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In constitutional challenge to International Parental Kidnapping Crime Act (IPKCA), Ninth Circuit finds that international airplane flight of children is sufficient to invoke Congress' power to regulate under Commerce Clause.

In 1989, Cole Cameron Cummings married Dana Hopkins. They had three children together, all of whom were born in the U.S. and lived with their parents in Washington State. In 1995, Cummings and Hopkins divorced, the Washington court awarding Hopkins primary custody.

Cummings later married a German citizen. Hopkins also remarried, but it appears the relationship was rocky. For example, Washington State Child Protective Services received complaints that Hopkins' new husband was abusing the children. Cummings thereupon took the two younger children to Germany, where they remain today.

Hopkins petitioned a German court for the children's return pursuant to the Hague Convention on the Civil Aspects of International Parental Child Abduction (October 25, 1980, T.I.A.S. No. 11670, Arts. 8-20). Hopkins also filed a civil contempt action against Cummings in Washington State court for breaching its custody order.

In addition, the U.S. government had Cummings indicted under the International Parental Kidnapping Crime Act (IPKCA) [18 U.S.C. Section 1204(a)] for removing and retaining the children outside the U.S. The district court found Cummings guilty. It sentenced him to six months in prison, and ordered him to pay Hopkins' attorney's fees in the separate state and international civil proceedings to regain custody of her two younger children. Cummings appealed the federal conviction and the award of attorney's fees. The U.S. Court of Appeals for the Ninth Circuit affirms.

Cummings argued that Congress did not have constitutional authority under the Commerce Clause to criminalize through IPKCA the retention of an American child in a foreign country. The Court disagrees. Here, the wrongfully removed children traveled in the channels of foreign commerce to reach Germany, where Cummings illegally retained them.

"Congress's Commerce Clause authority is broad enough to stretch beyond the simple regulation of commercial goods traveling in interstate and foreign commerce to include regulation of non- economic activities

such as racial discrimination or growing wheat for personal consumption

that affect, impede, or utilize the channels of commerce. (Cits.)"

"Thus, so long as Section 1204(a) falls into one of the delineated 'categories of activity that Congress may regulate under its commerce power,' its reach need not be confined to commercial goods to be constitutional. (Cits.) The Supreme Court has identified three such categories: (1) regulating the use of the channels of commerce; (2) regulating and protecting the instrumentalities of commerce or persons in interstate commerce, even though the threat may come only from intrastate activities; and (3) regulating activities that have a substantial effect on commerce." [Slip op. 4-5]

Further, the Court rejects Cummings' argument that once the "movement in commerce" ended (i.e., when the children arrived in Germany), the channels of foreign commerce ceased being affected. "The cessation of movement does not preclude Congress's reach if the person or goods traveled in the channels of foreign commerce. ... [W]e upheld 18 U.S.C. Section 922(o)'s prohibition on machinegun possession because the statute was 'an attempt to prohibit the interstate transportation of a commodity through the channels of commerce.' ... We concluded that 'by regulating the market in machineguns, including regulating intrastate machinegun possession, Congress has effectively regulated the interstate trafficking in machineguns. (Cit.)"

"Likewise, Section 1204(a) reaches conduct once the unlawful foreign transportation has ended. (Cit.) We are satisfied that Congress can act to prohibit the transportation of specified classes of persons in foreign commerce and thus proscribe conduct such as the retention of those persons, even though transportation is complete." [Slip op. 8-9]

Furthermore, according to Cummings, the IPKCA targets the interference with the individual rights of a parent, a matter traditionally left to state regulation. The Court disagrees. While family law does remain largely a matter of state law, IPKCA deals first and foremost with international kidnapping. This is clearly not an area traditionally reserved to the states.

Finally, the district court did not err in ordering Cummings to pay for attorney's fees incurred in the related civil proceedings. The Victim and Witness Protection Act of 1982 (VWPA) permits restitution to a victim even if the costs arose in other, but related, U.S. or international proceedings. See 18 U.S.C. Section 3663(a)(1)(A).

Citation: United States v. Cummings, 281 F.3d 1046 (9th Cir. 2002).
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Publication:International Law Update
Date:Mar 1, 2002
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