question whether the CSRA is a valid exercise of Congress's Commerce Clause power under Article I, §8, cl. 3 of the Constitution. Timothy Gordon Faasse pleaded guilty to violating the CSRA, which criminalizes the willful failure to pay court-ordered child support for a child who resides in another state. He was sentenced by the district court to serve a six-month term of imprisonment and ordered to pay full restitution for past-due support payments. He now challenges the constitutionality of the statute as well as the legality of the district court's restitution order. All ten of our sister circuits that have considered the constitutionality of the CSRA in Commerce Clause challenges after United States v. Lopez, 514 U.S. 549 (1995), have upheld the statute. We now join them in concluding that the CSRA is an appropriate exercise of Congress's power under the Commerce Clause. Therefore, weAFFIRM the judgment of the district court as to the constitutionality of the statute; we also AFFIRM the district court's order of restitution.

I. FACTS

Timothy Gordon Faasse and Sandra Bowman had a child, Noelle Alexandria Faasse, on December 23, 1990. The couple resided in Lansing, Michigan for the first several months of Noelle's life. In June 1991, Faasse moved to California; Bowman chose to remain in Michigan with Noelle. In June 1992, Faasse filed a petition in state court to establish his paternity of Noelle as well as visitation rights. The circuit court in Kent County, Michigan adjudged Faasse to be Noelle's father on January 11, 1994; it also ordered Faasse to pay child support in the amount of $58.25 per week.1 The child support order was made retroactive to December 1992. As a result of the retroactive nature of the award, Faasse found himself $5,391 in arrears on child support.

Faasse was intermittently employed in California2 and his child support payments were sporadic: in 1994, Faasse made four payments to Bowman totaling $633; in 1995, he sent ten payments in the amount of $1,175; in 1996, Faasse provided payments of $690; in 1997, Faasse sent seven payments totaling $5,390; and in 1998, Faasse made one payment of $100.

On July 17, 1997, the government filed a criminal complaint against Faasse in the United States District Court for the Western District of Michigan alleging that Faasse was in violation of the Child Support Recovery Act for failure to pay court-ordered child support from January 1994 to July 1997. On June 10, 1998, Faasse pleaded guilty before a magistrate judge to one count of violating the CSRA. The CSRA at that time provided: "[w]hoever 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)." 18 U.S.C. §228(a) (1994).3 Subsection (b) stated that punishment for a first offense under subsection (a) was a fine, imprisonment for not more than 6 months, or both; and for a subsequent offense, a fine, imprisonment for not more than two years, or both. Id. §228(b)(1), (2) (1994). The term "past due support obligation" was defined as "any amount --

(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

(B)that has remained unpaid for a period longer than one year, or is greater than $5,000 ....

Id. §228(d)(1). Faasse was subsequently sentenced by a magistrate judge to a term of 6 months' imprisonment and ordered to pay full restitution, in the amount of $28,438.35, for child support arrearage.

Faasse timely appealed his conviction and sentence to this court.4 He first challenges the constitutionality of the CSRA as an improper exercise of Congress's Commerce Clause authority. Faasse attacks the statute's nexus to interstate commerce, asserting that the CSRA creates a "federal criminal enforcement mechanism for pure state law child support obligations" whose only link to interstate commerce is the requirement that parent and child reside in different states. Appellant's Br. at 9. According to Faasse, this link is insufficient to establish a constitutional basis for Congressional regulation. Faasse also challenges the district court's order requiring him to pay restitution as an abuse of the district court's discretion. A panel of this court initially accepted Faasse's arguments and reversed the district court's judgment. United States v. Faasse, 227 F.3d 660, 672 (6th Cir. 2000). We granted rehearing en banc, vacated the panel opinion, 234 F.3d 312 (6th Cir. 2000), and now affirm the judgment of the district court.

II. ANALYSIS

The Constitution grants Congress the power to regulate commerce among the several states. U.S. Const. art. I, §8, cl. 3. Relying on United States v. Lopez, 514 U.S. 549 (1995), Faasse urges us to fashion a narrow and technical definition of commerce that turns on whether the transaction at issue involves trade and is reciprocal in nature. We firmly decline Faasse's invitation to impose heretofore unknown constraints on Congress's Commerce Clause power as unsupportable by either Supreme Court or our own precedent. Indeed, we believe that, pursuant to our de novo review of the constitutionality of a statute, United States v. Napier, 233 F.3d 394, 397 (6th Cir. 2000), the CSRA easily passes constitutional muster.

A. Commerce Clause

In one of the Supreme Court's earliest expositions on the Commerce Clause, Chief Justice Marshall rejected the notion that "commerce," as utilized in the Constitution, is limited "to traffic, to buying and selling, or the interchange of commodities ...." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824). The Chief Justice noted that "[c]ommerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." Id. at 189-90. Although the Supreme Court's reliance on this early understanding of commerce has waxed and waned in the course of this nation's development, it remains the principal standard by which we evaluate Commerce Clause challenges. While we must remain vigilant to ensure that a federal statute does not trench upon purely local activity, we may only invalidate a congressional enactment passed pursuant to the Commerce Clause if it bears no rational relation to interstate commerce.Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981).

In United States v. Lopez the Supreme Court revealed its concern that Congress had so expanded its authority to regulateintrastate activity under the guise of its Commerce Clause power that Congress was in danger of "effectually obliterat[ing] the distinction between what is national and what is local and creat[ing] a completely centralized government." Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)). Summarizing its prior Commerce Clause jurisprudence, the Court articulated "three broad categories of activity that Congress may regulate under its commerce power[:] First, Congress may regulate the use of the channels of interstate commerce." Id. at 558 (internal citations omitted). This category includes "an attempt to prohibit the interstate transportation of a commodity through the channels of commerce." Id. at 559. "Second, Congress is empowered 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." Id. at 558. Third, Congress may "regulate those activities having a substantial relation to interstate commerce."Id. at 558-59. Although these broad categories may "not satisfy those who seek mathematical or rigid formulas," they are consistent with the modern Court's "practical conception of commercial regulation," id. at 573-74 (Kennedy, J., concurring), which continues to guide the Court's resolution of Commerce Clause challenges to federal statutes.

According to Faasse, Congress lacks the power under all three Lopez categories to enact the CSRA. We disagree. The CSRA regulates exclusively interstate cases involving a debtor...

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