United States v. Klinzing, Edward W. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2080
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD W. KLINZING,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-CR-141—Charles N. Clevert, Judge.
____________
ARGUED OCTOBER 30, 2002—DECIDED JANUARY 9, 2003
____________
Before FLAUM, Chief Judge, and BAUER, and DIANE P.
WOOD, Circuit Judges.
FLAUM, Chief Judge. Edward Klinzing appeals his
conviction under 18 U.S.C. § 228(a)(3), better known as
the Deadbeat Parents Punishment Act (“DPPA”), for will-
ful failure to pay court ordered child support. Klinzing
argues first that the DPPA is an unconstitutional exer-
cise of the federal commerce power. Second, he contends
that the DPPA denies equal protection of the laws to
delinquent parents who live in different states than
their children and that it inhibits delinquent parents’
fundamental right to travel. Third, Klinzing claims that
the district court’s admission of certain business records
into evidence without foundation testimony by the record
2 No. 02-2080
custodian, as permitted by Rules 803(6) and 902(11) of the
Federal Rules of Evidence, violated his Sixth Amendment
right to confront witnesses. For the reasons stated below,
we reject Klinzing’s constitutional arguments and affirm
his conviction.
BACKGROUND
Edward Klinzing (“Klinzing”) and Pamela Edwards
(now Kerce) married in 1977 in Lake County, Illinois, and
together had three sons, Christopher, Craig, and Cory
Klinzing. After Klinzing and Pamela divorced in 1989,
Pamela gained full custody of their sons and Klinzing
was ordered by the court to pay child support until the
boys reached adulthood. Soon after the divorce and dur-
ing all years relevant to the criminal charges against
Klinzing, Pamela and the three boys moved to Tennessee
while Klinzing remained in Illinois and later moved to
Wisconsin. Klinzing did not visit or maintain a relation-
ship with his sons after they moved to Tennessee with
Pamela.
Klinzing fell behind in his child support payments as
early as 1991 and sporadically made payments through
1998. At the time of his arrest in July 2001, Klinzing
owed $78,574.37 in past due child support obligations. The
indictment charged Klinzing under the DPPA, 18 U.S.C.
§ 228(a)(3), with one count of willful nonpayment of court
ordered child support for longer than two years and in
excess of $10,000, which constituted a felony carrying a
maximum two year prison term. Klinzing filed a motion
to dismiss the indictment on equal protection, due pro-
cess, and Commerce Clause grounds. The magistrate judge
and the district court both denied Klinzing’s motion to
dismiss, finding no constitutional infirmities in the DPPA
or its application to delinquent parents who live in dif-
ferent states from their children.
No. 02-2080 3
Before trial, the government filed a motion in limine
regarding its intent to offer various business records as
evidence pursuant to FED. R. EVID. 803(6). As amended
in 2000, Rule 803(6) permits introduction of business
records without foundation testimony from the record
custodian so long as the records are authenticated accord-
ing to FED. R. EVID. 902(11). At trial, the government
offered these business records accompanied by written
certifications in compliance with Rule 902(11). The district
court ruled some of the proffered documents inadmissible
under amended Rule 803(6) because they lacked the in-
herent reliability required under the hearsay exception,
but admitted five W-2 wage statements over Klinzing’s
objection. Klinzing offered some exhibits of his own, but
he neither testified himself nor called any witnesses on
his behalf.
The jury convicted Klinzing of willful failure to pay child
support as charged under the DPPA, and the district
court sentenced him to serve 21 months in prison and pay
$84,989.87 restitution. Klinzing now appeals his convic-
tion, resurrecting the constitutional equal protection and
Commerce Clause challenges that he asserted in his mo-
tion to dismiss and arguing that the admission of his W-2
forms into evidence under amended FED. R. EVID. 803(6)
violated his rights as a criminal defendant under the
Confrontation Clause.
ANALYSIS
A. CONSTITUTIONALITY OF THE DPPA
The DPPA, formerly called the Child Support Recovery
Act (“CSRA”),1 punishes the willful nonpayment of past
1
For the purpose of this appeal there is no meaningful difference
between the earlier CSRA and later DPPA, and for simplicity’s
(continued...)
4 No. 02-2080
due child support obligations owing to children who live
in a different state than their noncustodial parent. See
18 U.S.C. § 228(a). Nearly all states criminalize the will-
ful failure to pay child support and most utilize the Uni-
form Reciprocal Enforcement of Support Act (“URESA”)
to extradite interstate deadbeat parents and process inter-
state child support enforcement orders. Recognizing that
such interstate extradition and enforcement provided
a cumbersome, slow, and tedious method of collecting
child support obligations from deadbeat parents, Congress
passed the DPPA. The sole purpose of the legislation is
to assist states in recovering past due child support pay-
ments beyond their borders.
Klinzing attacks the constitutionality of the DPPA on
both equal protection and Commerce Clause grounds. In
particular, he argues that the DPPA denies equal protec-
tion by irrationally criminalizing the willful nonpayment
of child support by parents who live in a different state
than their children, and that it exceeds the scope of Con-
gress’s authority under the Commerce Clause to “regulate
commerce among the several States.” U.S. CONST. art. I,
(...continued)
sake we will refer to the statute only as the DPPA. Congress
enacted the Child Support Recovery Act in 1992 to strengthen
state enforcement of child support orders and improve chances
of collecting billions of dollars in unpaid child support from
interstate delinquent parents. 138 CONG. REC. at H7326 (daily
ed. Aug. 4, 1992). In 1998 Congress revised the CSRA, 18 U.S.C.
§ 228, by creating two offense levels for willful failure to pay court
ordered child support obligations based on the amount owed
and length of time the debt remained unpaid. At that time
Congress also made it a crime to travel in interstate commerce
with intent to evade substantial past due child support obliga-
tions. The revised statute also received a new name, the Deadbeat
Parents Punishment Act. Pub. L. No. 105-187, § 2, 112 Stat.
618 (June 24, 1998), codified at 18 U.S.C. § 228 (1999).
No. 02-2080 5
§ 8. We review these constitutional challenges to a federal
statute de novo. United States v. Wilson, 159 F.3d 280, 285
(7th Cir. 1998); United States v. Lewitzke, 176 F.3d 1022,
1025 (7th Cir. 1999).
1. COMMERCE CLAUSE
Five years ago this court joined nine federal circuit
courts in affirming the constitutionality of the DPPA as a
valid exercise of federal commerce power. See United
States v. Black, 125 F.3d 454 (7th Cir. 1997); United States
v. Williams, 121 F.3d 615 (11th Cir. 1997); United States
v. Crawford, 115 F.3d 1397 (8th Cir. 1997); United States v.
Bailey, 115 F.3d 1222 (5th Cir. 1997); United States v.
Johnson, 114 F.3d 476 (4th Cir. 1997); 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.
Hampshire, 95 F.3d 999 (10th Cir. 1996); United States
v. Mussari, 95 F.3d 787 (9th Cir. 1996); United States v.
Sage, 92 F.3d 101 (2d Cir. 1996). Since then several cir-
cuits have reconsidered the issue in light of the Supreme
Court’s decision in United States v. Morrison, 529 U.S. 598(2000) (concluding that the civil remedy provision of the
Violence Against Women Act exceeded Congress’ Commerce
Clause authority because it regulated noneconomic, wholly
intrastate activity that did not substantially affect inter-
state commerce), and in every case the court reaffirmed the
constitutionality of the DPPA. See United States v. Monts,
311 F.3d 993 (10th Cir. 2002); United States v. King, 276
F.3d 109 (2d Cir. 2002); United States v. Lewko, 269 F.3d 64(1st Cir. 2001); United States v. Faasse, 265 F.3d 475 (6th
Cir. 2001) (en banc). Against the heavy weight of this auth-
ority and without advancing a new argument on his behalf,
Klinzing still claims that the DPPA is unconstitutional.
Because we agree with our analysis in Black that an in-
terstate child support obligation is a “thing” in commerce
6 No. 02-2080
and thus properly regulated by Congress, and because we
are not otherwise persuaded to part ways from our ten
sister circuits on this issue, we hold today that the DPPA is
a constitutional exercise of the federal commerce power.
The Supreme Court in United States v. Lopez, 514 U.S.
549 (1995), delineated three broad areas that Congress
may regulate using its commerce power: (1) the channels
of interstate commerce, (2) the instrumentalities of, or
persons or things in, interstate commerce, and (3) activities
that substantially affect interstate commerce. Id. at 558.
In Black we held that a parent’s intentional failure to
pay child support debts created a “conscious impediment
to interstate commerce” that was properly regulated by
Congress under the second prong of Lopez. Black, 125 F.3d
at 460. Since a child support obligation is an economic debt
and the DPPA only reaches those debts which are owed
by parents living out of state, we decided that a past
due child support payment constituted a “thing” in inter-
state commerce. Id. We noted too that Congress has power
not only to regulate active interstate commerce, but to
protect against and punish willful interference with inter-
state commerce. Id. (analogizing the DPPA to the Hobbs
Act, 18 U.S.C. § 1951, which criminalizes acts of extor-
tion, robbery, or physical violence that interfere with inter-
state commerce). We therefore concluded that the DPPA
fit cleanly “within the strictures of Congress’ Commerce
Clause power.” Id. at 461.
Klinzing acknowledges our decision in Black but insists
we were wrong to find an unpaid, overdue child support
payment a “thing” in interstate commerce. First, Klinzing
characterizes the “thing” at issue as an obligation to pro-
vide financial support to one’s children arising from a
local court order entered on authority of state law. Accord-
ing to Klinzing, legal obligations such as these are not
commerce merely because they involve an order to pay
No. 02-2080 7
money. We disagree. The notion of “child support” com-
prises more than a moral duty to care for one’s children,
and state laws recognize this by requiring noncustodial
parents to pay money in satisfaction of their parental
duties. When this duty takes the form of a parent in one
state ordered to pay support money to a parent in an-
other state, it is “functionally equivalent” to an interstate
contract, with the payments usually traveling interstate
by mail, wire, or electronic transfer. Black, 125 F.3d at
460. Klinzing’s argument that the underlying support
obligation is simply a local court order authorized by
state law and therefore not interstate commerce is with-
out merit, especially given the expansive way courts have
defined “commerce” when reviewing legislation enacted
by Congress under the Commerce Clause.
Second, Klinzing argues that the DPPA impermissibly
criminalizes abstention from commerce because the non-
payment of a debt cannot be construed as commerce with-
in reach of Congress’ regulatory authority. Klinzing sug-
gests that if Congress can criminalize the failure of par-
ents to pay child support under the DPPA, then Congress
could criminalize the failure of business owners to open
nondiscriminatory hotels under the Civil Rights Act of
1964. See Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241 (1964) (holding that Congress had authority under
Commerce Clause to prohibit discrimination in motel
accommodations because such discrimination constituted
a willful impediment to interstate travel and commerce).
In both cases, Klinzing contends, the individual is punished
for impeding interstate commerce by choosing not to
participate in interstate commerce at all. The problem
with Klinzing’s analogy is that deadbeat parents, unlike
hypothetical business owners, are not lawfully abstaining
from interstate commerce. The DPPA only reaches par-
ents whose past due child support obligations are owed in
another state and punishes these deadbeat parents for
8 No. 02-2080
choosing to willfully evade their legal obligations. In other
words, the DPPA punishes an affirmative choice to
break the law and not a passive choice to refrain from par-
ticipating in interstate commerce.
We remain convinced that an interstate child support
obligation is a thing in commerce which may properly
be regulated by Congress using its commerce power. De-
spite Klinzing’s claim that the DPPA encroaches upon
states’ rights to regulate domestic relations, the DPPA
expressly avoids interference with the underlying child
support obligations imposed by the states. The DPPA only
applies criminal punishment to unlawful conduct that
implicates interstate commerce: namely, the willful eva-
sion of economic support obligations by parents who live
in different states from their children. We therefore find
the DPPA to be a permissible exercise of Congress’ power
to legislate under the Commerce Clause.
2. EQUAL PROTECTION
Klinzing also challenges the constitutionality of the
DPPA on equal protection grounds. Specifically, he contends
that the DPPA either impermissibly burdens a deadbeat
parent’s fundamental right to travel, or irrationally treats
deadbeat parents who live in a different state from their
children differently from deadbeat parents who live in the
same state as their children. Klinzing correctly states
that the right to travel is fundamental and any burden on
it is subject to strict scrutiny, but he wrongly concludes
that the DPPA infringes this right. In the case of dead-
beat parents, any impediment to travel based on a fear
of criminal prosecution under the DPPA results from the
parents’ own willful failure to pay child support and not
the requirements of the statute. A parent under a local
court order to pay child support is entirely free to move to
a different state from his or her children without prosecu-
No. 02-2080 9
tion under the DPPA. It is only when the parent chooses
not to abide by the court order and willfully evades his
support obligations while living out of state that the DPPA
makes the interstate conduct criminal. If anything im-
pedes Klinzing’s right to travel, it is his own willful eva-
sion of his child support obligations and not the DPPA.
Klinzing also argues that the DPPA violates equal
protection because it draws a distinction among deadbeat
parents that is not rationally related to a legitimate gov-
ernment objective. According to Klinzing it is not rational
to base federal criminal jurisdiction on a factor outside
the parent’s control, such as where one’s children live
with their custodial parent. Klinzing claims the DPPA vio-
lates equal protection when it treats deadbeat parents
living in a different state from their children differently
from deadbeat parents living in the same state as their
children. We find no equal protection violation in this case
because the DPPA’s differential treatment of intrastate
and interstate deadbeat parents is rationally related to a
legitimate government interest. We stated in Black that the
statute passed the rational basis test because “Congress
expressly recognized that collecting past due child support
obligations from out-of-state deadbeat parents has out-
grown state enforcement mechanisms.” Id., 125 F.3d at 458.
The problem of deterring and punishing the most egregious
interstate deadbeat parents has not abated in the last five
years and still remains a legitimate government interest.
The availability of federal criminal punishment for inter-
state deadbeat parents makes it less likely that parents will
successfully shirk their financial responsibilities by fleeing
to another state. We therefore conclude that the DPPA is
rationally related to a legitimate government interest and
passes constitutional muster.
10 No. 02-2080
B. CONSTITUTIONALITY OF FED. R. EVID. 803(6)
Klinzing asks this court to find the 2000 amendment to
FED. R. EVID. 803(6) unconstitutional because it violates
his rights as a criminal defendant under the Confronta-
tion Clause. As amended, Rule 803(6) provides that the
business records exception to the hearsay rule may be
satisfied “by certification that complies with Rule 902(11),
Rule 902(12), or a statute permitting certification, unless
the source of information or the method or circumstances
of preparation indicate lack of trustworthiness.” Under
Rule 902(11) a party may authenticate a business record
through a written declaration by a qualified custodian
that the record meets the necessary foundational require-
ments. Klinzing contends that Rule 803(6) violates his
right to confront witnesses against him because the
amended rule does not require the government to prove
either the reliability of business records through founda-
tion testimony or the unavailability of the foundation
witness. Klinzing also claims that the amendment does
not derive from a firmly rooted hearsay exception. In
response the government argues that the amended rule
is constitutional on its face for two reasons. First, the
amendment to Rule 803(6) derives from a firmly rooted
hearsay exception for business records. And second, the
amendment makes the rule for admissibility of domes-
tic business records the same as for foreign business
records, which has repeatedly withstood Confrontation
Clause challenges. Klinzing’s facial challenge to the consti-
tutionality of amended FED. R. EVID. 803(6) is an issue
of first impression in this and other courts of appeal.
Despite the novelty of the question, we are not entirely
without guidance on this issue. Amended Rule 803(6), and
related authentication Rules 902(11)-(12), attempt to
place domestic business records on par with foreign busi-
ness records, whose rule for admissibility is codified at 18
No. 02-2080 11
U.S.C. § 3505. Both Rule 803(6) and § 3505 permit ad-
mission of pre-certified business records into evidence
without confrontation of the record keeper by the oppos-
ing party, in this case a criminal defendant. Rule 803(6)
was amended to avoid the expense and inconvenience of
producing time-consuming foundation witness testimony
in situations where the authenticity of the business rec-
ords could be confirmed by written declaration pursuant
to Rules 902(11)-(12). See FED. R. EVID. 803 advisory com-
mittee’s note (stating that Rule 902(11), Rule 902(12), and
§ 3505 provide adequate assurance of authenticity for
business records without foundation testimony).
When the Supreme Court considered the constitution-
ality of admitting certain hearsay evidence in criminal
trials, it held that the Confrontation Clause is satisfied
when the proffered hearsay has sufficient guarantees of
reliability to come within a firmly rooted exception to the
hearsay rule. White v. Illinois, 112 S.Ct. 736 (1992) (hold-
ing that admission of excited utterances and medical
examination evidence without foundation testimony or
proving unavailability of witness did not violate Confronta-
tion Clause of criminal defendant facing sexual assault
charges). The reason for this is that “a statement that
qualifies for admission under a ‘firmly rooted’ hearsay
exception is so trustworthy that adversarial testing can
be expected to add little to its reliability.” Id. at 743.
Before it was amended, Rule 803(6) was considered a
firmly rooted hearsay exception for certain business rec-
ords that had adequate indicia of reliability. In fact, the
foreign business records exception, § 3505, derived specifi-
cally from an earlier version of Rule 803(6) and has itself
withstood Confrontation Clause attacks in several circuits.
See United States v. Garcia Abrego, 141 F.3d 142 (5th Cir.
1998); United States v. Ross, 33 F.3d 1507 (11th Cir. 1994);
United States v. Sturman, 951 F.2d 1466 (6th Cir. 1991);
United States v. Miller, 830 F.2d 1073 (9th Cir. 1987). Given
12 No. 02-2080
this history, we see no reason to conclude that Rule 803(6)
is any less firmly rooted as a hearsay exception now that
it permits admission of pre-certified domestic business
records without foundation testimony. Thus, we hold that
amended Rule 803(6) does not on its face violate a crim-
inal defendant’s rights under the Confrontation Clause.2
CONCLUSION
We reject Klinzing’s constitutional challenges to the
DPPA and amended FED. R. EVID. 803(6), and we AFFIRM
his conviction.
2
Klinzing does not mount an “as applied” challenge to the
constitutionality of Rule 803(6). We note, however, that it ap-
pears from the trial transcript that the government complied
with all requirements of Rules 803(6) and 902(11) in seeking to
admit business records into evidence without foundation testi-
mony of the record keepers. The trial judge reviewed the pro-
posed evidentiary records and excluded some because they did
not contain adequate indicia of reliability and did not come with-
in the scope of business records intended for admission as hear-
say exceptions under Rule 803(6). As a result, only five W-2
wage statements were eventually admitted under the amended
rules. While Klinzing objected on the grounds that their admis-
sion violated his constitutional rights, he neither deposed nor
called the record keepers to the stand for cross-examination
as was his right. Nor did he ever present evidence that the infor-
mation in the admitted W-2s was inaccurate or incomplete. Thus,
even if we found the amended rules violated his rights under
the Confrontation Clause, the admission of the documents con-
stituted harmless error.
No. 02-2080 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-9-03