U.S. v. Klinzing

• Decision Date: 09 January 2003
• Docket Number: No. 02-2080.,02-2080.
• Citation: 315 F.3d 803
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward W. KLINZING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

315 F.3d 803

UNITED STATES of America, Plaintiff-Appellee, v. Edward W. KLINZING, Defendant-Appellant.

No. 02-2080.

United States Court of Appeals, Seventh Circuit.

ARGUED October 30, 2002.

DECIDED January 9, 2003.

Lisa T. Warcick (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Dean A. Strang (argued), Federal Defender Service of Eastern Wisconsin, Inc., Milwaukee, WI, for Defendant-Appellant.

Before FLAUM, Chief Judge, and BAUER, and DIANE P. WOOD, Circuit Judges.

FLAUM, Chief Judge.

Edward Klinzing appeals his conviction under 18 U.S.C. § 228(a)(3), better known as the Deadbeat Parents Punishment Act ("DPPA"), for willful failure to pay court ordered child support. Klinzing argues first that the DPPA is an unconstitutional exercise of the federal commerce power. Second, he contends that the DPPA denies equal protection of the laws to delinquent parents who live in different states than their children and that it inhibits delinquent parents' fundamental right to travel. Third, Klinzing claims that the district court's admission of certain business records into evidence without foundation testimony by the record custodian, as permitted by Rules 803(6) and 902(11) of the Federal Rules of Evidence, violated his Sixth Amendment right to confront witnesses. For the reasons stated below, we reject Klinzing's constitutional arguments and affirm his conviction.

BACKGROUND

Edward Klinzing ("Klinzing") and Pamela Edwards (now Kerce) married in 1977 in Lake County, Illinois, and together had three sons, Christopher, Craig, and Cory Klinzing. After Klinzing and Pamela divorced in 1989, Pamela gained full custody of their sons and Klinzing was ordered by the court to pay child support until the boys reached adulthood. Soon after the divorce and during all years relevant to the criminal charges against Klinzing, Pamela and the three boys moved to Tennessee while Klinzing remained in Illinois and later moved to Wisconsin. Klinzing did not visit or maintain a relationship with his sons after they moved to Tennessee with Pamela.

Klinzing fell behind in his child support payments as early as 1991 and sporadically made payments through 1998. At the time of his arrest in July 2001, Klinzing owed $78,574.37 in past due child support obligations. The indictment charged Klinzing under the DPPA, 18 U.S.C. § 228(a)(3), with one count of willful nonpayment of court ordered child support for longer than two years and in excess of $10,000, which constituted a felony carrying a maximum two year prison term. Klinzing filed a motion to dismiss the indictment on equal protection, due process, and Commerce Clause grounds. The magistrate judge and the district court both denied Klinzing's motion to dismiss, finding no constitutional infirmities in the DPPA or its application to delinquent parents who live in different states from their children.

Before trial, the government filed a motion in limine regarding its intent to offer various business records as evidence pursuant to FED. R. EVID. 803(6). As amended in 2000, Rule 803(6) permits introduction of business records without foundation testimony from the record custodian so long as the records are authenticated according to FED. R. EVID. 902(11). At trial, the government offered these business records accompanied by written certifications in compliance with Rule 902(11). The district court ruled some of the proffered documents inadmissible under amended Rule 803(6) because they lacked the inherent reliability required under the hearsay exception, but admitted five W-2 wage statements over Klinzing's objection. Klinzing offered some exhibits of his own, but he neither testified himself nor called any witnesses on his behalf.

The jury convicted Klinzing of willful failure to pay child support as charged under the DPPA, and the district court sentenced him to serve 21 months in prison and pay $84,989.87 restitution. Klinzing now appeals his conviction, resurrecting the constitutional equal protection and Commerce Clause challenges that he asserted in his motion to dismiss and arguing that the admission of his W-2 forms into evidence under amended FED. R. EVID. 803(6) violated his rights as a criminal defendant under the Confrontation Clause.

ANALYSIS

A. CONSTITUTIONALITY OF THE DPPA

The DPPA, formerly called the Child Support Recovery Act ("CSRA"),¹ punishes the willful nonpayment of past due child support obligations owing to children who live in a different state than their noncustodial parent. See 18 U.S.C. § 228(a). Nearly all states criminalize the willful failure to pay child support and most utilize the Uniform Reciprocal Enforcement of Support Act ("URESA") to extradite interstate deadbeat parents and process interstate child support enforcement orders. Recognizing that such interstate extradition and enforcement provided a cumbersome, slow, and tedious method of collecting child support obligations from deadbeat parents, Congress passed the DPPA. The sole purpose of the legislation is to assist states in recovering past due child support payments beyond their borders.

Klinzing attacks the constitutionality of the DPPA on both equal protection and Commerce Clause grounds. In particular, he argues that the DPPA denies equal protection by irrationally criminalizing the willful nonpayment of child support by parents who live in a different state than their children, and that it exceeds the scope of Congress's authority under the Commerce Clause to "regulate commerce among the several States." U.S. CONST. art. I, § 8. We review these constitutional challenges to a federal statute de novo. United States v. Wilson, 159 F.3d 280, 285 (7th Cir.1998); United States v. Lewitzke, 176 F.3d 1022, 1025 (7th Cir.1999).

1. COMMERCE CLAUSE

Five years ago this court joined nine federal circuit courts in affirming the constitutionality of the DPPA as a valid exercise of federal commerce power. See United States v. Black, 125 F.3d 454 (7th Cir.1997); United States v. Williams, 121 F.3d 615 (11th Cir.1997); United States v. Crawford, 115 F.3d 1397 (8th Cir.1997); United States v. Bailey, 115 F.3d 1222 (5th Cir.1997); United States v. Johnson, 114 F.3d 476 (4th Cir.1997); United States v. Parker, 108 F.3d 28 (3d Cir.1997); United States v. Bongiorno, 106 F.3d 1027 (1st Cir.1997); United States v. Hampshire, 95 F.3d 999 (10th Cir.1996); United States v. Mussari, 95 F.3d 787 (9th Cir.1996); United States v. Sage, 92 F.3d 101 (2d Cir.1996). Since then several circuits have reconsidered the issue in light of the Supreme Court's decision in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (concluding that the civil remedy provision of the Violence Against Women Act exceeded Congress' Commerce Clause authority because it regulated noneconomic, wholly intrastate activity that did not substantially affect interstate commerce), and in every case the court reaffirmed the constitutionality of the DPPA. See United States v. Monts, 311 F.3d 993 (10th Cir.2002); United States v. King, 276 F.3d 109 (2d Cir.2002); United States v. Lewko, 269 F.3d 64 (1st Cir.2001); United States v. Faasse, 265 F.3d 475 (6th Cir.2001) (en banc). Against the heavy weight of this authority and without advancing a new argument on his behalf, Klinzing still claims that the DPPA is unconstitutional. Because we agree with our analysis in Black that an interstate child support obligation is a "thing" in commerce and thus properly regulated by Congress, and because we are not otherwise persuaded to part ways from our ten sister circuits on this issue, we hold today that the DPPA is a constitutional exercise of the federal commerce power.

The Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), delineated three broad areas that Congress may regulate using its commerce power: (1) the channels of interstate commerce, (2) the instrumentalities of, or persons or things in, interstate commerce, and (3) activities that substantially affect interstate commerce. Id. at 558, 115 S.Ct. 1624. In Black we held that a parent's intentional failure to pay child support debts created a "conscious impediment to interstate commerce" that was properly regulated by Congress under the second prong of Lopez. Black, 125 F.3d at 460. Since a child support obligation is an economic debt and the DPPA only reaches those debts which are owed by parents living out of state, we decided that a past due child support payment constituted a "thing" in interstate commerce. Id. We noted too that Congress has power not only to regulate active interstate commerce, but to protect against and punish willful interference with interstate commerce. Id. (analogizing the DPPA to the Hobbs Act, 18 U.S.C. § 1951, which criminalizes acts of extortion, robbery, or physical violence that interfere with interstate commerce). We therefore concluded that the DPPA fit cleanly "within the strictures of Congress' Commerce Clause power." Id. at 461.

Klinzing acknowledges our decision in Black but insists we were wrong to find an unpaid, overdue child support payment a "thing" in interstate commerce. First, Klinzing characterizes the "thing" at issue as an obligation to provide financial support to one's children arising from a local court order entered on authority of state law. According to Klinzing, legal obligations such as these are not commerce merely because they involve an order to pay money. We disagree. The notion of "child support" comprises more than a moral duty to care for one's children, and state laws recognize this by requiring noncustodial parents to pay money in satisfaction of their parental duties. When this duty takes the form of a parent in one state ordered to pay support money to a parent in another state, it is "functionally equivalent" to an interstate contract, with the payments usually traveling interstate by mail, wire, or electronic...