U.S. v. Sage

• Decision Date: 12 August 1996
• Docket Number: No. 1681,D,1681
• Citation: 92 F.3d 101
• Parties: UNITED STATES of America, Appellee, v. Samuel D. SAGE, Defendant-Appellant. ocket 96-1001.
• Court: U.S. Court of Appeals — Second Circuit

Page 101

92 F.3d 101

65 USLW 2132

UNITED STATES of America, Appellee, v. Samuel D. SAGE, Defendant-Appellant.

No. 1681, Docket 96-1001.

United States Court of Appeals Second Circuit.

Argued May 31, 1996.

Decided Aug. 12, 1996.

Terence S. Ward, Assistant Federal Public Defender (Thomas G. Dennis, Federal Public Defender, Hartford, Conn.), for defendant-appellant.

Christopher F. Droney, United States Attorney, District of Connecticut, New Haven, Conn. (Denise Derby, on the brief), for the United States.

Before VAN GRAAFEILAND and LEVAL, Circuit Judges, and NICKERSON, ^* District Judge.

NICKERSON, District Judge:

This appeal raises the question whether the Child Support Recovery Act of 1992 (the Act), 18 U.S.C. § 228 (1994), is invalid as beyond the constitutional power of Congress to enact.

On July 13, 1995, an information filed in the United States District Court for the District of Connecticut charged that defendant-appellant Samuel D. Sage, residing in a State outside Connecticut, willfully failed to make support payments previously ordered by a Connecticut court for his two minor children resident in Connecticut, and that the amount due, more than $5000, had been unpaid for more than a year.

Judge Squatrito denied a motion to dismiss in which Sage argued that the Act was unconstitutional. On October 6, 1995, Sage entered a plea of guilty conditioned on his right to appeal the court's ruling. On appeal he says that Congress had no power under the Commerce Clause to adopt the Act and that it is also invalid under the Tenth Amendment.

In addition to the court below, two other District Courts in this Circuit have upheld the Act. United States v. Nichols, 928 F.Supp. 302 (S.D.N.Y.1996) (Preska, J.); United States v. Collins, 921 F.Supp. 1028 (W.D.N.Y.1996) (Foschio, M.J.).

So have eight District Courts in other Circuits. United States v. Kegel, 916 F.Supp. 1233 (M.D.Fla.1996); United States v. Sims, 936 F.Supp. 817 (N.D.Ok.1996); United States v. Wilson, No. 4:95-MG-3026 (N.D.Ohio Nov. 8, 1995) (slip op.); United States v. Hopper, 899 F.Supp. 389 (S.D.Ind.1995); United States v. Murphy, 893 F.Supp. 614 (W.D.Va.1995); United States v. Hampshire, 892 F.Supp. 1327 (D.Kan.1995). Three District Courts have struck down the Act. United States v. Parker, 911 F.Supp. 830 (E.D.Pa.1995); United States v. Bailey, 902 F.Supp. 727 (W.D.Tex.1995); United States v. Schroeder, 894 F.Supp. 360 (D.Ariz.1995), recon. denied, 912 F.Supp. 1240; United States v. Mussari, 894 F.Supp. 1360 (D.Ariz.1995) (companion case to Schroeder ), recon. denied, 912 F.Supp. 1248.

THE FACTS

On May 15, 1985, a Massachusetts court dissolved the marriage of Samuel Sage and his wife, Julie, and ordered Sage to pay $70 a week and unreimbursed medical expenses for the support of their two children, Samuel and Sharril Sage. Sage made no payments, so Julie filed with the court a petition for contempt. When Sage failed to appear, the court issued process for his arrest, but he was not found. Thereafter, Julie and the children moved to Connecticut.

In August 1986 Julie filed a petition with the Support Enforcement Unit of the Connecticut Judicial Branch under the Uniform Reciprocal Enforcement of Support Act (the Uniform law), 9B U.L.A. 553 (1958). In accordance with the provisions of the Uniform law as adopted by Connecticut, Conn. Gen.Stat. Ann. §§ 46b-180 to 46b-211 (West 1995), the Connecticut court found that Sage owed the duty of support decreed by Massachusetts and ordered him to pay, forwarding the petition to Detroit, Michigan, where Julie believed Sage was residing. The Michigan court in turn found the same such duty and ordered Sage to make payments for it to send on to the Connecticut court. In response to this order Sage made some sporadic payments in 1991 but none after September of that year.

Undaunted, Julie filed in December 1991 another petition in the Connecticut court under the Uniform law, this time forwarded to Ohio. The Ohio court made the same finding as had the others and ordered Sage to make the requisite payments to it for transfer to Connecticut. Once again Sage made a few paltry payments but soon ceased to do so, and moved to Alabama, then to Mississippi, and finally back to Ohio.

From September 1991 on, Sage had the ability to pay but willfully did not. As of the date of the plea he owed more than $41,000 in support payments and unreimbursed medical expenses.

More than ten years after the entry of the Massachusetts judgment, Sage pleaded guilty to the information. Judge Squatrito imposed a sentence of five years probation, with conditions requiring Sage to maintain full time employment, to make restitution of $41,323.10 in installments, and to pay support in the amounts originally ordered by the Massachusetts court. The judge denied Sage's motion to dismiss the information, holding, among other things, that the Act was a valid exercise of Congress's power because it regulated an activity that substantially affects interstate commerce.

On appeal Sage argues that Congress in adopting the Act exceeded the scope of the Commerce Clause by attempting to regulate an activity that was not "commercial" and that did not "substantially affect" interstate commerce. He also contends that the Act is invalid under the Tenth Amendment as an infringement on the States' rights to govern domestic relations.

THE ACT

The Act makes it a crime for a person "willfully" to "fail[ ] to pay a past due support obligation with respect to a child who resides in another State." 18 U.S.C. § 228(a) (1994). Subsection (d) defines that obligation to mean any amount that a State order has "determined" to be "due" for "support and maintenance of a child or of a child and the parent with whom the child is living," provided the amount has been unpaid for longer than a year or exceeds $5000. For a first offense subsection (b) fixes the maximum punishment at six months imprisonment and a fine, and for subsequent offenses at two years and a fine. Upon a conviction the court must, under subsection (c), order restitution in the amount equal to the "past due support obligation" unpaid at the time of sentence.

THE GENESIS OF THE ACT

Passage of the bill that became the Act was not the result of some sudden whimsy of 1992. Congressman Henry Hyde, the chief sponsor of the measure, had offered similar legislation in the past. For some years he had been concerned "by those thousands and thousands of delinquent parents who make a mockery of State law by fleeing across State lines to avoid enforcement actions by State courts and child support agencies." 138 Cong. Rec. H7324, H7326 (daily ed. Aug. 4, 1992) (statement of Cong. Hyde). In support of the bill he said that "[t]oo often as soon as delinquent fathers move to new States, they seem to vanish as far as State enforcement agencies are concerned" because the State "mechanisms lose their effectiveness." He assured the House that the bill's goal was "to strengthen, not to supplant, State enforcement." Id.

The House Committee on the Judiciary reported that in the United States in 1989 some $5 billion of the $16 billion in child support obligations went unpaid. H.R.Rep. No. 771, 102d Cong., 2d Sess. 5 (1992). Although this amount evidenced a widespread problem in the United States, the bill sought to affect only that fraction that was indisputably interstate, namely, those instances where the delinquent parent and the children lived in different States. Id. at 6.

Congress did not regard it a trivial matter that so many parents seeking to evade State court orders deliberately took advantage of our system of separate States. Of the $5 billion in unpaid support, one-third involved a father living apart from his children in another State. Id. at 5. More than half of the custodial parents in interstate cases received support payments only occasionally, seldom, or never. Id.

Congress recognized that the States had not been indifferent to the plight of children in such cases. The States have made willful failure to pay child support a crime and have adopted the Uniform law providing for enforcement across State lines. But that law's complex and cumbersome procedures have made it largely ineffective. Id. at 6. The House heard of "instance after instance where spouses, usually husbands, did not want to pay, went to another State, waited just until the legal process was able to catch up with [them], and then went to another State and started the procedure all over again." 138 Cong. Rec. at H7325 (statement of Cong. Schumer).

State officials reported to Congress that support orders in interstate cases remain the most difficult to enforce and that extradition procedures under the Uniform law "have utterly failed to bring to justice" the delinquent parents. H.R.Rep. No. 771 at 6.

Mindful of the increasing poverty rate of families with children and an absent parent, and of the concomitant effect on the amounts required to supply public assistance, id. at 5, Congress adopted the bill to supplement State enforcement of an absent parent's obligation. President Bush signed the measure on October 25, 1992.

THE COMMERCE CLAUSE

Section 8 of Article I of the Constitution of the United States provides that "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

A consideration of the scope of the Commerce Clause appropriately starts with Chief Justice John Marshall's 1824 opinion in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). In that case Thomas Gibbons had two steamboats that plied the waters between New Jersey and New York. Aaron Ogden was the assignee of an exclusive franchise granted by the New York State legislature to Robert R. Livingston and Robert Fulton to use boats moved by fire or steam in New York waters. Ogden obtained an injunction from the New York courts restraining Gibbons' use of steamboats in these waters....