U.S. v. Cummings

• Decision Date: 27 February 2002
• Docket Number: No. 01-30032.,01-30032.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cole Cameron CUMMINGS, aka Coleman Cameron Cummings, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1046

281 F.3d 1046

UNITED STATES of America, Plaintiff-Appellee, v. Cole Cameron CUMMINGS, aka Coleman Cameron Cummings, Defendant-Appellant.

No. 01-30032.

United States Court of Appeals, Ninth Circuit.

Argued December 3, 2001.

Submitted February 14, 2002.

Filed February 27, 2002.

Stephen R. Hormel, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the defendant-appellant.

Francis J. Diskin, U.S. Attorney, Timothy J. Ohms, Assistant U.S. Attorney for the Eastern District of Washington; Marc I. Osborne (argued), U.S. Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, District Judge, Presiding. D.C. No. CR-98-112-RHW.

Before: O'SCANNLAIN, GRABER, and McKEOWN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether the International Parental Kidnapping Crime Act, which criminalizes the retention of a kidnapped child in a foreign country, is unconstitutional.

I

Cole Cameron Cummings married Dana Hopkins in 1989, and they had three children, all of whom were born in the United States and resided with their parents in the State of Washington. In 1995, Cummings and Hopkins divorced, and a Washington state court ordered the children to reside primarily with Hopkins. Cummings thereafter married a German citizen and, together with his new wife, exercised his visitation rights with the children while still residing in Washington. In August 1997, the new Mrs. Cummings left Washington for the Federal Republic of Germany to work.

In November 1997, the oldest child ("child # 1") was placed in Cummings's temporary custody after being struck in the face by his stepfather, Hopkins's new husband. Washington State Child Protective Services received complaints that the remaining children were abused in the Hopkins home. Believing that his other two children were at risk of physical abuse, in March 1998 Cummings picked up his second oldest child ("child # 2") for a weekend visitation. Instead, he removed both child # 1 and child # 2 from the United States via commercial airline to Germany, where both children remain today. A German court denied Hopkins's petition made pursuant to the Hague Convention on the Civil Aspects of International Parental Child Abduction ("the Convention") to return the children to Washington. Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, arts. 820. She also filed a civil contempt action against Cummings in Washington state court.

Subsequently, the United States indicted Cummings under the International Parental Kidnapping Crime Act ("IPKCA"), 18 U.S.C. § 1204(a), for four counts of kidnapping. Counts 1 and 3 alleged the removal of a child outside the United States contrary to the parental rights of the child's mother. Counts 2 and 4 alleged the retention of a child outside the United States contrary to the parental rights of the mother. Cummings entered a conditional guilty plea to counts 2 and 4 (counts 1 and 3 were dismissed as part of the agreement), but he preserved his right to appeal the district court's denial of his motion to dismiss the indictment.

The district court sentenced Cummings to six months in prison and one year of supervised release, as well as a $200 special assessment, and entered an order requiring Cummings to pay Hopkins $15,090.82 in restitution. Of that amount, $14,085.50 was for Hopkins's attorney's fees in the separate state and international civil proceedings to recover custody of her two children. Cummings timely appeals the conviction and the attorney's fees portion of the restitution order.

II

Cummings argues that Congress did not have authority under the Commerce Clause to criminalize the retention of an American child in a foreign country; his appeal does not challenge Congress's authority to criminalize removal. The Commerce Clause gives Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. 1, § 8, cl. 3. "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." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196, 6 L.Ed. 23 (1824).

Congress's Commerce Clause authority is broad enough to stretch beyond the simple regulation of commercial goods traveling in interstate and foreign commerce to include regulation of non-economic activities — such as racial discrimination or growing wheat for personal consumption — that affect, impede, or utilize the channels of commerce. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (upholding Title II of the Civil Rights Act because racial discrimination "impede[d] interstate travel" through the channels of commerce); Wickard v. Filburn, 317 U.S. 111, 128-29, 63 S.Ct. 82, 87 L.Ed. 122 (1942) (upholding government's fine of a farmer for growing wheat for personal consumption in excess of his set quota because Congress sought to control wheat shortages and surpluses).

Thus, so long as § 1204(a) falls into one of the delineated "categories of activity that Congress may regulate under its commerce power," its reach need not be confined to commercial goods to be constitutional. United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The Supreme Court has identified three such categories: (1) regulating the use of the channels of commerce; (2) regulating and protecting the instrumentalities of commerce or persons in interstate commerce, even though the threat may come only from intrastate activities; and (3) regulating activities that have a substantial effect on commerce. Id. at 558-59, 115 S.Ct. 1624.¹

A

The district court held that 18 U.S.C. § 1204(a) fell within Congress's ability to regulate the channels of commerce (Lopez's first category). Specifically, the statute criminalizes the actions of one who "removes a child from the United States or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights." 18 U.S.C. § 1204(a). By its terms, a child retained in a foreign country has to have been taken from the United States to another country if § 1204(a) is to apply. Cummings could not wrongfully retain his children in Germany without traveling there by some means of foreign commerce.

Congress's power to regulate the use of the channels of commerce is well-established.² In United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), the Court upheld congressional authority to prohibit the interstate transportation of goods that were produced "under substandard [wage and hour] labor conditions." Id. at 115, 61 S.Ct. 451. In Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), the Court upheld Congress's ability to criminalize interstate trafficking of women for immoral purposes:

The transportation of passengers in interstate commerce, it has long been settled, is within the regulatory power of Congress, under the commerce clause of the Constitution, and the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.

Id. at 491, 37 S.Ct. 192. Here, the wrongfully-removed children traveled in the channels of foreign commerce to reach Germany, where they were wrongfully retained.

Cummings argues that these principles do not speak to the constitutionality of the retention portion of § 1204(a) because they target conduct directly involved in the movement of people or things in commerce. He argues that once the movement ceases, the channels of commerce are no longer affected. Here, of course, § 1204(a) targets activity (i.e., retention) after movement has ceased.

We are unpersuaded. The cessation of movement does not preclude Congress's reach if the person or goods traveled in the channels of foreign commerce. In United States v. Rambo, 74 F.3d 948 (9th Cir.1996), we upheld 18 U.S.C. § 922(o)'s prohibition on machinegun possession because the statute was "`an attempt to prohibit the interstate transportation of a commodity through the channels of commerce.'" Id. at 952 (quoting Lopez, 514 U.S. at 559, 115 S.Ct. 1624). Section 922(o) permissibly proscribes possession after the items' movement through the channels of commerce ceases because, we noted, "there [could] be `no unlawful possession under section 922(o) without an `unlawful transfer.'" Id. (quoting United States v. Kirk, 70 F.3d 791, 796 (5th Cir.1995)). We concluded that "[b]y regulating the market in machineguns, including regulating intrastate machinegun possession, Congress has effectively regulated the interstate trafficking in machineguns." Id.

Likewise, § 1204(a) reaches conduct once the unlawful foreign transportation has ended. See also United States v. Jones, 231 F.3d 508, 514-15 (9th Cir.2000) (upholding a federal statute that prohibited felons from possessing firearms that were previously shipped in or otherwise affected commerce). We are satisfied that Congress can act to prohibit the transportation of specified classes of persons in foreign commerce and thus proscribe conduct such as retention of those persons, even though transportation is complete.

B

Not only does § 1204(a) target activity after the use of channels of foreign commerce is complete, but it also removes an impediment to the use of those channels. If a child is wrongfully retained in a foreign country, he or she cannot freely use the channels of commerce to return. Congress has authority to prevent individuals from impeding commerce, see Heart of Atlanta Motel, 379 U.S. at 253, 85 S.Ct. 348; United States v. Green, 350 U.S. 415, 416-17, 76 S.Ct. 522, 100...