USCA1 Opinion

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.

SELYA, Circuit Judge.
_____________

In many respects the history

of

this litigation resembles a Greek tragedy, excerpts of which from

time

to time have

occupied the attention

federal

and state

judges across

passage

revolves

Support

Recovery Act

around

the

of no

fewer than ten

the nation.

This particular

constitutionality

(CSRA), 18

U.S.C.

of

the

228 (1994),

Child

and the

federal government's authority, if any, to collect restitutionary

payments ordered under the

CSRA by recourse to the

Collection Procedure Act (FDCPA),

The CSRA issue is new

28 U.S.C.

3001-3308 (1994).

to us and the FDCPA issue has

knowledge, been addressed by any court of appeals.

through

these

and

other

arcana,

we

reject

Federal Debt

the

not, to our

After sorting

defendant's

challenge to his criminal conviction and sentence, holding, among

other

things, that

Congress did

not exceed

the bounds

of its

constitutional power

conviction

authority

in enacting

events, we

hold

the CSRA.

that the

Turning to

post-

federal government

lacks

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.
I.

SETTING THE STAGE

SETTING THE STAGE

In October 1990 a Georgia state court entered

ending Sandra

Bongiorno,

Taylor's marriage to defendant-appellant

granting

Taylor

daughter, and directing

bariatric

surgery)

Shortly

thereafter,

custody

Bongiorno (a

to pay

$5,000 per

mother

and

of

the

a decree

Frank P.

couple's

minor

physician specializing

month in

daughter

in

child support.

repaired

to

Massachusetts.

child

When Bongiorno

support award,

Bongiorno

original

had failed

decree.

In

Bongiorno in contempt

subsequently sought to modify the

Taylor counterclaimed

to

make the

September

for failing

payments

1992 the

on the

ground that

stipulated in

Georgia

to pay upward

the

court found

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,

child

support despite the fact

per year.

to satisfy

Bongiorno

that his new

and authorized garnishment

the accumulated

quit his

job

and paid

support from June to December 1993.

to

work for the

court

State of Michigan.

arrearage.

only

of

post paid $200,000

In March 1993 a Michigan state court domesticated

Georgia support order

wages

Bongiorno made sporadic payments

$500 a

the

of Bongiorno's

Soon thereafter,

month

in child

In early 1994 Bongiorno went

That May

a Michigan state

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

obligation

552.519
and

then

(1988), to
added

determine

premium to

Bongiorno's accumulated arrearages.

be

a current

support

applied

against

Neither the propriety of the

ceiling nor the Michigan court's treatment of the Georgia court's

decree is at issue here.

CSRA.

Because

Bongiorno's

minor

daughter

has

resided

continuously in Massachusetts from

grandmother

for much

of

1990 forward (albeit with her

that time),

district.

preferred

charges

in that

dismiss

the indictment on the ground that the CSRA represents an

unconstitutional exercise of

Clause.

Bongiorno

the government

moved unsuccessfully

Congress' power under

to

the Commerce

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

probation.

support

As

and

a condition

sentenced

him

of probation,

to

five

the court

directing Bongiorno

to

years

of

imposed a

work-release

arrangement,

spend up

to

twelve hours

per day in the custody of the Bureau of Prisons for

the first

court

year of his

ordered

probation.

restitution

As

in the

a further condition,

sum

of

$220,000 (a

the

figure

approximating the total arrearage then outstanding).

Not

content with its

commenced

a civil

enforcing

the

wrangling, the

proceeding

restitutionary

court granted

apparent victory, the government

under the

order.

FDCPA

After

as a

some

the government's motion

means

of

procedural

to attach

Bongiorno's wages and disburse the proceeds.

Bongiorno filed

heard the appeals in

sentence

timely appeals

tandem.

We now

in the criminal case,

in both cases,

affirm the conviction

but reverse the

civil case.

and we

and

judgment in the

II.
II.

THE CONSTITUTIONALITY OF THE CHILD SUPPORT RECOVERY ACT

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

constitutional challenges to federal statutes.

v. Gifford, 17 F.3d 462, 471-72 (1st Cir. 1994).

_______

A.
A.

The CSRA and Its Prologue.

The CSRA and Its Prologue.

review

de

novo

See United States

___ _____________

_________________________

In 1992 Congress focused on the importance of financial

support from non-custodial

growing poverty

Committee

payments

shortfall

of single-parent families.

observed

due in

of

parents as a means

that

of

1989, only

$16.3

$5

through government assistance.

(1992).

The Committee

The House Judiciary

billion

$11.2 billion

approximately

of combatting the

billion to

in

child

was paid,

be

support

leaving a

offset

largely

See H.R. Rep. No. 102-771,

___

concluded that

"the

annual deficit

at 5

in

child support payments remains unacceptably high," especially "in

interstate

particularly

collection

cases, where

difficult."

Committee noted

Id.
___

enforcement

To illustrate

that one-third of all

of

support is

this point,

the

uncollected child support

obligations

involved non-custodial

fathers living out

and that roughly fifty-seven percent of the custodial

such situations received

or never."

of state

parents in

support payments "occasionally,

seldom

Id.
___

Because

Congress

doubted

the

states'

ability

efficaciously to enforce support orders beyond their own borders,

see
___

id.
___

at

(recognizing that

"interstate

extradition

and

enforcement in fact remains a tedious, cumbersome and slow method

of collection"),

new

law

the

it devised a

CSRA

federal solution hoping

would

prevent delinquent

that the

parents

from

"mak[ing] a mockery of State law by fleeing across State lines to

avoid

enforcement

actions by

State

courts

and child

agencies."

138 Cong. Rec. H7324, H7326 (daily ed.

(statement

of Rep.

willful

failure

Hyde).

"to pay

In

past

final

due

form the

support

Aug. 4, 1992)

statute

makes

support obligation

with

respect to a child who resides in another State" a federal crime.

18 U.S.C.

228(a).

determined under

A "past due support obligation" is an amount

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

panoply

punishments, including imprisonment, fines, and restitution.

id.
___

See
___

228(b) & (c).

B.
B.

The Commerce Clause.

The Commerce Clause.
___________________

The Commerce Clause

inter
_____

of

alia,
____

States."

that the

to

"regulate Commerce

U.S. Const., art. I,

CSRA

the nonpayment

bestows upon

which in

Congress the

power,

among the

several

8, cl. 3.

The appellant claims

his case has the

effect of regulating

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

for

the

however,

benefit of

the minor

owed to the custodial parent

child.

For

simplicity's sake,

we choose to reduce the triangle to a straight line and

treat the obligation as if it were owed directly to the minor.

Supreme Court has identified three general categories of activity

that

lawfully can be regulated

activities

that

involve

use

under the Commerce

of

the

channels

commerce, (2) activities that implicate the

Clause:

of

(1)

interstate

instrumentalities of

interstate commerce

commerce), and

to,

(including persons or

(3) activities

or substantially

things in

that have a

affect, interstate

interstate

substantial relation

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

child

reside

obligation is

in

when the obligated parent

different

subject to

Accord United States v.

______ _____________

states,

the

and the dependent

underlying

regulation under the

support

Commerce Clause.

Hampshire, 95 F.3d 999, 1003

_________

(10th Cir.

1996)

(holding

obligation to

that

the

CSRA

regulates

pay money in interstate

"court-ordered

commerce"), cert. denied,

_____ ______

___ S. Ct. ___ (1997); United States v. Mussari, 95 F.3d 787, 790
_____________
_______

(9th

Cir. 1996)

"thing"

in

(concluding

that the

interstate commerce

support obligation

because it

must

be met

payment that will normally move in interstate commerce

by

is a

"by a

by mail,

wire, or by the electronic transfer of funds"); United States

_____________

v. Sage, 92 F.3d 101, 106 (2d Cir.

____

cert. denied, ___ S. Ct. ___ (1997).

_____ ______

1996) (similar to Hampshire),

_________

The appellant employs

to

resist

protests

the

that

force of

the

this

obligation

various artifices in

conclusion.

to

pay

attempting

For starters,

child

support

"commerce" in any meaningful

sense.

That cry is

the broadcast definitions of

the term used by the

is

he

not

drowned out by

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).

"commerce" in the Commerce Clause context

The

is a term of art,

term

and

the Court consistently has interpreted it to include transactions

that might

strike lay persons

United States v.
______________

commerce

to

Simpson, 252
_______

include

transporter's

as "noncommercial."

U.S. 465,

transporting

whiskey

personal consumption);

Ames), 188 U.S.

____

321, 354

466

e.g.,
____

(1920) (defining

intended

Lottery Case
____________

(1903) (defining

See,
___

for

the

(Champion v.
________

commerce to

include

carrying lottery tickets).

The appellant is likewise fishing in an empty pond when

he baldly proclaims

that a support

and

therefore not a "thing"

has

long

read

the

obligation is an

intangible

in interstate commerce.

The Court

Commerce

Clause

to

reach

transactions

concerning

intangibles.

See,
___

e.g.,
____

Eastern Underwriters Ass'n, 322

__________________________

United States v.
______________

South______

U.S. 533, 549-50 (1944) (holding

that transactions

may constitute

"concern the flow

of anything more

commerce although they

do not

tangible than electrons

and

information"); Pensacola Tel. Co. v. Western Union Tel. Co., 96

___________________
_______________________

U.S.

(6

include

Otto) 1,

the

(1877) (defining

transmission

telegraph lines).

Shubert,
_______

11

As the

of

and

indivisible

states" involving the

intelligence

Court explained in

348 U.S. 222 (1955),

"continuous

interstate

commerce to

over

interstate

United States
_____________

commerce exists where

stream

of

there is a

intercourse

transmission of money

v.

among the

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

in another.

the

Because compliance with such support orders requires

regular movement

lines, such

regulated

a child

of money

transactions fall

intercourse.

See

and communications

within the scope

Hampshire,

95 F.3d

across state

of permissibly

at

1003; see

___

_________

___

generally Comment, Making Parents Pay: Interstate Child Support

_________
______________________________________________

Enforcement After [Lopez],

__________________________

(1996).

It

legislation

interstate

Pittman,
_______

144

U. Pa.

follows inexorably that

designed

to

prevent

transactions.

419 U.S.

20,

See,
___

34

L.

Rev. 1469,

1505-11

Congress lawfully can

the

frustration

of

e.g., Allenberg Cotton Co.

____ _____________________

(1974)

(holding that

Congress

pass

such

v.

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.

interstate

orders

child

It regulates the nonpayment of

support obligations.

that require a parent in one

Because

child support

state to make payments to a

person in another state are functionally equivalent to interstate

contracts,

see
___

"things" in

Congress

Sage,
____

92

F.3d

interstate commerce.

to

nonfulfillment.

enact

legislation

On this

at

106,

such

obligations are

Thus,

it is

appropriate for

that

will

basis, the CSRA is a

prevent

their

valid exercise of

congressional power under the Commerce Clause.

F.3d at 1003-04 (upholding

See Hampshire, 95
___ _________

the constitutionality of the CSRA

on

the ground that it regulates "what is essentially nonpayment of a

debt where

the

judgment creditor

different states");

and

Mussari, 95 F.3d
_______

conclusion and observing that a

judgment debtor

at 790 (reaching

are

in

the same

delinquent parent's "intentional

refusal to satisfy the debt is as much an obstruction of commerce

between the states

Hobbs

Act");

conclusion and

the Commerce

Sage,
____

as any act of extortion

92

F.3d

at

105-06

made unlawful by the

(reaching

observing that Congress "surely

the

same

has power [under

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

and Sage went

____

posits that cases such as

awry because they did not recognize

is different from other federal

of the

Hampshire, Mussari,
_________ _______

Commerce Clause.

statutes enacted under the aegis

The difference,

underlying

payment

obligation

simpliciter

is

the

fribbling.

South-Eastern Underwriters
___________________________

he says, is

child

a creature of state law.

support

illustrates

obligation do not preclude

of

under the

10

that the

order

This circumstance is

state-law origins of an

congressional power

that the CSRA

Commerce

Clause.

that

the

the exercise

The Court

there held, 322 U.S. at 546-47, that a fire insurance transaction

across state lines constituted commerce among the several states,

notwithstanding that

contract

the insurance policy itself

subject to state law.

was a personal

The same principle obtains here:

although the underlying child support order is a product of state

law, the

delinquent parent's location vis- -vis

creates interstate nexus

regular

payments

in the

across state

applies only when the

____

the minor child

form of an

obligation to

make

boundaries.

Indeed, the

CSRA

state-imposed child support order develops

an interstate character, necessitating

the sending of money from

one state to another by the obligor.

support

obligation

lies

federal

regulation,

in

and

When that occurs, the child

interstate

Congress

commerce,

may

act

to

subject

prevent

to

its

frustration.

The appellant's second argument posits that uncollected

support

payments

commerce

to

This argument

struck

justify the

too

tenuous

exercise

local school

an

of

impact

on

interstate

congressional authority.

relies heavily on Lopez, a case in which the Court

_____

down the Gun-Free School

922(q)(1)(A),

under

have

Zones Act (GFSZA),

which criminalized

zones.

Holding

the possession of

that Congress

18 U.S.C.

firearms in

exceeded its

power

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.

here.3

See Lopez, 115 S.

___ _____

The Lopez majority

_____

Ct. at 1634.

Lopez is inapposite
_____

considered only the third, "affecting

interstate

commerce,"

branch

of

Commerce

Clause

authority,

dismissing the first two bases as patently inapplicable.

at 1630.

Here, however, we

unpaid child

we

instead

category

have no occasion to

support substantially affects

uphold the

because

it

CSRA

under the

regulates

decide whether

interstate commerce;

second

things

See id.
___ ___

Commerce Clause

(namely,

payment

obligations) in interstate commerce.

There is another, more basic reason why Lopez does

_____

assist the

Lopez
_____

appellant's cause.

Court simply are

The concerns articulated

not implicated by

the CSRA.

not

by the

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.

economic

See id. at 1630-32.

___ ___

In contrast, the CSRA relates to

transactions, and the

enacting Congress made explicit,

well-documented findings regarding the economic effect of

child support

II(A).

upon interstate commerce.

In the same vein,

See, e.g.,
___ ____

the Lopez Court made much of

unpaid

supra Part
_____

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.

_____

been reversed by
(reversing

the Ninth

Circuit.

See
___

Two of them have

Mussari, 95 F.3d
_______

787

United States v. Mussari, 894 F. Supp. 1360 (D. Ariz.

_____________
_______

1995), and United States v. Schroeder, 894 F. Supp. 360 (D. Ariz.
_____________
_________
1995)).
Supp.

We regard the other two, United States v. Parker, 911 F.

_____________
______
830 (E.D. Pa. 1995),

and United States

_____________

Supp. 727 (W.D. Tex. 1995), as infirm.

v. Bailey, 902 F.
______

12

that

the GFSZA

contained no jurisdictional

element to

forge a

link between the regulated activity and interstate commerce.

Lopez,
_____

present

115 S. Ct.

here,

for

at 1631.

the

CSRA

jurisdiction will attach only

state lines.

See 18 U.S.C.
___

Such

by

an element

its

terms

See
___

is conspicuously

provides

that

if child support obligations cross

228(a); see also H.R. Rep. No. 102___ ____

771, supra, at 6 (underscoring that Congress designed the statute

_____

"to target interstate cases

of

only").

such a jurisdictional element

We have found

to be a

the presence

powerful argument for

distinguishing Lopez in other cases, see, e.g., United States

_____
___ ____ _____________

DiSanto, 86
_______

F.3d 1238, 1245

arson statute,

18

U.S.C.

Martinez, 71 F.3d 946,

________

firearms possession

(1st Cir. 1996)

(upholding federal

844(i)); United States

______________

953 (1st Cir. 1995) (upholding

statute,

18 U.S.C.

v.

v.

Diaz_____

a federal

922(k)), and

it

is

equally potent here.

C.
C.

The Tenth Amendment.

The Tenth Amendment.
___________________

Bongiorno next claims that

the CSRA violates the Tenth

Amendment (and, in the bargain, tramples principles of federalism

and comity).

falls

This claim hinges on his contention

beyond Congress'

competence because it

that the CSRA

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

people."

the States respectively,

U.S. Const. amend. X.

or to the

The amendment is not applicable

13

to situations in which

Congress properly exercises its authority

under an enumerated constitutional power.

States,
______

505 U.S. 144, 156

(1992).

the CSRA pursuant

to the

power

to regulate

(the power

governs here.

See New York v. United

___ ________
______

Inasmuch

valid exercise of

as Congress passed

such an

enumerated

interstate commerce),

that tenet

Accord Hampshire,
______ _________

95 F.3d at

1004; Mussari,
_______

95

F.3d at 791.

What is

statute

cannot

more, a

succeed

Tenth Amendment attack

without

on a

three ingredients:

federal

(1)

the

statute must regulate the "States as States," (2) it must concern

attributes of state

sovereignty, and (3)

it must

be of such

nature that compliance with it would impair a state's ability "to

structure

integral

governmental

operations

functions."

Reclam. Ass'n, Inc.,

_____________________

452

citations and quotation

test

To the

Hodel
_____

court issues a

of

traditional

287-88

The

(1981)

(internal

CSRA passes

this

does not interfere with state law.

CSRA comes

into play only

child support order, and it does

federal court to revise the

succeeded

U.S. 264,

It

areas

v. Virginia Surface Mining &

___________________________

marks omitted).

with flying colors.

contrary, the

in

underlying decree.

in drafting the CSRA "to

after a

state

not authorize a

Because Congress

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.

___

(1994);

and,

see also DiSanto, 86

___ ____ _______

F.3d at 1246),

insofar as civil analogues might

3231

not civil actions;

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

than of 28 U.S.C.

only federalism and comity.

appellant's emphasis

balance.

U.S.C.

1331

1332.

This leaves

the

more evocative of 28

on these aspirational doctrines

While

legitimate concern,

However, the

federalism

they are not

and

comity

are

grounds upon which

cannot tip

matters

of

courts may

declare federal statutes unconstitutional.

D.
D.

On

constitutional

Additional Constitutional Claims.

Additional Constitutional Claims.
________________________________

appeal, Bongiorno

challenges

to

asserts a

his

gallimaufry of

conviction,

invoking

other

among

others, the

Sixth

and

Due Process

Eighth

and Equal Protection

Amendments.

Because

Clauses, and

the

challenges

are

these

procedurally defaulted, we dispose of them without ado.

Here, procedural default has

two faces.

The appellant

failed to raise these

miscellaneous constitutional arguments

the nisi

and matters

prius court

generally cannot be

advanced on

not squarely presented

appeal.

See
___

in

below

United States
_____________

v.

Taylor, 54 F.3d 967, 972 (1st Cir. 1995); United States v. Slade,
______
_____________
_____

980

F.2d 27,

applies

30

(1st Cir.

1992).

This

full bore to constitutional claims.

15

raise-or-waive

rule

See Daigle v. Maine

___ ______
_____

Med. Ctr., Inc., 14 F.3d 684, 688 (1st Cir. 1994).

_______________

To make

a bad situation worse,

in this court advance

vague and cryptic

these alleged constitutional violations in

terms.

Appellate judges are not clairvoyants,

and it is surpassingly difficult for

nothing.

We

the appellant's briefs

us to make something out of

Cf. William Shakespeare, King Lear act 1, sc. 4 (1605).

___
_________

have steadfastly deemed waived

perfunctory

manner, not accompanied

issues raised on

appeal in a

by developed argumentation,

see, e.g., Martinez v. Colon, 54 F.3d 980, 990 (1st

___ ____ ________
_____

denied,
______

116 S. Ct. 515

F.2d 31, 34

n.3 (1st Cir. 1991);

F.2d 1, 17 (1st

this

case

"It

in the

not

warrant

is not

most

enough

these

possess discernible merit

III.
III.

merely

to

leaving

to

and

that

salutary

mention a

possible

the court

to

do

Zannino, 895 F.2d at 17.

_______

reasons,

constitutional arguments

895

494 U.S. 1082 (1990),

exception

skeletal way,

counsel's work . . . ."

For

an

Gonzalez Caraballo, 929

__________________

United States v. Zannino,

_____________
_______

Cir.), cert. denied,

_____ ______

does

practice.

argument

(1995); Ruiz v.
____

Cir.), cert.
_____

we

hold that

appellant's

other

none of which appear at first blush to

are procedurally defaulted.4

THE LEGALITY OF THE SENTENCE

THE LEGALITY OF THE SENTENCE

The

appellant

contends

confinement" condition of his

that

the

"intermittent

probation exceeds the maximum term

of imprisonment authorized by the statute of conviction.

Because

____________________

4We

have considered

all

the

points,

constitutional

nonconstitutional, to which the appellant alludes

his
Those

conviction.
that

we

None
have

have the
not

potential

specifically

16

in challenging

to justify

identified

unpreserved, or unworthy of discussion, or both.

and

are

relief.

either

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

be

imprisoned for

228(b)(1).

for up

first offender who, under the CSRA, can

no more

than six

months.

See 18
___

U.S.C.

Nevertheless, a sentencing court can impose probation

to five years, see

___

18 U.S.C.

3561(a)

& (c)(2) (1994),

and, as a condition of probation, the court in its discretion may

require a defendant

Prisons

totaling

to "remain in

during nights,

no more

weekends,

than the

the custody of the

or other

lesser of

Bureau of

intervals of

one year

or the

time,

term of

imprisonment authorized for the offense, during the first year of

the

term

Invoking

of

probation."

this

18

discretionary

U.S.C.

3563(b)(11)

power, the

trial

(1994).

court sentenced

Bongiorno to five years of probation, on condition that he remain

in

custody

for twelve

hours per

months of the probationary

"the defendant [were]

twelve hours during

be

six months"

term.

in the

day

during the

Judge Keeton reasoned

custody of the

Bureau of

each night, that total time in

and

first twelve

therefore would

not

that if

Prisons

a year would

exceed the

statutory

maximum.

On

operation of

faults the

on

appeal

the

district court

having

the intermittent confinement condition

judge's reasoning.

the "Schedule

of

stayed

the

Bongiorno

He bases his argument principally

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

guidelines do not apply.

Class

See U.S.S.G.
___

misdemeanor

to

which

the

2J1.1, comment. (n.2).6

Moving beyond the guidelines, the

appellant's position

is

also

U.S.C.

unsound because

3563(b)(11)

construction:

it rests

that offends a

ought to be

Dep't of Treasury v. Fabe, 508

_________________
____

States v. Ven-Fuel, Inc.,

______
______________

only the

court imposed the

of

hours

an interpretation

bedrock maxim of

of 18

statutory

all words and clauses in a statute are intended to

have meaning and

To consider

on

the

thereby render

given effect.

See United States

___ ______________

U.S. 491, 504 n.6 (1993);

758 F.2d 741, 751-52 (1st

period of time

(one year)

United
______

Cir. 1985).

for which

the

condition of probation would ignore the number

appellant

actually will

the statutory allusion

be

confined

and would

to the importance

____________________

5The provision states in pertinent part:

One day of intermittent confinement in prison

of the

or jail for one

hours of
of

day of imprisonment (each 24

confinement is credited

intermittent

as one day

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
the

in passing that, even if

intermittent

probably

confinement which

would not

qualify for

5C1.1(e)(1) because, while the

twelve hours per day,
nor

otherwise requires

the guidelines attached,

the district

full-day credit

court crafted

under U.S.S.G.

order requires confinement up to

it neither fixes a definite

confinement

apart from time spent at work.

18

for "all

work schedule

remaining

hours"

total

number of hours ("totaling no more than") meaningless.

will

not

reading

lightly

words out of a

Peguero,
_______

932

encroach upon

congressional

prerogative

We

by

statute, see United States v. Victoria___ ______________

_________

920 F.2d 77, 81 (1st Cir. 1990), cert. denied, 500 U.S.
_____ ______

(1991),

and there

is

no

warrant

for

doing so

in

this

instance.7

In all events,

below,

and we

discern no

the appellant did

plain error.

concedes that straight imprisonment for

onerous

not raise the

The

point

appellant himself

six months would be more

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

profession.

Given

an

these

opportunity

verities,

sentencing order works no injustice.

interpretive

it

to

practice

is evident

his

that

the

It follows that the alleged

error cannot amount to plain error.

See Olano, 507

___ _____

U.S. at 732; Taylor, 54 F.3d at 973.

______

IV.
IV.

THE GRASP OF THE FEDERAL DEBT COLLECTION PROCEDURE ACT

THE GRASP OF THE FEDERAL DEBT COLLECTION PROCEDURE ACT

We turn now to the appeal in the civil case.

began

when the

United States

invoked the

FDCPA and

That case

sought to

____________________

7The
failed

to

appellant also
satisfy

the

asseverates
statutory

that

stricture

the district
that

court

requires

district

court,

among

other

things,

to

impose

sentence

sufficient but not greater than necessary to reflect the severity

of

the offense, promote respect for the law, and afford adequate

deterrence.
is

See
___

meritless.

persistent
desirability

18 U.S.C.

3553(a)(1)-(2).

The sentence

disregard

of

artfully balances

child

support

This asseveration

the appellant's

obligations

and

the

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

collecting the debt.

assumption

access to

as a

writ

Bongiorno maintains that the

of

garnishment.

On

a restitution order issued pursuant

A.
A.

Crime Control Act

appeal,

court should have defenestrated the

CSRA is not a "debt" within the meaning of the FDCPA.

Congress

means of

The district court honored the government's

and granted

civil action because

the FDCPA

to the

We agree.

The FDCPA.
The FDCPA.
_________

enacted the

FDCPA

of 1990, Pub. L. No.

as Chapter

XXXVI of

the

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

laws.

See H.R. Rep.

___

need to

rely on

a patchwork

No. 101-736, at 23-25 (1990),

of state

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:

"lessen[]

budget

Nation."

at 6631.

broadly

the effect of delinquent

deficit now

undermining the

to

debts on the massive federal

economic well-being

of the

H.R. Rep. No. 101-736, supra, at 23, 1990 U.S.C.C.A.N.

_____

Consistent

with this goal, Congress

"defined [`debt']

to include amounts owing to the United States on account

20

of a

direct loan

States

as

States."

well

as

or guaranteed

other amounts

originally

Id. at 28, 1990 U.S.C.C.A.N. at 6636.

___

this breadth

grasp

or loan insured

of

definition, Congress

by the

due

the

United

United

Notwithstanding

restricted the

statute's

to those obligations owing to the federal government.

28U.S.C.

See
___

3002(3), (15).8 Thislimitation didnot ariseby accident:

The definition of
written to

`debt' was

make clear that the

carefully

act will not

apply

to obligations

private

loan or

example, if

which began

as purely

contract obligations.

one of our constituents

For

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

regulators.

If

taken

over

by

Federal

the Federal Government seeks

____________________

8The FDCPA defines "debt" as:

(A)

an amount

States on

that is

owing to

account of a direct

insured or guaranteed, by the

the United

loan, or loan
United States;

or
(B)

an amount

States
rent,

on

owing to

account of

service,

property,

that is

sale

the United

fee,

duty, lease,

of

real

or

overpayment,

fine,

personal

assessment,

penalty, restitution, damages, interest, tax,

bail bond forfeiture, reimbursement, recovery
of a
other

cost incurred by the

source of

United States, or

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

included

debt is

terms, courts

and excluded

have tended

debts depending

owed to the United

proceeds, if

to draw

the line

on whether

States in the sense

collected, will inure directly

between

a particular

that the debt's

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

United States
______________

is

a debt

v. Coluccio,
________

for purposes of

51 F.3d

337,

the FDCPA.

339 (2d

See
___

Cir. 1995);

United States v. Coluccio, 19

______________
________

Similarly,

federal

government

and

Treasury

is

Fay, 74
___

F.3d 1115, 1116

tax indebtedness

which,

when

(6th Cir. 1994).

which

collected,

is

is owed

to

the

deposited

in

the

a debt for purposes of the FDCPA.

F.3d 1347, 1354 (1st Cir. 1996).

See Markham v.
___ _______

A promissory note held

by the Small Business Administration

the proceeds of which will

enrich the government's

payment is

also a

debt for

FDCPA purposes.

Elevator, Inc., 868

_______________

(dictum).

which

coffers when

F.

See
___

Supp. 1063,

effected

United States
_____________

1066-67

is

v. Golden
______

(C.D. Ill.

1994)

By like token, cleanup expenses in environmental cases

are owed by statute

9607(a)(4)(A)

to the government, see

___

(1994), and which are used

42 U.S.C.

to reimburse or defray

monies

actually

expended by

it

are

considered

debts

for

22

purposes of the FDCPA.

Supp.

1583, 1584-85

See United States v. Dickerson, 790

___ ______________
_________

(M.D.

neatly with the statute

and kinds of debts

Ga. 1992).

This approach

and its legislative history.

enumerated in section 3002(3)

F.

squares

The types

for example,

"a direct loan," an "insured or guaranteed" loan, an amount owing

as an

unpaid "fee" or

"duty"

which

the

has

government

legislative

seem to

direct

history sounds much the

contemplate payments in

pecuniary

same theme.

stake.

The

See H.R. Rep.

___

No. 101-736, supra, at 23, 1990 U.S.C.C.A.N. at 6631.

_____

B.
B.

Mindful

history,

The Status of the Debt.

The Status of the Debt.
______________________

of the statutory

definitions, the legislative

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

proceeds of the

debt will inure

is owed and to whose benefit the

when it is

least, a debt cannot qualify if both parts of

toward

exclusion:

paid.

At the

very

this inquiry point

a debt cannot be eligible for inclusion under

the FDCPA

if the United States

the direct beneficiary of it.

an additional

the

hurdle:

statute, "is

originally

States."

not

28 U.S.C.

owner nor

In all events, the debt must clear

it must

owing

entered into by

is neither the formal

be one that, in

under

the

only persons

terms

the parlance of

of

other than

contract

the United

3002(3).9

____________________

9In passing
exclude

the FDCPA, Congress

private transactions

evinced a clear

debts created

intent to

under (and

thus

governed by) state law, and to which the United States was not an

23

To be sure,

the district court

but instead

allowed the government's

garnishment

in a

pleadings.

margin

made no such

application for a

order after

striking the

it can

employ

constitutes

a debt

the FDCPA

within

Appellee's Brief at 9.

issue

on the

within our

order

writ of

appellant's

Before us, however, the government has not raised any

procedural objections or technical defenses.

that

inquiry,

The

merits without

only

the

if the

meaning

government

of

restitution

the

FDCPA.

order

See
___

parties have briefed and argued this

reservation, and

proper province to determine

that the

Rather, it concedes

seeks to

it is

therefore

whether the restitution

enforce

comes within

the

penumbra of the FDCPA.

The

leans

government's affirmative

heavily on

the majority

opinion in

Computer Sys., Inc., 6 F.3d 951

____________________

Labor Relations

NLRB v.
____

(2d Cir. 1993).

the Second Circuit considered whether a

the National

answer to

this question

E.D.P. Med.
___________

In that case,

backpay award decreed by

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.

majority started by holding that the award was a debt due

federal

The

to the

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

government was

the debt

a direct, original

Rec. H13288, supra.

_____

must be

one in

participant.

See 136
___

24

It is precisely
the public's

private

Cong.

The final version of the FDCPA codifies this

legislative intent.

in

which the

because the Board

interest

individuals

and not

that persuades

acts

those of
us that

the backpay award sought

by the Board may be

considered a debt to the

United States under

the FDCPA.
mere

The Board serves as more

conduit when it

than a

initiates an action to

collect a backpay award.

Id.
___

at 955.

Having

skimmed over

stated this proposition,

the majority then

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

dissenting

opinion stressed that

considered a debt

applied.

The

the backpay award could not be

owed to the United States within

the

FDCPA because any money collected

the

pockets of the

the ambit of

by the NLRB would flow to

victimized employees and

benefit the government.

See id.
___ ___

would not directly

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

flow11

to

whom the

we believe

money, when

collected, actually

that Judge Walker's dissent provides

will

better

____________________

10The

NLRB imposed

Labor Relations Act.

circumstances,
enforce

the

the

See
___

backpay award

29 U.S.C.

the NLRB is the

award.

See
___

Consolidated
Edison
Co.,
___________________________
(interpreting 29 U.S.C.

11The appellant's

under the

National

151-169 (1994).

In such

only entity empowered

by law to

Amalgamated Utility
Workers
______________________________
309

U.S.

261,

264-70

v.

(1940)

160(a)).

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.

be a somewhat stronger

the

able

While there

may

argument for regarding a debt as owing to

United States if the

federal government is

the only entity

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

contains

no

branch.

language

Because

suggesting

the

that

statute,

all

debts

as

written,

subject

to

exclusive federal

the FDCPA,

enforcement are

included within the

we find the position taken

grasp of

by the E.D.P. majority to

______

be unsatisfactory.

The

force of

Judge

Walker's opinion

several factors that influence our judgment.

is

The

but one

most important

factor is the language and purpose of the statute itself.

as

telling is a mature

years

ago, the

question

Supreme

Court

wrestled

under the Bankruptcy Act.

U.S. 25 (1952).

used

but still viable

a concept

The

of

resemblance to the

concept that

See Nathanson
___ _________

statutory scheme that

public debt

that, with exceptions

precedent.

with

that

bears a

Nearly

Forty-five

very

similar

v. NLRB, 344
____

the Court

fuels the FDCPA.

not relevant here,

of

strong

It

pondered

family

provided

"debts owing to .

. .

the United

States"

payment of dividends

Supp.

would

"have

priority, in

to creditors."

1952) (repealed 1978).

The

11 U.S.C.

advance

104(a)

precise question

of

the

(West

before the

Nathanson Court was whether

_________

an NLRB award for backpay was a debt

owing

(and, thus, entitled

to the United States

____________________

underlying it.

26

to priority in

bankruptcy).

of

the

The Court

United

acknowledged that the NLRB was

States and

creditor

(being

an agent

the only

party

entitled to enforce the claim), but stated that it did not follow

that the debt was

owing to the United States

of the Bankruptcy Act.

344 U.S. at 27.

within the meaning

Priority

in bankruptcy

was intended "to secure an adequate revenue to sustain the public

burthens and

in

this

discharge the public debts,"

instance would

beneficiaries

not

further

of the claim were

yet granting priority

those

goals because

private persons.

(citation and internal quotation marks omitted).

the Court concluded

States

that the

in the relevant sense

debt was

not owed

and therefore was

the

Id. at 27-28
___

On this

basis,

to the

United

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

legislative

in

Nathanson.
_________

purpose underlying

legislative purpose

the FDCPA to relieve

created

by persistent

U.S.C.C.A.N.

See
___

H.R.

FDCPA is

the strain on

nonpayment of

Rep.

at 6631.

No.

This

that drove the bankruptcy

Court was called upon

another

thing,

the

analogous to

the

distilled by the Nathanson

_________

enacted

States.

the

For

Court.

the federal deficit

debts owed

101-736,

mirrors the

Congress

supra,
_____

to the

at

United

23,

1990

congressional concern

priority provision which the Nathanson

_________

to construe.

See
___

Nathanson, 344 U.S.

_________

at

27-28.

Accordingly,

milieux, the

in

both

the FDCPA

statutory mechanism does not

and

the

bankruptcy

serve the legislative

27

purpose

except

recovery will

when

it operates

directly augment

dynamic in

this

case tracks

Nathanson
_________

the relation

in

regard

the public

the dynamic

to

a debt

coffers.

that was

whose

Since the

at work

in

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

because the

of this conclusion is

not dissipated merely

government secured the restitutionary

order.

After

all, Nathanson instructs us to look beyond such formalities.

_________

id. at 28
___

included

(explaining that a

court must refuse

to treat as

See
___

an

debt "a claim which the United States is collecting for

the benefit of

a private party").

is not the holder

of the debt in

In

this case, the government

any legally cognizable

sense,

and it seeks to collect restitution not to its own behoof but for

the benefit of a

the

order

Nathanson

of

private party (Bongiorno's daughter).

restitution here

like

the

Because

backpay award

in

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

touting its

public

government

indirect interest
________

to

in

unpaid child

demonstrable public

We

support, and

that

point.

28

It tells

by

us that

there is

thus a

restitutionary orders

agree that this is

that is beside the

this bullet

of the $5 billion annual

interest in enforcing

in CSRA cases.

concern, but

dodge

in the award.

assistance substitutes for most

shortfall

issued

also tries

an area of public

A similar

sort of "for

the general good"

Nathanson
_________

Court.

government's

argument was

See
___

abiding

id.
___

made to, and

(rejecting

interest

in

dismissed by,

the argument

eliminating

that

unfair

the

the

labor

practices warranted stretching the statute to secure a preference

in payment for backpay

that

awards).

Bongiorno's daughter is not

the government has failed

of a kind

The sockdolager, of

on the welfare

to show any direct

rolls.

Hence,

pecuniary interest

that would render this debt collectible

States under the FDCPA.

course, is

by the United

The government has

FDCPA

one last

shot in its

specifically mentions "restitution"

included

debt, see 28 U.S.C.

___

and

government posits

the

label.

The argument

that every order

_____

every

type of

Rather,

restitution

This

beneficially

classes of

limits

The FDCPA

no more than

constitutes

the

not look

does not state

every "rent"

an included

statute's

"source of

beyond this

or

debt.

applicability

to

indebtedness to the
_______

Id. (emphasis supplied).

___

added

Some

need

will not wash.

that implicates

United States."
_____________

benefit.

that we

of restitution,

text

among the

the

3002(3)(B) (quoted supra note 8),

_____

"reimbursement,"

the

sling:

language

restitutionary

reintroduces

the

orders create

debts

to the federal government

concept

of

that

owe

and thus fall within the

purview of the FDCPA.

A prototypical

case is United States

_____________

Gelb,
____

748

1991).

783

F.

Supp.

(E.D.N.Y.

restitution under the RICO statute.

that a convicted person

Gelb
____

v.

involved

Since that statute declares

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

Gelb, 783
____

which,

F. Supp.

when

restitution

paid,

to an

debt collectible under the FDCPA.

at 752.

But other

will

increase

not

individual victim

within the statutory encincture.

single word

"restitution"

federal

government

restitution that is

may

public

of a

restitution,

revenues

crime), do

In short, we cannot

and

bearing that label automatically

The

types of

See
___

conclude that

(say,

not come

isolate a

every

order

falls within the FDCPA's grasp.

collect

"owing to the United

under

the

States."

FDCPA

only

28 U.S.C.

3002(3).

We

under

the

end where

CSRA

is

not

we began.

owed

to

Because

the

restitution ordered

United

States

in

an

economically meaningful sense, the

FDCPA

government cannot utilize the

as a vehicle for collecting such

the case, we do not

be considered

inclusion

On this view of

reach the question of whether the

as private in

under the FDCPA on

order created

awards.

character (and thus

ineligible for

that basis) because

the underlying child support

debt must

a state court

obligation, and both

the obligor and obligee are private parties.12

____________________

12We note in passing that a cogent argument can

the proposition that
party (Bongiorno)

what started as a debt

involvement
obligation's

of

owed by one private

to another (Taylor, on behalf

daughter) remains so in
the

be made for

of the couple's

its collection, and that the

federal

government

inherently private character.

does

not

peripheral
change

the

Indeed, the belated

federal entry into this situation bears a striking resemblance to

the

"failed

illustrate

thrift"

example

that

Chairman

Brooks

used

to

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

probation,

order.

and

the

convicted defendant

18 U.S.C.

Payment of restitution is a condition of his

government

has

adequate

remedies

flouts a condition of probation.

3663(g), 3583(e) (1994).

if

See, e.g.,
___ ____

The government, moreover,

can attempt to collect

civil

remedies, see
___

United

the restitution order by resort

28

States retains

U.S.C.

its authority under

FDCPA to collect debts owed to the

Civ.

P. 64 &

514, 516-19

69; see generally

___ _________

(1931)

statutes

to

States),

and,

daughter have

(discussing

executions on

as

3003(b)

laws other

the

than the

Custer v. McCutcheon,
______
__________

application

judgments

ample recourse, see supra

___ _____

to proceed

(providing that

government); see also Fed. R.

___ ____

mentioned earlier,

the federal government

to other

of

recovered

various

state

by the

United

Bongiorno's

note 11.

283 U.S.

ex-wife

But

under the FDCPA

and

to allow

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.
V.

EPILOGUE
EPILOGUE

We

neither

Recovery

need go no

further.

To recapitulate,

we discern

a constitutional flaw in the fabric of the Child Support

Act

nor

any

other

reversible

error

____________________

See 136 Cong. Rec. H13288 (quoted supra p. 21).

___
_____

31

marring

the

appellant's

conviction and

sentence.

judgment in the criminal case.

diametrically opposite outcome.

does

not have a direct

the United

Because the federal

pecuniary interest in

The government's

States subject

affirm the

The civil case, however, yields a

restitutionary order, we hold that the

to

We therefore

government

the avails of the

order is not a debt owing

to collection under

ancillary civil action ought

the FDCPA.13

therefore to have

been dismissed.

Affirmed in part and reversed in part.

Affirmed in part and reversed in part.
_____________________________________

The cases are remanded to

The cases are remanded to
_________________________

the district court for further proceedings consistent with this

the district court for further proceedings consistent with this
_________________________________________________________________

opinion.
opinion.
_______

No costs.
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