U.S. v. Lewko

• Citation: 269 F.3d 64
• Decision Date: 03 October 2001
• Docket Number: No. 01-1231,01-1231
• Parties: (1st Cir. 2001) UNITED STATES, Appellee, v. RICHARD C. LEWKO, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 64

269 F.3d 64 (1st Cir. 2001)

UNITED STATES, Appellee, v. RICHARD C. LEWKO, Defendant, Appellant.

No. 01-1231

United States Court of Appeals For the First Circuit

Heard Oct. 3, 2001

Decided October 25, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Bjorn Lange, Assistant Federal Public Defender, for appellant.

Peter E. Papps, Assistant United States Attorney, with whom Gretchen Leah Witt United States Attorney, and Jean B. Weld, Assistant United States Attorney, were on brief, for appellee.

Before Boudin, Chief Judge, Torruella, Circuit Judge, and Stahl, Senior Circuit Judge.

STAHL, Senior Circuit Judge.

Defendant Richard Lewko challenges his convictions under the Child Support Recovery Act of 1992 (CSRA), 18 U.S.C. § 228(a)(1), and the Deadbeat Parents Punishment Act of 1998 (DPPA), 18 U.S.C. § 228(a)(3). In this appeal, Lewko argues that, in light of United States v. Morrison, 529 U.S. 598 (2000), this Court should reconsider its ruling in United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997), reh'g en banc denied, 110 F.3d 132 (1st Cir. 1997), which rejected a Commerce Clause challenge to the CSRA, and likewise should strike down the DPPA as unconstitutional. For the following reasons, we find the defendant's arguments to be without merit and affirm his convictions.

I.

In 1982, Richard Lewko married Roxanne Medina during a mass marriage ceremony conducted at Madison Square Garden in New York City by the Rev. Sun Myung Moon. Four years later, the couple moved to Derry, New Hampshire. In 1997, Medina initiated divorce proceedings against Lewko in Rockingham Superior Court, and was awarded custody of their three minor children. Lewko was ordered to pay all household expenses, and child support of $397 per month divided into weekly payments. On June 23, 1997, the child support order was amended to $65 per week, and an additional $30 per week to pay a then-outstanding arrearage of $794.

Subsequently, Lewko filed an affidavit with the marital master in the divorce case, stating that he had moved to Boston, that he had voluntarily quit his job, and that he could only afford to pay $75 per week in child support.¹ He also claimed that, unless the court granted him custody of the children, he would not make any child support payments. Following a hearing on August 12, 1997, the marital master found Lewko in contempt for failure to make mortgage and child support payments. Although the August 1997 finding was purged after Lewko made a lump-sum payment, by October 1997, Lewko had fallen into arrears of $19,659. Also, as a result of Lewko's failure to make his court-ordered payments, the bank commenced foreclosure proceedings on the family homestead where Medina lived with the children. Because of his continued flaunting of the court order, Lewko was incarcerated twelve days for contempt and ordered to pay $2,100 in arrearage. This payment was made by church members on his behalf. In March 1998, Lewko was ordered to appear for another contempt hearing for his ongoing failure to make support payments, but Medina requested that the contempt motion be dismissed after Lewko assured her that he would get a job and start to "help out." However, as with previous assurances, Lewko reneged on this promise.

After the divorce was finalized on July 30, 1998, Medina turned to the New Hampshire Division of Child Support Services for assistance in forcing Lewko to make his court-ordered payments. Because Lewko was no longer residing in New Hampshire, neither the arrest warrant nor the contempt capias issued by the New Hampshire courts was to any avail. Ultimately, the case was turned over to the U.S. Department of Health and Human Services. A federal arrest warrant was issued on March 8, 2000, and was executed on Lewko in Landover Hills, Maryland, on March 23, 2000.

Defendant was indicted on three counts: (1) willfully and unlawfully failing to pay a support obligation of a state court that has been outstanding for over two years and is greater than $10,000, 18 U.S.C. § 228(a)(3); (2) moving and traveling in interstate and foreign commerce with the intent to evade a state court-ordered support obligation, 18 U.S.C. § 228(a)(2); and (3) willfully and unlawfully failing to pay a support obligation of a state court that has been outstanding for over a year and is greater than $5,000, 18 U.S.C. § 228(a)(1). Lewko filed a pre-trial motion to dismiss Counts 1 and 3 as unconstitutional exercises of Congress' Commerce Clause² authority. The district court denied the motion, but, upon the conclusion of the government's case, dismissed Count 2 of the indictment, finding that there was no evidence to support the allegation that Lewko had crossed state lines for the purpose of evading his support obligations.³ Lewko was convicted by a jury on Counts 1 and 3, and received concurrent sentences of five years probation with twelve months home incarceration, and was ordered to pay $56,762.23 in arrearage as restitution.⁴

II.

In his appeal, Lewko argues that this Court should revisit United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (upholding CSRA against Commerce Clause challenge), reh'g en banc denied, 110 F.3d 132 (1st Cir. 1997), and strike down the CSRA and the DPPA in light of the Supreme Court's most recent elucidation of Commerce Clause jurisprudence in United States v. Morrison, 529 U.S. 598 (2000), which invalidated a federal statute providing a civil remedy to female victims of gender-motivated violence as insufficiently related to interstate commerce to justify Congressional regulation. Specifically, Lewko asserts that Congress has violated fundamental principles of federalism by encroaching on an area reserved to the states -- namely, family law and domestic relations -- through the enactment of these child support collection provisions. Accordingly, he asks this Court, first, to overrule the prior panel's decision affirming the constitutionality of the CSRA, and, second, to invalidate the DPPA.

According to the "law of the circuit" doctrine, a prior panel decision shall not be disturbed "absent either the occurrence of a controlling intervening event (e.g., a Supreme Court opinion on the point; a ruling of the circuit, sitting en banc; or a statutory overruling) or, in extremely rare circumstances, where non-controlling but persuasive case law suggests such a course." United States v. Chhien, No. 00-2230, 266 F.3d 1, 10 (1st Cir. Sept. 24, 2001). Lewko maintains that the Supreme Court's decision in Morrison, limiting the ability of Congress to regulate non-economic activity that may affect interstate commerce, was one such intervening event.

Lewko argues that the Sixth Circuit's decision in United States v. Faasse, 227 F.3d 660 (6th Cir. 2000), reh'g en banc granted, opinion vacated by 234 F.3d 312 (6th Cir. 2000), offered "non-controlling but persuasive case law" that would justify revisiting Bongiorno. In Faasse, Judge Batchelder, writing for a unanimous panel, ruled that the CSRA fell outside the scope of Congress' Commerce Clause authority because these provisions, which allow prosecutions in cases where the deadbeat parent resides in a different state from the child, lacked a sufficient nexus with interstate commerce to sustain jurisdiction. Lewko maintains that the Bongiorno panel would have reached a different conclusion had it had the benefit of the Supreme Court's decision in Morrison and Judge Batchelder's analysis in Faasse. See United States v. Royal, 174 F.3d 1, 10 (1st Cir. 1999) (noting that "authority that postdates the original decision, although not directly controlling, [may] nevertheless offer[] a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind") (quoting Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)).

Prior to the oral argument in this case, the Sixth Circuit, sitting en banc, reversed the decision of the Faasse panel, and sustained the CSRA against any challenge raised pursuant to the Commerce Clause. United States v. Faasse, No. 98-2337, 265 F.3d 475 (6th Cir. Sept. 14, 2001) (en banc). Notwithstanding the en banc reversal, Lewko still maintains that the Morrison opinion standing alone offers a sufficient basis for this Court to revisit the decision of the Bongiorno panel. We are not convinced.

III.

We review the decisions of district courts regarding challenges to a statute's constitutionality de novo. See United States v. Marenghi, 109 F.3d 28, 31 (1st Cir. 1997). The Supreme Court has "identified three broad categories of activity that Congress may regulate under its commerce power": (1) Congress may regulate the use of the "channels of interstate commerce;" (2) Congress may regulate "instrumentalities of interstate commerce or things in interstate commerce," even if the threat may come only from intrastate activities; (3) Congress may regulate "those activities having a substantial relation to interstate commerce. . . ." Morrison, 529 U.S. at 608-09 (quoting United States v. Lopez, 514 U.S. 549, 558-59 (1995)). When Congress legislates pursuant to a valid exercise of its Commerce Clause authority, we scrutinize the enactment according to rational basis review. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276 (1981).

The Morrison court deployed the three-prong test from Lopez to determine whether Congress had exceeded its power under the Commerce Clause when enacting the Violence Against Women Act (VAWA), 42 U.S.C. § 13981. As important as Morrison is to our understanding of Commerce Clause jurisprudence, it is equally important to recognize from the outset what Morrison did not purport to address. Early in its opinion, the Supreme Court acknowledged that neither prong one nor prong two of the Lopez Commerce Clause test was implicated by the statute challenged in...