(S.D. Ind. 1995) (abstention inapplicable because there are no pending state criminal proceedings to which court could defer). It therefore did not reach the question whether the abstention doctrine may apply to a federal prosecution. Here, Collins relies on the fact that his motion to modify the child support order is pending in state court. There is, however, no basis to find any potential interference with the California proceeding. Further, abstention is inappropriate where, as here, the district court has been given exclusive jurisdiction over the federal proceeding. Therefore, the abstention doctrine is inapplicable to this criminal prosecution.
Under the principle of comity, a court should defer to the court which first takes jurisdiction of the defendant, which must be allowed to "exhaust its remedy" before another jurisdiction will be permitted to proceed against the defendant. Ponzi v. Fessenden, 258 U.S. 254, 260, 66 L. Ed. 607, 42 S. Ct. 309 (1922). As the instant federal prosecution has commenced and there is no criminal proceeding in California against Collins involving the child support arrearage in this case (or any other criminal matter), no issue involving a question of comity is presented. See Hopper, supra, at 393-94.
Collins relies on United States v. Schroeder, 894 F. Supp. 360 (D. Ariz. 1995), to support his contention that enforcement of the Act in this case "would force a federal court to intervene in matters still pending in state court," in violation of applicable principles of comity and speedy trial requirements. Defendant's Memorandum at 8. As, under California law, any modification of the support order in this case would only have prospective effect, the modification if granted will not affect Collins' arrearage alleged in the Information. See footnote no. 4, supra, at p. 9. However, even if it were to become necessary for the court to interpret the relevant support order under California law in connection with the trial of the Information, such interpretation would not interfere with the California court's consideration of Collins' pending motion to modify, nor, contrary to Collins' contention, would there be any requirement that Collins collaterally attack the order in state court. Defendant's Memorandum at 8. The statement in Schroeder, supra, "that principles of federalism and comity" render the statute unconstitutional, Schroeder, at 368, upon which Collins also relies, is not supported by authority, and Collins points to no authority for his assertion that comity is a federal constitutional requirement. Rather, as between the federal government and the states, comity is a rule of law, based on considerations of practicality and inter-governmental respect bearing on administration of a federal court's criminal jurisdiction over a defendant, see Ponzi, supra, not a constitutional mandate to defer to any state court proceeding - civil or criminal - involving the same person, as a bar a federal criminal prosecution. The fact that California has a criminal statute addressing the failure to pay court ordered child support does not create a need to further consider the comity issue as no prior criminal proceeding is pending against Collins in California.
3. Constitutionality of the Act as Applied
Collins' also asserts is that Section 228 is unconstitutional as applied. Defendant's Memorandum at 10. Specifically, Collins argues that under the criteria established by United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624(1995), for testing the reach, under the Commerce Clause, of congressional legislative power, as Collins did not engage in any interstate activities in connection with the allegations of the Information, the Act cannot, consistent with the requirements of Lopez, be applied to him. Id. at 13. Collins' argument is based upon the premise that, under Lopez, unless, in connection with the alleged non-payment of child support, Collins utilized channels or instrumentalities Of interstate commerce, or engaged in activities which substantially affect interstate commerce, Lopez, supra, at 1629-30, enforcement of the Act in this case would place it beyond the reach of congressional power to regulate interstate commerce. Collins' argument proceeds on the ground that his alleged failure to pay was limited to his inaction within California and the undisputed fact that his child, as to whom Collins' failure to abide by the support order relates, was removed to New York by Collins' former wife.
Thus, Collins maintains the alleged violation pertains to a solely intrastate matter.
In Lopez, the Supreme Court invalidated the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), as that statute neither regulated a commercial activity nor required the possession of the prohibited fire-arm to be connected to interstate commerce. The Court stated that under the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, Congress may "regulate the use of the channels of interstate commerce," "regulate and protect the instrumentalities of interstate commerce," and "regulate those activities having a substantial relation to interstate commerce." Lopez at 1629-30.
In striking down Section 922(q), the Court found the statute "had nothing to do with 'commerce' or any sort of economic enterprise," nor was the legislation an "essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Lopez, supra at 1625. Further, the Court found the legislation "contained no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Lopez, supra at 1625.
Collins' argument in the instant case, that the Act is unconstitutional as applied to him, is premised on the fact that it was not Collins, as the person required to pay the unpaid support obligation, but his daughter, the person for whose benefit the obligation exists, who moved from California, thus creating an interstate nexus between the support obligation and Collins. Defendant's Memorandum at 12-13. Collins further asserts, therefore, that he neither has utilized the channels or interstate commerce nor engaged in "any activity which substantially affects interstate commerce." Defendant's Memorandum at 13. To support this contention, Collins relies upon legislative history which, in Collins' view, establishes that the Act was aimed solely at parents who resort to interstate movements for the purpose of avoiding payment of child support obligations. Defendant's Memorandum at 15-16. However, although such conduct was clearly of major concern to Congress, it was not the exclusive motive for the Act, as an examination of the House Judiciary Committee Report on the bill, H.R. 1241, which became the Act, reveals. See H.R. Rep.No.771, 102d Cong., 2d Sess. at 6 (1992).
To meet the threshold of an interstate nexus, Section 228 requires only that the relevant support obligation be one "with respect to a child who resides in another state." 18 U.S.C. § 228(a). Thus, for purposes of determining whether the legislation requires an interstate nexus with the unpaid obligation sought to be enforced, it is irrelevant whether it is the movement across state lines or residence of the parent, who has the obligation to pay support, or the child, which is to be the beneficiary of the support payment, which causes the performance of the obligation to acquire an interstate character. See United States v. Kegel, 916 F. Supp. 1233, 1236 (M.D. Fla. 1996)("innocent" relocation to a different jurisdiction is no less an injurious use of the channels of interstate commerce than intentional flight to avoid payment of child support where accompanied by non-payment of support obligations).
In Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 66 L. Ed. 239, 42 S. Ct. 106 (1921), the Supreme Court found a contract made and to be performed in one state with the expectation that the commodities were ultimately destined for use in another state placed the entire transaction in interstate commerce. Dahnke-Walker Co., supra, at 292. Here, the support obligation was initially established by the agreement of the parties, and incorporated into Collins' 1993 divorce decree. In the case of a child support order, whether or not incident to a divorce decree, absent any requirement that the child not be removed from the support paying parent's state Of residence, there is no reason for the parent with the support obligation to expect the obligation and payment will remain a wholly intrastate matter. Given the high degree of mobility which characterizes modern American society and the fact that the custodial parent may need, for reasons of economic opportunity, health or general personal well-being, to relocate to another state, it is reasonably foreseeable that the support obligation may become an interstate matter. Significantly, the agreement between Collins and his former wife specifically addressed Collins' future visitation rights in Buffalo, New York. See Exhibit 3 to Government's Memorandum of Law at 4, P 8(a). As it appears that Collins' former wife and his child were already residing in Western New York or left California for New York shortly after entry of the divorce and support order, there is sufficient ground to find that Collins expected his obligation to his daughter would soon become, or already was, interstate in nature, and that his support obligation, as performance of the contract in Dahnke-Walker, should therefore be considered in interstate commerce. There is no suggestion that Collins' wife violated the terms of the California order so as to upset any expectation that Collins' support obligation would remain exclusively a matter of intrastate concern.
Further, even if an activity may, standing alone, be considered non-commercial it may nevertheless be considered as economic in nature and, if in the aggregate, it substantially affects interstate commerce, it is subject to federal regulation. United States v. Sage, 906 F. Supp. 84, 89 (D. Conn. 1995) citing Wickard v. Filburn, 317 U.S. 111, 125, 87 L. Ed. 122, 63 S. Ct. 82(1942)("even if an activity [is] local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . .."). Moreover, intangibles, including contract and debt obligations, are properly subject to federal regulations under the Commerce Clause. See Hopper, supra, at 391 (citing cases).
Congress has found that the unpaid child support obligations related to interstate cases, is a multi-billion dollar annual national problem. H.R.Rep.No. 771 supra at 5; Sage, supra, at 89. Such significant non-payment of child support necessarily impacts the flow of goods and services in a national economy. Sage, supra, at 90. Thus, because the aggregate of unpaid child support substantially affects interstate commerce any individual unpaid support obligation within the scope of the Act is an economic matter of interstate concern subject to regulation under the Commerce Clause. Wickhard v. Filburn, supra.
Moreover, in adopting the legislation, Congress could have equally considered the concommitment burden payment and non-payment of child support obligations places on interstate facilities, including the use of the mails, private interstate carriers, telephone and other forms of interstate communications, and related channels of transportation, which necessarily are employed in connection with attempts to enforce and collect child support through legal proceedings and self-help, in addition to the use of such facilities in the course of maintaining voluntary compliance. United States v. Kegel, supra, at 1238. It is also indisputable that significant expenditures, in the form of legal fees and related costs, are frequently incurred incident to such activity. These facts further support a finding that the subject matter of the Act is both commercial and interstate in character, and that the required use of interstate channels and instrumentalities related to the payment and enforcement of child support obligations demonstrates ample justification for federal regulation. Fears that such legislation may lead to an undesirable expansion of federal authority relating to enforcement of obligations or family matters, historically subjects of state concern, see Schroeder, supra, at 366, must be left to the sound judgment of Congress. There is a rational, non-tenuous relationship between interstate non-payment of child support and interstate commerce, Lopez, supra, at 1630, Sage, supra, at 89, and the effects of child support non-payment upon interstate commerce are neither "indirect" nor "remote." Lopez, supra, at 1628-29. The Act therefore satisfies the requirements of Lopez, and is constitutional as applied to Collins. See Hopper, supra, at 393.
Based upon the foregoing, Collins' motion to dismiss the Information is DENIED. The parties are directed to appear on April 25, 1996 at 2:00 p.m. for the purpose of scheduling further proceedings.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: April 16th, 1996
Buffalo, New York