United States of America, Appellee, v. Lynn Truman Crawford, Appellant.
No. 96-2808
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: November 18, 1996 Filed: June 23, 1997
Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
Appeal from the United States District Court for the Eastern District of Missouri
Lynn Truman Crawford appeals from a final judgment entered in the United States District Court1 for the Eastern District of Missouri, following a bench trial, finding him guilty on one count of violating the Child Support Recovery Act of 1992
Background
The underlying facts are not in dispute. Crawford, a physician who specializes in emergency medicine, married Mona Tague on September 1, 1984, in the state of Missouri. Shortly thereafter, the couple moved to Texas. While in Texas, they had two daughters, born in 1985 and 1986. The couple separated in February 1988, and Tague retained custody of the two children.
On March 23, 1988, a Texas state court issued a temporary order which required Crawford to make payments of $1000 per month in child support, to be paid through the Dallas County Child Support Office in Dallas, Texas. Crawford made the monthly payments until November 1988, when he terminated the payments. One year later, in November 1989, the Texas state court found that Crawford owed over $12,000 in child support and held him in contempt. The following year, in November 1990, the Texas state court issued a final divorce decree, which confirmed Crawford‘s monthly child support obligation.
Meanwhile, Tague and the two children had moved from Texas to Missouri, where they have resided ever since. From the time of the couple‘s separation until
On February 15, 1996, Crawford was indicted in the Eastern District of Missouri on one count of violating the CSRA2 from October 31, 1992, through February 14, 1996.3 A warrant was issued for his arrest. On February 26, 1996, Crawford was arrested in Louisiana, and his initial appearance was held in United States District Court for the Western District of Louisiana. The same day, Crawford filed in the Western District of Louisiana a motion to dismiss the indictment, arguing, among other things, that the CSRA is unconstitutional under the commerce clause and the Tenth Amendment, that his rights under the ex post facto clause were being
The magistrate judge held an evidentiary hearing and thereafter recommended denial of Crawford‘s motion to dismiss the indictment. Id. (Apr. 26, 1996) (report and recommendation). The district court adopted the magistrate judge‘s report and recommendation and, accordingly, denied the motion. Id. (May 30, 1996) (order). The case proceeded to trial. Following a one-day bench trial, the district court found Crawford guilty on one count of violating the CSRA (the only count in the indictment). Crawford was sentenced to six months imprisonment and ordered to pay a special assessment of $25.00 and restitution in the amount of $91,547.14 plus interest.5 Id. (July 2, 1996) (judgment). This appeal followed.
Commerce clause
Crawford first argues that Congress, in enacting the CSRA, exceeded its power “to regulate Commerce . . . among the several States,” as granted under the commerce clause of the United States Constitution.
Crawford maintains that the CSRA does not fit within any of these categories. Crawford argues that the payment of child support is incidental to divorce and entirely unrelated to interstate commerce. He contends “[t]he only nexus to interstate commerce in this case is the fact that the parties reside in different states“; that, he argues, is “not sufficient to confer federal jurisdiction and should not be held synonymous with ‘interstate commerce.‘” Brief for Appellant at 7. Crawford additionally argues that the enforcement of the CSRA in the present case is particularly onerous because it was his former wife (the custodial parent), not he, who moved out of state and created the circumstances permitting application of the CSRA. We disagree.
We review questions involving the constitutionality of a federal statute de novo. United States v. McMasters, 90 F.3d 1394, 1397 (8th Cir. 1996), cert. denied, 117 S. Ct. 718 (1997). Upon de novo review, we conclude that the CSRA is not an unconstitutional exercise of Congress‘s regulatory powers under the commerce clause.
Tenth Amendment and abstention doctrines
Crawford also contends that the CSRA runs afoul of the Tenth Amendment‘s declaration that “powers not delegated to the United States by the Constitution, nor
The Tenth Amendment reserves for the states or the people those powers not delegated to the United States by the Constitution. In New York v. United States, 505 U.S. 144, 156 (1992), the Supreme Court explained “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” As we have already held, Congress exercised an enumerated power under the commerce clause when it enacted the CSRA. Therefore, upon de novo review, we conclude that the CSRA does not run afoul of the Tenth Amendment. Accord Johnson, 1997 WL 283447, at *3-5; Parker, 108 F.3d at 31; Bongiorno, 106 F.3d at 1033-34; Hampshire, 95 F.3d at 1004; Mussari, 95 F.3d at 791; Sage, 92 F.3d at 107. Thus, we hold that the district court did not err in denying Crawford‘s motion to dismiss the indictment on the ground that the CSRA violates the Tenth Amendment.
To the extent Crawford suggests that the CSRA interferes with the states’ traditional sovereignty over domestic relations and enforcement of their criminal laws, we agree with the government‘s counter-argument that the CSRA in no way interferes with state laws or judicial proceedings. The CSRA does not regulate domestic relations but, rather, serves to assist the states in enforcing their judgments and orders.
In the present case, the Texas state court initially ordered Crawford to make monthly child support payments in March 1988. Thereafter, Crawford made some payments, but stopped in November 1988. The final divorce decree, confirming his monthly support obligation, was entered in the Texas state court in November 1990. The CSRA became effective October 25, 1992. Crawford was indicted on February 15, 1996, on one count of violating the CSRA from October 31, 1992, through February 14, 1996. At sentencing, he was ordered to pay restitution covering the full amount of child support owed, including amounts that were due prior to the effective date of the CSRA. In light of this history, Crawford advances two arguments to challenge his conviction and sentence as violations of the ex post facto clause,
Upon de novo review,9 we hold that the ex post facto clause does not invalidate the government‘s prosecution of Crawford, even though the CSRA went into effect after Crawford was ordered by the Texas state court to pay child support. The CSRA imposes punishment for the willful failure to pay a past due child support obligation with respect to a child residing in another state.
The ex post facto prohibition forbids the Congress and the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.
Weaver v. Graham, 450 U.S. 24, 28 (1981) (footnote and citations omitted). Clearly, the CSRA, on its face, does not violate the ex post facto clause insofar as it imposes punishment upon a person who, after October 25, 1992, willfully fails to pay a past due child support obligation. In the present case, the government alleged, and the district court found beyond a reasonable doubt, that Crawford willfully failed to pay past due child support obligations during the time frame charged in the indictment, which post-dated the effective date of the statute. The CSRA gave Crawford fair warning of its effect should he not pay past due child support obligations after its effective date, and yet he chose not to pay. Consequently, Crawford‘s prosecution does not violate the ex post facto clause because he was punished in accordance with the law as it existed at the time of his offense. See, e.g., United States v. Allen, 886 F.2d 143, 146 (8th Cir. 1989) (“So long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.“).
We also reject Crawford‘s alternative challenge to the district court‘s restitution order, which included in its calculations monthly obligations that accrued before the effective date of the CSRA.10 Upon de novo review, we agree with the Tenth Circuit‘s
Venue
Crawford also argues that the district court erred in failing to dismiss the indictment on grounds of improper venue.12 No federal court of appeals has addressed
By contrast, in the present case, the magistrate judge concluded that venue was proper in the Eastern District of Missouri because the children, the victims of the offense, reside in that district. The magistrate judge noted that, under federal statutory law, “‘[e]xcept as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued or completed.‘” United States v. Crawford, slip op. at 13 (Apr. 26, 1996) (quoting
In response, the government observes “[v]enue for a crime is not limited to one district, and may be found even where the defendant is not present. . . . [V]enue properly lies in any district that satisfies either the ‘active verb’ test or the ‘nature and effects’ test.” Brief for Appellee at 28 (citations omitted). Acknowledging Murphy‘s contrary outcome, the government maintains that Murphy was wrongly decided. The government argues that the analysis in Murphy is flawed because the district court failed to take into account the continuing nature of a CSRA offense. The government argues that the CSRA‘s language as a whole, including the words “with respect to a child who resides in another state,” contemplates not only the defendant‘s failure to pay at a particular location, but also the unfulfilled promise or expectation experienced by the child with respect to whom the payment was to be made. On this basis, the government contends that the magistrate judge correctly concluded that the unfulfilled
A criminal defendant‘s venue rights are protected by Article III, § 2, and the Sixth Amendment, of the Constitution. Both of these constitutional provisions require that a defendant‘s trial take place where “the crime shall have been committed.” Similarly, Rule 18 of the Federal Rules of Criminal Procedure states “[e]xcept as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed.” However, as to the determination of where a crime was committed for venue purposes, the United States Code provides:
Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
The issue of whether Crawford‘s constitutional and statutory rights have been violated as a result of venue being based upon the place of his children‘s residence is a question of law which we review de novo. Upon de novo review, we hold that Crawford‘s venue rights have not been violated. We disagree with the reasoning and conclusion in Murphy because, in our opinion, the CSRA describes a continuing offense which may be prosecuted where the parent-defendant resides, where the parent-defendant is required to make payments, or where the child-victim resides. Applying the “active verb” or “key verb” test, we first note that the key verb phrase in
Although the Ninth Circuit‘s decision in Angotti did not concern a prosecution under the CSRA, its reasoning on the venue issue is highly instructive in the present case. In Angotti, 105 F.3d at 541, the defendant had been prosecuted and convicted in the Central District of California on six counts, including two counts of making false statements to a federally-insured financial institution in an application for a $480,000 bank loan, which he used to purchase a condominium unit in Northern California. Id. The defendant had submitted the original loan application to an innocent middle agent, a mortgage company located in the Northern District of California, which in turn restated the false information (not knowing it to be false) to a savings and loan association‘s local branch office also located in the Northern District of California. Id. However, after the local branch office conditionally approved the application, it sent the application to its company headquarters, located in the Central District of California, for a final decision. Id. The defendant in Angotti challenged venue on the corresponding false statement counts (among others). As in the present case, the substantive criminal statute “d[id] not indicate a method for determining the location of the crime for the purpose of establishing venue.” Id. at 542. The Ninth Circuit reasoned that the false statement counts were properly prosecuted in the Central District of California because the defendant‘s false statements, as originally set forth in the loan application, each constituted a continuing offense that could be prosecuted where the crime was begun, continued, or completed. Id. (citing
There is no question that a crime was committed once [the defendant‘s] statements reached the bank office in the Northern District; the statement did not have to reach their intended destination in order to constitute a crime. But the documents did reach the Central District. . . . [E]ven though a crime may have been completed earlier, “it does not follow that the crime then terminated, and that what transpired [in the district where officials acted upon the false statement] was irrelevant for venue purposes.”
Id. (citations omitted). In response to the dissent‘s observation that “a result of this analysis is that venue will often be possible in districts with which the defendant had no personal connection, and which may occasionally be distant from where the defendant originated the actions constituting the offense,” the majority opined that the appropriate remedy is not to restrict venue but, rather, to permit easy transfer. Id. at 543-44.
Similarly, Crawford‘s crime under the CSRA of failing to pay past due child support obligations constituted a continuing offense which could have been prosecuted where the crime was begun, continued, or completed. For obvious reasons, it is difficult to conceptualize or to describe the place where a crime was begun, continued, or completed when the crime itself was an omission or failure to act. Nevertheless, if the crime of failing to pay child support obligations occurs anywhere, it is fair to say that it occurs where there is an absence of the required payment. Thus, the crime occurs not only at the place where the payment was to be deposited, but also the place where it was ultimately to be received by the would-be intended recipient. Thus, in the present case, even though Crawford has had no personal contacts with the Eastern District of Missouri, venue was proper in that district because that is the place of residence of the children and custodial parent to whom he owes support -- the place where the money would have been received by the intended recipients.
Sufficiency of the evidence
Finally, Crawford appeals his conviction on the ground that the evidence was insufficient to support the inference that he acted willfully in failing to make his child support payments. Under our well-established standard for reviewing claims of insufficiency of the evidence, we view the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences; we may overturn the verdict only if the evidence is such that a reasonable-minded factfinder
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
Whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State shall be punished as provided in subsection (b).
. . . .
As used in this section--
(1) the term “past due support obligation” means any amount--
(A) determined under a court order or an order of an administrative process pursuant to the law of a State to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living; and
(B) that has remained unpaid for a period longer than one year, or is greater than $5,000.
It is objected that the statute could come into play by the child moving out of state rather than the parent doing so. This hypothetical will not support a facial challenge to the statute as it is applied in this case. But if the hypothetical is entertained, it constitutes no objection to the constitutionality of the statute. It doesn‘t matter whether the interstate character of the transaction is created by the parent or the child. What matters is that an obligation, already imposed by state law, comes to wear an interstate face. Then, and only then, does the CSRA intervene and forbid frustration of the obligation‘s satisfaction.