In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2080

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDWARD W. KLINZING,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01-CR-141—Charles N. Clevert, Judge.

____________

ARGUED OCTOBER 30, 2002—DECIDED JANUARY 9, 2003

____________

Before FLAUM, Chief Judge, and BAUER, and DIANE P.

WOOD, Circuit Judges.

FLAUM, Chief Judge. Edward Klinzing appeals his

conviction under 18 U.S.C. § 228(a)(3), better known as

the Deadbeat Parents Punishment Act (“DPPA”), for willful failure to pay court ordered child support. Klinzing

argues first that the DPPA is an unconstitutional exercise of the federal commerce power. Second, he contends

that the DPPA denies equal protection of the laws to

delinquent parents who live in different states than

their children and that it inhibits delinquent parents’

fundamental right to travel. Third, Klinzing claims that

the district court’s admission of certain business records

into evidence without foundation testimony by the record
2 No. 02-2080

custodian, as permitted by Rules 803(6) and 902(11) of the

Federal Rules of Evidence, violated his Sixth Amendment

right to confront witnesses. For the reasons stated below,

we reject Klinzing’s constitutional arguments and affirm

his conviction.

BACKGROUND

Edward Klinzing (“Klinzing”) and Pamela Edwards

(now Kerce) married in 1977 in Lake County, Illinois, and

together had three sons, Christopher, Craig, and Cory

Klinzing. After Klinzing and Pamela divorced in 1989,

Pamela gained full custody of their sons and Klinzing

was ordered by the court to pay child support until the

boys reached adulthood. Soon after the divorce and during all years relevant to the criminal charges against

Klinzing, Pamela and the three boys moved to Tennessee

while Klinzing remained in Illinois and later moved to

Wisconsin. Klinzing did not visit or maintain a relationship with his sons after they moved to Tennessee with

Pamela.

Klinzing fell behind in his child support payments as

early as 1991 and sporadically made payments through

1998. At the time of his arrest in July 2001, Klinzing

owed $78,574.37 in past due child support obligations. The

indictment charged Klinzing under the DPPA, 18 U.S.C.

§ 228(a)(3), with one count of willful nonpayment of court

ordered child support for longer than two years and in

excess of $10,000, which constituted a felony carrying a

maximum two year prison term. Klinzing filed a motion

to dismiss the indictment on equal protection, due process, and Commerce Clause grounds. The magistrate judge

and the district court both denied Klinzing’s motion to

dismiss, finding no constitutional infirmities in the DPPA

or its application to delinquent parents who live in different states from their children.
No. 02-2080 3

1 For the purpose of this appeal there is no meaningful difference

between the earlier CSRA and later DPPA, and for simplicity’s

(continued...)

Before trial, the government filed a motion in limine

regarding its intent to offer various business records as

evidence pursuant to FED. R. EVID. 803(6). As amended

in 2000, Rule 803(6) permits introduction of business

records without foundation testimony from the record

custodian so long as the records are authenticated according to FED. R. EVID. 902(11). At trial, the government

offered these business records accompanied by written

certifications in compliance with Rule 902(11). The district

court ruled some of the proffered documents inadmissible

under amended Rule 803(6) because they lacked the inherent reliability required under the hearsay exception,

but admitted five W-2 wage statements over Klinzing’s

objection. Klinzing offered some exhibits of his own, but

he neither testified himself nor called any witnesses on

his behalf.

The jury convicted Klinzing of willful failure to pay child

support as charged under the DPPA, and the district

court sentenced him to serve 21 months in prison and pay

$84,989.87 restitution. Klinzing now appeals his conviction, resurrecting the constitutional equal protection and

Commerce Clause challenges that he asserted in his motion to dismiss and arguing that the admission of his W-2

forms into evidence under amended FED. R. EVID. 803(6)

violated his rights as a criminal defendant under the

Confrontation Clause.

ANALYSIS

A. CONSTITUTIONALITY OF THE DPPA

The DPPA, formerly called the Child Support Recovery

Act (“CSRA”),1

 punishes the willful nonpayment of past
4 No. 02-2080

(...continued)

sake we will refer to the statute only as the DPPA. Congress

enacted the Child Support Recovery Act in 1992 to strengthen

state enforcement of child support orders and improve chances

of collecting billions of dollars in unpaid child support from

interstate delinquent parents. 138 CONG. REC. at H7326 (daily

ed. Aug. 4, 1992). In 1998 Congress revised the CSRA, 18 U.S.C.

§ 228, by creating two offense levels for willful failure to pay court

ordered child support obligations based on the amount owed

and length of time the debt remained unpaid. At that time

Congress also made it a crime to travel in interstate commerce

with intent to evade substantial past due child support obligations. The revised statute also received a new name, the Deadbeat

Parents Punishment Act. Pub. L. No. 105-187, § 2, 112 Stat.

618 (June 24, 1998), codified at 18 U.S.C. § 228 (1999).

due child support obligations owing to children who live

in a different state than their noncustodial parent. See

18 U.S.C. § 228(a). Nearly all states criminalize the willful failure to pay child support and most utilize the Uniform Reciprocal Enforcement of Support Act (“URESA”)

to extradite interstate deadbeat parents and process interstate child support enforcement orders. Recognizing that

such interstate extradition and enforcement provided

a cumbersome, slow, and tedious method of collecting

child support obligations from deadbeat parents, Congress

passed the DPPA. The sole purpose of the legislation is

to assist states in recovering past due child support payments beyond their borders.

Klinzing attacks the constitutionality of the DPPA on

both equal protection and Commerce Clause grounds. In

particular, he argues that the DPPA denies equal protection by irrationally criminalizing the willful nonpayment

of child support by parents who live in a different state

than their children, and that it exceeds the scope of Congress’s authority under the Commerce Clause to “regulate

commerce among the several States.” U.S. CONST. art. I,
No. 02-2080 5

§ 8. We review these constitutional challenges to a federal

statute de novo. United States v. Wilson, 159 F.3d 280, 285

(7th Cir. 1998); United States v. Lewitzke, 176 F.3d 1022,

1025 (7th Cir. 1999).

1. COMMERCE CLAUSE

Five years ago this court joined nine federal circuit

courts in affirming the constitutionality of the DPPA as a

valid exercise of federal commerce power. See United

States v. Black, 125 F.3d 454 (7th Cir. 1997); United States

v. Williams, 121 F.3d 615 (11th Cir. 1997); United States

v. Crawford, 115 F.3d 1397 (8th Cir. 1997); United States v.

Bailey, 115 F.3d 1222 (5th Cir. 1997); United States v.

Johnson, 114 F.3d 476 (4th Cir. 1997); United States

v. Parker, 108 F.3d 28 (3d Cir. 1997); United States v.

Bongiorno, 106 F.3d 1027 (1st Cir. 1997); United States v.

Hampshire, 95 F.3d 999 (10th Cir. 1996); United States

v. Mussari, 95 F.3d 787 (9th Cir. 1996); United States v.

Sage, 92 F.3d 101 (2d Cir. 1996). Since then several circuits have reconsidered the issue in light of the Supreme

Court’s decision in United States v. Morrison, 529 U.S. 598

(2000) (concluding that the civil remedy provision of the

Violence Against Women Act exceeded Congress’ Commerce

Clause authority because it regulated noneconomic, wholly

intrastate activity that did not substantially affect interstate commerce), and in every case the court reaffirmed the

constitutionality of the DPPA. See United States v. Monts,

311 F.3d 993 (10th Cir. 2002); United States v. King, 276

F.3d 109 (2d Cir. 2002); United States v. Lewko, 269 F.3d 64

(1st Cir. 2001); United States v. Faasse, 265 F.3d 475 (6th

Cir. 2001) (en banc). Against the heavy weight of this authority and without advancing a new argument on his behalf,

Klinzing still claims that the DPPA is unconstitutional.

Because we agree with our analysis in Black that an interstate child support obligation is a “thing” in commerce
6 No. 02-2080

and thus properly regulated by Congress, and because we

are not otherwise persuaded to part ways from our ten

sister circuits on this issue, we hold today that the DPPA is

a constitutional exercise of the federal commerce power.

The Supreme Court in United States v. Lopez, 514 U.S.

549 (1995), delineated three broad areas that Congress

may regulate using its commerce power: (1) the channels

of interstate commerce, (2) the instrumentalities of, or

persons or things in, interstate commerce, and (3) activities

that substantially affect interstate commerce. Id. at 558.

In Black we held that a parent’s intentional failure to

pay child support debts created a “conscious impediment

to interstate commerce” that was properly regulated by

Congress under the second prong of Lopez. Black, 125 F.3d

at 460. Since a child support obligation is an economic debt

and the DPPA only reaches those debts which are owed

by parents living out of state, we decided that a past

due child support payment constituted a “thing” in interstate commerce. Id. We noted too that Congress has power

not only to regulate active interstate commerce, but to

protect against and punish willful interference with interstate commerce. Id. (analogizing the DPPA to the Hobbs

Act, 18 U.S.C. § 1951, which criminalizes acts of extortion, robbery, or physical violence that interfere with interstate commerce). We therefore concluded that the DPPA

fit cleanly “within the strictures of Congress’ Commerce

Clause power.” Id. at 461.

Klinzing acknowledges our decision in Black but insists

we were wrong to find an unpaid, overdue child support

payment a “thing” in interstate commerce. First, Klinzing

characterizes the “thing” at issue as an obligation to provide financial support to one’s children arising from a

local court order entered on authority of state law. According to Klinzing, legal obligations such as these are not

commerce merely because they involve an order to pay
No. 02-2080 7

money. We disagree. The notion of “child support” comprises more than a moral duty to care for one’s children,

and state laws recognize this by requiring noncustodial

parents to pay money in satisfaction of their parental

duties. When this duty takes the form of a parent in one

state ordered to pay support money to a parent in another state, it is “functionally equivalent” to an interstate

contract, with the payments usually traveling interstate

by mail, wire, or electronic transfer. Black, 125 F.3d at

460. Klinzing’s argument that the underlying support

obligation is simply a local court order authorized by

state law and therefore not interstate commerce is without merit, especially given the expansive way courts have

defined “commerce” when reviewing legislation enacted

by Congress under the Commerce Clause.

Second, Klinzing argues that the DPPA impermissibly

criminalizes abstention from commerce because the nonpayment of a debt cannot be construed as commerce within reach of Congress’ regulatory authority. Klinzing suggests that if Congress can criminalize the failure of parents to pay child support under the DPPA, then Congress

could criminalize the failure of business owners to open

nondiscriminatory hotels under the Civil Rights Act of

1964. See Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241 (1964) (holding that Congress had authority under

Commerce Clause to prohibit discrimination in motel

accommodations because such discrimination constituted

a willful impediment to interstate travel and commerce).

In both cases, Klinzing contends, the individual is punished

for impeding interstate commerce by choosing not to

participate in interstate commerce at all. The problem

with Klinzing’s analogy is that deadbeat parents, unlike

hypothetical business owners, are not lawfully abstaining

from interstate commerce. The DPPA only reaches parents whose past due child support obligations are owed in

another state and punishes these deadbeat parents for
8 No. 02-2080

choosing to willfully evade their legal obligations. In other

words, the DPPA punishes an affirmative choice to

break the law and not a passive choice to refrain from participating in interstate commerce.

We remain convinced that an interstate child support

obligation is a thing in commerce which may properly

be regulated by Congress using its commerce power. Despite Klinzing’s claim that the DPPA encroaches upon

states’ rights to regulate domestic relations, the DPPA

expressly avoids interference with the underlying child

support obligations imposed by the states. The DPPA only

applies criminal punishment to unlawful conduct that

implicates interstate commerce: namely, the willful evasion of economic support obligations by parents who live

in different states from their children. We therefore find

the DPPA to be a permissible exercise of Congress’ power

to legislate under the Commerce Clause.

2. EQUAL PROTECTION

Klinzing also challenges the constitutionality of the

DPPA on equal protection grounds. Specifically, he contends

that the DPPA either impermissibly burdens a deadbeat

parent’s fundamental right to travel, or irrationally treats

deadbeat parents who live in a different state from their

children differently from deadbeat parents who live in the

same state as their children. Klinzing correctly states

that the right to travel is fundamental and any burden on

it is subject to strict scrutiny, but he wrongly concludes

that the DPPA infringes this right. In the case of deadbeat parents, any impediment to travel based on a fear

of criminal prosecution under the DPPA results from the

parents’ own willful failure to pay child support and not

the requirements of the statute. A parent under a local

court order to pay child support is entirely free to move to

a different state from his or her children without prosecu-
No. 02-2080 9

tion under the DPPA. It is only when the parent chooses

not to abide by the court order and willfully evades his

support obligations while living out of state that the DPPA

makes the interstate conduct criminal. If anything impedes Klinzing’s right to travel, it is his own willful evasion of his child support obligations and not the DPPA.

Klinzing also argues that the DPPA violates equal

protection because it draws a distinction among deadbeat

parents that is not rationally related to a legitimate government objective. According to Klinzing it is not rational

to base federal criminal jurisdiction on a factor outside

the parent’s control, such as where one’s children live

with their custodial parent. Klinzing claims the DPPA violates equal protection when it treats deadbeat parents

living in a different state from their children differently

from deadbeat parents living in the same state as their

children. We find no equal protection violation in this case

because the DPPA’s differential treatment of intrastate

and interstate deadbeat parents is rationally related to a

legitimate government interest. We stated in Black that the

statute passed the rational basis test because “Congress

expressly recognized that collecting past due child support

obligations from out-of-state deadbeat parents has outgrown state enforcement mechanisms.” Id., 125 F.3d at 458.

The problem of deterring and punishing the most egregious

interstate deadbeat parents has not abated in the last five

years and still remains a legitimate government interest.

The availability of federal criminal punishment for interstate deadbeat parents makes it less likely that parents will

successfully shirk their financial responsibilities by fleeing

to another state. We therefore conclude that the DPPA is

rationally related to a legitimate government interest and

passes constitutional muster.
10 No. 02-2080

B. CONSTITUTIONALITY OF FED. R. EVID. 803(6)

Klinzing asks this court to find the 2000 amendment to

FED. R. EVID. 803(6) unconstitutional because it violates

his rights as a criminal defendant under the Confrontation Clause. As amended, Rule 803(6) provides that the

business records exception to the hearsay rule may be

satisfied “by certification that complies with Rule 902(11),

Rule 902(12), or a statute permitting certification, unless

the source of information or the method or circumstances

of preparation indicate lack of trustworthiness.” Under

Rule 902(11) a party may authenticate a business record

through a written declaration by a qualified custodian

that the record meets the necessary foundational requirements. Klinzing contends that Rule 803(6) violates his

right to confront witnesses against him because the

amended rule does not require the government to prove

either the reliability of business records through foundation testimony or the unavailability of the foundation

witness. Klinzing also claims that the amendment does

not derive from a firmly rooted hearsay exception. In

response the government argues that the amended rule

is constitutional on its face for two reasons. First, the

amendment to Rule 803(6) derives from a firmly rooted

hearsay exception for business records. And second, the

amendment makes the rule for admissibility of domestic business records the same as for foreign business

records, which has repeatedly withstood Confrontation

Clause challenges. Klinzing’s facial challenge to the constitutionality of amended FED. R. EVID. 803(6) is an issue

of first impression in this and other courts of appeal.

Despite the novelty of the question, we are not entirely

without guidance on this issue. Amended Rule 803(6), and

related authentication Rules 902(11)-(12), attempt to

place domestic business records on par with foreign business records, whose rule for admissibility is codified at 18
No. 02-2080 11

U.S.C. § 3505. Both Rule 803(6) and § 3505 permit admission of pre-certified business records into evidence

without confrontation of the record keeper by the opposing party, in this case a criminal defendant. Rule 803(6)

was amended to avoid the expense and inconvenience of

producing time-consuming foundation witness testimony

in situations where the authenticity of the business records could be confirmed by written declaration pursuant

to Rules 902(11)-(12). See FED. R. EVID. 803 advisory committee’s note (stating that Rule 902(11), Rule 902(12), and

§ 3505 provide adequate assurance of authenticity for

business records without foundation testimony).

When the Supreme Court considered the constitutionality of admitting certain hearsay evidence in criminal

trials, it held that the Confrontation Clause is satisfied

when the proffered hearsay has sufficient guarantees of

reliability to come within a firmly rooted exception to the

hearsay rule. White v. Illinois, 112 S.Ct. 736 (1992) (holding that admission of excited utterances and medical

examination evidence without foundation testimony or

proving unavailability of witness did not violate Confrontation Clause of criminal defendant facing sexual assault

charges). The reason for this is that “a statement that

qualifies for admission under a ‘firmly rooted’ hearsay

exception is so trustworthy that adversarial testing can

be expected to add little to its reliability.” Id. at 743.

Before it was amended, Rule 803(6) was considered a

firmly rooted hearsay exception for certain business records that had adequate indicia of reliability. In fact, the

foreign business records exception, § 3505, derived specifically from an earlier version of Rule 803(6) and has itself

withstood Confrontation Clause attacks in several circuits.

See United States v. Garcia Abrego, 141 F.3d 142 (5th Cir.

1998); United States v. Ross, 33 F.3d 1507 (11th Cir. 1994);

United States v. Sturman, 951 F.2d 1466 (6th Cir. 1991);

United States v. Miller, 830 F.2d 1073 (9th Cir. 1987). Given
12 No. 02-2080

2 Klinzing does not mount an “as applied” challenge to the

constitutionality of Rule 803(6). We note, however, that it appears from the trial transcript that the government complied

with all requirements of Rules 803(6) and 902(11) in seeking to

admit business records into evidence without foundation testimony of the record keepers. The trial judge reviewed the proposed evidentiary records and excluded some because they did

not contain adequate indicia of reliability and did not come within the scope of business records intended for admission as hearsay exceptions under Rule 803(6). As a result, only five W-2

wage statements were eventually admitted under the amended

rules. While Klinzing objected on the grounds that their admission violated his constitutional rights, he neither deposed nor

called the record keepers to the stand for cross-examination

as was his right. Nor did he ever present evidence that the information in the admitted W-2s was inaccurate or incomplete. Thus,

even if we found the amended rules violated his rights under

the Confrontation Clause, the admission of the documents constituted harmless error.

this history, we see no reason to conclude that Rule 803(6)

is any less firmly rooted as a hearsay exception now that

it permits admission of pre-certified domestic business

records without foundation testimony. Thus, we hold that

amended Rule 803(6) does not on its face violate a criminal defendant’s rights under the Confrontation Clause.2

CONCLUSION

We reject Klinzing’s constitutional challenges to the

DPPA and amended FED. R. EVID. 803(6), and we AFFIRM

his conviction.
No. 02-2080 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-9-03