

                  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) &amp; (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  &amp;                                                                           

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)  &amp; (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 &amp;  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
