892 F.Supp. 1327 (D.Kan. 1995), 95-10026-01, United States v. Hampshire

Docket Nº:95-10026-01.
Citation:892 F.Supp. 1327
Party Name:UNITED STATES of America, Plaintiff, v. Ricky L. HAMPSHIRE, Defendant.
Case Date:June 14, 1995
Court:United States District Courts, 10th Circuit, District of Kansas
 
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Page 1327

892 F.Supp. 1327 (D.Kan. 1995)

UNITED STATES of America, Plaintiff,

v.

Ricky L. HAMPSHIRE, Defendant.

No. 95-10026-01.

United States District Court, D. Kansas.

June 14, 1995

Page 1328

        Randall K. Rathbun, U.S. Atty., and Brian R. Johnson, Asst. U.S. Atty., Wichita, KS, for plaintiff.

        David J. Phillips, Federal Public Defender, and Timothy J. Henry, Asst. Federal Public Defender, Wichita, KS, for defense.

         MEMORANDUM AND ORDER

        PATRICK F. KELLY, Senior District Judge.

        On December 21, 1994, defendant Ricky Hampshire was charged with willful failure to pay a past due child support obligation in violation of 18 U.S.C.§ 228. The support obligation arose from a divorce proceeding commenced by Hampshire's ex-wife in Kansas on October 4, 1985. The District Court of Riley County granted an order for temporary custody and support on October 30, 1985, pursuant to K.S.A. 60-1607(b), requiring

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Hampshire to pay support at a rate of $450.00 per month. Hampshire was personally served with process at the Riley County Jail in Manhattan, Kansas. On January 28, 1986, the court filed a journal entry finding that Hampshire had been properly served and was in default. The court's final order required Hampshire to pay support at a rate of $350.00 per month.

        In the present criminal action, Hampshire has been charged with violating the Child Support Recovery Act of 1992 (CSRA), 18 U.S.C. § 228. Subsection (a) of CSRA provides that it is a punishable offense to "willfully fail[ ] to pay a past due support obligation with respect to a child who resides in another State."

        Hampshire has moved to dismiss the government's information on several grounds. On June 8, 1995, the court held a hearing in which the United States and the defendant presented oral arguments relating to these motions. Additionally, defendant presented the testimony of Kristy Swenson, an attorney with extensive experience in matters of domestic relations. After examination of the witness by both the defendant and the government, the court has no difficulty in finding Ms. Swenson to be an extremely competent, knowledgeable, and skilled attorney in family law matters. This matter, however, turns upon wholly independent considerations, and the court finds that recourse to the testimony of the witness is unnecessary.

        Constitutionality of 18 U.S.C. § 228

        Hampshire's first motion seeks a determination either that 18 U.S.C. § 228 is unconstitutional or that this court should abstain from exercising jurisdiction in the present action. He first contends that CSRA is invalid because Congress did not explicitly set forth the constitutionally enumerated power supporting the statute, citing United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). He further argues that the CSRA violates the Tenth Amendment by interfering with the state's traditional police powers, and that the CSRA cannot be predicated upon Congress' commerce power.

         This appears to be the first case directly challenging the validity of the CSRA. The court finds that Hampshire's constitutional arguments must be rejected. Unlike Bass, and unlike the Supreme Court's recent decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Congress has explicitly required that the defendant's actions have an interstate nexus. As noted earlier, the CSRA applies only to persons who willfully violate support obligations as to children residing "in another State." The law has no application to domestic relations matters occurring entirely within a given state.

        In Bass, the Supreme Court upheld the reversal of the defendant's conviction for possession of a firearm in violation of the former 18 U.S.C.App.§ 1202(a). The law did not expressly require any connection between the possession of the firearm and interstate commerce. Holding that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance," 404 U.S. at 349, 92 S.Ct. at 523, the Court upheld the reversal of the defendant's conviction because the statute contained no requirement of "proof of some interstate commerce nexus in each case." 404 U.S. at 350, 92 S.Ct. at 524. The Court, however, noted that constitutional requirements would be satisfied by proof that "the firearm received has previously traveled in interstate commerce." Id.

        Similarly, in the recent Lopez decision, the Court, in striking down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(a)(1)(A), stressed that the statute had "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." 514 U.S. at ----, 115 S.Ct. at 1631.

        The statute in the present case only affects willful violations of interstate child support obligations. The interstate nexus is explicitly identified in the statute. Further, it would appear that the failure to pay child support has an effect on interstate commerce sufficient to comply with constitutional requirements. See Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). In enacting the CSRA, the House of Representatives noted that 3.2 million families lived below the poverty level in 1989. The avoidance

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of child support obligations exacerbates the problem of child poverty, requiring the government to expend its own resources to help alleviate the problem. Of the $16.3 billion due in child support payments in 1989, only $11.2 billion in payments were actually made. H.R.Rep. No. 771, 102d Cong.2d Sess. at 5 (1992).

        Thus, even with the recent decision in Lopez, the CSRA remains constitutional. In Lopez, the Court held unconstitutional a federal law banning possession of a gun within 1,000 feet of a school. The law contained no requirement that the gun had traveled in interstate commerce. The CSRA would be subject to a similar constitutional infirmity only if it was also directed at a purely local activity--if it attempted...

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