U.S. v. Hampshire, 96-3007

• Decision Date: 11 September 1996
• Docket Number: No. 96-3007,96-3007
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricky L. HAMPSHIRE, Defendant-Appellant. Tenth Circuit
• Court: U.S. Court of Appeals — Tenth Circuit

Page 999

95 F.3d 999

65 USLW 2224

UNITED STATES of America, Plaintiff-Appellee, v. Ricky L. HAMPSHIRE, Defendant-Appellant.

No. 96-3007.

United States Court of Appeals,Tenth Circuit.

Sept. 11, 1996.

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Wichita, Kansas, for Defendant-Appellant.

David S. Kris, United States Department of Justice, Washington, D.C. (Jackie N. Williams, United States Attorney, and Brian R. Johnson, Special Assistant United States Attorney, Wichita, Kansas), for Plaintiff-Appellee.

Before KELLY, LOGAN and BRISCOE, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-appellant Ricky L. Hampshire entered a conditional plea of guilty based upon the failure to pay child support obligations in violation of the Child Support Recovery Act of 1992 ("CSRA"), 18 U.S.C. § 228, after the district court rejected his challenges to the CSRA and its application. See United States v. Hampshire, 892 F.Supp. 1327 (D.Kan.1995). He was sentenced to two years' probation and ordered to pay $38,804 in restitution. He now challenges his conviction on the basis that (1) the CSRA violates the Commerce Clause and the Tenth Amendment; (2) the state court order upon which his federal conviction is predicated violates his rights under both the Fourteenth Amendment Due Process Clause and the Soldiers' and Sailors' Civil Relief Act ("SSCRA"); and (3) the order of restitution, which includes amounts of child support incurred prior to the enactment of the CSRA, violates the Ex Post Facto Clause. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.

Background

In September 1985, Defendant Ricky Hampshire went "absent without leave" ("AWOL") from the military. In October 1985, his wife filed for divorce in Kansas. In November 1985, Mr. Hampshire was apprehended, held in a civilian jail pending transfer to military custody, and served with a summons to answer the divorce petition. He never responded. The court granted the divorce, awarded custody to the mother of the couple's two children and ordered Mr. Hampshire to pay $350 per month in child support. After his release from military prison, Mr. Hampshire moved from Kansas to New Mexico, refused to make any payments and eventually was charged with violating the CSRA.

Discussion

I. Commerce Clause

We review de novo challenges to the constitutionality of a statute. United States v. Bolton, 68 F.3d 396, 398 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). The Commerce Clause provides that "[t]he Congress shall have Power ... [t]o regulate Commerce ... among the several States...." U.S. Const. art. I, § 8, cl. 3. "A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends." Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 754, 102 S.Ct. 2126, 2134, 72 L.Ed.2d 532 (1982) (quoting Hodel v. Indiana, 452 U.S 314, 323-24, 101 S.Ct. 2376, 2383, 69 L.Ed.2d 40 (1981)).

The CSRA makes it a federal criminal offense for a person to "willfully fail[ ] to pay a past due support obligation with respect to a child who resides in another State." 18 U.S.C. § 228(a). "Past due support obligation" is defined 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 ... that has remained unpaid for a period longer than one year, or is greater than $5,000." 18 U.S.C. § 228(d)(1).

The constitutionality of the CSRA presents a question of first impression in this circuit. The Commerce Clause empowers Congress to regulate three aspects of interstate commerce: (1) "the use of the channels of interstate commerce[;]" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce[;]" and (3) activities that have a substantial relation to or substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, ----, 115 S.Ct. 1624, 1629, 131 L.Ed.2d 626 (1995); see also Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971). In Lopez, relied upon in large part by Mr. Hampshire, the Court struck down 18 U.S.C. § 922(q), part of the Gun-Free School Zones Act of 1990 ("GFSZA"), which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(2)(A). In Lopez, the Court dismissed as inapplicable the first two categories of permissible interstate commerce regulation and held that § 922(q) failed to satisfy the prerequisites of the third category because it regulated an activity that did not "substantially affect[ ] interstate commerce." 514 U.S. at ---- - ----, 115 S.Ct. at 1630-31. Of particular importance to the Court's analysis was the fact that § 922(q) was "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise" and "contain[ed] no jurisdictional element which would ensure ... that the firearm possession in question affects interstate commerce." Id.

The Second Circuit recently held that the CSRA was a proper exercise of Congress's power to regulate and protect the instrumentalities of interstate commerce because the Act "regulates the flow of payments on unfulfilled child support orders where the child and parent reside in separate States." United States v. Sage, 92 F.3d 101, 107 (2d Cir.1996). Because the CSRA "addresses an obligation to make payments in interstate commerce," it regulates more than local activity and is constitutional. Id. The Ninth Circuit also recently upheld the CSRA on a similar rationale:

The obligation of a parent in one state to provide support for a child in a different state is an obligation to be met by a payment that will normally move in interstate commerce--by mail, by wire, or by the electronic transfer of funds. That obligation is, therefore, a thing in interstate commerce and falls within the power of Congress to regulate. The frustration of satisfaction of the obligation by the failure of the debtors to pay is an impediment to interstate commerce that Congress can criminalize ...

United States v. Mussari, 95 F.3d 787, 790 (9th Cir.1996).

Numerous district courts have addressed the constitutionality of the CSRA. Several have found it to be constitutional. See United States v. Ganaposki, 930 F.Supp. 1076, (M.D.Pa.1996); United States v. Nichols, 928 F.Supp. 302 (S.D.N.Y.1996); United States v. Collins, 921 F.Supp. 1028 (W.D.N.Y.1996) (opinion by magistrate judge); United States v. Kegel, 916 F.Supp. 1233 (M.D.Fla.1996) (opinion by magistrate judge); United States v. Sage, 906 F.Supp. 84 (D.Conn.1995), aff'd, 92 F.3d 101 (2d Cir.1996); United States v. Hopper, 899 F.Supp. 389 (S.D.Ind.1995) (opinion by magistrate judge); Hampshire, 892 F.Supp. 1327. These courts generally upheld the constitutionality of the CSRA on the basis that (1) nonpayment of child support involves payment of a debt and therefore constitutes economic activity or commerce, Ganaposki, 930 F.Supp. at 1082-83; Nichols, 928 F.Supp. at 310-11; (2) nonpayment of child support in the aggregate has a substantial impact on commerce, Ganaposki, 930 F.Supp. at 1082-83; Nichols, 928 F.Supp. at 311-12, Sage, 906 F.Supp. at 90; Hampshire, 892 F.Supp. at 1329-30; and (3) the CSRA's requirement that the delinquent parent and child reside in two different states constitutes the jurisdictional requirement of an interstate nexus ensuring that the federal government will not intrude upon matters with no relation to interstate commerce, Sage, 906 F.Supp. at 91-92; Hampshire, 892 F.Supp. at 1330.

By contrast, several other district courts have held the CSRA unconstitutional. See 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, reconsideration denied by, 912 F.Supp. 1248 (D.Ariz.1995), rev'd, 95 F.3d 787 (9th Cir.1996); United States v. Schroeder, 894 F.Supp. 360, reconsideration denied by, 912 F.Supp. 1240 (D.Ariz.1995), rev'd, 95 F.3d 787 (9th Cir.1996). These courts struck down the CSRA on the basis that (1) nonpayment of child support fails to constitute an activity that substantially affects commerce or bears a substantial relationship to commerce, Parker, 911 F.Supp. at 840-41; Schroeder, 894 F.Supp. at 365-66; Mussari, 912 F.Supp. at 1255-56; (2) the CSRA's requirement that the delinquent parent and child reside in two different states does not satisfy the constitutionally required jurisdictional requirement of an interstate nexus because the delinquent parent often does not involve himself in any interstate activity that constitutionally confers jurisdiction, Parker, 911 F.Supp. at 842-43; Mussari, 912 F.Supp. at 1251-52; (3) nonpayment of child support inherently is a state criminal issue in which intervention by the federal government violates notions of comity and federalism, Bailey, 902 F.Supp. at 730; Schroeder, 894 F.Supp. at 367-68; and (4) the definitional requirements of the CSRA force federal courts to interpret and possibly modify state court ordered decrees, Schroeder, 912 F.Supp. at 1246; Mussari, 912 F.Supp. at 1254-55; Schroeder, 894 F.Supp. at 367-68.

In this case, Mr. Hampshire argues that Congress exceeded its authority under the Commerce Clause because the CSRA: (1) regulates an activity that neither constitutes nor involves commerce; (2) lacks the prerequisite interstate nexus sufficient to confer federal jurisdiction; (3) is overbroad; and (4) represents an unconstitutional foray by the...