U.S. v. Bongiorno

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN; SELYA
• Citation: U.S. v. Bongiorno, 106 F.3d 1027 (1st Cir. 1996)
• Decision Date: 04 December 1996
• Docket Number: 96-1560,Nos. 96-1052,s. 96-1052
• Parties: UNITED STATES of America, Appellee, v. Frank P. BONGIORNO, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Frank P. BONGIORNO, Defendant, Appellant. . Heard

Page 1027

106 F.3d 1027

65 USLW 2557

UNITED STATES of America, Appellee, v. Frank P. BONGIORNO, Defendant, Appellant.

UNITED STATES of America, Plaintiff, Appellee, v. Frank P. BONGIORNO, Defendant, Appellant.

Nos. 96-1052, 96-1560.

United States Court of Appeals First Circuit.

Heard Dec. 4, 1996.

Decided Feb. 7, 1997.

Rehearing and Suggestion for Rehearing

En Banc Denied

Feb. 27, 1997.

Thomas V. Silvia, Ann Arbor, MI, for appellant.

Jeanne M. Kempthorne and Christopher Alberto, Assistant United States Attorneys, Boston, MA, with whom Donald K. Stern, United States Attorney, Hollywood, CA, was on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

In many respects the history of this litigation resembles a Greek tragedy, excerpts of which from time to time have occupied the attention of no fewer than ten federal and state judges across the nation. This particular passage revolves around the constitutionality of the Child Support Recovery Act (CSRA), 18 U.S.C. § 228 (1994), and the federal government's authority, if any, to collect restitutionary payments ordered under the CSRA by recourse to the Federal Debt Collection Procedure Act (FDCPA), 28 U.S.C. §§ 3001-3308 (1994). The CSRA issue is new to us and the FDCPA issue has not, to our knowledge, been addressed by any court of appeals. After sorting through these and other arcana, we reject the defendant's challenge to his criminal conviction and sentence, holding, among other things, that Congress did not exceed the bounds of its constitutional power in enacting the CSRA. Turning to post-conviction events, we hold that the federal government lacks authority to proceed against a "deadbeat dad" by using the FDCPA as an instrument for enforcing a restitutionary order issued in connection with an antecedent criminal conviction.

I. SETTING THE STAGE

In October 1990 a Georgia state court entered a decree ending Sandra Taylor's marriage to defendant-appellant Frank P. Bongiorno, granting Taylor custody of the couple's minor daughter, and directing Bongiorno (a physician specializing in bariatric surgery) to pay $5,000 per month in child support. Shortly thereafter, mother and daughter repaired to Massachusetts. When Bongiorno subsequently sought to modify the child support award, Taylor counterclaimed on the ground that Bongiorno had failed to make the payments stipulated in the original decree. In September 1992 the Georgia court found Bongiorno in contempt for failing to pay upward of $75,000 in mandated child support and directed that he be incarcerated until he had purged the contempt. Bongiorno avoided immurement only because he had accepted a position in Michigan and the contempt order did not operate extraterritorially.

Once in Michigan, Bongiorno made sporadic payments of child support despite the fact that his new post paid $200,000 per year. In March 1993 a Michigan state court domesticated the Georgia support order and authorized garnishment of Bongiorno's wages to satisfy the accumulated arrearage. Soon thereafter, Bongiorno quit his job and paid only $500 a month in child support from June to December 1993. In early 1994 Bongiorno went to work for the State of Michigan. That May a Michigan state court issued an order enforcing the Georgia support award to the extent of $300 per week. ¹ Bongiorno failed to satisfy even this modest impost.

Approximately one year later the federal behemoth stirred; the United States charged Bongiorno with violating the CSRA. Because Bongiorno's minor daughter has resided continuously in Massachusetts from 1990 forward (albeit with her grandmother for much of that time), the government preferred charges in that district. Bongiorno moved unsuccessfully to dismiss the indictment on the ground that the CSRA represents an unconstitutional exercise of Congress' power under the Commerce Clause. At an ensuing bench trial, the district court determined that Bongiorno had possessed the ability to pay $5,000 monthly in the 1992-1993 time frame, but that he had chosen not to do so. Consequently, the court found Bongiorno guilty of willful failure to pay child support and sentenced him to five years of probation. As a condition of probation, the court imposed a work-release arrangement, directing Bongiorno to spend up to twelve hours per day in the custody of the Bureau of Prisons for the first year of his probation. As a further condition, the court ordered restitution in the sum of $220,000 (a figure approximating the total arrearage then outstanding).

Not content with its apparent victory, the government commenced a civil proceeding under the FDCPA as a means of enforcing the restitutionary order. After some procedural wrangling, the court granted the government's motion to attach Bongiorno's wages and disburse the proceeds.

Bongiorno filed timely appeals in both cases, and we heard the appeals in tandem. We now affirm the conviction and sentence in the criminal case, but reverse the judgment in the civil case.

II. THE CONSTITUTIONALITY OF THE CHILD SUPPORT RECOVERY ACT

Bongiorno challenges his conviction principally on the ground that the CSRA is an unconstitutional exercise of Congress' authority under the Commerce Clause. We review de novo constitutional challenges to federal statutes. See United States v. Gifford, 17 F.3d 462, 471-72 (1st Cir.1994).

A. The CSRA and Its Prologue.

In 1992 Congress focused on the importance of financial support from non-custodial parents as a means of combatting the growing poverty of single-parent families. The House Judiciary Committee observed that of $16.3 billion in child support payments due in 1989, only $11.2 billion was paid, leaving a shortfall of approximately $5 billion to be offset largely through government assistance. See H.R.Rep. No. 102-771, at 5 (1992). The Committee concluded that "the annual deficit in child support payments remains unacceptably high," especially "in interstate collection cases, where enforcement of support is particularly difficult." Id. To illustrate this point, the Committee noted that one-third of all uncollected child support obligations involved non-custodial fathers living out of state and that roughly fifty-seven percent of the custodial parents in such situations received support payments "occasionally, seldom or never." Id.

Because Congress doubted the states' ability efficaciously to enforce support orders beyond their own borders, see id. at 6 (recognizing that "interstate extradition and enforcement in fact remains a tedious, cumbersome and slow method of collection"), it devised a federal solution hoping that the new law--the CSRA--would prevent delinquent parents from "mak[ing] a mockery of State law by fleeing across State lines to avoid enforcement actions by State courts and child support agencies." 138 Cong. Rec. H7324, H7326 (daily ed. Aug. 4, 1992) (statement of Rep. Hyde). In final form the statute makes willful failure "to pay a past due support obligation with respect to a child who resides in another State" a federal crime. 18 U.S.C. § 228(a). A "past due support obligation" is an amount determined under a state court order that either has remained unpaid for more than one year or is greater than $5,000. See id. § 228(d)(1). The law subjects violators to a panoply of punishments, including imprisonment, fines, and restitution. See id. § 228(b) & (c).

B. The Commerce Clause.

The Commerce Clause bestows upon Congress the power, inter alia, to "regulate Commerce ... among the several States." U.S. Const., art. I, § 8, cl. 3. The appellant claims that the CSRA--which in his case has the effect of regulating the nonpayment of Georgia-imposed child support obligations owed by a Michigan resident to a child domiciled in Massachusetts ²--does not fall within the ambit of this constitutional grant. The Supreme Court has identified three general categories of activity that lawfully can be regulated under the Commerce Clause: (1) activities that involve use of the channels of interstate commerce, (2) activities that implicate the instrumentalities of interstate commerce (including persons or things in interstate commerce), and (3) activities that have a substantial relation to, or substantially affect, interstate commerce. See United States v. Lopez, 514 U.S. 549, ---- - ----, 115 S.Ct. 1624, 1629-30, 131 L.Ed.2d 626 (1995); Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971).

While the CSRA is likely supportable under more than one of these rubrics, we believe that its validity is most easily demonstrated in terms of the second class of activities. In other words, because paying court-ordered child support occurs in interstate commerce when the obligated parent and the dependent child reside in different states, the underlying support obligation is subject to regulation under the Commerce Clause. Accord United States v. Hampshire, 95 F.3d 999, 1003 (10th Cir.1996) (holding that the CSRA regulates a "court-ordered obligation to pay money in interstate commerce"), cert. denied, --- U.S. ----, 117 S.Ct. 753, 136 L.Ed.2d 690 (1997); United States v. Mussari, 95 F.3d 787, 790 (9th Cir.1996) (concluding that the support obligation is a "thing" in interstate commerce because it must be met "by a payment that will normally move in interstate commerce--by mail, by wire, or by the electronic transfer of funds"); United States v. Sage, 92 F.3d 101, 106 (2d Cir.1996) (similar to Hampshire ), cert. denied, --- U.S. ----, 117 S.Ct. 784, 136 L.Ed.2d 727 (1997).

The appellant employs various artifices in attempting to resist the force of this conclusion. For starters, he protests that the obligation to pay child support is not "commerce" in any meaningful sense. That cry is drowned out by the broadcast definitions of the term used by the Supreme Court from the early days of the Republic, see, e.g., Gibbons v. Ogden, 22 U.S. ...