Opinion
00 Cr. 0223 (SHS)
October 26, 2000
Opinion
Defendant Alen MacWeeney has been charged in an indictment with willfully failing to pay a child support obligation of more than $10,000 with respect to a child residing in another state in violation of the Deadbeat Parents Punishment Act of 1998, 18 U.S.C. § 228 (a) (the "DPPA"). Defendant now moves to dismiss the indictment pursuant to Rule 12 of the Federal Rules of Criminal Procedure on the grounds that the DPPA: (1) is unconstitutional on its face; (2) does not apply to the facts of this case or, if it does apply, is unconstitutional as applied; and (3) is, as applied by the indictment, an unconstitutional ex post facto law. For the reasons set forth below, defendant's motion is denied.
I. The DPPA Is Not Unconstitutional on Its Face.
As defendant concedes, the United States Court of Appeals for the Second Circuit has held that the predecessor of the DPPA — the Child Support Recovery Act of 1992, Pub.L. No. 102-521, § 2(a), 106 Stat. 3403 (the "CSRA") — was not facially unconstitutional. See United States v. Sage, 92 F.3d 101 (1996). The conduct proscribed by the DPPA is identical to that proscribed by the CSRA, although the DPPA increased the penalties for certain offenses. See generally United States v. Wilson, 210 F.3d 230, 232-33 (4th Cir. 2000); Varneke v. United States, No. 8:98-334-CR-T-17A, 2000 WL 782949, at *4..*6 (M.D. Fla. Apr. 11, 2000). Therefore, the DPPA is not facially unconstitutional.
Defendant contends that the United States Supreme Court's recent decision in United States v. Morrison, 120 S.Ct. 1740 (2000), casts doubt on the viability of Sage. In Morrison, the Spureme Court struck down the civil remedies provisions of the Violence Against Women Act of 1994, Pub.L. No. 103-322, Title IV, § 40302, 108 Stat. 1941, 1941-42, as an improper exercise of Congress's authority to regulate "those activities that substantially affect interstate commerce." 120 S.Ct. at 1747-49. The Court, applying the principles set forth in United States v. Lopez, 514 U.S. 549 (1995), rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conducts aggregate effect on interstate commerce" because such reasoning would permit Congress to "use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority." Morrison, 120 S. Ct. at 1752-54 (citing Lopez, 514 U.S. at 564, 568).
The Second Circuit explicitly considered Lopez in its decision in Sage, and noted that unlike the statute at issue in Lopez, the CSRA "does not purport to regulate purely local activity." Thus, the Second Circuit upheld the CSRA as a valid exercise of Congress's power to "regulate. . . . things in interstate commerce" rather than its power to "regulate activities having a substantial relation to interstate commerce." Sage, 92 F.3d at 106-07. Therefore, "[n]one of the concerns expressed in theLopez opinion," i.e. the concerns about the unbridled expansion of congressional power under the banner of "substantial relation," were implicated by the CSRA. Id. at 107. Because Morrison, like Lopez, involved a statute that on its face regulated purely local activity, it is completely consonant with Sage. Accordingly, defendant's motion to dismiss the indictment on the grounds that the DPPA is unconstitutional on its face is denied.
II. The DPPA Applies to the Facts as Alleged in the Indictment.
Defendant's argument that the DPPA does not apply to the facts of his case cannot be considered on a motion to dismiss. On a motion to dismiss an indictment, the court must "take as true all of the allegations contained in the indictment." United States v. Rodgers, No. 90 Cr. 377, 1991 WL 90797, at *3 (S.D.N.Y. May 21, 1991); see also United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985); United States v. Ross, No. 98 Cr. 1174-1, 1999 WL 782749, at *2 (S.D.N.Y. Sept. 16, 1999) (the court "determines only whether the Indictment is "valid on its face.'"). Although the court may consider additional documents, the court "cannot give any weight to contrary factual assertions made by the defendant."Rodgers, 1991 WL 90797, at *3; see also Goldberg, 756 F.2d at 950. On its face, the indictment in this case charges conduct violative of 28 U.S.C. § 228. Accordingly, defendant's motion to dismiss the indictment on the grounds that his conduct did not actually violate the DPPA is denied.
III. The DPPA Is Not Unconstitutional as Applied to the Facts in the Indictment.
Defendant also contends that the DPPA is unconstitutional as applied to the facts as he asserts them to be. When, as here, an indictment on its face contains no facts that would render application of the statute that the defendant is alleged to have violated unconstitutional, however, resolution of such a challenge is properly reserved until after the facts have been determined at trial. Cf. United States v. Bastian, 112 F. Supp.2d 378, 380 (S.D.N.Y. 2000); United States v. Anderson, No. 98-20030-01/07, 1999 WL 84290, at *7 (D. Kan. Jan. 8, 1999); United States v. Reed, 114. F.3d 1067, 1070 (10th Cir. 1997) ("[S]uch a sensitive and fact intensive analysis. . . should be based only on the facts as they emerge at trial."). Accordingly, defendant's motion to dismiss the indictment on the grounds that the DPPA is unconstitutional as applied to the facts of this case is denied without prejudice to renewal of that aspect of the motion at trial.
IV. The Indictment Is Not a Violation of the Ex Post Facto Clause
Defendant also contends that the indictment on its face violates theex post facto clause of the United States Constitution because it charges that defendant's alleged conduct prior to the October 25, 1992 enactment of the CSRA violates the DPPA. The government concedes that the indictment charges conduct prior to the enactment of the CSRA, and that any conduct prior to the effective date of the CSRA cannot be punished pursuant to 18 U.S.C. § 228 consistent with the constitutional prohibition against ex post facto laws. The government contends, however, that the indictment is not fatally defective because it also charges conduct after the effective date of the CSRA, and that any ambiguity regarding the charging language can be remedied by an appropriate jury instruction. The government has also proposed to file a superseding indictment exclusively charging conduct after the effective date of the CSRA.
Because the CSRA contained no express effective date, it took effect on the date of its enactment. See Romano v. Luther, 816 F.2d 831, 837 (2d Cir. 1987); United States v. Shaffer, 789 F.2d 682, 686 (9th Cir. 1986).
It is clear that despite the language of the indictment, a jury can be properly instructed to consider only conduct after the effective date of the CRSA in order not to violate defendant's right to due process. Cf. United States v. Allemand, 34 F.3d 923, 927 (10th Cir. 1994); United States v. Brown, 555 F.2d 407, 419-22 (5th Cir. 1977). But cf. United States v. Mussari, 152 F.3d 1156 (9th Cir. 1998) (reversing a CSRA conviction based in part on conduct before the CSRA's effective date). However, the filing of a superseding indictment would obviate that issue. Accordingly, defendant's motion to dismiss the indictment is denied on the condition that the government obtain a superseding indictment within ten days. Cf. United States v. Wood, 6 F. Supp.2d 1213, 1219 (D. Kan. 1998) (denying motion to dismiss indictment on condition that government file a bill of particulars); United States v. Beberfeld, 408 F. Supp. 1119, 1126 (S.D.N.Y. 1976) (denying motion to dismiss indictment on condition that the government file a notice of readiness within ten days).
The ex post facto clause applies by its terms exclusively to Congress. See U.S. Const. Art. I, § 9. "The principle embodied in the clause is, however, encompassed in the concept of due process and is therefore a limitation on the power of the other two branches of government as well." United States v. Brown, 555 F.2d 407, 419 (5th Cir. 1977).