United States v. Lewko

United States Court of Appeals
For the First Circuit

No. 01-1231

UNITED STATES,

Appellee,

v.

RICHARD C. LEWKO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

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

Before

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

October 25, 2001
 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

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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

1 Prior to Medina's filing for divorce, the defendant had
worked continuously at an income in excess of $100,000 per year.

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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

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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

2 U.S. Const., art. I, § 8, cl. 3.
3 Consequently, defendant does not challenge the
constitutionality of 18 U.S.C. § 228(a)(2) in this appeal.
4 The CSRA made the failure to pay a court-ordered child
support obligation a Class B misdemeanor offense, punishable by
up to six months imprisonment. The DPPA increased the offense
level to a Class E felony, with a maximum possible term of two
years imprisonment.

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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,

2001 WL 1097766, at *8 (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.

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 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

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pursuant to the Commerce Clause. United States v. Faasse, No.

98-2337, 2001 WL 1058237 (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

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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

Morrison. Rather, the Court focused on whether VAWA could

satisfy the third prong of the Lopez inquiry, otherwise known as

the “substantial effects” test.5 This fact alone satisfies us

that Morrison provides no basis for overruling Bongiorno, where

we affirmed the validity of the CSRA as a constitutional

exercise of Congress' Commerce Clause authority according to the

second prong of Lopez, finding that the statute was a

5 See Morrison, 529 U.S. at 609 (“Petitioners do not
contend that these cases fall within either of the first two of
these categories of Commerce Clause regulation. They seek to
sustain § 13981 as a regulation of activity that substantially
affects interstate commerce. Given § 13981's focus on
gender-motivated violence wherever it occurs (rather than
violence directed at the instrumentalities of interstate
commerce, interstate markets, or things or persons in interstate
commerce), we agree that this is the proper inquiry.”).

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permissible regulation of a “thing” in commerce. Bongiorno, 106

F.3d at 1033.

Nevertheless, we believe that it would be useful to

examine the defendant's arguments regarding the

constitutionality of the CSRA and the DPPA on the merits, rather

than simply to rely on principles of stare decisis, or “law of

the circuit.” As we explain infra, these statutory provisions

are undoubtedly constitutional exercises of Congress' Commerce

Clause authority under two of the prongs of Lopez.

The CSRA and the DPPA easily satisfy the second prong

of Lopez. In order for either of these statutory provisions to

be triggered, the non-paying parent must reside in a different

state than the child owed support, meaning that the payment will

necessarily need to cross state lines in order to reach the

intended recipient. With that in mind, we have no difficulty

finding that “[a]n interstate court-ordered child support

payment is clearly a 'thing' in interstate commerce.” Faasse,

2001 WL 1058237, at *9; see also United States v. Johnson, 114

F.3d 476, 480 (4th Cir. 1997); United States v. Bailey, 115 F.3d

1222, 1229 (5th Cir. 1997); United States v. Crawford, 115 F.3d

1397, 1400 (8th Cir. 1997); United States v. Sage, 92 F.3d 101,

107 (2d Cir. 1996); United States v. Mussari, 95 F.3d 787, 790

(9th Cir. 1996).

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 At oral argument, Lewko acknowledged not only that a

child support payment is a “thing,” but also that this thing

must cross state lines in order to satisfy the court order.

Despite these concessions, however, he still maintains that a

child support payment is not a “thing in interstate commerce,”

relying primarily on Judge Smith's dissent in Bailey. See 115

F.3d at 1236-37 (Smith, J., dissenting). First, he argues that

a child support payment is a wholly different type of “thing”

because it emanates from family law. Specifically, defendant

asserts that a child support order is unique because it is a

unilateral, rather than a reciprocal, obligation. This

characterization, however, is not entirely accurate. Although

the non-custodial parent has a duty to provide financial

support, the custodial parent must also demonstrate that he or

she is using that money for the care and upbringing of the

child. Regardless, a child support obligation arising from a

court order, whether family court or another civil court, is a

debt that may be enforced through civil remedies. See Mussari,

95 F.3d at 790 (“True, the court order arises from the family

relation. Once in place, the order creates a debt. Like any

other debt, it is a thing of value, one of millions of

obligations that make up the stream of commerce subject to

congressional control.”); see also Bongiorno, 106 F.3d at 1032

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(holding that state-court-imposed child support orders are

“functionally equivalent to interstate contracts” and rejecting

idea that child support payment obligations are somehow

“different”) (citing Sage, 92 F.3d at 106). Therefore,

defendant's attempt to carve out child support payments from

other types of interstate monetary transfers in satisfaction of

a financial obligation fails.

Second, defendant insists that this Court should limit

the application of Bongiorno to cases where a party has engaged

in some affirmative activity, such as absconding across state

lines to avoid their support obligation, as covered by §

228(a)(2). Lewko characterizes his crime, on the other hand, as

one of omission, in that he refused to put a payment in

interstate commerce. However, the Supreme Court has refused to

draw a categorical distinction between crimes of omission and

commission. See, e.g., Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241, 257-58 (1964); United States v. Green, 350

U.S. 415, 420 (1956); United States v. Darby, 312 U.S. 100, 115

(1941); Standard Oil Co. v. United States, 221 U.S. 1, 68

(1911). Defendant attempts to distinguish these cases by noting

that Congress has historically engaged in regulation of labor

relations (Darby) and the practices of common carriers such as

hotels (Heart of Atlanta). Likewise, defendant argues, the

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Hobbs Act, 18 U.S.C. § 1951, (Green) and the Sherman Antitrust

Act, 15 U.S.C. § 1, 2, (Standard Oil) explicitly target conduct

falling within the conventional understanding of “commerce.”

The DPPA and the CSRA, on the other hand, encroach on the

traditionally local concerns of family law and domestic

relations, and therefore should not be viewed with the same

deference.

This argument also misses the mark. Neither the CSRA

nor the DPPA have either the purpose or effect of establishing

a national, uniform “family law.” They address neither the

degree (i.e., amount) nor duty of support owed (i.e., when a

duty of support shall be triggered or terminated). Rather, the

provisions of these two acts are designed to protect the

integrity of state court judgments, in light of the fact that

parties attempting to enforce these court orders face

significant difficulties when the non-paying party flees the

ordering jurisdiction. See Bailey, 115 F.3d at 1230 (“Congress

did not impose the underlying obligation to pay child support.

The CSRA applies only when the defendant has violated a state

court order imposing upon him that obligation.”); see also

Faasse, 2001 WL 1058237, at *8 (rejecting claim that CSRA

attempts to create “federal family law”). The defendant's

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invocation of the uniquely local concerns of family law are

inapposite and do not bear the weight of his argument.

A slightly more refined version of defendant's argument

would posit that a child support payment is a thing, but it is

not significant enough to implicate interstate commerce, because

it is merely ancillary to a family court judgment. As a

preliminary matter, we note that there is no “materiality”

requirement embedded in Lopez's prong two analysis. Even if

there were, however, the statutes on their face incorporate a

“materiality” requirement by establishing threshold amounts of

$5,000 (CSRA) and $10,000 (DPPA) before federal enforcement

mechanisms become available. As we have already explained

above, the fact that the obligation stems from a judgment

arising out of a domestic dispute is insignificant. Therefore,

prong two is clearly satisfied.

Under prong one of Lopez, Congress may also regulate

the use of the “channels of interstate commerce.” Just as we

have previously determined that the payment is a “thing in

interstate commerce,” we similarly have no trouble finding that

the payment must travel through “channels of interstate

commerce” to reach the deserving party, and therefore falls

within the purview of Congress' Commerce Clause authority. See

Bailey, 115 F.3d at 1227. Whether transmitted via wire transfer

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or through the mails, these payments necessarily change hands as

a result of travel through interstate commercial channels. See

also Mussari, 95 F.3d at 790.6 Accordingly, we find that

Congress acted well within its Commerce Clause authority when it

enacted the CSRA and the DPPA, and that these provisions are

rationally related to a legitimate federal objective, the

payment of court-ordered child support obligations.

IV.

For the foregoing reasons, the defendant's convictions

under both the DPPA and the CSRA are hereby affirmed.

Affirmed.

6 We need not decide whether in light of Morrison the
CSRA and the DPPA satisfy prong three of the Lopez inquiry.

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