U.S. v. Johnson

• Decision Date: 13 March 1996
• Docket Number: Criminal No. 95-365-M.
• Citation: 940 F.Supp. 911
• Parties: UNITED STATES of America v. Gary Nelson JOHNSON
• Court: U.S. District Court — Eastern District of Virginia

940 F.Supp. 911

UNITED STATES of America v. Gary Nelson JOHNSON

Criminal No. 95-365-M.

United States District Court, E.D. Virginia, Alexandria Division.

March 13, 1996.

Dale Warren Dover, Alexandria, VA, for Gary Nelson Johnson, defendant.

Michael Francis Ruggio, U.S. Attorney's Office, Alexandria, VA, for the U.S.

MEMORANDUM OPINION

SEWELL, United States Magistrate Judge.

Following a bench trial, Gary Nelson Johnson was found guilty of a violation of the Child Support Recovery Act, 18 U.S.C. § 228 (the "CSRA"). Johnson moved to dismiss on the grounds that the CSRA, 18 U.S.C. § 228, is an unconstitutional exercise of Congressional power under the commerce clause of the Constitution and that prosecution also violates the Tenth Amendment of the Constitution. For the reasons stated from the bench on February 6, 1996 and stated herein, the Motion to Dismiss is DENIED.

I. FACTS

The evidence at trial established that Johnson was married to Mary F. Rauss (formerly Johnson) on May 25, 1985 in Endicuit, New York. Marisa Rose Johnson was born of the marriage on August 18, 1988. Mary F. Johnson separated from Defendant, assumed custody of Marisa, and has at all times since her separation from Defendant resided with Marisa in Virginia. The Circuit Court of Prince William County, Virginia issued a final decree of divorce to Defendant and Mary F. Johnson on October 6, 1989. The divorce decree ordered Defendant to pay to Mary Johnson the sum of twenty-five (25.00) dollars per week for the support of Marisa. Defendant resided in Broome County, New York, and based on the Virginia decree, the Family Court of the State of New York, Broome County, ordered Defendant to pay twenty-five (25.00) dollars per week for support of Marisa. The New York Family Court was unsuccessful in obtaining compliance with its Order. The Family Court issued Orders of Contempt against Johnson on May 26, 1989, December 26, 1989, March 20, 1990, June 27, 1990, September 26, 1990, and on May 14, 1991. On September 16, 1991, the Family Court in New York issued a warrant for the arrest of Johnson. Johnson remained a fugitive until being arrested in Florida on June 20, 1995 by FBI agents on the federal CSRA charges.¹

Johnson failed to file federal income tax returns in 1990, 1991, and 1994. While in Florida, however, Johnson remarried, began working and earning money, and between him and his second wife, owned substantial assets of value. Nevertheless, throughout this period, Johnson failed to make child support payments for Marisa. Only two or three child support payments were ever made by Johnson to the custodial parent. At no point did Johnson contact the Family Court in New York or his ex-wife regarding the large arrearage. Johnson's intent to delay the state court orders is manifested, in part, by letters he wrote to Marisa's mother. For example, one excerpt in a letter Johnson wrote to Marisa's mother, postmarked February 16, 1989, states:

If you persist [in seeking child support], I'll do whatever is necessary to continue on my present directive. Even if it means moving from Bing[hampton] N.Y. so nobody knows where the hell I am. I've already explained to you that I cannot pay you anything right now. Whatever money I do make in the summer goes towards my financial needs throughout the school year. I'm sorry but you are not going to alter that, I don't care what the law is.

II. DISCUSSION

In his motion to dismiss, Johnson contends that the CSRA, 18 U.S.C. § 228, is an unconstitutional exercise of Congressional power and that his prosecution violates the Tenth Amendment of the Constitution.

(A) The Commerce Clause and the CSRA

The CSRA makes it a federal crime 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. The Act was signed into law on October 25, 1992. It specifically provides:

§ 228. Failure to pay legal child support obligations

(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 two years, or both.

(c) Restitution. Upon a conviction under this section, the court shall order restitution under section 3663 in an amount equal to the past due support obligation as it exists at the time of sentencing.

(d) Definitions. 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; ...

The Commerce Clause of the Constitution provides Congress the power "[t]o regulate Commerce with foreign Nations and among the several states, and with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. Johnson claims that Congress exceeded the limits of its authority under the Commerce Clause by enacting the CSRA, He argues that the statute fails to regulate a commercial activity and does not contain a requirement that the proscribed activity be connected in any way to interstate commerce. Johnson relies principally on United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Mussari, 894 F.Supp. 1360 (D.Ariz.1995). Lopez is the most recent Supreme Court case dealing with Congress' legislative powers under the Commerce Clause. Mussari is one of the three district court opinions which have held that Congress exceeded its power under the Commerce Clause in enacting the CSRA.²

Lopez provides the current starting point for analyzing an issue concerning the breadth of Congressional power under the Commerce Clause. In Lopez, the Supreme Court found the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), unconstitutional. The statute in Lopez made it a federal crime to knowingly possess a firearm within 1,000 feet of a school zone. The Court described the three areas which Congress may regulate under the Commerce Clause:

First, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce.

Lopez, ___ U.S. at ___ - ___, 115 S.Ct. at 1629-30 (citations omitted).

In determining whether the Gun-Free School Zones Act was passed within Congress' powers under the Commerce Clause, the Court concerned itself with only the third category. The Court held that the statute exceeded Congress' Commerce Clause powers because it did not regulate conduct that "substantially affects" interstate commerce. The decision was predicated upon finding the Gun-Free Schools Act to be a criminal statute having nothing to do with commerce and lacking a jurisdictional element that required a nexus between the proscribed activity and interstate commerce. Id. at ___ - ___, 115 S.Ct. at 1630-31. In its reasoning, the Court noted that the "possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at ___, 115 S.Ct. at 1634. Applying the Lopez reasoning, the CSRA clearly is a constitutional exercise of Congress' Commerce Clause powers. The CSRA is distinguishable from the statute at issue in Lopez.

In a number of well-reasoned post-Lopez opinions, district courts have held the CSRA to be a constitutional exercise of Congress' powers under the Commerce Clause. See United States v. Hopper, 899 F.Supp. 389 (S.D.Ind.1995); United States v. Sage, 906 F.Supp. 84 (D.Conn.1995); United States v. Wilson, NO. 4:95MG3026 (N.D.Ohio Nov. 7, 1995); United States v. Murphy, 893 F.Supp. 614 (W.D.Va.1995); United States v. Hampshire, 892 F.Supp. 1327 (D.Kan.1995); United States v. Kegel, 916 F.Supp. 1233 (M.D.Fla.1996). I concur with the results of these decisions and find that the CSRA falls within the second or third category of Congress' Commerce Clause powers as set forth in Lopez. A child support payment between persons residing in different states reasonably can be considered a "thing in interstate commerce" as well as conduct with a "substantial effect" on interstate commerce.

First, unlike the Gun-Free School Zones Act at issue in Lopez, the CSRA has a jurisdictional prerequisite requiring a nexus between the proscribed activity and interstate commerce. See Murphy, 893 F.Supp. at 616; Hampshire, 892 F.Supp. at 1329; Wilson; NO. 4:95MG3026 at 5; Sage, 906 F.Supp. at 89; Hopper, 899 F.Supp. at 391. An individual violates the CSRA by failing to pay a child support obligation with respect to a child who resides in another state. The CSRA's legislative history provides that the Act "is designed to target interstate cases only." H.R.Rep. No. 771, 102nd Cong., 2nd Sess.1992. The defaulting parent must live in a state different than that of the child being supported. Thus, the CSRA imposes criminal liability only after a defendant failed to transfer funds from one state to another. The CSRA was an attempt by Congress to address the problem of interstate enforcement of child support by "taking the incentive out of moving interstate to avoid payment." Id. This differs from the ...