921 F.Supp. 1028 (W.D.N.Y. 1996), 95-M-1136, United States v. Collins

Docket Nº:95-M-1136.
Citation:921 F.Supp. 1028
Party Name:UNITED STATES of America v. Larry D. COLLINS, Defendant.
Case Date:April 16, 1996
Court:United States District Courts, 2nd Circuit, Western District of New York

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921 F.Supp. 1028 (W.D.N.Y. 1996)



Larry D. COLLINS, Defendant.

No. 95-M-1136.

United States District Court, W.D. New York.

April 16, 1996

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Patrick H. NeMoyer, United States Attorney, Buffalo, New York, for the Government; Trini E. Ross, Assistant United States Attorney, of counsel.

Birzon & Zakia, P.C., Buffalo, New York, for Defendant; Paul I. Birzon, of counsel.


FOSCHIO, United States Magistrate Judge.


On October 26, 1995, pursuant to 18 U.S.C. § 3401(b), Fed.R.Cr.P. 58(b)(3)(A), Defendant executed a consent to proceed before a magistrate judge in a misdemeanor case.


Defendant Collins was charged by information filed October 13, 1995 with a single violation of 18 U.S.C. § 228, the Child Support Recovery Act of 1992. Specifically, the Information alleges that Collins, who was then and remains a resident of California, was ordered, on September 14, 1993, as modified November 3, 1993 by a California state court, to pay child support to Collins' infant

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child who has resided in Buffalo since April, 1991, and that Collins has, beginning in May, 1993 failed to pay such support. The Information alleges further that in November, 1993, New York state sought to enforce Collins' support obligation by filing a petition pursuant to the Uniform Reciprocal Enforcement Support Act in the Superior Court of California. According to the Information, as of May 31, 1994, Collins' arrearage in his support obligation was $24,000. However, Defendant states, on information and belief, that his daughter moved to the Buffalo, New York area following entry of the divorce decree. On April 18, 1995, Collins petitioned the California Superior Court to modify the support order entered September 14, 1993 as modified on November 3, 1993. Collins was arraigned in this court on October 26, 1995 and pleaded not guilty.

By papers filed December 4, 1995, Collins moved to dismiss the Information on grounds that (1) it failed to allege facts which if proven would constitute the offense, (2) the court should decline jurisdiction under the abstention doctrine, and (3) 18 U.S.C. § 228 as applied is unconstitutional. The Government's response was filed December 20, 1995. Oral argument was held January 23, 1996.

For the reasons which follow, the motion is DENIED.


1. Sufficiency of the Information

The Child Support and Recovery Act of 1992, ("the Act") provides that

whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State shall be punished as provided in subsection (b).

18 U.S.C. § 228(a).

Subsection (b) of the Act punishes a first offense by fine or imprisonment up to six months, or both; for subsequent offenses, a fine or imprisonment of not more than two years. 18 U.S.C. § 228(b)(1), (2).2 Subsection (d) of the Act defines the phrase "past due support obligation" as "any amount determined under a court order or an order of an administrative process pursuant to the law of a State to be due from a person for the support and maintenance of a child ... and which has remained unpaid for a period longer than one year, or is greater than $5,000." 18 U.S.C. § 228(d)(1)(A), (B).

An information is required only to be "a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). The information "need not contain ... a formal conclusion or any other matter not necessary to such statement." Id. To satisfy the requirements of the Fifth Amendment due process clause, the accusatory instrument "must set forth the offense with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged" United States v. Cruikshank, 92 U.S. 542, 556, 23 L.Ed. 588 (1875) (internal citations omitted). The information must also "furnish the accused with such a description of the charge ... for protection against further prosecution for the same cause." It is sufficient to charge the offense in the generic language of the statute if such language "fully, directly, and expressly, without uncertainty or ambiguity, set(s) forth all of the elements necessary to constitute the offense...." Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962) quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135. See also Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) ("A[n] indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecution for the same offense."); United States v. Covino, 837 F.2d 65, 69 (2d. Cir. 1988) (charging instrument "need only track the language of the statute

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and, if necessary to apprise the defendant 'of the nature and accusation against him,' [and] ... state time and place in approximate terms.") quoting United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 134, 78 L.Ed.2d 128 (1983).

Here, the Information alleges that (1) Collins, by order of a California court, was required to pay in child support $3,750 per month from May 1, 1993 to August 1, 1993, and $3,000 per month beginning September 1, 1993, (2) Collins willfully failed to pay such court ordered child support during the period between October 1, 1993 and May 31, 1994, (3) Collins has failed to pay such child support in an amount greater than $5,000, and (4) the child for whose support the amounts are owed has been residing in New York state since April, 1991. Thus, the Information alleges that Collins has willfully failed to pay a support obligation imposed by a court, which is past due, for a child living in a state other than that of the Defendant's residence, in an amount greater than $5,000, tracks the statutory definition of the offense. The Information therefore informs Collins of the nature and origin of the unpaid support obligation, the location of the child for whose benefit the obligation allegedly exists, the amount of the obligation, and the basis upon which the element of willfulness is founded. Accordingly, the Information complies with Rule 7(f) and the Fifth Amendment as it apprises Collins "with reasonable certainty of the nature of the accusation against him." Russell, supra at 765, 82 S.Ct. at 1047, quoting United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819.

Collins, however, contends that as "there has never been a determination by a California court or administrative body ... [finding that child support payment] in any amount is past due," the absence of such an allegation fails to meet the statutory definition that "a past due support obligation," "determined under a court order ..." exists, as required by 18 U.S.C. § 228(d)(1)(A), and the Information therefore fails to plead as essential fact. Defendant's Memorandum of Law in Support, filed December 4, 1995 ("Defendant's Memorandum") at 4. However, Collins' argument requires reading the statutory phrase "determined under" to mean "determined by" a court order or administrative process. Collins argues that as no California court or administrative agency has made any such determination, the required determination has not been alleged, and cannot be proven as a fact. But Collins' interpretation of the statutory language is not what Congress legislated. McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991) ("In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole."); Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984) (Rehnquist, J.) ("[O]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the 'plain meaning' of the statutory language."). Had Congress wished to condition liability upon a specific finding by a court or agency of a defendant's past due child support obligation as to its actual amount and existence, it could easily have so stated. Rather, Congress required only that the government allege and prove at trial the existence of a valid court order or state administrative agency ruling creating the obligation, and the fact of non-payment as required by the order or ruling as to a child living in another state. It is the trier...

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