936 F.Supp. 817 (N.D.Okl. 1996), 95-CR-125, United States v. Sims

Docket Nº:95-CR-125-H.
Citation:936 F.Supp. 817
Party Name:UNITED STATES of America, Plaintiff, v. Billy Ray SIMS, Defendant.
Case Date:February 22, 1996
Court:United States District Courts, 10th Circuit, Northern District of Oklahoma

Page 817

936 F.Supp. 817 (N.D.Okl. 1996)

UNITED STATES of America, Plaintiff,


Billy Ray SIMS, Defendant.


United States District Court, N.D. Oklahoma.

Feb. 22, 1996

Page 818

Ann Dooley, United States Attorney, Tulsa, OK, Stephen J. Knorr, Federal Public Defender's Office, Tulsa, OK, for defendant.

James L. Swartz, United States Attorney, Tulsa, OK, for U.S.


HOLMES, District Judge.

This matter comes before the Court on the Motion to Dismiss the Information by Defendant Sims pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. On September 29, 1995, Mr. Sims was charged by information with one count of failure to pay a child support obligation in violation of 18 U.S.C. § 228. On October 5, 1995, Mr. Sims first appeared before the Court and entered a plea of not guilty to the charged offense.

The information alleges that Mr. Sims, a Texas resident, failed to provide child support to Vicky R. Smith, a resident of Osage County, Oklahoma, for the benefit of a minor child fathered by Mr. Sims with Ms. Smith. The minor child in question was born when Defendant Sims was a student at the University of Oklahoma during the period from 1975 through 1979. For a number of years, Mr. Sims provided support to the child; his contributions ceased in November, 1990. Ms. Smith and her child, who is now 17 years of age, have resided in Oklahoma continuously since the child's birth. The Government does not allege that Mr. Sims fled the jurisdiction to avoid child support. Rather, Defendant's violation of 18 U.S.C. § 228 is premised upon the fact that Mr. Sims does not reside in the same state as the minor child, his support obligation has been unpaid for more than one year, and is of an amount greater than $5,000.00.

In his Motion, Mr. Sims argues that the Child Support Recovery Act, 18 U.S.C. § 228 (the "CSRA"), violates the Commerce Clause of the Constitution of the United States; that the CSRA has been unconstitutionally applied to the instant case; that the CSRA violates the Tenth Amendment of the United States Constitution; and that principles of federalism and comity mandate dismissal.

If the information is insufficient to charge an offense, this Court may dismiss it. See United States v. King, 581 F.2d 800, 802 (10th Cir.1978). Defendant's principal argument in support of his position is that, based upon the reasoning set forth in the recent decision of the United States Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the...

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