United States v. Bongiorno

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-1052
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK P. BONGIORNO,
Defendant, Appellant.
No. 96-1560
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
FRANK P. BONGIORNO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Thomas V. Silvia for appellant.
Jeanne M. Kempthorne and Christopher Alberto, Assistant
United States Attorneys, with whom Donald K. Stern, United States
Attorney, was on brief, for appellee.
February 7, 1997
SELYA, Circuit Judge. In many respects the history of
SELYA, Circuit Judge.
this litigation resembles a Greek tragedy, excerpts of which from
time to time have occupied the attention of no fewer than ten
federal and state judges across the nation. This particular
passage revolves around the constitutionality of the Child
Support Recovery Act (CSRA), 18 U.S.C. 228 (1994), and the
federal government's authority, if any, to collect restitutionary
payments ordered under the CSRA by recourse to the Federal Debt
Collection Procedure Act (FDCPA), 28 U.S.C. 3001-3308 (1994).
The CSRA issue is new to us and the FDCPA issue has not, to our
knowledge, been addressed by any court of appeals. After sorting
through these and other arcana, we reject the defendant's
challenge to his criminal conviction and sentence, holding, among
other things, that Congress did not exceed the bounds of its
constitutional power in enacting the CSRA. Turning to post-
conviction events, we hold that the federal government lacks
authority to proceed against a "deadbeat dad" by using the FDCPA
as an instrument for enforcing a restitutionary order issued in
connection with an antecedent criminal conviction.
I. SETTING THE STAGE
I. SETTING THE STAGE
In October 1990 a Georgia state court entered a decree
ending Sandra Taylor's marriage to defendant-appellant Frank P.
Bongiorno, granting Taylor custody of the couple's minor
daughter, and directing Bongiorno (a physician specializing in
bariatric surgery) to pay $5,000 per month in child support.
Shortly thereafter, mother and daughter repaired to
2
Massachusetts. When Bongiorno subsequently sought to modify the
child support award, Taylor counterclaimed on the ground that
Bongiorno had failed to make the payments stipulated in the
original decree. In September 1992 the Georgia court found
Bongiorno in contempt for failing to pay upward of $75,000 in
mandated child support and directed that he be incarcerated until
he had purged the contempt. Bongiorno avoided immurement only
because he had accepted a position in Michigan and the contempt
order did not operate extraterritorially.
Once in Michigan, Bongiorno made sporadic payments of
child support despite the fact that his new post paid $200,000
per year. In March 1993 a Michigan state court domesticated the
Georgia support order and authorized garnishment of Bongiorno's
wages to satisfy the accumulated arrearage. Soon thereafter,
Bongiorno quit his job and paid only $500 a month in child
support from June to December 1993. In early 1994 Bongiorno went
to work for the State of Michigan. That May a Michigan state
court issued an order enforcing the Georgia support award to the
extent of $300 per week.1 Bongiorno failed to satisfy even this
modest impost.
Approximately one year later the federal behemoth
stirred; the United States charged Bongiorno with violating the
1Differences in state law explain this ceiling. The
Michigan court applied Michigan's child support guidelines, Mich.
Comp. Laws 552.519 (1988), to determine a current support
obligation and then added a premium to be applied against
Bongiorno's accumulated arrearages. Neither the propriety of the
ceiling nor the Michigan court's treatment of the Georgia court's
decree is at issue here.
3
CSRA. Because Bongiorno's minor daughter has resided
continuously in Massachusetts from 1990 forward (albeit with her
grandmother for much of that time), the government preferred
charges in that district. Bongiorno moved unsuccessfully to
dismiss the indictment on the ground that the CSRA represents an
unconstitutional exercise of Congress' power under the Commerce
Clause. At an ensuing bench trial, the district court determined
that Bongiorno had possessed the ability to pay $5,000 monthly in
the 1992-1993 time frame, but that he had chosen not to do so.
Consequently, the court found Bongiorno guilty of willful failure
to pay child support and sentenced him to five years of
probation. As a condition of probation, the court imposed a
work-release arrangement, directing Bongiorno to spend up to
twelve hours per day in the custody of the Bureau of Prisons for
the first year of his probation. As a further condition, the
court ordered restitution in the sum of $220,000 (a figure
approximating the total arrearage then outstanding).
Not content with its apparent victory, the government
commenced a civil proceeding under the FDCPA as a means of
enforcing the restitutionary order. After some procedural
wrangling, the court granted the government's motion to attach
Bongiorno's wages and disburse the proceeds.
Bongiorno filed timely appeals in both cases, and we
heard the appeals in tandem. We now affirm the conviction and
sentence in the criminal case, but reverse the judgment in the
civil case.
4
II. THE CONSTITUTIONALITY OF THE CHILD SUPPORT RECOVERY ACT
II. THE CONSTITUTIONALITY OF THE CHILD SUPPORT RECOVERY ACT
Bongiorno challenges his conviction principally on the
ground that the CSRA is an unconstitutional exercise of Congress'
authority under the Commerce Clause. We review de novo
constitutional challenges to federal statutes. See United States
v. Gifford, 17 F.3d 462, 471-72 (1st Cir. 1994).
A. The CSRA and Its Prologue.
A. The CSRA and Its Prologue.
In 1992 Congress focused on the importance of financial
support from non-custodial parents as a means of combatting the
growing poverty of single-parent families. The House Judiciary
Committee observed that of $16.3 billion in child support
payments due in 1989, only $11.2 billion was paid, leaving a
shortfall of approximately $5 billion to be offset largely
through government assistance. See H.R. Rep. No. 102-771, at 5
(1992). The Committee concluded that "the annual deficit in
child support payments remains unacceptably high," especially "in
interstate collection cases, where enforcement of support is
particularly difficult." Id. To illustrate this point, the
Committee noted that one-third of all uncollected child support
obligations involved non-custodial fathers living out of state
and that roughly fifty-seven percent of the custodial parents in
such situations received support payments "occasionally, seldom
or never." Id.Because Congress doubted the states' ability
efficaciously to enforce support orders beyond their own borders,
see id. at 6 (recognizing that "interstate extradition and
5
enforcement in fact remains a tedious, cumbersome and slow method
of collection"), it devised a federal solution hoping that the
new law the CSRA would prevent delinquent parents from
"mak[ing] a mockery of State law by fleeing across State lines to
avoid enforcement actions by State courts and child support
agencies." 138 Cong. Rec. H7324, H7326 (daily ed. Aug. 4, 1992)
(statement of Rep. Hyde). In final form the statute makes
willful failure "to pay a past due support obligation with
respect to a child who resides in another State" a federal crime.
18 U.S.C. 228(a). A "past due support obligation" is an amount
determined under a state court order that either has remained
unpaid for more than one year or is greater than $5,000. See id.
228(d)(1). The law subjects violators to a panoply of
punishments, including imprisonment, fines, and restitution. See
id. 228(b) & (c).
B. The Commerce Clause.
B. The Commerce Clause.
The Commerce Clause bestows upon Congress the power,
inter alia, to "regulate Commerce . . . among the several
States." U.S. Const., art. I, 8, cl. 3. The appellant claims
that the CSRA which in his case has the effect of regulating
the nonpayment of Georgia-imposed child support obligations owed
by a Michigan resident to a child domiciled in Massachusetts2
does not fall within the ambit of this constitutional grant. The
2Technically, child support is owed to the custodial parent
for the benefit of the minor child. For simplicity's sake,
however, we choose to reduce the triangle to a straight line and
treat the obligation as if it were owed directly to the minor.
6
Supreme Court has identified three general categories of activity
that lawfully can be regulated under the Commerce Clause: (1)
activities that involve use of the channels of interstate
commerce, (2) activities that implicate the instrumentalities of
interstate commerce (including persons or things in interstate
commerce), and (3) activities that have a substantial relation
to, or substantially affect, interstate commerce. See United
States v. Lopez, 115 S. Ct. 1624, 1629-30 (1995); Perez v. United
States, 402 U.S. 146, 150 (1971).
While the CSRA is likely supportable under more than
one of these rubrics, we believe that its validity is most easily
demonstrated in terms of the second class of activities. In
other words, because paying court-ordered child support occurs in
interstate commerce when the obligated parent and the dependent
child reside in different states, the underlying support
obligation is subject to regulation under the Commerce Clause.
Accord United States v. Hampshire, 95 F.3d 999, 1003 (10th Cir.
1996) (holding that the CSRA regulates a "court-ordered
obligation to pay money in interstate commerce"), cert. denied,
S. Ct. (1997); United States v. Mussari, 95 F.3d 787, 790
(9th Cir. 1996) (concluding that the support obligation is a
"thing" in interstate commerce because it must be met "by a
payment that will normally move in interstate commerce by mail,
by wire, or by the electronic transfer of funds"); United States
v. Sage, 92 F.3d 101, 106 (2d Cir. 1996) (similar to Hampshire),
cert. denied, S. Ct. (1997).
7
The appellant employs various artifices in attempting
to resist the force of this conclusion. For starters, he
protests that the obligation to pay child support is not
"commerce" in any meaningful sense. That cry is drowned out by
the broadcast definitions of the term used by the Supreme Court
from the early days of the Republic, see, e.g., Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1, 189-96 (1824), as refreshed by more recent
Supreme Court jurisprudence, see, e.g., Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, 253-58 (1964). The term
"commerce" in the Commerce Clause context is a term of art, and
the Court consistently has interpreted it to include transactions
that might strike lay persons as "noncommercial." See, e.g.,
United States v. Simpson, 252 U.S. 465, 466 (1920) (defining
commerce to include transporting whiskey intended for the
transporter's personal consumption); Lottery Case (Champion v.
Ames), 188 U.S. 321, 354 (1903) (defining commerce to include
carrying lottery tickets).
The appellant is likewise fishing in an empty pond when
he baldly proclaims that a support obligation is an intangible
and therefore not a "thing" in interstate commerce. The Court
has long read the Commerce Clause to reach transactions
concerning intangibles. See, e.g., United States v. South-
Eastern Underwriters Ass'n, 322 U.S. 533, 549-50 (1944) (holding
that transactions may constitute commerce although they do not
"concern the flow of anything more tangible than electrons and
information"); Pensacola Tel. Co. v. Western Union Tel. Co., 96
8
U.S. (6 Otto) 1, 11 (1877) (defining interstate commerce to
include the transmission of intelligence over interstate
telegraph lines). As the Court explained in United States v.
Shubert, 348 U.S. 222 (1955), commerce exists where there is a
"continuous and indivisible stream of intercourse among the
states" involving the transmission of money and communications.
Id. at 226 (quoting South-Eastern Underwriters, 322 U.S. at 541).
This definition fits the economic realities incident to
child support orders involving a parent in one state and a child
in another. Because compliance with such support orders requires
the regular movement of money and communications across state
lines, such transactions fall within the scope of permissibly
regulated intercourse. See Hampshire, 95 F.3d at 1003; see
generally Comment, Making Parents Pay: Interstate Child Support
Enforcement After [Lopez], 144 U. Pa. L. Rev. 1469, 1505-11
(1996). It follows inexorably that Congress lawfully can pass
legislation designed to prevent the frustration of such
interstate transactions. See, e.g., Allenberg Cotton Co. v.
Pittman, 419 U.S. 20, 34 (1974) (holding that Congress can
prevent the obstruction of interstate commerce by obviating state
laws); Heart of Atlanta Motel, 379 U.S. at 275-76 (holding that
Congress has power to remove impediments to interstate commerce).
The CSRA is such a law. It regulates the nonpayment of
interstate child support obligations. Because child support
orders that require a parent in one state to make payments to a
person in another state are functionally equivalent to interstate
9
contracts, see Sage, 92 F.3d at 106, such obligations are
"things" in interstate commerce. Thus, it is appropriate for
Congress to enact legislation that will prevent their
nonfulfillment. On this basis, the CSRA is a valid exercise of
congressional power under the Commerce Clause. See Hampshire, 95
F.3d at 1003-04 (upholding the constitutionality of the CSRA on
the ground that it regulates "what is essentially nonpayment of a
debt where the judgment creditor and judgment debtor are in
different states"); Mussari, 95 F.3d at 790 (reaching the same
conclusion and observing that a delinquent parent's "intentional
refusal to satisfy the debt is as much an obstruction of commerce
between the states as any act of extortion made unlawful by the
Hobbs Act"); Sage, 92 F.3d at 105-06 (reaching the same
conclusion and observing that Congress "surely has power [under
the Commerce Clause] to prevent the frustration of an obligation
to engage in interstate commerce").
The appellant makes two last-ditch arguments on this
point. First, he posits that cases such as Hampshire, Mussari,
and Sage went awry because they did not recognize that the CSRA
is different from other federal statutes enacted under the aegis
of the Commerce Clause. The difference, he says, is that the
underlying payment obligation the child support order
simpliciter is a creature of state law. This circumstance is
fribbling. South-Eastern Underwriters illustrates that the
state-law origins of an obligation do not preclude the exercise
of congressional power under the Commerce Clause. The Court
10
there held, 322 U.S. at 546-47, that a fire insurance transaction
across state lines constituted commerce among the several states,
notwithstanding that the insurance policy itself was a personal
contract subject to state law. The same principle obtains here:
although the underlying child support order is a product of state
law, the delinquent parent's location vis- -vis the minor child
creates interstate nexus in the form of an obligation to make
regular payments across state boundaries. Indeed, the CSRA
applies only when the state-imposed child support order develops
an interstate character, necessitating the sending of money from
one state to another by the obligor. When that occurs, the child
support obligation lies in interstate commerce, subject to
federal regulation, and Congress may act to prevent its
frustration.
The appellant's second argument posits that uncollected
support payments have too tenuous an impact on interstate
commerce to justify the exercise of congressional authority.
This argument relies heavily on Lopez, a case in which the Court
struck down the Gun-Free School Zones Act (GFSZA), 18 U.S.C.
922(q)(1)(A), which criminalized the possession of firearms in
local school zones. Holding that Congress exceeded its power
under the Commerce Clause when it enacted the statute, the Court
reasoned that gun possession in a local school zone is not
economic activity of a type that substantially affects interstate
11
commerce. See Lopez, 115 S. Ct. at 1634. Lopez is inapposite
here.3 The Lopez majority considered only the third, "affecting
interstate commerce," branch of Commerce Clause authority,
dismissing the first two bases as patently inapplicable. See id.
at 1630. Here, however, we have no occasion to decide whether
unpaid child support substantially affects interstate commerce;
we instead uphold the CSRA under the second Commerce Clause
category because it regulates things (namely, payment
obligations) in interstate commerce.
There is another, more basic reason why Lopez does not
assist the appellant's cause. The concerns articulated by the
Lopez Court simply are not implicated by the CSRA. The Lopez
Court observed that the GFSZA by its terms had no relation to any
sort of economic enterprise, and that neither the statute nor its
legislative history contained express congressional findings
purporting to show the regulated activity's effects on interstate
commerce. See id. at 1630-32. In contrast, the CSRA relates to
economic transactions, and the enacting Congress made explicit,
well-documented findings regarding the economic effect of unpaid
child support upon interstate commerce. See, e.g., supra Part
II(A). In the same vein, the Lopez Court made much of the fact
3To the extent that the appellant relies on a quartet of
district court decisions purposing to strike down the CSRA on the
authority of Lopez, his reliance is misplaced. Two of them have
been reversed by the Ninth Circuit. See Mussari, 95 F.3d 787(reversing United States v. Mussari, 894 F. Supp. 1360 (D. Ariz.
1995), and United States v. Schroeder, 894 F. Supp. 360 (D. Ariz.
1995)). We regard the other two, United States v. Parker, 911 F.
Supp. 830 (E.D. Pa. 1995), and United States v. Bailey, 902 F.
Supp. 727 (W.D. Tex. 1995), as infirm.
12
that the GFSZA contained no jurisdictional element to forge a
link between the regulated activity and interstate commerce. See
Lopez, 115 S. Ct. at 1631. Such an element is conspicuously
present here, for the CSRA by its terms provides that
jurisdiction will attach only if child support obligations cross
state lines. See 18 U.S.C. 228(a); see also H.R. Rep. No. 102-
771, supra, at 6 (underscoring that Congress designed the statute
"to target interstate cases only"). We have found the presence
of such a jurisdictional element to be a powerful argument for
distinguishing Lopez in other cases, see, e.g., United States v.
DiSanto, 86 F.3d 1238, 1245 (1st Cir. 1996) (upholding federal
arson statute, 18 U.S.C. 844(i)); United States v. Diaz-
Martinez, 71 F.3d 946, 953 (1st Cir. 1995) (upholding a federal
firearms possession statute, 18 U.S.C. 922(k)), and it is
equally potent here.
C. The Tenth Amendment.
C. The Tenth Amendment.
Bongiorno next claims that the CSRA violates the Tenth
Amendment (and, in the bargain, tramples principles of federalism
and comity). This claim hinges on his contention that the CSRA
falls beyond Congress' competence because it concerns domestic
relations (an area traditionally within the states' domain). We
reject the claim out of hand.
The Tenth Amendment declares that "powers not delegated
to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the
people." U.S. Const. amend. X. The amendment is not applicable
13
to situations in which Congress properly exercises its authority
under an enumerated constitutional power. See New York v. United
States, 505 U.S. 144, 156 (1992). Inasmuch as Congress passed
the CSRA pursuant to the valid exercise of such an enumerated
power (the power to regulate interstate commerce), that tenet
governs here. Accord Hampshire, 95 F.3d at 1004; Mussari, 95
F.3d at 791.
What is more, a Tenth Amendment attack on a federal
statute cannot succeed without three ingredients: (1) the
statute must regulate the "States as States," (2) it must concern
attributes of state sovereignty, and (3) it must be of such a
nature that compliance with it would impair a state's ability "to
structure integral operations in areas of traditional
governmental functions." Hodel v. Virginia Surface Mining &
Reclam. Ass'n, Inc., 452 U.S. 264, 287-88 (1981) (internal
citations and quotation marks omitted). The CSRA passes this
test with flying colors. It does not interfere with state law.
To the contrary, the CSRA comes into play only after a state
court issues a child support order, and it does not authorize a
federal court to revise the underlying decree. Because Congress
succeeded in drafting the CSRA "to strengthen, not to supplant,
State enforcement efforts," 138 Cong. Rec. at H7326 (statement of
Rep. Hyde), the law withstands Tenth Amendment scrutiny.
In this wise, the appellant's analogy to the domestic
relations exception to the federal courts' diversity jurisdiction
is bootless. The CSRA contemplates criminal prosecutions (in
14
which federal jurisdiction runs nationwide, see 18 U.S.C. 3231
(1994); see also DiSanto, 86 F.3d at 1246), not civil actions;
and, insofar as civil analogues might be helpful, the existence
of the CSRA itself by analogy supplies an independent basis for
federal jurisdiction because CSRA cases are cases "arising under"
a federal statute, and thus more evocative of 28 U.S.C. 1331
than of 28 U.S.C. 1332.
This leaves only federalism and comity. However, the
appellant's emphasis on these aspirational doctrines cannot tip
the balance. While federalism and comity are matters of
legitimate concern, they are not grounds upon which courts may
declare federal statutes unconstitutional.
D. Additional Constitutional Claims.
D. Additional Constitutional Claims.
On appeal, Bongiorno asserts a gallimaufry of other
constitutional challenges to his conviction, invoking among
others, the Due Process and Equal Protection Clauses, and the
Sixth and Eighth Amendments. Because these challenges are
procedurally defaulted, we dispose of them without ado.
Here, procedural default has two faces. The appellant
failed to raise these miscellaneous constitutional arguments in
the nisi prius court and matters not squarely presented below
generally cannot be advanced on appeal. See United States v.
Taylor, 54 F.3d 967, 972 (1st Cir. 1995); United States v. Slade,
980 F.2d 27, 30 (1st Cir. 1992). This raise-or-waive rule
applies full bore to constitutional claims. See Daigle v. Maine
15
Med. Ctr., Inc., 14 F.3d 684, 688 (1st Cir. 1994).
To make a bad situation worse, the appellant's briefs
in this court advance these alleged constitutional violations in
vague and cryptic terms. Appellate judges are not clairvoyants,
and it is surpassingly difficult for us to make something out of
nothing. Cf. William Shakespeare, King Lear act 1, sc. 4 (1605).
We have steadfastly deemed waived issues raised on appeal in a
perfunctory manner, not accompanied by developed argumentation,
see, e.g., Martinez v. Colon, 54 F.3d 980, 990 (1st Cir.), cert.
denied, 116 S. Ct. 515 (1995); Ruiz v. Gonzalez Caraballo, 929
F.2d 31, 34 n.3 (1st Cir. 1991); United States v. Zannino, 895
F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990), and
this case does not warrant an exception to that salutary
practice. "It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel's work . . . ." Zannino, 895 F.2d at 17.
For these reasons, we hold that appellant's other
constitutional arguments none of which appear at first blush to
possess discernible merit are procedurally defaulted.4
III. THE LEGALITY OF THE SENTENCE
III. THE LEGALITY OF THE SENTENCE
The appellant contends that the "intermittent
confinement" condition of his probation exceeds the maximum term
of imprisonment authorized by the statute of conviction. Because
4We have considered all the points, constitutional and
nonconstitutional, to which the appellant alludes in challenging
his conviction. None have the potential to justify relief.
Those that we have not specifically identified are either
unpreserved, or unworthy of discussion, or both.
16
Bongiorno did not raise this contention in the district court, we
review it only for plain error. See United States v. Olano, 507
U.S. 725, 731-32 (1993); Taylor, 54 F.3d at 972.
Bongiorno is a first offender who, under the CSRA, can
be imprisoned for no more than six months. See 18 U.S.C.
228(b)(1). Nevertheless, a sentencing court can impose probation
for up to five years, see 18 U.S.C. 3561(a) & (c)(2) (1994),
and, as a condition of probation, the court in its discretion may
require a defendant to "remain in the custody of the Bureau of
Prisons during nights, weekends, or other intervals of time,
totaling no more than the lesser of one year or the term of
imprisonment authorized for the offense, during the first year of
the term of probation." 18 U.S.C. 3563(b)(11) (1994).
Invoking this discretionary power, the trial court sentenced
Bongiorno to five years of probation, on condition that he remain
in custody for twelve hours per day during the first twelve
months of the probationary term. Judge Keeton reasoned that if
"the defendant [were] in the custody of the Bureau of Prisons
twelve hours during each night, that total time in a year would
be six months" and therefore would not exceed the statutory
maximum.
On appeal the district court having stayed the
operation of the intermittent confinement condition Bongiorno
faults the judge's reasoning. He bases his argument principally
on the "Schedule of Substitute Punishments" contained in the
17
federal sentencing guidelines.5 But, the sentencing guidelines
do not affect this case; a first offense for a willful failure to
pay child support is a Class B misdemeanor to which the
guidelines do not apply. See U.S.S.G. 2J1.1, comment. (n.2).6
Moving beyond the guidelines, the appellant's position
is also unsound because it rests on an interpretation of 18
U.S.C. 3563(b)(11) that offends a bedrock maxim of statutory
construction: all words and clauses in a statute are intended to
have meaning and ought to be given effect. See United States
Dep't of Treasury v. Fabe, 508 U.S. 491, 504 n.6 (1993); United
States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985).
To consider only the period of time (one year) for which the
court imposed the condition of probation would ignore the number
of hours the appellant actually will be confined and would
thereby render the statutory allusion to the importance of the
5The provision states in pertinent part:
One day of intermittent confinement in prison
or jail for one day of imprisonment (each 24
hours of confinement is credited as one day
of intermittent confinement, provided,
however, that one day shall be credited for
any calendar day during which the defendant
is employed in the community and confined
during all remaining hours); . . . .
U.S.S.G. 5C1.1(e)(1) (Nov. 1995) (emphasis supplied).
6We note in passing that, even if the guidelines attached,
the intermittent confinement which the district court crafted
probably would not qualify for full-day credit under U.S.S.G.
5C1.1(e)(1) because, while the order requires confinement up to
twelve hours per day, it neither fixes a definite work schedule
nor otherwise requires confinement for "all remaining hours"
apart from time spent at work.
18
total number of hours ("totaling no more than") meaningless. We
will not lightly encroach upon congressional prerogative by
reading words out of a statute, see United States v. Victoria-
Peguero, 920 F.2d 77, 81 (1st Cir. 1990), cert. denied, 500 U.S.
932 (1991), and there is no warrant for doing so in this
instance.7
In all events, the appellant did not raise the point
below, and we discern no plain error. The appellant himself
concedes that straight imprisonment for six months would be more
onerous than intermittent confinement for one year. At the same
time, the lower court's work-release arrangement advances the
CSRA's primary objective of encouraging child support payments by
affording the appellant an opportunity to practice his
profession. Given these verities, it is evident that the
sentencing order works no injustice. It follows that the alleged
interpretive error cannot amount to plain error. See Olano, 507
U.S. at 732; Taylor, 54 F.3d at 973.
IV. THE GRASP OF THE FEDERAL DEBT COLLECTION PROCEDURE ACT
IV. THE GRASP OF THE FEDERAL DEBT COLLECTION PROCEDURE ACT
We turn now to the appeal in the civil case. That case
began when the United States invoked the FDCPA and sought to
7The appellant also asseverates that the district court
failed to satisfy the statutory stricture that requires a
district court, among other things, to impose a sentence
sufficient but not greater than necessary to reflect the severity
of the offense, promote respect for the law, and afford adequate
deterrence. See 18 U.S.C. 3553(a)(1)-(2). This asseveration
is meritless. The sentence artfully balances the appellant's
persistent disregard of child support obligations and the
desirability of deterrence against his need for liberty if he is
to earn the money to which his minor daughter is entitled.
19
compel Bongiorno to pay the arrearage owed as back child support.
The government assumed that since Bongiorno had been ordered to
make restitution of this sum as part of the punishment imposed in
the criminal case, it had access to the FDCPA as a means of
collecting the debt. The district court honored the government's
assumption and granted a writ of garnishment. On appeal,
Bongiorno maintains that the court should have defenestrated the
civil action because a restitution order issued pursuant to the
CSRA is not a "debt" within the meaning of the FDCPA. We agree.
A. The FDCPA.
A. The FDCPA.
Congress enacted the FDCPA as Chapter XXXVI of the
Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4933,
effective May 29, 1991, thus creating a framework under which the
United States might more efficiently collect debts owed to it.
The framework includes procedures that the government can utilize
to recover on, or secure, such debts, and to that extent relieves
the federal sovereign's need to rely on a patchwork of state
laws. See H.R. Rep. No. 101-736, at 23-25 (1990), reprinted in
1990 U.S.C.C.A.N. 6472, 6631-33; see also Selbe v. United States,
912 F. Supp. 202, 205 (W.D. Va. 1995).
Congress passed the FDCPA with an end game in mind: to
"lessen[] the effect of delinquent debts on the massive federal
budget deficit now undermining the economic well-being of the
Nation." H.R. Rep. No. 101-736, supra, at 23, 1990 U.S.C.C.A.N.
at 6631. Consistent with this goal, Congress "defined [`debt']
broadly to include amounts owing to the United States on account
20
of a direct loan or loan insured or guaranteed by the United
States as well as other amounts originally due the United
States." Id. at 28, 1990 U.S.C.C.A.N. at 6636. Notwithstanding
this breadth of definition, Congress restricted the statute's
grasp to those obligations owing to the federal government. See
28U.S.C. 3002(3), (15).8 Thislimitation didnot ariseby accident:
The definition of `debt' was carefully
written to make clear that the act will not
apply to obligations which began as purely
private loan or contract obligations. For
example, if one of our constituents goes to
his neighborhood bank or thrift and takes out
a business or personal loan, that transaction
is between him and the bank or thrift. . . .
This is true even if the bank or thrift later
fails and is taken over by Federal
regulators. If the Federal Government seeks
8The FDCPA defines "debt" as:
(A) an amount that is owing to the United
States on account of a direct loan, or loan
insured or guaranteed, by the United States;
or
(B) an amount that is owing to the United
States on account of a fee, duty, lease,
rent, service, sale of real or personal
property, overpayment, fine, assessment,
penalty, restitution, damages, interest, tax,
bail bond forfeiture, reimbursement, recovery
of a cost incurred by the United States, or
other source of indebtedness to the United
States, but that is not owing under the terms
of a contract originally entered into by only
persons other than the United States; . . . .
28 U.S.C. 3002(3). In this connection it defines "United
States" as:
(A) a Federal corporation;
(B) an agency, department, commission, board,
or other entity of the United States; or
(C) an instrumentality of the United States.
28 U.S.C. 3002(15).
21
to recover these loan or contract obligations
. . . it is not eligible to use the new
procedures in this act.
136 Cong. Rec. H13288 (daily ed. Oct. 27, 1990) (statement of
Rep. Brooks).
Mimicking the way in which Congress chose to define the
statute's terms, courts have tended to draw the line between
included and excluded debts depending on whether a particular
debt is owed to the United States in the sense that the debt's
proceeds, if collected, will inure directly to the government's
benefit (in contrast to benefitting a third party). Thus, a fine
which is payable to the government and which, when paid, swells
the public fisc is a debt for purposes of the FDCPA. See
United States v. Coluccio, 51 F.3d 337, 339 (2d Cir. 1995);
United States v. Coluccio, 19 F.3d 1115, 1116 (6th Cir. 1994).
Similarly, federal tax indebtedness which is owed to the
government and which, when collected, is deposited in the
Treasury is a debt for purposes of the FDCPA. See Markham v.
Fay, 74 F.3d 1347, 1354 (1st Cir. 1996). A promissory note held
by the Small Business Administration the proceeds of which will
enrich the government's coffers when payment is effected is
also a debt for FDCPA purposes. See United States v. Golden
Elevator, Inc., 868 F. Supp. 1063, 1066-67 (C.D. Ill. 1994)
(dictum). By like token, cleanup expenses in environmental cases
which are owed by statute to the government, see 42 U.S.C.
9607(a)(4)(A) (1994), and which are used to reimburse or defray
monies actually expended by it are considered debts for
22
purposes of the FDCPA. See United States v. Dickerson, 790 F.
Supp. 1583, 1584-85 (M.D. Ga. 1992). This approach squares
neatly with the statute and its legislative history. The types
and kinds of debts enumerated in section 3002(3) for example,
"a direct loan," an "insured or guaranteed" loan, an amount owing
as an unpaid "fee" or "duty" seem to contemplate payments in
which the government has a direct pecuniary stake. The
legislative history sounds much the same theme. See H.R. Rep.
No. 101-736, supra, at 23, 1990 U.S.C.C.A.N. at 6631.
B. The Status of the Debt.
B. The Status of the Debt.
Mindful of the statutory definitions, the legislative
history, and the way in which courts have approached the problem
of determining which debts are within the FDCPA's grasp and which
are not, we conclude that inclusion necessitates an inquiry aimed
at determining to whom the debt is owed and to whose benefit the
proceeds of the debt will inure when it is paid. At the very
least, a debt cannot qualify if both parts of this inquiry point
toward exclusion: a debt cannot be eligible for inclusion under
the FDCPA if the United States is neither the formal owner nor
the direct beneficiary of it. In all events, the debt must clear
an additional hurdle: it must be one that, in the parlance of
the statute, "is not owing under the terms of a contract
originally entered into by only persons other than the United
States." 28 U.S.C. 3002(3).9
9In passing the FDCPA, Congress evinced a clear intent to
exclude private transactions debts created under (and thus
governed by) state law, and to which the United States was not an
23
To be sure, the district court made no such inquiry,
but instead allowed the government's application for a writ of
garnishment in a margin order after striking the appellant's
pleadings. Before us, however, the government has not raised any
procedural objections or technical defenses. Rather, it concedes
that it can employ the FDCPA only if the restitution order
constitutes a debt within the meaning of the FDCPA. See
Appellee's Brief at 9. The parties have briefed and argued this
issue on the merits without reservation, and it is therefore
within our proper province to determine whether the restitution
order that the government seeks to enforce comes within the
penumbra of the FDCPA.
The government's affirmative answer to this question
leans heavily on the majority opinion in NLRB v. E.D.P. Med.
Computer Sys., Inc., 6 F.3d 951 (2d Cir. 1993). In that case,
the Second Circuit considered whether a backpay award decreed by
the National Labor Relations Board (NLRB) to remedy an unfair
labor practice constituted a debt to the United States within the
purview of the FDCPA. The panel divided over the issue. The
majority started by holding that the award was a debt due to the
federal government since it had been imposed on the defendant by
a federal agency:
original party from the grasp of the FDCPA. See H.R. Rep. No.
101-736, supra, at 23, 1990 U.S.C.C.A.N. at 6631. In this vein,
a main proponent of the bill emphasized that to warrant inclusion
the transaction underlying the debt must be one in which the
government was a direct, original participant. See 136 Cong.
Rec. H13288, supra. The final version of the FDCPA codifies this
legislative intent.
24
It is precisely because the Board acts
in the public's interest and not those of
private individuals that persuades us that
the backpay award sought by the Board may be
considered a debt to the United States under
the FDCPA. The Board serves as more than a
mere conduit when it initiates an action to
collect a backpay award.
Id. at 955. Having stated this proposition, the majority then
skimmed over the beneficial ownership aspect, gave great weight
to the fact that without federal intervention the award could not
be collected,10 and ruled that the FDCPA applied. See id. The
dissenting opinion stressed that the backpay award could not be
considered a debt owed to the United States within the ambit of
the FDCPA because any money collected by the NLRB would flow to
the pockets of the victimized employees and would not directly
benefit the government. See id. at 958 (Walker, J., dissenting).
Passing the obvious distinction between E.D.P. and this
case E.D.P. is readily distinguishable because there the NLRB
was the only entity empowered by law to enforce the backpay
award, see supra note 10, whereas here the debt is enforceable by
the parties to whom the money, when collected, actually will
flow11 we believe that Judge Walker's dissent provides better
10The NLRB imposed the backpay award under the National
Labor Relations Act. See 29 U.S.C. 151-169 (1994). In such
circumstances, the NLRB is the only entity empowered by law to
enforce the award. See Amalgamated Utility Workers v.
Consolidated Edison Co., 309 U.S. 261, 264-70 (1940)
(interpreting 29 U.S.C. 160(a)).
11The appellant's ex-wife and minor daughter have available
mechanisms to enforce the CSRA restitution order, see 18 U.S.C.
3663(h) (1994) (providing that an order of restitution in a CSRA
case may be enforced either by the United States or "by a victim
named in the order"), as well as the child support order
25
guidance for us than does the majority opinion. While there may
be a somewhat stronger argument for regarding a debt as owing to
the United States if the federal government is the only entity
able to recover it (the E.D.P. scenario), the decision to extend
the FDCPA to such a situation is a decision properly reserved for
the legislative branch. Because the statute, as written,
contains no language suggesting that all debts subject to
exclusive federal enforcement are included within the grasp of
the FDCPA, we find the position taken by the E.D.P. majority to
be unsatisfactory.
The force of Judge Walker's opinion is but one of
several factors that influence our judgment. The most important
factor is the language and purpose of the statute itself. Nearly
as telling is a mature but still viable precedent. Forty-five
years ago, the Supreme Court wrestled with a very similar
question under the Bankruptcy Act. See Nathanson v. NLRB, 344
U.S. 25 (1952). The statutory scheme that the Court pondered
used a concept of public debt that bears a strong family
resemblance to the concept that fuels the FDCPA. It provided
that, with exceptions not relevant here, "debts owing to . . .
the United States" would "have priority, in advance of the
payment of dividends to creditors." 11 U.S.C. 104(a) (West
Supp. 1952) (repealed 1978). The precise question before the
Nathanson Court was whether an NLRB award for backpay was a debt
owing to the United States (and, thus, entitled to priority in
underlying it.
26
bankruptcy). The Court acknowledged that the NLRB was an agent
of the United States and a creditor (being the only party
entitled to enforce the claim), but stated that it did not follow
that the debt was owing to the United States within the meaning
of the Bankruptcy Act. 344 U.S. at 27. Priority in bankruptcy
was intended "to secure an adequate revenue to sustain the public
burthens and discharge the public debts," yet granting priority
in this instance would not further those goals because the
beneficiaries of the claim were private persons. Id. at 27-28(citation and internal quotation marks omitted). On this basis,
the Court concluded that the debt was not owed to the United
States in the relevant sense and therefore was not entitled to
the statutory priority. See id. at 28.
Nathanson bears a close affinity to this case. For one
thing, the language of the FDCPA parallels that of the bankruptcy
provision discussed in Nathanson. For another thing, the
legislative purpose underlying the FDCPA is analogous to the
legislative purpose distilled by the Nathanson Court. Congress
enacted the FDCPA to relieve the strain on the federal deficit
created by persistent nonpayment of debts owed to the United
States. See H.R. Rep. No. 101-736, supra, at 23, 1990
U.S.C.C.A.N. at 6631. This mirrors the congressional concern
that drove the bankruptcy priority provision which the Nathanson
Court was called upon to construe. See Nathanson, 344 U.S. at
27-28. Accordingly, in both the FDCPA and the bankruptcy
milieux, the statutory mechanism does not serve the legislative
27
purpose except when it operates in regard to a debt whose
recovery will directly augment the public coffers. Since the
dynamic in this case tracks the dynamic that was at work in
Nathanson the relation of the government's beneficial interest
in the debt to the statutory scheme is very much the same
Nathanson's ratio decidendi controls our deliberations.
The force of this conclusion is not dissipated merely
because the government secured the restitutionary order. After
all, Nathanson instructs us to look beyond such formalities. See
id. at 28 (explaining that a court must refuse to treat as an
included debt "a claim which the United States is collecting for
the benefit of a private party"). In this case, the government
is not the holder of the debt in any legally cognizable sense,
and it seeks to collect restitution not to its own behoof but for
the benefit of a private party (Bongiorno's daughter). Because
the order of restitution here like the backpay award in
Nathanson involves no direct pecuniary interest of the federal
sovereign, it does not create a debt owing to the United States
within the meaning of the FDCPA.
The government also tries to dodge this bullet by
touting its indirect interest in the award. It tells us that
public assistance substitutes for most of the $5 billion annual
shortfall in unpaid child support, and that there is thus a
demonstrable public interest in enforcing restitutionary orders
issued in CSRA cases. We agree that this is an area of public
concern, but that is beside the point. A similar sort of "for
28
the general good" argument was made to, and dismissed by, the
Nathanson Court. See id. (rejecting the argument that the
government's abiding interest in eliminating unfair labor
practices warranted stretching the statute to secure a preference
in payment for backpay awards). The sockdolager, of course, is
that Bongiorno's daughter is not on the welfare rolls. Hence,
the government has failed to show any direct pecuniary interest
of a kind that would render this debt collectible by the United
States under the FDCPA.
The government has one last shot in its sling: the
FDCPA specifically mentions "restitution" among the classes of
included debt, see 28 U.S.C. 3002(3)(B) (quoted supra note 8),
and the government posits that we need not look beyond this
label. The argument will not wash. The FDCPA does not state
that every order of restitution, no more than every "rent" or
every type of "reimbursement," constitutes an included debt.
Rather, the text limits the statute's applicability to
restitution that implicates a "source of indebtedness to the
United States." Id. (emphasis supplied).
This added language reintroduces the concept of
benefit. Some restitutionary orders create debts that owe
beneficially to the federal government and thus fall within the
purview of the FDCPA. A prototypical case is United States v.
Gelb, 783 F. Supp. 748 (E.D.N.Y. 1991). Gelb involved
restitution under the RICO statute. Since that statute declares
that a convicted person must "forfeit to the United States" any
29
ill-gotten gains, see 18 U.S.C. 1963(a) (1994), the federal
government is the direct beneficiary of the restitution order and
the order thus creates a debt collectible under the FDCPA. See
Gelb, 783 F. Supp. at 752. But other types of restitution,
which, when paid, will not increase public revenues (say,
restitution to an individual victim of a crime), do not come
within the statutory encincture. In short, we cannot isolate a
single word "restitution" and conclude that every order
bearing that label automatically falls within the FDCPA's grasp.
The federal government may collect under the FDCPA only
restitution that is "owing to the United States." 28 U.S.C.
3002(3).
We end where we began. Because restitution ordered
under the CSRA is not owed to the United States in an
economically meaningful sense, the government cannot utilize the
FDCPA as a vehicle for collecting such awards. On this view of
the case, we do not reach the question of whether the debt must
be considered as private in character (and thus ineligible for
inclusion under the FDCPA on that basis) because a state court
order created the underlying child support obligation, and both
the obligor and obligee are private parties.12
12We note in passing that a cogent argument can be made for
the proposition that what started as a debt owed by one private
party (Bongiorno) to another (Taylor, on behalf of the couple's
daughter) remains so in its collection, and that the peripheral
involvement of the federal government does not change the
obligation's inherently private character. Indeed, the belated
federal entry into this situation bears a striking resemblance to
the "failed thrift" example that Chairman Brooks used to
illustrate a debt that would be excluded from the FDCPA's grasp.
30
Because the government sued under an inappropriate
statute, we must reverse the judgment in the civil case. This is
not to say, however, that the appellant can thumb his nose at the
restitution order. Payment of restitution is a condition of his
probation, and the government has adequate remedies if a
convicted defendant flouts a condition of probation. See, e.g.,
18 U.S.C. 3663(g), 3583(e) (1994). The government, moreover,
can attempt to collect the restitution order by resort to other
civil remedies, see 28 U.S.C. 3003(b) (providing that the
United States retains its authority under laws other than the
FDCPA to collect debts owed to the government); see also Fed. R.
Civ. P. 64 & 69; see generally Custer v. McCutcheon, 283 U.S.
514, 516-19 (1931) (discussing application of various state
statutes to executions on judgments recovered by the United
States), and, as mentioned earlier, Bongiorno's ex-wife and
daughter have ample recourse, see supra note 11. But to allow
the federal government to proceed under the FDCPA for no more
persuasive reason than that collecting the debt serves the public
interest would cavalierly consign Nathanson to the scrap heap
and, in the bargain, expand the FDCPA's scope without limitation.
We are not at liberty to chart so free-wheeling a course.
V. EPILOGUE
V. EPILOGUE
We need go no further. To recapitulate, we discern
neither a constitutional flaw in the fabric of the Child Support
Recovery Act nor any other reversible error marring the
See 136 Cong. Rec. H13288 (quoted supra p. 21).
31
appellant's conviction and sentence. We therefore affirm the
judgment in the criminal case. The civil case, however, yields a
diametrically opposite outcome. Because the federal government
does not have a direct pecuniary interest in the avails of the
restitutionary order, we hold that the order is not a debt owing
to the United States subject to collection under the FDCPA.13
The government's ancillary civil action ought therefore to have
been dismissed.
Affirmed in part and reversed in part. The cases are remanded to
Affirmed in part and reversed in part. The cases are remanded to
the district court for further proceedings consistent with this
the district court for further proceedings consistent with this
opinion. No costs.
opinion. No costs.
13Given this holding, we need not address the appellant's
claim that the district court improperly struck his pleadings for
failure to comply with local rules governing appearances by out-
of-state counsel.
32