Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan Jr., Senior District Judge. (CR-96-107)
Before WIDENER and MURNAGHAN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
PHILLIPS, Senior Circuit Judge:
Affirmed by published opinion. Senior Judge Phillips wrote the opinion, in which Judge Widener and Judge Murnaghan joined.
Gary Nelson Johnson appeals his conviction for willfully failing to pay child support in violation of the Child Support Recovery Act (CSRA or the Act), 18 U.S.C. Section(s) 228, contending that Congress' enactment of the CSRA exceeded its powers under the Commerce Clause and violated the Tenth Amendment and, alternatively, that the Government failed to prove his paternity which, he argues, is an essential element of the offense. We hold that the CSRA's enactment was a valid exercise of Congress' Commerce Clause powers and did not violate the Tenth Amendment, and that paternity is not an element of the offense of conviction. Accordingly, we affirm Johnson's conviction.
Gary Nelson Johnson married Mary Rauss on May 25, 1985, and lived with her in Endicuit, New York until 1987. In October of that year, Rauss moved to Virginia with the understanding that Johnson would follow her in December after he completed the current academic semester. Johnson instead continued to reside in New York but did visit his wife in Virginia without establishing a residence there. Their daughter, Marisa, was born in Virginia on August 18, 1988.
Johnson and Rauss were divorced by a final decree of the Circuit Court of Prince William County, Virginia, on October 6, 1989. The Virginia decree ordered Johnson to pay $25 per week in child support and was made the basis of an order for that level of child support by a New York Family Court in the county where Johnson resided at the time. Following unsuccessful attempts by the New York Family Court to obtain compliance with its order, that court entered contempt orders against Johnson on May 26, 1989, December 26, 1989, March 20, 1990, June 27, 1990, September 26, 1990, and on May 14, 1991. Then, on September 16, 1991, the New York court issued a warrant for Johnson's arrest. Avoiding arrest on the state warrant, Johnson moved to Florida where he remarried, began working and earning money, and with his second wife, acquired assets of substantial value. Johnson never contacted the Family Court regarding the child support he owed. His intent to defy the state court orders was manifested, in part, by letters he wrote to Rauss. In one letter, postmarked February 16, 1989, Johnson wrote:
If you persist [in seeking child support], I'll do whatever is necessary to continue on my present directive. Even if it means moving from Bing[hampton] N.Y. so nobody knows where the hell I am. I've already explained to you that I cannot pay you anything right now. Whatever money I do make in the summer goes towards my financial needs throughout the school year. I'm sorry but you are not going to alter that, I don't care what the law is.
In a one count criminal information filed on September 6, 1995, the Government charged Johnson with knowingly and intentionally failing to pay child support from June 1991 to December 1995, in violation of the CSRA. On June 20, 1995, he was arrested in Florida by FBI agents on the federal charge. At the time, he owed more than $5,000 in state court-ordered child support. In a pre-trial motion, Johnson sought dismissal of the CSRA charges on grounds that the Act exceeded Congress' powers under the Commerce Clause and, furthermore, violated the Tenth Amendment. The magistrate judge to whom the case was referred for trial reserved decision on the constitutional issue and the case proceeded to bench trial. At trial, Johnson defended essentially on a claim of non-parentage, contending that parentage was an essential element of the CSRA offense. The parties introduced conflicting evidence on this defense, but in the end the magistrate judge rejected it both on the legal ground that paternity was not an essential element of the offense, J.A. 89, and that in any event paternity had been proven if that were necessary. J.A. 227. The court then found Johnson guilty of the charge, rejected Johnson's constitutional defenses, sentenced him to 60 days imprisonment, imposed a fine of $1,000, and ordered restitution in the amount of $6,813.90.
On Johnson's appeal to the district court, his conviction and sentence were affirmed, and his appeal to this court followed. In it, Johnson challenges the district court's rulings (affirming the magistrate judge) that (1) the CSRA is a constitutional exercise of Congress' powers under the Commerce Clause and does not violate the Tenth Amendment, and (2) parentage is not an element of the CSRA offense, hence need not be proven to convict on a CSRA charge. *fn1 We take these in order, reviewing each de novo as a ruling of law.
The Commerce Clause constitutional issue is one of first impression with us, but it has at this writing been addressed by five other federal courts of appeal. Each has upheld the CSRA as a constitutional enactment under the Commerce Clause. See United States v. Parker, 108 F.3d 28 (3d Cir. 1997); United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997); United States v. Mussari, 95 F.3d 787 (9th Cir. 1996); United States v. Hampshire, 95 F.3d 999 (10th Cir. 1996); and United States v. Sage, ...