The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2262
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT HERBERT KRAMER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 98 CR 140--Sarah Evans Barker, Chief Judge.
Argued November 12, 1999--Decided September 5, 2000
Before FLAUM, Chief Judge, and RIPPLE and ROVNER,
Circuit Judges.
RIPPLE, Circuit Judge. Robert Herbert Kramer was
found guilty of the willful failure to pay a past
due child support obligation in violation of the
Child Support Recovery Act ("CSRA"), 18 U.S.C.
sec. 228. On appeal, Mr. Kramer claims that he
did not receive service of process in the state
action seeking the child support order and that
his federal conviction based on his noncompliance
with that state order is therefore invalid. For
the reasons set forth in the following opinion,
we reverse Mr. Kramer’s conviction and remand to
the district court for further proceedings
consistent with this opinion.
I
BACKGROUND
A.
Mr. Kramer, while a resident of Minnesota,
worked as an over-the-road truck driver for
Mayflower Van Lines, Inc. ("Mayflower"). In
January 1980, when he first started working for
Mayflower, he attended three weeks of training
sessions in Indianapolis, Indiana. While in
Indianapolis, he had a brief sexual relationship
with Janice Jacobs, a resident of Indiana. By
January 30, at the latest, Mr. Kramer left
Indiana to return to Minnesota. On November 25,
1980, Ms. Jacobs gave birth to a son, and she
claims that Mr. Kramer is the father. When the
child was born, Mr. Kramer received a call from
his dispatcher, telling him that he was a father.
In late 1982, Jacobs informed Mr. Kramer that
she intended to file a paternity suit against
him. She then filed a paternity action in the
Marion County Circuit Court of Indiana. Mr.
Kramer never appeared at any of the proceedings;
Mr. Kramer submits that he never received either
formal service of process or informal
notification of the paternity proceedings. The
state court file does not show that process was
served, and neither party asserts that Mr. Kramer
received service of process. In December 1982,
the Indiana court established Mr. Kramer’s
paternity by default and directed him to pay $25
per week in child support.
Mr. Kramer insists that he first learned of the
Indiana child support order in the fall of 1990.
At that time, Mayflower informed him that an
Indiana court had ordered it to withhold $50 from
each two-week paycheck. This was required,
Mayflower told Mr. Kramer, because of an
outstanding child support order. Due to the
attachment of his wages, Mr. Kramer hired an
attorney to contest the default judgment
establishing his paternity. Mr. Kramer failed to
appear at his hearing dates, and his attorney
eventually withdrew from representing him. After
his attorney’s withdrawal from representation,
Mr. Kramer did not pursue this collateral attack
on the default judgment. Then, in January 1992,
Mr. Kramer stopped working for Mayflower. He left
Mayflower because he had failed to renew his
trucker’s license and because he was suffering
from both asthma and self-diagnosed depression.
This depression, he claims, was caused in part by
his worries over the outstanding child support
order.
Starting in June 1993, Mr. Kramer worked for
Lenneman Transport. While at Lenneman Transport,
none of his wages were attached due to the child
support order. However, he injured his back while
at work and left Lenneman Transport in February
1994. Since that time, Mr. Kramer has not worked
at all because he does not believe that he could
pass a physical examination due to his bad back,
his asthma, and his depression.
Mr. Kramer moved to the State of Washington in
September 1996. Then, in July 1998, he was
visited by an FBI agent about the outstanding
child support order. Mr. Kramer informed the
agent that, although he might be able to return
to work, he did not see any reason to do so until
the support order was cleared up because he would
"just be attacked all the time." Tr.I at 41. A
federal grand jury thereafter indicted Mr. Kramer
on October 15, 1998, for the willful failure to
pay, between October 1993 and December 1995, a
past due support obligation with respect to a
child residing in Indiana.
B.
The United States District Court for the
Southern District of Indiana conducted a bench
trial on the criminal charge against Mr. Kramer.
At the close of the Government’s case, Mr. Kramer
moved for a judgment of acquittal, asserting that
the Government had failed to prove that the
underlying child support order was valid. He
claimed that the order was invalid because he did
not receive service of process and that the state
court therefore did not have personal
jurisdiction over him. The district court
reserved its decision until the completion of the
trial.
At the end of the trial, the court found Mr.
Kramer guilty of the willful failure to pay a
past due support obligation in violation of 18
U.S.C. sec. 228. The court first stated that the
Government needed to prove beyond a reasonable
doubt (1) that Mr. Kramer acted willfully, (2) in
failing to pay, (3) a past due support
obligation, (4) with respect to a child who
resided in another state. The court found that,
although "Kramer may not have learned of the
lawsuit or the entry of the default judgment in
1982, it is clear that he understood by at least
1990 that such an order had been entered against
him." R.20 at 7. Next, the court found that Mr.
Kramer had failed to pay the $25 per week
mandated by the court order during the period of
the indictment. The court also found that, during
the time stated in the indictment, the child
covered by the support order resided in Indiana
and Mr. Kramer resided in Minnesota. "Therefore,"
the court concluded, "the evidence establishes
beyond a reasonable doubt that Kramer knew prior
to October 1993 that an Indiana state court had
ordered him to pay child support for a child that
resided in a different state than him and that he
failed to do so." Id. at 8.
The court next discussed the element of
willfulness and stated: "We harbor no hesitancy
in concluding that Kramer acted willfully in not
paying the support amount due." Id. The court
noted that Mr. Kramer had challenged the support
order when it served his interest to do so. But
then, when he left Mayflower and was no longer
subject to the attachment of his wages, he no
longer believed that he owed support. "Indeed,"
the court stated, "we do not credit Kramer’s
assertion that he simply forgot that an
outstanding support order existed, as other
testimony he provided revealed that the
outstanding matter caused him such discomfort as
to contribute to his ongoing ’depression.’" Id.
at 9.
The court also addressed Mr. Kramer’s argument
that the underlying support order was invalid
because the state court lacked personal
jurisdiction over him. The court characterized
Mr. Kramer’s defense as a collateral attack on
the state court default judgment. First, the
court held that federal courts do not need to
question the validity of support orders issued by
state courts before entering a judgment of
conviction under sec. 228. The court relied upon
United States v. Bailey, 115 F.3d 1222, 1232 (5th
Cir. 1997), for the proposition that the language
of sec. 228 does not require a federal court to
look beyond the four corners of the state child
support order or permit a collateral attack on
the state court order in federal court. Mr.
Kramer, the court explained, should have
challenged the state court default judgment
through state channels, of which he was aware, as
evidenced by his attempted collateral attack in
1991. His failure to complete that process,
continued the court, does not invalidate the
support obligation element of sec. 228.
Next, the court held that Mr. Kramer had been
afforded sufficient due process in his federal
prosecution. According to the court, Mr. Kramer
had argued that, because he did not receive due
process in the state default judgment, he was
denied due process in the federal conviction
because it relied on the state default judgment.
According to the court, the Supreme Court in
United States v. Mendoza-Lopez, 481 U.S. 828
(1987), required the availability of meaningful
review of a decision of an administrative
proceeding as a necessary condition before a
court imposed criminal sanctions based on that
administrative decision. The court stated,
however, that Mr. Kramer possessed an opportunity
to seek review of the state default judgment
before the imposition of his criminal sanction.
Moreover, the court explained, "[a]ny putative
due process violation occurring in 1982 was cured
by the Indiana state court’s granting Kramer a
hearing to challenge that default judgment in
late 1991." R.20 at 12.
For these reasons, the court found Mr. Kramer
guilty of the willful failure to pay a past due
child support obligation for the period between
October 1993 and December 1995. The court
sentenced Mr. Kramer to one year of probation,
with 60 days community confinement as a condition
of his probation, and it ordered him to pay
$19,750.00 in restitution.
II
DISCUSSION
A.
Mr. Kramer submits that he cannot be found
guilty under the CSRA because the Government did
not establish that the Indiana court that issued
the support order had personal jurisdiction over
him. He contends, as he did in the district
court, that he was never served process nor
notified of the state paternity proceeding which
produced the support obligation. Without such
notice and opportunity to be heard, he submits,
the Indiana court did not have personal
jurisdiction over him, see Mullane v. Central
Hanover Bank, 339 U.S. 306, 313 (1950), and the
default judgment issued by the Indiana state
court does not constitute a valid "support
obligation" under the CSRA.
The Government has another view. It submits that
it needed to prove beyond a reasonable doubt only
the existence of the support order. Mr. Kramer’s
position, it contends, is an impermissible
collateral attack on the state court child
support order. Relying on our decision in United
States v. Black, 125 F.3d 454 (7th Cir. 1997),
the Government argues that a federal court cannot
revise the domestic relationship decided by a
state court. Therefore, the Government submits,
Mr. Kramer’s conviction should be upheld.
B.
1.
We begin, as we must, with the wording of the
statute. The CSRA punishes any person who
"willfully fails to pay a support obligation with
respect to a child who resides in another State,
if such obligation has remained unpaid for a
period longer than 1 year, or is greater than
$5,000." 18 U.S.C. sec. 228(a). The term "support
obligation" is defined as "any amount 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." 18
U.S.C. sec. 228(f)(3). Nothing in this definition
suggests that a defendant may defend a
prosecution under this statute by contesting the
substantive merits of the underlying support
obligation. Indeed, courts interpreting the CSRA,
including this one, have spoken with one voice on
that issue. See United States v. Brand, 163 F.3d
1268, 1275-76 (11th Cir. 1998); United States v.
Black, 125 F.3d 454, 463 (7th Cir. 1997); United
States v. Bailey, 115 F.3d 1222, 1232 (5th Cir.
1997); United States v. Johnson, 114 F.3d 476,
481 (4th Cir. 1997); United States v. Sage, 92
F.3d 101, 107 (2d Cir. 1996).
The question remains, however, whether a
defendant in a federal CSRA prosecution may
defend on the limited ground that the underlying
state support obligation was imposed by a court
that did not have personal jurisdiction over the
defendant. The general rule for default judgments
in civil actions is that the judgment may be
attacked collaterally on the narrow ground that
the judgment was void because the rendering court
lacked the requisite nexus with the defaulting
party or gave inadequate notice of the support
action to that party. See Burnham v. Superior Ct.
of Cal., 495 U.S. 604, 609-11 (1990); Kulko v.
Superior Ct. of Cal., 436 U.S. 84, 91 (1978); see
also World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 291 (1980). To sustain the Government’s
position therefore, we must ascertain that
Congress, in enacting the CSRA, intended to
establish an approach different from the rule
that usually applies.
2.
In an effort to demonstrate that Congress
intended to permit a successful CSRA prosecution
without a showing that the underlying support
judgment had been issued by a court properly
exercising personal jurisdiction over the
defendant, the Government invites our attention
to Custis v. United States, 511 U.S. 485 (1994),
and Lewis v. United States, 445 U.S. 55 (1980).
We shall examine each of these cases in
chronological order.
In Lewis, the defendant was charged with being
a felon in possession of a firearm in violation
of 18 U.S.C. sec. 1202(a)(1). See 445 U.S. at 57.
In defending against the charge, he attempted to
attack collaterally the prior state conviction
that was the basis for prosecuting him as a felon
in possession of a firearm. He claimed that this
state conviction was invalid because he had not
been represented by counsel, and, therefore, the
conviction had been obtained in violation of his
Sixth and Fourteenth Amendment rights. See id. at
57-58. The Supreme Court rejected his argument.
The Court stated that the statute forbidding a
felon to possess a firearm did not permit a
collateral attack on the underlying conviction on
constitutional grounds. See id. at 65 (discussing
18 U.S.C. sec. 1202(a)(1)). The Court explained
that the plain language of the statute contained
no exceptions to the definition of "prior
conviction." Id. at 60. Moreover, continued the
Court, Congress would have made such an exception
explicit because, in other sections of the same
statute, it had explicitly made exceptions to
liability for those individuals who, despite a
felony conviction, could be entrusted with a
firearm under limited circumstances. See id. at
61-62 (listing sections). Other statutes, the
Court continued, explicitly permitted a defendant
to challenge, by way of defense, the validity or
constitutionality of the predicate felony. See
id. at 62 (listing statutes). The Court further
noted that the legislative history did not
indicate any intent by Congress to permit a felon
to contest the validity of the underlying
conviction. See id. at 62-63. Indeed, the Court
noted that the legislative history made clear
that Congress intended a "sweeping prophylaxis"
against the misuse of firearms. Id. at 63.
Additionally, other sections forbade the
reception of a firearm by someone indicted for a
felony even if he was subsequently acquitted. See
id. at 64. Finally, the Court noted that the
convicted felon is not without relief; he could
have had the underlying conviction removed by a
qualifying pardon or could have challenged the
prior conviction in the state court. See id. As
the Court concluded, "Congress clearly intended
that the defendant clear his status before
obtaining a firearm." Id.
The later Supreme Court case of Custis involved
an interpretation of the Armed Career Criminal
Act, 18 U.S.C. sec. 924(e), which provides for
the enhancement of a sentence of a convicted
firearms possessor who "has three previous
convictions . . . for a violent felony or a
serious drug offense." 511 U.S. at 487.
Interpreting the statute before it, the Supreme
Court held that there was no indication that
Congress had intended to permit the defendant to
challenge the predicate convictions on the ground
that they were procured through errors of
constitutional magnitude. See id. Notably, the
Court grounded its analysis on the text and the
structure of the particular statute before it,
the Armed Career Criminal Act. See id. at 490-91.
"The statute focuses on the fact of the
conviction and nothing suggests that the prior
final conviction may be subject to collateral
attack for potential constitutional errors before
it may be counted." Id. at 490-91. Moreover,
noted the Court, the statute affirmatively
provides that no conviction "which has been . . .
set aside" may be counted and therefore "creates
a clear negative implication that courts may
count a conviction that has not been set aside."
Id. at 491. The Court also noted that Congress
had enacted other statutes that expressly permit
repeat offenders to challenge convictions that
are used for enhancement purposes. See id. at
491-92.
Although the Court in Custis held that a
defendant could not attack collaterally the
merits of the underlying conviction, the Court
also held that a defendant could attack
collaterally a state court conviction when the
defendant had been convicted in violation of his
right to counsel under the Sixth Amendment. The
Court deemed such a violation akin to a
"jurisdictional defect," see id. at 496, that
raised questions about the court’s power to
render a decision at all and stated that "this
Court [has] attributed a jurisdictional
significance to the failure to appoint counsel,"
id. at 494.
"If the accused, however, is not represented by
counsel and has not competently and intelligently
waived his constitutional right, the Sixth
Amendment stands as a jurisdictional bar to a
valid conviction and sentence depriving him of
his life or his liberty. . . . The judgment of
conviction pronounced by a court without
jurisdiction is void, and one imprisoned
thereunder may obtain release by habeas corpus."
Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 468
(1938)). The Court concluded that the "failure to
appoint counsel for an indigent defendant was a
unique constitutional defect," and none of the
other constitutional defects "rises to the level
of a jurisdictional defect resulting from the
failure to appoint counsel at all." Id. at 496.
Although these cases are somewhat helpful guides
in deciding the case before us, their value is
not the one that the Government ascribes to them.
The analysis of the Supreme Court in Lewis and in
Custis does not suggest that it is proper in
every situation involving the use of an earlier
procured judgment to refuse to allow an inquiry
into the validity of that underlying judgment. To
the contrary--and here we believe is the true
value of Lewis and Custis to our present
decision--these cases make clear that, in
determining whether we should look into the
validity of the underlying judgment, we must
focus on the particular statutory scheme at issue
and decide whether Congress expected courts to
evaluate the validity of the underlying judgment.
In Lewis and in Custis, the Court also made clear
that we must focus on the language of the statute
and the intent of Congress. See Custis, 511 U.S.
at 490-92; Lewis, 445 U.S. at 60-61. In each
case, the Court reached the issues that it did
reach because of its interpretation of the
congressional will in the particular statutory
schemes. See Custis, 511 U.S. at 493; Lewis, 445
U.S. at 64-65. Repeatedly in Lewis and in Custis,
the Supreme Court contrasted the firearms
statutes at issue with other sections of the
criminal code that permitted the sort of
collateral attack that the Court found
impermissible under the statutes in those cases.
It is also of great significance that, even when
the Court in Custis determined that the statutory
scheme did not permit the scrutiny of the merits
of the underlying conviction, the Court did
permit the examination of the jurisdictional
basis of the underlying judgment.
3.
As we already have noted, we have no quarrel
with those courts that have held that Congress
did not intend that a defendant could raise the
correctness of the underlying support judgment as
a defense. Indeed, as we previously have pointed
out, this court is among those circuits that have
so held. See Black, 125 F.3d at 454. In this
case, however, our focus must be on whether
Congress intended to prevent the defendant from
raising as a defense to his CSRA prosecution that
the state court rendered the support judgment
without jurisdiction. To determine whether the
general rule that allows a defendant to contest a
default judgment on jurisdictional grounds has
been abrogated by Congress in a prosecution under
the CSRA, we must focus on that particular
statute and the circumstances surrounding its
passage.
The issue of the enforcement of support orders
has been a focal point of legislative activity at
both the national and state levels. Support
obligations are part of the law of domestic
relations and therefore are a significant
responsibility of state government. Nevertheless,
because so many of these obligations transcend
state borders, interstate cooperation is vital,
and, in recent years, the federal government has
found it necessary to play a larger role in
improving the overall national situation. As we
noted in Black, "Congress has expressly
recognized that collecting past due child support
obligations from out-of-state deadbeat parents
has outgrown state enforcement mechanisms." 125
F.3d at 458.
In 1988, Congress created the U.S. Commission on
Interstate Child Support ("the Commission") and
charged the Commission to "submit a report to
Congress that contains recommendations for (A)
improving the interstate establishment and
enforcement of child support awards, and (B)
revising the Uniform Reciprocal Enforcement of
Support Act." Family Support Act of 1988, Pub. L.
No. 100-485, sec. 126, 102 Stat. 2343, 2355
(1988) (codified at 42 U.S.C. sec. 666).
The Commission submitted its report to Congress
in 1992. In its report, the Commission discussed
the inefficiencies prevalent in the current
system for the enforcement of interstate child
support orders. See Supporting Our Children: A
Blueprint for Reform, U.S. Commission on
Interstate Child Support’s Report to Congress xii
(1992) [hereinafter Blueprint for Reform]. The
Commission noted that almost $5 billion went
uncollected in child support cases in 1989. See
id. Moreover, the report explained, three out of
every ten child support cases are interstate, yet
only $1 of every $10 is collected in interstate
cases. See id. Due to the poor rate of collection
on interstate child support cases, the Commission
sought to reform the old system of collection for
a more effective one. See id.
While the Commission was conducting its study,
the prevailing statute governing interstate
collection of past due support obligations was
the Uniform Reciprocal Enforcement of Support Act
("URESA"), which contained both civil and
criminal provisions. This model act was enacted
throughout the United States, although in a
variety of forms. Blueprint for Reform, at 16.
The differences in URESA among the states
contributed to delay and inefficiency. See id.
Under URESA’s civil provisions, a person seeking
support for a child had two options for obtaining
jurisdiction over a defendant. First, the
plaintiff could transmit the appropriate legal
documents to the defendant’s state. The
defendant’s state would then take action to
establish or enforce the support order against
the defendant. Oftentimes, multiple orders would
be issued. See id. at 228-31. Or, the plaintiff’s
state could exert its long-arm jurisdiction over
the defendant. The reach of long-arm jurisdiction
varied by state, increasing the difficulties in
enforcing the support orders. Although URESA
addressed the need for jurisdiction over the
defendant and for service of process, the
Commission report explained that the requirements
for jurisdiction and notice varied by state and
that oftentimes the requirements of one state
would not be effective in a different state. See
id. at 92-93.
URESA also contained criminal provisions to
facilitate the extradition of a defendant who had
been charged with criminal nonsupport. See id. at
17. The uniform act required the governor of a
defendant’s state to surrender the defendant,
unless the defendant was complying with an
existing support order, the defendant had
prevailed on a previous support action, or the
governor believed that civil remedies would be
effective. See id. This process under URESA,
however, remained a "tedious, cumbersome and slow
method of collection." H.R. Rep. No. 102-771,
1992 WL 187429 (1992).
When the Commission wrote its report, it
discussed extensively the importance of obtaining
jurisdiction over the parties. See Blueprint for
Reform, at 79-85. It explained that a court or
agency can establish a child support obligation
only if it has authority over the person. See id.
at 79. It also discussed the obligation that
states give full faith and credit to the support
orders of sister states. It then recommended to
Congress that it "provide for the interstate
recognition and enforcement of child support
orders, including ongoing orders, that are based
on the valid exercises of jurisdiction up to
constitutionally permissible limits." Id. at 91
(emphasis added).
The Commission also discussed a new uniform act
for the states to follow. Rather than merely
revising URESA, the Commission advocated the
implementation of the radically different Uniform
Interstate Family Support Act ("UIFSA"). See id.
at 231. The basic premise behind UIFSA is that
"there should be one support order between
parties that is controlling at any given point in
time." Id. at 232. Under this proposition, only
one state controls the support obligation, and
once that state obtains jurisdiction, it then has
continuing, exclusive jurisdiction over the
parties. See id. According to the Commission, to
obtain jurisdiction over the parties, UIFSA
contains a new provision for long-arm
jurisdiction as well as retaining the two-state
process introduced in URESA. See id. The
Commission recommended that, "[s]ubject to the
risk of losing federal funding, states shall
adopt verbatim the [ ] drafting committee’s final
version of UIFSA." Id. at 236. By requiring the
adoption of UIFSA verbatim, the Commission hoped
to avoid the difficulties that had been attendant
to the myriad versions of the old uniform act
that the states had enacted. See id.
Of particular importance to Mr. Kramer’s case,
the Commission also specifically discussed the
role of service of process in interstate child
support cases. The Commission noted that a
support action begins with service of process to
the defendant in order to perfect personal
jurisdiction and to notify the defendant of the
action. See id. at 92. It also explained that
each affected party is entitled to receive notice
and that a party who is not served properly with
notice later may challenge jurisdiction. See id.
Then, the Commission recommended that each state
observe other states’ service of process laws.
See id. at 94. Also, the Commission wrote that
"States shall have and use laws that provide
that: . . . Notice required for the exercise of
jurisdiction over an individual outside the forum
state must be given in a manner reasonably
calculated to give actual notice." Id.
The language of UIFSA itself also focuses on the
importance of jurisdiction in child support
cases. First, to establish a support order, the
act states: "Upon finding, after notice and
opportunity to be heard, that an obligor owes a
duty of support, the tribunal shall issue a
support order directed to the obligor . . . ."
UIFSA sec. 401(c). If a support order has been
issued already in another state, then the
receiving state "shall recognize and enforce, but
may not modify, a registered order if the issuing
tribunal had jurisdiction." Id. sec. 603(c)
(emphasis added). Also, the receiving tribunal
shall notify the defendant of the registration of
the support order issued by another state. See
id. sec. 605(a). Although a defendant may not
plead lack of parentage as a defense to a support
obligation once another tribunal has established
parentage, see id. sec. 315, the defendant may
contest the validity or enforcement of the
support order on the grounds that "the issuing
tribunal lacked personal jurisdiction over the
contesting party," id. sec. 607(a)(1).
Congress acted on the recommendations of the
Commission with a variety of legislative efforts.
In the Full Faith and Credit for Child Support
Orders Act, Pub. L. No. 103-383, sec. 3(a), 108
Stat. 4063, 4064 (1994) (codified at 28 U.S.C.
sec. 1738B), Congress provided that each state
"shall enforce according to its terms a child
support order made consistently with this section
by a court of another State." Id. sec. 3(a)(1).
It further provided that
A child support order is made consistently with
this section if--
(1) a court that makes the order, pursuant to the
laws of the State in which the court is located--
(A) has subject matter jurisdiction to hear the
matter and enter such an order; and
(B) has personal jurisdiction over the
contestants; and
(2) reasonable notice and opportunity to be heard
is given to the contestants.
Id. sec. 3(c), 108 Stat. at 4065. Furthermore,
Congress has mandated that each state enact UIFSA
or lose federal funding.
The Commission report also emphasized the
importance of state criminal nonsupport statutes
and recommended that all states enact them. See
Blueprint for Reform, at 178. It stressed that
felony penalties should be "reserved for the
especially egregious cases of nonsupport" and
that "criminal enforcement is a last resort
enforcement device." Id. "Civil enforcement
techniques should be tried before prosecuting [a
defendant] for criminal nonsupport," the
Commission warned. Id. The Commission recommended
that there should be a federal criminal
nonsupport statute to coexist with the state
criminal nonsupport statutes. See id. The
Commission explained that, although a state
court’s criminal jurisdiction over an out-of-
state defendant is not clear cut, the federal
government’s jurisdiction is nationwide. See id.
Then, the report states, "[t]he Commission
encourages Congress to pass a statute that would
make it a federal crime to willfully fail to pay
support." Id. at 179.
The CSRA itself started through Congress before
the Commission released its final report. The Act
was developed, however, in consultation with the
Commission and was based on a preliminary
recommendation made by the Commission. See 138
Cong. Rec. H7324-01, H7325 (daily ed. Aug. 4,
1992) (statement of then-Rep. Schumer). The House
Report revealed that, in August 1992, 42 states
already had made willful failure to pay child
support a crime, although the ability to enforce
the criminal statutes diminished significantly
once the nonpaying parent crossed state lines.
See H.R. Rep. No. 102-771. Representative Hyde,
who spearheaded the movement for the CSRA, stated
that, although URESA was necessary, it was a poor
substitute for a state’s internal enforcement
mechanism. See 138 Cong. Rec. H7324-01, H7326
(statement of Rep. Hyde). He also stressed that
the CSRA’s goal was to strengthen, not supplant,
state enforcement efforts. See id.
During the House debates, one of the sponsors of
the bill explained that:
The bill would create a simple and
straightforward criminal statute that would
punish any person who willfully fails to pay a
past-due support obligation to a child who
resides in another State.
The bill also creates a grant program under
which the Bureau of Justice Assistance may make
grants to States and local entities to develop
and implement this legislation and coordinate
criminal interstate child support enforcement
efforts.
. . . Many of our States have done their best,
and they have made willful failure to pay child
support a crime punishable in some States by up
to 10 years in prison. But the ability of those
States to enforce such laws outside their own
boundaries is hobbled by a labyrinth of
extradition laws and snarls of red tape. As a
result, skipping out on child support is one of
the easiest crimes to get away with in America
today.
Id. at H7325 (statement of then-Rep. Schumer).
Another representative, Representative Schiff,
stated that "existing reciprocal support statutes
between States are simply bogged down and unable
to perform with the efficiency we would like to
see." Id. at H7326 (statement of Rep. Schiff). No
mention is made of jurisdiction or the validity
of the underlying state support obligation in the
legislative history of the CSRA.
4.
When we scrutinize the entire legal landscape
surrounding the CSRA, it is clear that this
criminal provision is only a small component in a
nation-wide effort to deal with the need to
enforce support orders. In addressing this
problem, it is clear that, as Congress
legislated, it was well aware of the long-
standing rule, both in federal and state
jurisprudence, that a default judgment in a civil
case is void if there is no personal jurisdiction
over the defendant and that a judgment may be
attacked collaterally on that basis.
Additionally, in addressing the problem of non-
payment of support orders, the Commission
emphasized the importance of jurisdiction and
service of process in procuring support
obligations. Although the problem of enforcement
of child support orders has been the focus of
both national and state legislative efforts for
well over a decade, there is no indication that
the Commission or Congress ever intended to
abrogate the traditional rule that a default
judgment procured without personal jurisdiction
is a nullity. More precisely, the prevailing
uniform act at the time of the CSRA’s passage,
URESA, allowed the defendant to attack
collaterally the earlier state order on
jurisdictional grounds. The new order of mutually
supportive federal and state legislation
continued the same adherence to traditional
jurisdictional standards. Notably, the new
uniform act, UIFSA, also allowed a defendant to
attack collaterally the earlier state order on
the limited ground that it was procured without
jurisdiction. The related civil statutes that
Congress enacted in the wake of the Commission’s
report accept the general rule that a defendant
may attack collaterally the underlying support
order because it was procured without
jurisdiction over his person. See, e.g., 28
U.S.C. sec. 1738B.
Subjecting Mr. Kramer to criminal penalties for
non-compliance with the state support judgment
without allowing him to challenge the state
court’s personal jurisdiction would permit the
federal criminal law to accomplish what the
states forbid in their own civil and criminal
courts and, indeed, what Congress has forbidden
in the civil remedies it has created. In a
carefully coordinated statutory scheme that
places great emphasis on federal-state
cooperation, such a result makes no sense.
Because the CSRA itself, its legislative history,
the Commission’s report, the old and new uniform
acts, and the federal statutes stemming from the
Commission’s report contain no indication that
Congress intended to alter the traditional rule
that a defendant may challenge on collateral
attack a default judgment that is entered without
personal jurisdiction, Mr. Kramer should be able
to attack the Indiana child support order that
formed the basis for his federal conviction for
the willful failure to pay a past due support
obligation. The failure of the district court to
afford him the opportunity to do so constitutes
reversible error.
C.
There is another reason, firmly embedded in the
statutory language, for permitting Mr. Kramer to
argue that he ought not be criminally sanctioned
without an opportunity to demonstrate that that
judgment is a nullity because it was procured
without jurisdiction. It is important to note
that the statute proscribes only the willful
disobedience of a state support order. Indeed,
the legislative history of the statute makes
clear that Congress intended that, in this
statute, the term "willfully" be given the same
meaning that it is given in the criminal tax
statutes. See H.R. Rep. No. 102-771. Therefore,
Congress, in enacting this statute, was well
aware that, by using the term "willfully," the
Government would be required to prove "an
intentional violation of a known legal duty." Id.
Indeed, quoting the Supreme Court’s decision in
United States v. Bishop, 412 U.S. 346, 361
(1973), the House Report noted that the word
"willfully" under the tax felony statute "imports
a bad purpose or evil motive." See H.R. Rep. No.
102-771.
Under traditional principles, an individual can
ignore a default judgment procured without
jurisdiction and raise that lack of jurisdiction
when the judgment creditor attempts enforcement.
Mr. Kramer was denied the right to have his
jurisdictional contention ever considered by the
district court. Certainly, the maintenance of a
meritorious jurisdictional defense would negate
the element of willfulness./1
Conclusion
The district court erroneously held that Mr.
Kramer’s contention that the underlying judgment
was procured without jurisdiction was not a
defense to the charge. Accordingly, the judgment
of the district court is reversed and the case is
remanded for proceedings consistent with this
opinion.
REVERSED and REMANDED
/1 Because Mr. Kramer contends that he has a
meritorious defense on jurisdictional grounds
that was never considered by the district court,
it is premature, and indeed impossible on the
record before us, to determine whether his
position on the jurisdictional issue, even if
erroneous, might have been held in good faith and
therefore negated the element of willfulness
necessary for criminal liability.