893 F.Supp. 614 (W.D.Va. 1995), Crim. 94-0551C-01, United States v. Murphy

Docket Nº:Crim. 94-0551C-01
Citation:893 F.Supp. 614
Party Name:United States v. Murphy
Case Date:July 18, 1995
Court:United States District Courts, 4th Circuit, Western District of Virginia

Page 614

893 F.Supp. 614 (W.D.Va. 1995)



James Dennis MURPHY, Jr.

Crim. No. 94-0551C-01.

United States District Court, W.D. Virginia, Roanoke Division.

July 18, 1995

Page 615

Julie Campbell, Asst. U.S. Atty., Roanoke, VA, for U.S.

William Cleaveland, Roanoke, VA, for defendant.

Memorandum Opinion

CONRAD, United States Magistrate Judge.

This action is before the court upon defendant James Murphy's challenge to the constitutionality of the statute under which he was charged. Substantially relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), defendant first argues that Congress exceeded its authority to legislate under the commerce clause of Article I, § 8, cl. 3, when it enacted 18 U.S.C. § 228 ("the Child Support Recovery Act"). Defendant also argues that the Child Support Recovery Act violates the ex post facto clause in Article I of the Constitution.

On May 22, 1995, defendant was tried on one count of a two count information charging him with violating 18 U.S.C. § 228 on separate occasions. Testimony at trial revealed that from on or about January 1, 1993, until on or about June 30, 1993, defendant had been employed as a dog trainer/groomer in Lee, Florida, but had failed to make past due child support payments to Lynda T. Murphy for support of their daughter, Erin, who resided in Virginia during that time period. The court determined that this evidence supported a finding of guilt beyond a reasonable doubt. However, the court delayed entering the conviction until it could rule on the constitutionality of the Child Support Recovery Act.

Commerce clause

In Lopez, supra, citing Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), the Supreme Court identified three broad areas appropriate for federal legislation under the commerce clause: the channels of interstate commerce; the instrumentalities of, or persons or things in, interstate commerce; and those activities having a substantial effect on interstate commerce. 1 Of these three categories, Lopez primarily dealt with the third. Confronted

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with a challenge to the constitutionality of 18 U.S.C. § 922(q)(1)(A), the Gun-Free School Zones Act of 1990, the Court concluded that the Act could not be sustained as a regulation of an activity that substantially affected interstate commerce. 514 U.S. at ----, 115 S.Ct. at 1629-34, 131 L.Ed.2d at 642-43. Specifically, the Court noted that § 922(q) 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." Id. at ----, 115 S.Ct. at 1631, 131 L.Ed.2d at 639. The Court found that, absent some such jurisdictional element, the relationship between interstate commerce and any firearm in the possession of a high school student was too tenuous to justify Congress' intrusion into a criminal matter...

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