928 F.Supp. 302 (S.D.N.Y. 1996), 95 Crim. 1060, United States v. Nichols

Docket Nº:95 Crim. 1060 (LAP).
Citation:928 F.Supp. 302
Party Name:UNITED STATES of America, v. Jeffrey NICHOLS, Defendant.
Case Date:May 31, 1996
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 302

928 F.Supp. 302 (S.D.N.Y. 1996)



Jeffrey NICHOLS, Defendant.

No. 95 Crim. 1060 (LAP).

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

May 31, 1996

Page 303

[Copyrighted Material Omitted]

Page 304

        Michael A. Simons, Assistant United States Attorney, Mary Jo White, United States Attorney for the Southern District of New York, New York City, for U.S.

        Paul J. Edelstein, Edelstein & Faegenburg, Brooklyn, New York, for Defendant.


        PRESKA, District Judge:

        Defendant Jeffrey Nichols has been charged by Criminal Information with violating the Child Support Recovery Act of 1992, 18 U.S.C. § 228, Pub.L. No. 102-521, § 2(a), 106 Stat. 3403 (October 25, 1992) ("CSRA"). Defendant now moves to dismiss the Information, arguing that CSRA exceeds Congressional authority under the Commerce Clause, that it violates the Tenth Amendment and the basic principles of federalism and comity, that it should be void for vagueness, and that it violates the Equal Protection Clause. Alternatively, the defendant argues that the abstention doctrine applies here and I should decline to decide this case.

        After considering each of defendant's arguments and the government's opposition, I find that the CSRA is constitutional, and the motion is therefore denied.


        The essential facts of this case are not disputed. The Information charges that Nichols, from October of 1992 to August of 1995, "failed to pay a past due child support obligation, determined under a court order pursuant to the law of a State to be due from him for the support and maintenance of a child and that has remained unpaid for a period longer than one year and is greater than $5,000." Specifically, Nichols is charged with failing to pay over $500,000 in child support for three children living in New York while he lived in Florida and, currently, in Vermont.

        The underlying complaint, filed on July 25, 1995, and the defendant's affirmation in support of this motion, elaborate on the circumstances leading to the Information. Defendant and his wife Marilyn Kane Nichols were married in 1969. The couple had three children. Their relationship deteriorated, however, to the point that May of 1990, Nichols was found in contempt by the Supreme Court of the State of New York for failing to pay $68,319 in previously court-ordered child support. In August of 1990, the state court granted Mrs. Nichols a divorce on the grounds of abandonment and awarded her custody of the children. Nichols, living out-of-state, did not appear for the trial. He was ordered to pay $9,362.82 per month in child support until the eldest child reached the age of twenty-one, then $8,071 until the second child reached the same age, then $5,488 until the youngest reached twenty-one.

        None of this support had been paid by 1993, when Mrs. Nichols sought to enforce the New York judgment in Florida, where her ex-husband was residing. The state court in Florida found Nichols to be approximately $400,000 in arrears in his payment of child and spousal support. He was ordered to pay $8,071 in monthly child support and $1,814 per month towards arrears. In 1994, when no child support had been paid, Mrs. Nichols sought enforcement of the New York judgment in Vermont, where Nichols had moved. The state court in Vermont found that Nichols was over half-a-million dollars in arrears in child support payments as of December 12, 1994.

        On August 8, 1995, pursuant to a warrant issued in the Southern District of New York as part of the present prosecution, Nichols was arrested in Vermont by agents of the F.B.I. and brought here. Released after posting a $500,000 bond, secured by $10,000 cash and his Vermont home, Nichols was then arrested by the New York County sheriff and brought before the state court, where his contempt citation was still outstanding. Nichols was jailed until he both paid the $68,319 in child support still due under the court's previous order and agreed to a plan for payment of the remaining arrears. On December 7, 1995, after entering a comprehensive

Page 305

settlement agreement with his former wife, Nichols was released.

        The one-count Criminal Information now at issue was filed on December 12, 1995. Defendant was arraigned before a Magistrate Judge and first appeared before me on December 20, when he entered a plea of not guilty. The present motion followed.


        Section 228 of Title 18 reads in part1:

§ 228. Failure to pay legal child support obligations (a) Offense.--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).... [T]he term "past due support obligation" means an amount--(A) 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 or of a child and the parent with whom the child is living; and (B) that has remained unpaid for a period longer than one year, or is greater than $5,000; ....

         I. The Commerce Clause Challenge

        Defendant's strongest argument to dismiss the Information is that, in enacting the CSRA, Congress exceeded its authority under the Commerce Clause. In making this argument, he relies almost exclusively on the Supreme Court's recent decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The argument is not novel; since Lopez, no fewer than eleven district courts have addressed Commerce Clause challenges to the CSRA. Four of these challenges (two were companion cases) were successful: 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. Mussari, 894 F.Supp. 1360 (D.Ariz.1995), recon. denied, 912 F.Supp. 1248 (1995); United States v. Schroeder, 894 F.Supp. 360 (D.Ariz.1995) (companion case to Mussari), recon. denied, 912 F.Supp. 1240 (1995); eight failed: United States v. Collins, 921 F.Supp. 1028 (W.D.N.Y.1996); United States v. Billy Ray Sims, 95-Cr-125 (N.D.Ok. Feb. 22, 1996); United States v. Kegel, 916 F.Supp. 1233 (M.D.Fla.1996); United States v. Wilson, No. 4:95-MG-3026 (N.D.Ohio, Nov. 7, 1995) (slip op.); United States v. Sage, 906 F.Supp. 84 (D.Conn.1995); 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).

        The Commerce Clause of the United States Constitution gives Congress the power "[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. Like the "living Constitution" of which it is a part, the history of the Commerce Clause reflects a complex and evolving relationship between the Federal and State governments, a relationship that is a hallmark of our system of government. See generally, Gregory v. Ashcroft, 501 U.S. 452, 457-59, 111 S.Ct. 2395, 2399-2400, 115 L.Ed.2d 410 (1991). As with other relationships of fundamental and enduring importance, Constitutional and otherwise, and by the design of the Framers of the Constitution,

Page 306

2 the Federal-State relationship defies a precise definition or formula, leaving courts and lawmakers with the benefit and the burden of constantly testing and reassessing its parameters under the changing pressures of our Nation's history.3 Lopez, 514 U.S. at ---- - ----, 115 S.Ct. at 1633-34. It is the very elasticity of the relationship which has allowed it to endure these pressures.

        The expansive nature of Congress's power under the Commerce Clause was first recognized by the Supreme Court, through the voice of Chief Justice Marshall, in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). Commerce power is "power to regulate ... to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution." Id. at 196. The most immediate prescribed limitation lies in the language of the clause itself, which reaches only commerce "among the several States" and leaves the "exclusively internal commerce of a State" beyond Congress's regulatory grasp. Id. at 195.

        What the Court in Lopez called the "modern era" of Commerce Clause jurisprudence began with NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937). The cases which followed Jones & Laughlin, including United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942), and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), greatly expanded Congress's Commerce Clause power, particularly in its ability to regulate even local activities so long as they had a sufficient impact on interstate commerce. See New York v. United States, 505 U.S. 144, 158, 112 S.Ct. 2408, 2419, 120 L.Ed.2d 120 (1992) ("As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress' commerce power."). This doctrinal shift "reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce." Lopez, 514 U.S. at ----, 115 S.Ct. at 1628.

        The Lopez decision, relied on by defendant, has received great attention from courts, commentators, and hopeful defendants because, for the first time in the modern era, the Supreme Court struck down a law passed by Congress pursuant to its Commerce Clause powers, declaring...

To continue reading