894 F.Supp. 1360 (D.Ariz. 1995), CR 95-009, United States v. Mussari

Docket Nº:CR 95-009 PHX PGR.
Citation:894 F.Supp. 1360
Party Name:UNITED STATES of America, Plaintiff, v. Allan A. MUSSARI, Defendant.
Case Date:July 26, 1995
Court:United States District Courts, 9th Circuit, District of Arizona

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894 F.Supp. 1360 (D.Ariz. 1995)

UNITED STATES of America, Plaintiff,


Allan A. MUSSARI, Defendant.

No. CR 95-009 PHX PGR.

United States District Court, D. Arizona.

July 26, 1995

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Michael Joseph Bidwell, U.S. Atty., Phoenix, AZ, for plaintiff.

David Lee Titterington, Federal Public Defender, Phoenix, AZ, for defendant.


ROSENBLATT, District Judge.


Allan Mussari ("Defendant") was indicted on January 11, 1995 on one count of Failure to Pay Child Support Obligation in violation of 18 U.S.C. § 228, the Child Support Recovery Act of 1992 ("CSRA").1 The complaint alleges that the Arizona Superior Court in and for Maricopa County, by an order dated October 7, 1988, ordered Defendant to pay $752.00 per month in child support to his ex-wife for the benefit of their children.2 The complaint further alleges that Defendant lives in Illinois, his children live in Arizona, and that he is approximately $40,385.00 in arrears on his child support payments. The complaint also alleges that Defendant was ordered to appear before the Arizona Superior Court in and for Maricopa County on April 28, 1993, and Defendant failed to appear. As a result, that court entered judgment against Defendant for child support arrearages in the amount of $37,558.00.

On March 13, 1995, Defendant filed a Motion to Dismiss Indictment (Unconstitutional Statute) ("Motion") with this court, contending that 18 U.S.C. § 228 is an unconstitutional exercise of Congressional power. Subsequent to the filing of the motion by the Defendant, the United States Supreme Court issued its decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which held the Federal Gun-Free School Zone Act, 18 U.S.C. § 922(q), to be unconstitutional. Because the Lopez decision is directly relevant to the question pending before this court, the parties were given additional time in which to supplement their arguments in order to discuss the Lopez decision.

This court heard oral arguments on the motion on May 8, 1995. The court now having considered oral arguments and the briefs filed by the parties in relation to this matter and the Lopez decision, the court finds that 18 U.S.C. § 228 is an unconstitutional exercise of Congress' power, and therefore Defendant's Motion to Dismiss Indictment should be granted.


A. Presumption of constitutionality

In determining whether a statute enacted by Congress is constitutional, the

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court must presume that the statute is constitutional. See Walters v. National Ass'n of Radiation Survivors, 468 U.S. 1323, 105 S.Ct. 11, 82 L.Ed.2d 908 (1984). However, the presumption of constitutionality is not unlimited.

The canon of construction that a court should strive to interpret a statute in a way that will avoid an unconstitutional construction is useful in close cases, but it is " 'not a license for the judiciary to rewrite language enacted by the legislature.' "

Chapman v. U.S., 500 U.S. 453, 464, 111 S.Ct. 1919, 1927, 114 L.Ed.2d 524 (1991) (quoting United States v. Monsanto, 491 U.S. 600, 611, 109 S.Ct. 2657, 2664, 105 L.Ed.2d 512 (1989)).

In interpreting 18 U.S.C. § 228, this court is focusing on whether Congress had the authority to enact the legislation under the powers given to Congress by the Constitution. Because the court has found that the CSRA is an unconstitutional exercise of Congressional power, see Discussion, infra, the court need not attempt to construe the statute in a manner which would be constitutional.

B. Commerce Clause

The Commerce Clause empowers Congress "[t]o regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. The Supreme Court has recently revisited the breadth of the power given to Congress by the Commerce Clause in enacting legislation. In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court struck down the Gun-Free School Zones Act of 1990 as unconstitutional. The Supreme Court undertook an extensive analysis of the history of the Commerce Clause during the course of the Lopez decision. The Supreme Court began its analysis with the early cases which defined the extent of the Commerce Clause power as stated in Gibbons v. Ogden, 9 Wheat. 1, 189-190, 6 L.Ed. 23 (1824), and then continued the analysis with the string of cases spanning nearly a century which dealt with the Commerce Clause more as a limitation on state legislation that discriminated against interstate commerce, including Veazie v. Moor, 14 How. 568, 573-575, 14 L.Ed. 545 (1852) and Kidd v. Pearson, 128 U.S. 1, 17, 20-22, 9 S.Ct. 6, 8, 9-10, 32 L.Ed. 346 (1888). Lopez, 514 U.S. at ----, 115 S.Ct. at 1627.

The Supreme Court then expanded the defined authority of Congress contained in the Commerce Clause. Cases such as NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937) (upholding the National Labor Relations Act against a Commerce Clause challenge) and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942) (holding that the Commerce Clause reached the growing of wheat which was entirely consumed by the grower) stated a new view of the expansive reach of the Commerce Clause. See Lopez, 514 U.S. at ----, 115 S.Ct. at 1628. The Supreme Court then recognized the most recent set of cases to define the Commerce Clause power, including Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), and the "rational basis"3 test to be employed in the determination of the constitutionality of legislation passed under the guise of the Commerce Clause. Lopez, 514 U.S. at ----, 115 S.Ct. at 1629.

After acknowledging the extensive evolution of the meaning of the Commerce Clause, as discussed supra, the Supreme Court incorporated the various tests employed throughout the history of the Commerce Clause, and announced a three-part standard applicable to determine whether a federal statute is constitutional under the Commerce Clause today:

First, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the

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threat may come only from intrastate activities.... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce.

Lopez, 514 U.S. at ---- - ----, 115 S.Ct. at 1629-30.

The Supreme Court then applied the test to the Gun-Free School Zones Act of 1990, which criminalized the knowing possession of a firearm in a school zone. Finding that this statute would only fit under the third category of legislation allowed by the Commerce Clause, the Supreme Court found that this statute was a criminal statute which had nothing to do with commerce and which had no jurisdictional element which would establish a nexus with interstate commerce. Id. at ----, ---- - ----, 115 S.Ct. at 1630; 1630-31. The Supreme Court found that because the statute did not "substantially affect interstate commerce", it went beyond the scope of the Commerce Clause and was an unconstitutional exercise of Congress' legislative power. See, Lopez, cited supra.

In applying the principles espoused in the Lopez decision to the facts of this case, the court must first determine under which category of activity that Congress may regulate pursuant to the Commerce Clause, if any, the CSRA falls. Clearly criminalizing the failure to pay child support would not qualify as the regulation of the use of the channels of interstate commerce, nor would it qualify as the regulation of the instrumentalities of interstate commerce. Therefore, if the CSRA is to be upheld, it would have to be as a regulation of activities having a "substantial relation to interstate commerce".

1. Criminal nature of the CSRA

This court cannot find that the CSRA bears a substantial relation to interstate commerce. First, this is a criminal statute aimed at punishing parents delinquent in their child support payments. Under our federal system, the " 'States possess primary authority for defining and enforcing the criminal law.'...

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