U.S. v. McHugh

• Decision Date: 10 January 1997
• Docket Number: Criminal Action No. 1:96-CR-0201-JOF.
• Citation: 967 F.Supp. 1279
• Parties: UNITED STATES of America v. Ronald McHUGH.
• Court: U.S. District Court — Northern District of Georgia

967 F.Supp. 1279

UNITED STATES of America v. Ronald McHUGH.

Criminal Action No. 1:96-CR-0201-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

January 10, 1997.

David Edward McClernan, Asst. U.S. Atty., Atlanta, GA, for Government.

R. Gary Spencer, Federal Defender Program, Atlanta, GA, for Defendant.

ORDER

FORRESTER, District Judge.

This matter is before the court on Defendant Ronald McHugh's two motions to dismiss [10-1, 17-1]. Also pending before the court is Magistrate Judge John E. Dougherty's Report and Recommendation that Defendant's first motion to dismiss be denied [13-1].

I. STATEMENT OF THE CASE

On May 3, 1996, the Government filed a one-count information that charged Defendant Ronald McHugh with a violation of the Federal Child Support Recovery Act, 18 U.S.C. § 228 ("CSRA").

The CSRA provides that "whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State shall be punished...." 18 U.S.C. § 228(a). The statute further defines "past due support" as any amount determined by a court order or an administrative process to be due that remains unpaid for over a year or is in an amount over $5000. 18 U.S.C. § 228(d)(1).

II. DISCUSSION

A. Violation of Constitution

In his first motion to dismiss, Defendant contends that the CSRA exceeds the power of Congress under the Commerce Clause and infringes on the powers reserved to the states under the Tenth Amendment.

In making his argument, Defendant primarily relies on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and three district court cases where the courts concluded that the CSRA was unconstitutional: United States v. Mussari, 894 F.Supp. 1360, recon. denied, 912 F.Supp. 1248 (D.Ariz.1995), rev'd, 95 F.3d 787 (9th Cir.1996); United States v. Schroeder, 894 F.Supp. 360, recon. denied, 912 F.Supp. 1240 (D.Ariz.1995), rev'd, 95 F.3d 787 (9th Cir. 1996); United States v. Bailey, 902 F.Supp. 727 (W.D.Tx.1995).

In Lopez, the Supreme Court struck down the Gun-Free School Zone Act of 1990 on the grounds that it exceeded the power of Congress to regulate commerce among the states. 514 U.S. at 551-53, 115 S.Ct. at 1626.¹ In its opinion, the court articulated three "broad" areas of congressional commerce power. First, Congress has the power to "regulate the use of the channels of interstate commerce." Id. at 558, 115 S.Ct. at 1629. Second, Congress can "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." Id. Finally, Congress can regulate "those activities having a substantial relationship to interstate commerce." Id. at 558-59, 115 S.Ct. at 1629-30. The Supreme Court quickly determined that the Gun-Free School Zones Act failed either to regulate the use of channels or to protect the instrumentalities of interstate commerce. Id. at 559-61, 115 S.Ct. at 1630. The Court therefore concentrated on the issue of whether the Act regulated an activity that "substantially affected" interstate commerce. The Court concluded that it did not, because it was a criminal statute that "by its terms" had nothing to do with commerce or economic enterprise, and because it failed to include any jurisdictional element which would ensure a link to interstate commerce. Id. at 559-63, 115 S.Ct. at 1630-31.

The district courts that Defendant relies upon, after considering Lopez, concluded that the CSRA violated the Commerce Clause because: (1) it is a criminal statute that has no explicit link to interstate commerce or to economic activity; (2) the jurisdictional element that the delinquent parent and the child reside in different states is too tenuous a tie to interstate commerce, since the statute is not limited to those delinquent parents who fled to another state to avoid payment of child support; (3) nonpayment of child support simply does not substantially affect interstate commerce. Mussari, 894 F.Supp. at 1363-65; Schroeder, 894 F.Supp. at 364-67.

As a preliminary matter, the court notes that since the time that Defendant filed his motion, the district court opinions in Mussari and Schroeder have been reversed by the Ninth Circuit. See United States v. Mussari, 95 F.3d 787 (9th Cir.1996). Furthermore, two other Circuits, the Second and the Tenth, have concluded that the CSRA does not violate either the Commerce Clause or the Tenth Amendment. See United States v. Sage, 92 F.3d 101 (2d Cir.1996); U.S. v. Hampshire, 95 F.3d 999 (10th Cir.1996). Moreover, in addition to the six district court opinions that the Government cited in the appendix to its response brief as upholding the CSRA, several more district courts have found it to be constitutional. See U.S. v. Johnson, 940 F.Supp. 911 (E.D.Va.1996); U.S. v. Lewis, 936 F.Supp. 1093 (D.R.I.1996); U.S. v. Sims, 936 F.Supp. 817 (N.D.Okla. 1996); U.S. v. Ganaposki, 930 F.Supp. 1076 (M.D.Pa.1996).

For essentially the reasons expressed in the courts that have found the CSRA to be constitutional, the court concludes that the CSRA does not violate the Commerce Clause.²

Unlike the Gun-Free School Zones Act which was struck down in Lopez, the CSRA has a jurisdictional element. In order for a federal prosecution under it to be successful, the delinquent parent must be outside the state where his or her dependent child resides and must face an obligation to pay funds from his or her state to the child in the other state. 18 U.S.C. § 228(a). As a result, liability under the CSRA will only attach when the parent and the child live in different states so that any payment from the parent to the child will have to move in interstate commerce. Furthermore, in order for the child and the parent to reside in different states, one of them must at some point have crossed state lines.

Once the requirements of this Jurisdictional element is understood, it is clear that Congress was acting within its Commerce Clause powers in passing the CSRA. Specifically, the CSRA is within Congress' power to "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce." See Lopez, 514 U.S at 558, 115 S.Ct. at 1629. This court agrees with the Ninth Circuit and its statement that:

The obligation of a parent in one state to provide support for a child in a different state is an obligation to be met by a payment that will normally move in interstate commerce — by mail, by wire, or by electronic transfer of funds. That obligation is, therefore, a thing in interstate commerce and falls within the power of Congress to regulate. The frustration of satisfaction of the obligation by the failure of the debtors to pay is an impediment to interstate commerce that Congress can criminalize as it has criminalized other impediments to interstate commerce. E.g., Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964).

Mussari, 95 F.3d at 790. Accord Sage, 92 F.3d at 105-07 (2d Cir.1996); Hampshire, 95 F.3d at 1003 (10th Cir.1996).

In addition, the CSRA is a constitutional exercise of Congress' power because the conduct that it regulates substantially affects and has a substantial relationship to interstate commerce. See Hampshire, 95 F.3d at 1004; Lewis, 936 F.Supp. at 1098-1100; U.S. v. Kegel, 916 F.Supp. 1233, 1237-38 (M.D.Fla.1996). Unlike the statute dealt with in Lopez, the CSRA regulates an economic activity. Furthermore, Congress included specific findings in the CSRA regarding delinquent child support payments and their effect on interstate commerce. See Hampshire, 95 F.3d at 1004. For example, Congress indicated that over five billion dollars worth of child support payments were not honored in 1989. Id. (citing H.R.Rep. No. 771, 102d Cong., 2d Sess. 5 (1992) (Judiciary Committee)). Given that approximately one-third of these delinquent payments were due from parents who lived in different states than their children, it is clear that non-payment of child support creates a national problem that substantially affects interstate commerce. See id.; Johnson, 940 F.Supp. at 914; Kegel, 916 F.Supp. at 1237.

Finally, through the years courts have consistently upheld statutes analogous to the CSRA as valid congressional exercises of Commerce Clause power. One such similar statute is 18 U.S.C. § 1073, which makes it a federal crime for a person to cross state lines with the intent of avoiding prosecution for a felony.³ This statute was found to be constitutional under the Commerce Clause because, in order for it be invoked, the fleeing person had to cross state lines. Simmons v. Zerbst, 18 F.Supp. 929, 930 (N.D.Ga.1937). After stating, that "the passage of a person from one state to another is interstate commerce," the Simmons court noted that, within a federal system containing modern transportation, state lines had become "bulwarks of defense" for those fleeing a state's criminal prosecution system. Id. If a person fled a state, that state's officials would have to drop their pursuit at the state line because they would have no authority in the other state. Id. Accordingly, the court concluded that "the withdrawal by Congress of the facilities of interstate commerce from such criminals is an appropriate means to a proper end, and the most effective way to prevent the use of interstate commerce to defeat justice." Id. See also Hemans v. United States, 163 F.2d 228, 239 (6th Cir.1947) (while upholding Fugitive Felon Act as constitutional, noted that general purpose of the Act is to aid states in enforcement of their laws and "to reach and bring to the bar a roving class of criminals").

In much the same way, a person who wished to avoid child support or alimony obligations in one state could take advantage of the ease of modern transportation and flee into another state. Having done so, they could almost safely assume that the state that they left would be...