                                        PUBLISH

                       UNITED STATES COURT OF APPEALS
Filed 9/11/96
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 vs.                                                          No. 96-3007

 RICKY L. HAMPSHIRE,

        Defendant-Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF KANSAS
                          (D.C. No. 95-CR-10026)


Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public
Defender, with him on the brief), Wichita, Kansas, for Defendant-Appellant.

David S. Kris, United States Department of Justice, Washington, D.C. (Jackie N.
Williams, United States Attorney, and Brian R. Johnson, Special Assistant United States
Attorney, Wichita, Kansas), for Plaintiff-Appellee.


Before KELLY, LOGAN and BRISCOE, Circuit Judges.


KELLY, Circuit Judge.



       Defendant-appellant Ricky L. Hampshire entered a conditional plea of guilty based

upon the failure to pay child support obligations in violation of the Child Support
Recovery Act of 1992 (“CSRA”), 18 U.S.C. § 228, after the district court rejected his

challenges to the CSRA and its application. See United States v. Hampshire, 892 F. Supp

1327 (D. Kan. 1995). He was sentenced to two years’ probation and ordered to pay

$38,804 in restitution. He now challenges his conviction on the basis that (1) the CSRA

violates the Commerce Clause and the Tenth Amendment; (2) the state court order upon

which his federal conviction is predicated violates his rights under both the Fourteenth

Amendment Due Process Clause and the Soldiers’ and Sailors’ Civil Relief Act

(“SSCRA”); and (3) the order of restitution, which includes amounts of child support

incurred prior to the enactment of the CSRA, violates the Ex Post Facto Clause. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.


                                       Background

       In September 1985, Defendant Ricky Hampshire went “absent without leave”

(“AWOL”) from the military. In October 1985, his wife filed for divorce in Kansas. In

November 1985, Mr. Hampshire was apprehended, held in a civilian jail pending transfer

to military custody, and served with a summons to answer the divorce petition. He never

responded. The court granted the divorce, awarded custody to the mother of the couple’s

two children and ordered Mr. Hampshire to pay $350 per month in child support. After

his release from military prison, Mr. Hampshire moved from Kansas to New Mexico,

refused to make any payments and eventually was charged with violating the CSRA.



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                                         Discussion

                                    I. Commerce Clause

       We review de novo challenges to the constitutionality of a statute. United States v.

Bolton, 68 F.3d 396, 398 (10th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996). The

Commerce Clause provides that “[t]he Congress shall have Power . . . [t]o regulate

Commerce . . . among the several States . . . .” U.S. Const. art. I, § 8, cl. 3. “A court may

invalidate legislation enacted under the Commerce Clause only if it is clear that there is

no rational basis for a congressional finding that the regulated activity affects interstate

commerce, or that there is no reasonable connection between the regulatory means

selected and the asserted ends.” Federal Energy Regulatory Comm’n v. Mississippi, 456

U.S. 742, 754 (1982) (quoting Hodel v. Indiana, 452 U.S. 314, 323-24 (1981)).

       The CSRA makes it a federal criminal offense for a person to “willfully fail[] to

pay a past due support obligation with respect to a child who resides in another State.” 18

U.S.C. § 228(a). “Past due 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 . . . that has remained

unpaid for a period longer than one year, or is greater than $5,000.” 18 U.S.C. §

228(d)(1).

       The constitutionality of the CSRA presents a question of first impression in this

circuit. The Commerce Clause empowers Congress to regulate three aspects of interstate


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commerce: (1) “the use of the channels of interstate commerce[;]” (2) “the

instrumentalities of interstate commerce, or persons or things in interstate commerce[;]”

and (3) activities that have a substantial relation to or substantially affect interstate

commerce. United States v. Lopez, 115 S. Ct. 1624, 1629 (1995); see also Perez v.

United States, 402 U.S. 146, 150 (1971). In Lopez, relied upon in large part by Mr.

Hampshire, the Court struck down 18 U.S.C. § 922(q), part of the Gun-Free School Zones

Act of 1990 (“GFSZA”), which made it a federal offense “for any individual knowingly

to possess a firearm at a place that the individual knows, or has reasonable cause to

believe, is a school zone.” 18 U.S.C. § 922(q)(2)(A). In Lopez, the Court dismissed as

inapplicable the first two categories of permissible interstate commerce regulation and

held that § 922(q) failed to satisfy the prerequisites of the third category because it

regulated an activity that did not “substantially affect[] interstate commerce.” 115 S. Ct.

at 1630-31. Of particular importance to the Court’s analysis was the fact that § 922(q)

was “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of

economic enterprise” and “contain[ed] no jurisdictional element which would ensure . . .

that the firearm possession in question affects interstate commerce.” Id.

       The Second Circuit recently held that the CSRA was a proper exercise of

Congress’s power to regulate and protect the instrumentalities of interstate commerce

because the Act “regulates the flow of payments on unfulfilled child support orders where

the child and parent reside in separate States.” United States v. Sage, 1996 WL 450640,


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*7 (2d Cir. 1996). Because the CSRA “addresses an obligation to make payments in

interstate commerce,” it regulates more than local activity and is constitutional. Id. The

Ninth Circuit also recently upheld the CSRA on a similar rationale:

       The obligation of a parent in one state to provide support for a child in a
       different state is an obligation to be met by a payment that will normally
       move in interstate commerce--by mail, by wire, or by the electronic transfer
       of funds. That obligation is, therefore, a thing in interstate commerce and
       falls within the power of Congress to regulate. The frustration of
       satisfaction of the obligation by the failure of the debtors to pay is an
       impediment to interstate commerce that Congress can criminalize...

United States v. Mussari, 1996 WL 499163, *3 (9th Cir. 1996).

       Numerous district courts have addressed the constitutionality of the CSRA.

Several have found it to be constitutional. See United States v. Ganaposki, 1996 WL

376351 (M.D. Pa. July 1, 1996); United States v. Nichols, 928 F. Supp. 302

(S.D.N.Y.1996); United States v. Collins, 921 F. Supp. 1028 (W.D.N.Y.1996) (opinion

by magistrate judge); United States v. Kegel, 916 F. Supp. 1233 (M.D. Fla.1996)

(opinion by magistrate judge); United States v. Sage, 906 F. Supp. 84 (D. Conn.1995),

aff’d, 1996 WL 450640 (2d Cir. 1996); United States v. Hopper, 899 F. Supp. 389 (S.D.

Ind.1995) (opinion by magistrate judge); Hampshire, 892 F. Supp. 1327. These courts

generally upheld the constitutionality of the CSRA on the basis that (1) nonpayment of

child support involves payment of a debt and therefore constitutes economic activity or

commerce, Ganaposki, 1996 WL 376351, *7; Nichols, 928 F. Supp. at 310-11; (2)

nonpayment of child support in the aggregate has a substantial impact on commerce,


                                            -5-
Ganaposki, 1996 WL 376351, *7; Nichols, 928 F. Supp. at 311-12, Sage, 906 F. Supp. at

90; Hampshire, 892 F. Supp. at 1329-30; and (3) the CSRA’s requirement that the

delinquent parent and child reside in two different states constitutes the jurisdictional

requirement of an interstate nexus ensuring that the federal government will not intrude

upon matters with no relation to interstate commerce, Sage, 906 F. Supp. at 91-92;

Hampshire, 892 F. Supp. at 1330.

       By contrast, several other district courts have held the CSRA unconstitutional. See

United States v. Parker, 911 F. Supp. 830 (E.D. Pa.1995); United States v. Bailey, 902 F.

Supp. 727 (W.D. Tex.1995); United States v. Mussari, 894 F. Supp. 1360,

reconsideration denied by, 912 F. Supp. 1248 (D. Ariz. 1995), rev’d, 1996 WL 499163

(9th Cir. 1996); United States v. Schroeder, 894 F. Supp. 360, reconsideration denied by,

912 F. Supp. 1240 (D. Ariz. 1995), rev’d, 1996 WL 499163 (9th Cir. 1996). These courts

struck down the CSRA on the basis that (1) nonpayment of child support fails to

constitute an activity that substantially affects commerce or bears a substantial

relationship to commerce, Parker, 911 F. Supp. at 840-41; Schroeder, 894 F. Supp. at

365-66; Mussari, 912 F. Supp. at 1255-56; (2) the CSRA’s requirement that the

delinquent parent and child reside in two different states does not satisfy the

constitutionally required jurisdictional requirement of an interstate nexus because the

delinquent parent often does not involve himself in any interstate activity that

constitutionally confers jurisdiction, Parker, 911 F. Supp. at 842-43; Mussari, 912 F.


                                             -6-
Supp. at 1251-52; (3) nonpayment of child support inherently is a state criminal issue in

which intervention by the federal government violates notions of comity and federalism,

Bailey, 902 F. Supp. at 730; Schroeder, 894 F. Supp. at 367-68; and (4) the definitional

requirements of the CSRA force federal courts to interpret and possibly modify state court

ordered decrees, Schroeder, 912 F. Supp. at 1246; Mussari, 912 F. Supp. at 1254-55;

Schroeder, 894 F. Supp. at 367-68.

       In this case, Mr. Hampshire argues that Congress exceeded its authority under the

Commerce Clause because the CSRA: (1) regulates an activity that neither constitutes

nor involves commerce; (2) lacks the prerequisite interstate nexus sufficient to confer

federal jurisdiction; (3) is overbroad; and (4) represents an unconstitutional foray by the

federal government into domestic relations, a power traditionally reserved to states. The

government responds that the CSRA: (1) regulates both the channels of interstate

commerce as well as an economic activity bearing a substantial relation to interstate

commerce, and (2) requires that the delinquent parent reside in a different state from the

child, thus fulfilling the jurisdictional prerequisite of an interstate nexus. Because the

CSRA regulates a court-ordered obligation to pay money in interstate commerce, and

deals with an activity that is substantially related to and substantially affects interstate

commerce, we conclude that Congress constitutionally exercised the power bestowed

upon it by the Commerce Clause in enacting the CSRA.

       Notwithstanding that state regulation is substantial or even predominant, it is well-


                                              -7-
settled that Congress may regulate interstate aspects of economic transactions. United

States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 551-52 (1944). We agree with

the Second Circuit that “[i]f Congress can take measures under the Commerce Clause to

foster potential interstate commerce, it surely has the power to prevent the frustration of

an obligation to engage in interstate commerce.” Sage, 1996 WL 450640, at *5 (2d Cir.

1996). Accord Mussari, 1996 WL 499163, at *3. Regarding the latter, the Court has

invalidated application of state laws that prevented enforcement of contracts in interstate

commerce. See Allenberg Cotton Co., Inc. v. Pittman, 419 U.S. 20, 34 (1974); Dahnke-

Walker Co. v. Bondurant, 257 U.S. 282, 292-93 (1921). Likewise, Congress may prevent

the circumvention of child support obligations by regulating what is essentially

nonpayment of a debt where the judgment creditor and judgment debtor are in different

states. See Mussari, 1996 WL 499163, at *3.

       The CSRA also may be upheld because it regulates activities that are substantially

related to and substantially affect interstate commerce. See Lopez, 115 S. Ct. at 1629-30.

In enacting the CSRA, Congress made explicit findings concerning the impact of

delinquent parents on interstate commerce. In 1989, approximately $5 billion of $16

billion in child support obligations were not honored. H.R.Rep. No. 771, 102d Cong., 2d

Sess. 5 (1992) (Judiciary Committee). See also Statement by President Upon Signing S.

1002, 1992 U.S.C.C.A.N. 2908 (Nov. 2, 1992). About one-third of the unpaid child

support obligations involved a delinquent father who lived in a different state than his


                                            -8-
children. Delinquent parents used the multistate system to evade enforcement efforts by

individual states. H.R.Rep. No. 771 at 5-6; see also 138 Cong. Rec. H7326 (daily ed.

Aug. 4, 1992) (statement of Cong. Hyde). Accordingly, in enacting the CSRA, Congress

sought “to strengthen, not to supplant, State enforcement.” Id.

       In order to conclude that Congress acted within the confines of the Commerce

Clause, all we must find is a rational basis for Congress’ finding that the regulated

activity substantially affects interstate commerce. See Federal Energy Regulatory

Comm’n, 456 U.S. at 754. Congress clearly considered the economic impact of

delinquent parents and, in its discretion, concluded that the impact substantially affects

interstate commerce. Congress had a rational basis for so concluding and, as a result,

acted within the power bestowed upon it under the Commerce Clause in enacting the

CSRA.


                                   II. Tenth Amendment

       The Tenth Amendment provides that “the 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. “‘In a case . . . involving the

division of authority between federal and state governments,’ the inquiries under the

Commerce Clause and the Tenth Amendment ‘are mirror images of each other.’” Kelley

v. United States, 69 F.3d 1503, 1509 (10th Cir. 1995), cert. denied, 116 S. Ct. 1566

(1996) (quoting New York v. United States, 505 U.S. 144, 156 (1992)). “If a power is

                                             -9-
delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any

reservation of that power to the States; if a power is an attribute of state sovereignty

reserved by the Tenth Amendment, it is necessarily a power the Constitution has not

conferred on Congress.” New York, 505 U.S. at 156. To successfully demonstrate a

violation of the Tenth Amendment, a claimant must show that the challenged statute or

regulation regulates “states as states;” it addresses matters that are indisputably attributes

of state sovereignty; and compliance with it would directly impair the State’s ability to

structure integral operations in areas of traditional state functions. Hodel v. Virginia

Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 287-88 (1981).

       In light of our holding that congressional enactment of the CSRA does not violate

the Commerce Clause, Mr. Hampshire’s Tenth Amendment argument fails. See Mussari,

1996 WL 499163, *5 (“If . . . Congress acts under one of its enumerated powers--here its

power under the Commerce Clause--there can be no violation of the Tenth

Amendment.”). Moreover, the CSRA does not displace any approach taken by the state

in addressing the problem of delinquent parents but rather supplements such state

initiatives by fortifying law enforcement efforts and existing state penalties. Sage, 1996

WL 450640, *8.


                III. Soldiers’ and Sailors’ Civil Relief Act and Due Process

       Mr. Hampshire claims that the state court’s refusal to appoint counsel for his

defense in the underlying divorce action violated both the Soldiers’ and Sailors’ Civil

                                             - 10 -
Relief Act (“SSCRA”) as well as his due process rights under the Fourteenth Amendment

by denying him meaningful access to the court to challenge the child support order. Both

claims present questions of law that we review de novo. See Patton v. TIC United Corp.,

77 F.3d 1235, 1243 (10th Cir.), cert. denied, 116 S. Ct. 2525 (1996).

       The SSCRA temporarily suspends enforcement of civil liabilities against people on

active duty in the military “until after the court shall have appointed an attorney to

represent the defendant and protect his interest.” 50 U.S.C. App. §§ 510, 520(1). The

district court found that the state court did violate the SSCRA by failing to appoint

counsel for Mr. Hampshire but that such failure did not rise to the level of a due process

violation. Hampshire, 892 F. Supp. at 1332.

       We cannot agree that Mr. Hampshire was entitled to an attorney under the SSCRA.

The language of the SSCRA is clear. “Military Service” is defined as “Federal service on

active duty,” and “active duty” is defined as including “the period during which a person

in military service is absent from duty on account of sickness, wounds, leave, or other

lawful cause.” 50 U.S.C. App. § 511(1); see also Betha v. Martin, 188 F. Supp. 133, 134-

35 (E.D. Penn. 1960) (“military service” means active duty in the federal armed services).

An AWOL soldier is not absent due to “sickness, wounds, leave, or other lawful cause”

and may not avail himself of the benefits under SSCRA. Harriott v. Harriott, 511 A.2d

1264, 1266 (N.J. Super. Ct. 1986). Mr. Hampshire’s child support liability results from

divorce proceedings filed against him in October 1986; he concedes that he was AWOL


                                            - 11 -
from the military at this time. Hampshire, 892 F. Supp. at 1331. Because he was AWOL

at the time of filing and throughout the divorce proceedings, Mr. Hampshire was not on

“active duty” and is definitionally precluded by the plain language of the SSCRA from

availing himself of its benefits. See 50 U.S.C. App. § 511(1). Because the state court did

not violate Mr. Hampshire’s rights under the SSCRA, we need not reach Mr. Hampshire’s

due process claim predicated on such a violation.

       Mr. Hampshire also argues that his Fourteenth Amendment due process rights

were violated because he had no meaningful opportunity as an AWOL soldier in a

civilian prison to be heard in state court to challenge the divorce and child support actions

that form the basis of his CSRA conviction. The Due Process clause, incorporated by the

Fourteenth Amendment to apply to the states, only “applies when government action

deprives a person of liberty or property.” Greenholtz v. Inmates of the Nebraska Penal

and Correctional Complex, 442 U.S. 1, 7 (1979). Mr. Hampshire fails to articulate how

the government prevented him from meaningfully defending himself while in prison or to

identify a state law that prevented him from doing so. See Lynk v. LaPorte Superior

Court No. 2, 789 F.2d 554 (7th Cir. 1986) (state law required physical presence, even of

incarcerated person, to obtain divorce). The district court properly rejected this claim.


                                     IV. Ex Post Facto

       Mr. Hampshire asserts that his restitution order, which includes amounts accrued

prior to the passage of the CSRA, runs afoul of the Ex Post Facto Clause by punishing

                                            - 12 -
him for conduct that occurred prior to the passage of the CSRA. An ex post facto law is

one that (1) criminalizes conduct that was legal when done; (2) inflicts greater

punishment for an offense than was inflicted by the law in existence at the time the

offense was committed; or (3) eliminates a defense available according to law at the time

the offense was committed. Collins v. Youngblood, 497 U.S. 37, 42 (1990); see also

United States v. Gerber, 24 F.3d 93, 96 (10th Cir. 1994). Mr. Hampshire’s ex post facto

challenge to the restitution order presents a question of law that we review de novo.

United States v. Guthrie, 64 F.3d 1510, 1514 (10th Cir. 1995).

       The CSRA provides that “the court shall order restitution under section 3663 in an

amount equal to the past due support obligation as it exists at the time of sentencing.” 18

U.S.C. § 228(c). “Past due support obligation” is defined as “any amount . . . determined

under a court order . . . that has remained unpaid for a period longer than one year, or is

greater than $5,000.” 18 U.S.C. § 228(d)(1). The district court invoked 18 U.S.C. §

3663, the Victim Witness Protection Act (“VWPA”), to order Mr. Hampshire to pay

restitution in an amount of approximately $38,000, of which approximately $25,000

accrued prior to the passage of the CSRA.

       Although Mr. Hampshire’s restitution order takes into account amounts resulting

from his failure to pay before the passage of the CSRA, he has not been charged or

sentenced under the CSRA for any acts or omissions that occurred prior to its passage.

Rather, Mr. Hampshire was indicted and convicted for his willful failure to pay past due


                                            - 13 -
child support from January 1993 until December 1994, i.e., for his conduct after the

passage of the CSRA. I R. at 1. The restitution ordered pursuant to the VWPA covered

the amount of back child support owed on the date of sentencing. The fact that a

component of that amount accrued prior to the enactment of the statute is not

determinative. See Spencer v. Texas, 385 U.S. 554, 559-60 (1966) (considering past

criminal conduct in determining the sentence for the offense of conviction); United States

v. Cabrera-Sosa, 81 F.3d 998, 1001 (10th Cir.) (same), petition for cert. filed, (U.S. July

16, 1996) (No. 96-5205); United States v. Cusack, 901 F.2d 29, 32 (4th Cir. 1990). What

is determinative is whether the defendant was given fair notice of what his potential

punishment would be for a violation of the statute in question. Weaver v. Graham, 450

U.S. 24, 30 (1981). Thus, even if we consider restitution to be punishment, there is no ex

post facto problem.

       Moveover, under the clear import of the CSRA, restitution is not a “punishment,”

although it is hardly surprising that a recalcitrant parent would so consider it. We have

previously indicated in other contexts that restitution orders issued pursuant to the VWPA

are predominantly compensatory in nature, the purpose of which “is not to punish

defendants . . . but rather to ensure that victims, to the greatest extent possible, are made

whole for their losses.” See United States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir.),

cert. denied sub nom. DeVries v. United States, 510 U.S. 1017 (1993); see also United

States v. Salcedo-Lopez, 907 F.2d 97, 99 (9th Cir. 1990). Unlike a forfeiture statute, the


                                             - 14 -
VWPA seeks to compensate victims rather than punish defendants. See United States v.

Dudley, 739 F.2d 175, 177 (4th Cir.1984). The Constitution's explicit prohibition against

ex post facto laws applies only to those laws that inflict criminal punishment. United

States Trust Co. of New York v. New Jersey, 431 U.S. 1, 17 n. 13 (1977); see also United

States v. Monsanto Co., 858 F.2d 160, 174-75 (4th Cir. 1988), cert. denied, 490 U.S. 1106

(1989). Mr. Hampshire’s restitution order does not implicate the Ex Post Facto Clause

because it does not inflict punishment upon him but rather seeks to compensate his child

for his failure to pay his past due support obligation.

       AFFIRMED.




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