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UNITED STATES v. GANAPOSKI

July 1, 1996

UNITED STATES OF AMERICA
v.
JEFFREY GANAPOSKI, Defendant


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: MCCLURE

July 1, 1996

 BACKGROUND:

 On March 11, 1996, the United States Attorney for the Middle District of Pennsylvania filed an information charging defendant Jeffrey Ganaposki with failing to pay child support with respect to a child who resides in another state in violation of 18 U.S.C. § 228(a). According to the information, Ganaposki is a resident of Georgia, while the child is a resident of Pennsylvania.

 Ganaposki originally was released on a $ 1,000.00 unsecured bond. Following a hearing on a "Notice of Revocation" filed by Ganaposki, the court vacated the release order because it appeared that no condition or combination of conditions could reasonably assure his appearance before the court as required. Ganaposki currently is in state custody for criminal contempt of court, also related to his child support obligations.

 Before the court are: a document captioned "Motions to Abate, Dismiss, and Discharge"; a document captioned "Refusal of Fraud" and "Notice of Intent"; and a document captioned "Notice of Fraud and Intent to Defraud." The documents were filed by Ganaposki.

 The "Motions to Abate, Dismiss, and Discharge" sets forth various bases for dismissal of the information. Most of them are clearly without any merit and will not be addressed further. Only two of the issues raised by Ganaposki are worth discussion. The first is the alleged lack of a showing, on the record, of probable cause for an arrest. This issue was discussed in our Order of Court dated June 10, 1996. Nothing in Ganaposki's "Motions" and the brief in support thereof changes our earlier determination.

 The other issue of arguable merit is the question of whether the statute under which Ganaposki was charged, the Child Support Recovery Act ("CSRA"), 18 U.S.C. § 228, is constitutional. Several district courts have held that there is not a sufficient nexus between the statute and the Commerce Clause to warrant the exercise of federal authority, while other district courts have taken the opposite view. Compare United States v. Nichols, 928 F. Supp. 302, 1996 WL 291861 (S.D.N.Y. 1996) (also citing United States v. Sims, 1996 U.S. Dist. LEXIS 12820, No. 95-Cr-125 (W.D. Ok. filed Feb. 22, 1996); United States v. Wilson, No. 4:95-MG-3026 (N.D. Ohio filed November 7, 1995); all finding that § 228 is constitutional); United States v. Collins, 921 F. Supp. 1028 (W.D.N.Y. 1996) (opinion of magistrate judge; constitutional); United States v. Kegel, 916 F. Supp. 1233 (M.D. Fla. 1996) (opinion of magistrate judge; constitutional); United States v. Sage, 906 F. Supp. 84 (D. Conn. 1995) (constitutional); United States v. Hopper, 899 F. Supp. 389 (S.D. Ind. 1995) (opinion of magistrate judge; constitutional); United States v. Murphy, 893 F. Supp. 614 (W.D. Va. 1995) (opinion of magistrate judge; constitutional); United States v. Hampshire, 892 F. Supp. 1327 (D. Kan. 1995) (constitutional), with United States v. Parker, 911 F. Supp. 830 (E.D. Pa. 1995) (unconstitutional); United States v. Bailey, 902 F. Supp. 727 (W.D. Tex. 1995) (unconstitutional); United States v. Mussari, 894 F. Supp. 1360 (D. Ariz.), reconsideration denied, 912 F. Supp. 1248 (D. Ariz. 1995); United States v. Schroeder, 894 F. Supp. 360 (D. Ariz.), reconsideration denied, 912 F. Supp. 1240 (D. Ariz. 1995) (unconstitutional). See also United States v. Bongiorno, 1996 U.S. Dist. LEXIS 5731, 1996 WL 208508 (D. Mass. filed January 25, 1996) (granting in part and denying in part motion to stay execution of sentence pending appeal of "substantial constitutional issues" following conviction under § 228).

 We agree with those courts which have examined the CSRA and found it to pass constitutional muster. Because this conclusion is in conflict with the only other opinion to date in this circuit, we will explain the conclusion at some length. However, since several of the opinions cited in the preceding paragraph set forth a thorough analysis of the issues, see esp. Nichols, our opinion will not be exhaustive. Rather, we will focus on the recent, controlling Supreme Court and Third Circuit opinions and explain our differences with the conclusion reached in Parker.

 I. SUPREME COURT PRECEDENT

 In United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1996), the Supreme Court reviewed the Gun-Free School Zones Act of 1990. In part, that act created a federal offense knowingly to possess a firearm in a school zone. 18 U.S.C. § 922(q)(1)(A) (now 18 U.S.C. § 922(q)(2)(A)). The Supreme Court analyzed the statute under the Commerce Clause of the Constitution. U.S. Const. Art. I, § 8, cl. 3. The Court reviewed the history of Commerce Clause decisions, including the expansion of congressional authority following the "watershed case" of NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937). Lopez at 635. In a line of cases following Jones & Laughlin, the Court upheld a number of statutes under the Commerce Clause, but always with the reservation that Congress' authority under the Clause had its limits. Lopez at 635-637.

 Based on its review of its prior cases, the Court concluded that there are three broad categories of activity which Congress may regulate or protect under the power delegated to it through the Commerce Clause: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may arise only from intrastate activity; and (3) activities having a substantial relation to or which substantially affect interstate commerce. 57 S. Ct. at 637. The first two categories were not at issue in the case before the Court. Id. at 637-638.

 The Court first found that possession of a firearm in a school zone is neither an economic activity in itself nor a part of a larger economic activity. Id. at 638-639. The statute also did not have as a jurisdictional requirement an element that the firearm possession affected interstate commerce, leaving the question of whether "mere possession" of a firearm is subject to Congressional regulation. Id. at 639. The Court then noted that Congress had not made findings as to the effect on interstate commerce of carrying a firearm in a school zone, rendering it impossible to evaluate the exercise of legislative judgment, and the Court declined to presume that adequate findings would be made because of "institutional expertise" on the part of Congress. Id. at 639-640. This left the Court to determine whether proffered ways in which possession of a firearm in a school zone may affect interstate commerce. Id. at 640.

 The government posed three basic arguments: that the cost of crime is substantial and is spread throughout society; that violent crime reduces the willingness of individuals to travel to purportedly unsafe areas; and the threat to the educational system posed by guns in schools, which in turn would lead to less productive citizens. Id. The Court rejected these arguments as basically expanding the commerce power to include many activities which might lead to violent crime and would subsume areas which traditionally are reserved to the states such as family law or the educational process. Id. at 640-641.

 The Court concluded that the Gun-Free School Zones Act was outside the limits of the broad range of subjects which Congress may regulate under the Commerce Clause:

 
...The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.
 
To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. ...

 Id. at 642-643. The statute therefore was held to be invalid and insupportable under the Commerce Clause. Id. at 643.

 II. THIRD CIRCUIT PRECEDENT

 As was to be expected, following the Supreme Court's decision in Lopez, defendants began to challenge federal statutes on the grounds that they exceeded Congress authority under the Commerce Clause. See United States v. Cardoza, 914 F. Supp. 683, 684 (D. Mass. 1996) (collecting cases). One of those cases is United States v. Bishop, 66 F.3d 569 (3d Cir.), reh'g and reh'g en banc denied, 73 F.3d 23 (3d Cir. 1995), cert. denied, 133 L. Ed. 2d 698 (1996).

 At issue in Bishop was the federal carjacking statute, 18 U.S.C. § 2119. As in Lopez, the defense argued that Congress exceeded its authority in enacting the statute because carjacking is not interstate commerce, nor does it have a substantial impact on interstate commerce because it is peculiarly local in nature. In addressing the Commerce Clause argument, the Third Circuit began with an overview of Lopez which is consistent with that recited above. Bishop at 575-576. The Third Circuit concluded that the carjacking statute was constitutional because: "(1) Congress had a rational basis for believing that carjacking substantially affects interstate ...


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