U.S. v. Faasse

• Decision Date: 18 June 1999
• Docket Number: No. 98-2337,98-2337
• Citation: 227 F.3d 660
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Timothy Gordon Faasse, Defendant-Appellant. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 660

227 F.3d 660 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Timothy Gordon Faasse, Defendant-Appellant.

No. 98-2337

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: June 18, 1999

Decided and Filed: September 25, 2000

NOTE: OPINION IS VACATED. SEE ORDER AT 234 F.3d 312.

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 98-00185--Robert Holmes Bell, District Judge. [Copyrighted Material Omitted] Thomas J. Gezon, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

Christopher P. Yates, FEDERAL PUBLIC DEFENDERS OFFICE, Grand Rapids, Michigan, for Appellant.

Before: BOGGS, NORRIS, and BATCHELDER, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

This case requires us to decide whether the Commerce Clause empowers Congress to criminalize the failure to obey a state court order when the State itself has declined to do so. We hold that the Commerce Clause does not invest Congress with such a power.

I. Background

Timothy Gordon Faasse and Sandra Bowman met in a Michigan video store in 1989. The couple began dating, and in 1990, Bowman became pregnant. That summer, Faasse and Bowman visited California, Arizona, and Texas in order to find a place to work and live. They were unsuccessful and returned to Michigan, where they settled in Lansing. Bowman gave birth to a daughter, Noelle, in December of 1990.

Seven months later, the couple again discussed the possibility of moving "out West." Bowman decided that she wished to remain in Michigan near her family. Faasse felt that the education and employment opportunities were better in California, and he moved to San Diego in June of 1991. Noelle remained with Bowman.

The following year, Faasse filed in Michigan court a petition to establish paternity of Noelle. The state court agreed that Faasse was Noelle's father, and ordered him to make weekly child support payments of $58.25. The order, entered on January 11, 1994, made the support obligation retroactive to December 1992. As a result, Faasse began his payments $5,391.00 in arrears. The Michigan court would later increase the support order to $125.00 per week.

Faasse's child support payments were erratic. In 1994, he made four payments totaling $633.00. In 1995, he made ten payments for a total of $1175.00. Faasse made ten more payments in 1996; these came to $690.00. The following year brought payments of $5390.00 in seven instalments. In 1998, Faasse made one payment of $100.00. By September of that year, his arrearage had grown to $28,313.35.

United States Marshals arrested Faasse in southern California on August 15, 1997. He was charged with one count of willful failure to pay past due child support, in violation of the Child Support Recovery Act ("CSRA"), 18 U.S.C. § 228 (1994). The matter was referred to a magistrate judge, before whom Faasse pled guilty. The magistrate judge accepted Faasse's plea and sentenced him to six months' imprisonment, the statutory maximum, and ordered him to make restitution of $28,438.35. Faasse appealed to the United States District Court for the Western District of Michigan, arguing that enactment of the CSRA exceeded Congress's authority under the Commerce Clause, and that the magistrate judge had abused his discretion in ordering restitution in the full amount of the past-due child support obligation. The district court affirmed.

Before this court, Faasse renews his challenges to the constitutionality of the CSRA and to the restitution order. For the reasons set forth below, we conclude that the CSRA is not a proper exercise of Congress's power to regulate interstate commerce.

II. The Child Support Recovery Act of 1992

The legislative history surrounding the CSRA reveals two principal concerns on the part of the law's drafters. First Congress evidently wished to prevent non-custodial parents from fleeing across state lines to avoid paying their child support obligations. Second, Congress desired to recover those support payments that had not been made. The law that actually emerged from the 102nd Congress, however, reaches far beyond these stated goals. The slippage between the CSRA's text and its drafters' design ultimately renders the law constitutionally infirm.

House of Representatives bill 1241--which eventually would be come the CSRA--left the Judiciary Committee with a favorable recommendation. The Committee Report noted that about $5 billion in child support obligations went unpaid each year. H.R. Rep. 102-771, at 5 (1992). In approximately one-third of child support cases, the father lives in a state other than the state where the child or children live, the Report continued, and fifty-seven percent of custodial parents in interstate cases receive child support payments only occasionally, seldom, or never. Id. Suggesting that state enforcement was "tedious, cumbersome and slow," the Report advocated a federal remedy to take "the incentive out of moving interstate to avoid payment." Id. The Report concluded:

The Committee believes that a child should be able to expect the most basic support from those who chose to bring the child into the world. That expectation should not end at the state line. The Committee further believes that the taxpayers of America should be able to expect that the burden of caring for these children will be placed on the shoulders of the parents where it rightfully belongs.

Id.

These sentiments were reiterated during the debates held the day after the Committee Report was released. Representatives supporting the bill observed that state enforcement efforts had been "hobbled by a labyrinth of extradition laws and snarls of redtape," and asserted that H.R. 1241 would strengthen rather than supplant state enforcement. 138 Cong. Rec. H7324-01, H7325 (Aug. 4, 1992) (statement of Rep. Schumer). The Representatives also worried that the burden of supporting children abandoned by deadbeat parents would fall on the American taxpayer through public assistance programs. Id. But running like a leitmotif throughout the debates is the understanding expressed by Congressman Ewing: that the bill would "make it a crime for a parent to cross State lines in order to avoid making court-ordered child support payments." Id. at H7326.

Yet the text of the Child Support Recovery Act contains no mention of interstate flight, nor does it confine its reach to recovery of delinquent payments. At the time of Faasse's arrest and conviction, the Act provided in pertinent part:

(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).

(b)Punishment.--The punishment for an offense under this section is

(1) in the case of a first offense under this section, a fine under this title, imprisonment for not more than 6 months, or both; and

(2) in any other case, a fine under this title, imprisonment for not more than 2 years, or both.

(c)Restitution.--As used in this section

(1) the term "past due support obligation" means any 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; and

(2) the term "State" includes the District of Columbia, and any other possession or territory of the United States.

18 U.S.C. § 228 (1994), amended by 18 U.S.C.A. § 228 (2000).¹ This language is overinclusive; it predicates criminal jurisdiction not on flight across state lines, but on simple diversity of residence. The Act thus sweeps Faasse within its compass, though the record in this case is devoid of any indication that he moved to California to avoid his child support obligations. It is clear that the statute imposes liability even if it is the child who moved out of state rather than the non-custodial parent. See, e.g., United States v. Sage, 92 F.3d 101 (2d Cir. 1996).

Similarly, the CSRA does far more than "remove the incentive" to move interstate to avoid payment. The CSRA criminalizes a situation that is not criminal in Michigan, simply because the defendant moved to another state, even if he moved to maintain the same, or attain a better, job, or moved to be closer to his family, or to obtain an education. Were the scope of the Act so restricted, it presumably would have been enacted pursuant to Congress's legislative authority under the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, cl.2, since the Framers committed interstate enforcement of state court orders to that provision of the Constitution. See 3 Max Farrand, The Records of the Federal Convention of 1787, at 488 (1911) (statement of James Wilson) (remarking that if the Legislature were not empowered to declare the effect of state acts, records and judicial proceedings, "the provision would amount to nothing more than what now takes place among all Independent Nations"); see also The Federalist No. 42, at 287 (James Madison) (Jacob E. Cooke ed., 1961) ("The power of prescribing by general laws the manner in which the public acts, records and judicial proceedings shall be proved, and the effect they shall have in other States . . . may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice, may be suddenly and secretly translated in any stage of the process, within a foreign jurisdiction."); Green v. Sarmiento, 10 F. Cas. 1117, 1119 (C.C.D. Pa. 1810) (No. 5,760) (Washington, J., sitting on circuit) ("[T]he power to limit the effect of [state] judicial proceedings, is undoubted; and it was wisely left to the discretion of congress, to regulate the degree of force to be given to...