92 F.3d 101 (2nd Cir. 1996), 1681, United States v. Sage

Docket Nº:1681, Docket 96-1001.
Citation:92 F.3d 101
Party Name:UNITED STATES of America, Appellee, v. Samuel D. SAGE, Defendant-Appellant.
Case Date:August 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 101

92 F.3d 101 (2nd Cir. 1996)

UNITED STATES of America, Appellee,


Samuel D. SAGE, Defendant-Appellant.

No. 1681, Docket 96-1001.

United States Court of Appeals, Second Circuit

August 12, 1996

Argued May 31, 1996.

Page 102

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

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States v. Mussari, 894 F.Supp. 1360 (D.Ariz.1995) (companion case to Schroeder ), recon. denied, 912 F.Supp. 1248.


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 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...

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