                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-1995

United States v Bishop
Precedential or Non-Precedential:

Docket 94-5321




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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                      ___________

              Nos. 94-5321 and 94-5387
                    ___________


   UNITED STATES OF AMERICA

                    vs.

   KEVIN BISHOP

                           Appellant, No. 94-5321.


                      ___________


   UNITED STATES OF AMERICA

                    vs.

   EDWARD STOKES

                           Appellant, No. 94-5387.

                      ___________


    APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE DISTRICT OF NEW JERSEY

(D.C. Criminal Nos. 93-cr-00552-2 and 93-cr-00552-1)

                      ___________


                  ARGUED JUNE 28, 1995

 BEFORE:   BECKER, LEWIS and GARTH, Circuit Judges.

             (Filed September 7, 1995)

                      ___________



                           1
2
Kim A. Otis (ARGUED)
Haveson & Otis
194 Nassau Street
Princeton, NJ 08542

          Attorney for Appellant, Kevin Bishop


Michael J. Sullivan (ARGUED)
Office of Federal Public Defender
972 Broad Street
Newark, NJ 07102

          Attorney for Appellant, Edward Stokes


Kevin McNulty (ARGUED)
Office of United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102

          Attorney for Appellee


                            ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.

          We are called upon in this case principally to perform

one of our most delicate duties -- determining whether Congress

exceeded its constitutional authority in enacting a federal law.

At issue is the power of Congress to criminalize "carjacking" --

the armed theft of an automobile from the presence of another by

force and violence or by intimidation.    Congress believed that it

had the power to criminalize the carjacking of any motor vehicle

that has been transported, shipped or received in interstate or

foreign commerce, and accordingly enacted 18 U.S.C. § 2119 to do


                                  3
just that.    Edward Stokes and Kevin Bishop were convicted under

that statute of carjacking an automobile in East Orange, New

Jersey.    They appeal their convictions on numerous grounds, most

of which require little discussion.      However, we address in

greater depth two of the arguments:      (1) that the Double Jeopardy

Clause of the Fifth Amendment prohibited the district court from

imposing consecutive sentences for carjacking in violation of

28 U.S.C. § 2119 and use of a firearm during the commission of a

violent felony in violation of 28 U.S.C. § 924(c); and (2) that

Congress exceeded its constitutional authority in enacting the

carjacking statute.    We will affirm.

                                  I.

            Close to midnight on the warm, pleasant night of

July 22, 1994, after getting a bite to eat, Roger Bradley decided

to teach his fiancee, Grace Rollins, how to drive the new Dodge

Shadow automobile Bradley had purchased just three weeks

previously.    Bradley chose the parking lot of a Channel store in

East Orange, New Jersey for the lesson and pulled his car into

the lot.   Rollins practiced driving in the parking lot for a

while, then decided that she had had enough, and the two got out

of the car to switch positions.

            As they did so, they were approached by two men.      One

of the men put a pistol to Bradley's head and demanded the car

keys; the other put a hand over Rollins' mouth and held her from

behind.    After Bradley turned over the keys, the two men drove

off, but not before both Bradley and Rollins got a good look at

the man who had brandished the gun at Bradley.


                                  4
            Luckily, as the thieves pulled away in the car and

Bradley ran out into the road, he spotted a police car that had

just pulled into another nearby parking lot.    Flagging down the

police, Bradley described the incident and his automobile, and

provided descriptions of the assailants.     This information was

broadcast over the police radio.

            Officer Morris Rhodes of the East Orange Police

Department heard the bulletin, and shortly thereafter an

automobile matching the description drove by him.     Its occupants

fit the general description (two black males) Bradley had

provided.    Officer Rhodes followed without his lights on while

radioing in the license plate number, then switched on the lights

and siren when the report came back that the car was the vehicle

in question.

            The Shadow accelerated and tried to pass another car

that was turning, but struck the other car and careened into a

building.    As Officer Rhodes pulled up to the scene, he saw a man

exit through the driver's side window, fall to the pavement, get

up, and run.    Officer Rhodes gave chase, pulled his gun, and

ordered the man to stop.    The man stopped and was arrested and

handcuffed.    That man was Edward Stokes.   Two guns were found on

the floor of the automobile, but the other man who had been in

the car was not found.

            Officer Rhodes took Stokes to the police station and

booked him, videotaping the procedure.    At one point during the

booking, one of the officers asked Stokes, who had been limping,




                                 5
what was the matter with his leg.    Stokes responded that he had

hurt it in an accident.

          Within an hour and a half of the carjacking, Bradley

and Rollins were taken into a room at the police station, one at

a time, to view a suspect.   Prior to viewing the suspect, they

had heard the police talking about having apprehended the man who

had stolen the car.   Through a one-way mirror, they both

identified Stokes as the man who had held a gun to Bradley's

head.

          Kevin Bishop was arrested three months later on

unrelated charges.    Both he and Stokes were later indicted for

carjacking in violation of 18 U.S.C. § 2119, use of a firearm

during commission of a violent felony in violation of 18 U.S.C.

§ 924(c), and being felons in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1).

          After the district court denied Bishop's motion to

dismiss, which had alleged that the carjacking statute was

unconstitutional, Bishop pleaded guilty to the charges against

him on February 4, 1994.   He received a sentence of 210 months of

imprisonment, three years of supervised release and a $2,000

fine.

          Stokes' case went to trial.   Prior to that trial, the

district court denied Stokes' motion to suppress evidence of the

victims' out-of-court identification of him and to bar the

government from using the victims to identify Stokes in court. At

trial, the victims testified about their out-of-court

identifications of Stokes and identified him as the perpetrator


                                 6
again before the jury.   Also, over Stokes' objection, the

district court permitted the government to introduce into

evidence Stokes' comment during booking about injuring his leg

and to show the jury the videotape of Stokes' booking.    The jury

found Stokes guilty of carjacking and use of a firearm during the

commission of a violent felony and (subsequently, in the second

half of the bifurcated trial) of being a felon in possession of a

firearm.   Stokes was sentenced to 248 months of imprisonment,

three years of supervised release and a $5,000 fine.

           Both Bishop and Stokes appealed,0 and we consolidated

their appeals for purposes of argument and disposition.   We have

jurisdiction under 28 U.S.C. § 1291.

           As we stated at the outset, although both Bishop and

Stokes have raised numerous issues, we address in the body of

this opinion only two issues:   Stokes' argument that the Double

Jeopardy Clause of the Fifth Amendment prohibits consecutive

sentences for carjacking (18 U.S.C. § 2119) and use of a firearm

during the commission of a violent felony (18 U.S.C. § 924(c));

and Bishop's and Stokes' arguments that the carjacking statute is

unconstitutional because in enacting the statute, Congress

exceeded its authority under the Commerce Clause.0
0
      Although Bishop pleaded guilty without reserving his right
to appeal his motion to dismiss the indictment because of the
alleged constitutional invalidity of section 2119, see Fed. R.
Crim. P. 11(a)(2), we have jurisdiction over his appeal of this
issue because it goes to the jurisdiction of the district court.
Menna v. New York, 423 U.S. 61, 63 n.1 (1975); Blackledge v.
Perry, 417 U.S. 21, 30 (1974).
0
      We have considered and reject Bishop's argument that the
carjacking statute violates equal protection. See United States
v. Watson, 815 F.Supp. 827, 832-36 (E.D. Pa. 1993).


                                 7
                              II.




      Additionally, we reject Stokes' other arguments on appeal,
namely: that the station house "show-up" of Stokes was so unduly
suggestive that the district court abused its discretion in
failing to exclude the evidence of the victims' out-of-court
identification of him and in refusing to bar their in-court
identifications; that the district court abused its discretion in
permitting the videotape of the booking procedure to be shown
during trial; and that the district court erred in failing to
suppress Stokes' comment about his leg injury during the booking
procedure. None of these issues has merit.

      Although the show-up was arguably unnecessarily and
impermissibly suggestive, the district court did not commit clear
error in finding as matters of fact that the victims'
identifications were the result of their own recollections of the
crime and not the result of what may well have been an
impermissibly suggestive show-up. Nor did the district court err
in concluding that the identifications were reliable. Thus, the
identifications were admissible. See Neil v. Biggers, 409 U.S.
188 (1972).

      Concerning admission of the videotape of the booking at
trial, Stokes provides no good reason why the videotape of the
booking should not have been shown to the jury, and the
government provided a number of good reasons why it was properly
introduced. Thus, the district court did not abuse its
discretion in siding with the government.

      Finally, with respect to the court's admission at trial of
Stokes' non-Mirandized statement, we join the other courts of
appeals that have addressed the issue and recognize that there is
a "routine booking exception" to the requirements of Miranda v.
Arizona, 384 U.S. 436 (1966). See United States v. Horton, 873
F.2d 180, 181 n.2 (8th Cir. 1989) (listing cases from First,
Second, Fifth, Seventh, Eighth and Eleventh Circuits recognizing
"routine booking exception"). Applying that exception in this
case, the district court did not commit clear error in finding
that the police officer's question about Stokes' limp was part of
the booking procedure designed to fulfill the government's
obligation to provide medical attention if necessary. Thus, the
district court did not abuse its discretion in permitting the
statement to be introduced as evidence under the "routine booking
questions" exception to Miranda.


                               8
          Stokes argues that the Double Jeopardy Clause of the

Fifth Amendment0 prohibited the district court from imposing

consecutive sentences upon him for carjacking in violation of 28

U.S.C. § 21190 and use of a firearm during the commission of a

violent felony in violation of 28 U.S.C. § 924(c).0   Our standard

0
      That Clause states, "[N]or shall any person be subject for
the same offence to be twice put in jeopardy of life or limb
. . . ." U.S. Const., Amend. V.
0
      At the time of the commission of the carjacking at issue
here, Section 2119 provided that:

               Whoever, possessing a firearm as defined
          in section 921 of this title, takes a motor
          vehicle that has been transported, shipped,
          or received in interstate or foreign commerce
          from the person or presence of another by
          force and violence or by intimidation, or
          attempts to do so, shall--

                         (1) be fined under this title
               or imprisoned not more than 15 years, or
               both,

                         (2) if serious bodily injury
               (as defined in section 1365 of this
               title) results, be fined under this
               title or imprisoned not more than 25
               years, or both, and

                         (3) if death results, be fined
               under this title or imprisoned for any
               number of years up to life, or both.

18 U.S.C. § 2119 (Supp. V 1993). The Violent Crime Control and
Law Enforcement Act of 1994, enacted September 13, 1994, amended
subsection (3) of this statute by adding a death penalty
provision and the phrase "with the intent to cause death or
serious bodily harm" in place of the phrase "possessing a firearm
as defined in section 921 of this title." Pub. L. 103-322, 108
Stat. 1796, 1970, Section 60003(a)(14) (1994). We do not address
the implications, if any, of this change upon the Double Jeopardy
analysis in the text, and we view this change as having no impact
upon our Commerce Clause discussion.
0
      Section 924(c) provides in pertinent part:



                                9
of review is plenary.    United States v.   Lattany, 982 F.2d 866

(3rd Cir. 1992).

          Stokes relies on the principle that the Double Jeopardy

Clause prohibits multiple punishments for the same offense.

However, as the Supreme Court has found, "With respect to

cumulative sentences imposed in a single trial, the Double

Jeopardy Clause does no more than prevent the sentencing court

from prescribing greater punishment than the legislature

intended."    Missouri v. Hunter, 459 U.S. 359, 366 (1983).

          Attempting to fit within this rubric, Stokes argues

that we should apply the rule of statutory construction announced

in Blockburger v. United States, 284 U.S. 299 (1932).    The

essential question of that test is "whether each provision

requires proof of an additional fact which the other does not."

Id. at 304.    In this case, Stokes argues, since all violations of

the carjacking statute necessarily constitute violations of

§ 924(c), the statutes fail the Blockburger test and their

consecutive application would violate double jeopardy "in the

absence of a clear indication of contrary legislative intent."

Whalen v. United States, 445 U.S. 684 (1980).
          Although we have not yet addressed the Double Jeopardy

implications of 18 U.S.C. §§ 924(c) and 2119, Stokes' arguments

have been raised in every other court of appeals except the


               (1) Whoever, during and in relation to
          any crime of violence . . . uses or carries a
          firearm shall, in addition to the punishment
          provided for such crime . . . be sentenced to
          imprisonment for five years. . . .

                                 10
Seventh and D.C. Circuits.   Defendants have lost every time.

United States v. Centeno-Torres, 50 F.3d 84 (1st Cir. 1995);

United States v. Mohammed, 27 F.3d 815, 819-20 (2d Cir. 1984);

United States v. Johnson, 32 F.3d 82, 85 (4th Cir. 1994); United

States v. Singleton, 16 F.3d 1419, 1425-29 (5th Cir. 1994);

United States v. Johnson, 22 F.3d 106, 107-08 (6th Cir. 1994);

United States v. Jones, 34 F.3d 596 (8th Cir. 1994); United

States v. Martinez, 49 F.3d 1398 (9th Cir. 1995); United States

v. Overstreet, 40 F.3d 1090 (10th Cir. 1994); United States v.

Moore, 43 F.3d 568 (11th Cir. 1994).     Indeed, when one evaluates

the statutes at issue, it is evident why no appellate court has

accepted Stokes' Double Jeopardy theory, for although Stokes

wants us to apply Blockburger, to do so would be to put the cart

before the horse.   Blockburger applies when the legislative

intent is not clear.   Here, the statutes are clear.   As the

Second Circuit noted in Mohammed, "Because the legislative intent

to impose a consecutive sentence for the violation of section

924(c) is plain from the language of that provision, . . . we

need not consider the Blockburger test to conclude that the

consecutive sentence imposed in this case did not violate double

jeopardy."   Mohammed, 27 F.3d at 819.    This conclusion required

the Mohammed court to move no mountains:    as even a cursory

reading of section 924(c) (supra n.5) confirms, that statute says

that its punishment applies "in addition to the punishment

provided for" the crime in which the firearm was used.     Because

Congress unambiguously provided that it wanted to impose a




                                11
consecutive sentence, the Double Jeopardy Clause is not

triggered.

             Even if we were to apply the Blockburger test to

sections 924(c) and 2119, we would find no Double Jeopardy

problem.     In this regard, we are persuaded by the reasoning of

Judge Wisdom in United States v. Singleton, 16 F.3d 1419 (5th

Cir. 1994).0    As Judge Wisdom explained, the clear indication in

section 924(c) that its penalty was to apply "in addition to the

punishment provided" for the underlying crime in which the

firearm is used or carried "states that Congress intended for

§ 924(c)'s five-year sentence to be imposed cumulatively with the

punishment for the predicate drug-related or violent crime."

Singleton, 16 F.3d at 1425.     This Congressional intent, Judge

Wisdom explained, eliminated any Blockburger problem.

             Both of the objections raised by Stokes to this

conclusion were addressed and rejected in Singleton.    First,

Stokes argues that the legislative history of the 1984 amendments

to section 924(c) demonstrate that Congressional concern was

focused on responding to the Supreme Court's decision in United
States v. Simpson, 435 U.S. 6 (1978), in which the Court had

ruled that Congress had not intended former section 924(c) to be

applied in conjunction with statutes that included their own


0
      Judge Wisdom believed that the statutes failed the
Blockburger test, in that proof of a violation of section 2119
necessarily proves a violation of section 924(c). While we agree
with the Second Circuit that the Blockburger test need not be
applied to these statutes, we agree with Judge Wisdom that, if
applied, Blockburger does not demonstrate a constitutional
violation.


                                  12
penalty enhancement provisions for the use of a firearm.

According to Stokes, Congress intended its 1984 amendments to

section 924(c) to clarify that 924(c) applied in such situations:
               Section 924(c) sets out an offense
          distinct from the underlying felony and is
          not simply a penalty provision . . . .

                 [T]he Supreme Court's decisions in
            Simpson v. United States, and Busic v. United
            States, have negated the section's use in
            cases involving statutes . . . which have
            their own enhanced, but not mandatory,
            punishment provisions in situations where the
            offense is committed with a dangerous weapon.
            These are precisely the type of extremely
            dangerous offenses for which a mandatory
            punishment for the use of a firearm is the
            most appropriate.


S. Rep. No. 225 at 312, 1984 U.S.C.C.A.N. at 3490 (footnotes

omitted).   According to Stokes, "[b]y 1992, the date of the

enactment of § 2119, the sentencing guidelines were in effect,

and minimum sentences based on the guideline calculations would

be applied to all § 2119 violators.   Therefore, the stated intent

of the 1984 Congress in passing § 924(c) to assure mandatory jail

time for gun-toting offenders does not dictate consecutive

sentences for a statute adopted after the Guidelines were already

in effect."   Stokes Br. 23.   Without reproducing Judge Wisdom's

analysis of amended section 924(c) and its legislative history

here, however, we agree with his conclusion that the text and

legislative history "make it clear that Congress wanted to stack

§ 924(c)'s punishment atop all predicate crimes that came within

the statute, not just the Simpson/Busic variety of predicate




                                 13
crimes for which the statutes included `enhancement' provisions."

Singleton, 16 F.3d at 1427.

          Second, Stokes attempts to escape the plain language of

section 924(c) by arguing that, since 924(c) was enacted before

section 2119, there is no clear legislative intent that the

phrase "any crime of violence" in 924(c) meant "any crime of

violence, including those enacted hereafter."      Thus, according to

Stokes, the legislative intent is not clear and the statutes

cannot be applied in tandem.    Again, we agree with Judge Wisdom

that the sequence of enactment of the statutes is irrelevant.

Once Congress has clearly stated an intention to stack

punishments as it did in section 924(c), "it need not reiterate

that intent in any subsequent statutes that fall within the

previously defined class."     Singleton, 16 F.3d at 1428.

Otherwise, Congress would have to "repeat itself, restating in

each subsequent enactment an intention Congress thought it

clearly expressed once already.    We see no reason to require such

a convoluted approach to lawmaking."     Id.   Section 924(c) is

clear, and applying multiple punishments under that provision and

section 2119 does not violate Double Jeopardy.

                                 III.

          We turn, therefore, to Bishop's and Stokes' argument

that Congress exceeded its constitutional authority under the

Commerce Clause when it enacted section 2119.     Under the Commerce

Clause, of course, Congress is empowered "to regulate Commerce

with foreign Nations, and among the several States, and with the

Indian Tribes."   U.S. Const., Art. I, § 8, cl. 3.     This power has


                                  14
been construed broadly to permit regulation of a great deal of

modern life.0   Thus, until recently, appellants' argument that

Congress could not regulate the species of motor vehicle theft

known as carjacking was uniformly rejected by the courts of

appeals that had considered the issue.0

          However, Bishop and Stokes believe that new life was

breathed into their challenge on April 26, 1995.   On that date,

for the first time in more than half a century, the Supreme Court

in United States v. Lopez, 115 S. Ct. 1624 (1995), invalidated a

Congressional enactment solely because Congress had exceeded its

authority under the Commerce Clause.0   Because we will address



0
      Supreme Court precedents demonstrate the breadth of
Congressional Commerce Clause power, which has been found to
include the ability to regulate, for example, the company one
keeps in a local barbecue restaurant or city hotel, Katzenbach v.
McClung, 379 U.S. 294 (1964), and Heart of Atlanta Motel v.
United States, 379 U.S. 241 (1964); the ability of a farmer to
grow his or her own crops for personal consumption as he or she
sees fit, Wickard v. Filburn, 317 U.S. 111 (1942); the ability of
a loanshark to make extortionate extensions of credit, even
though the particular transaction has no nexus with interstate
commerce, Perez v. United States, 402 U.S. 146 (1971); and the
ability of a landlord-turned-arsonist to put the match to his own
rental property, whether or not he rented in interstate commerce,
Russell v. United States, 471 U.S. 858 (1985).
0
      United States v. Williams, 51 F.3d 1004 (11th Cir. 1995);
United States v. Martinez, 49 F.3d 1398 (9th Cir. 1995); United
States v. Bell, 46 F.3d 442 (5th Cir. 1995); United States v.
Overstreet, 40 F.3d 1090 (10th Cir. 1994); United States v.
Harris, 25 F.3d 1275 (5th Cir. 1994); United States v. Johnson,
22 F.3d 106 (6th Cir. 1994).
0
      In National League of Cities v. Usury, 426 U.S. 833 (1976),
the Court invalidated an extension of federal wage law to state
operations because Congress' exertion of its Commerce Clause ran
afoul of states' reserved powers under the Tenth Amendment.
National League of Cities was subsequently overruled. Garcia v.
San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).


                                 15
Lopez throughout the balance of this opinion, it is useful to

provide an overview of the decision here.

          At issue in Lopez was the constitutionality of the

Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A),

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."   As one may

observe from the language of the statute, nothing connected this

statute overtly with commerce among the states or even any

economic transaction.   To the contrary, it penalized the simple

possession of any handgun within a "school zone," which was

defined later in the statute (with certain exceptions) as the

grounds of a public, private or parochial school or within 1000

feet of the grounds.    Alfonzo Lopez was convicted of violating

the Act by bringing a .38 caliber handgun to school, but on

appeal he persuaded the Fifth Circuit that the law was

unconstitutional because it lacked the requisite nexus with

interstate commerce.

          The Supreme Court affirmed.   The Court noted that

Congressional power under the Commerce Clause may involve three

categories of regulation:   (1) Congress may regulate "the use of

channels of interstate commerce"; (2) Congress may "regulate and

protect the instrumentalities of interstate commerce, or persons

or things in interstate commerce, even though the threat may come

only from intrastate activities"; and (3) Congress may "regulate

those activities having a substantial relation to interstate




                                 16
commerce, . . . i.e., those activities that substantially affect

interstate commerce."      Lopez, 115 S. Ct. at 1629.

             The government in Lopez tried to justify § 922(q)

solely on the ground that it fit within Category Three, as "a

regulation of an activity that substantially affects interstate

commerce."    Lopez, id.    The Court noted, however, that § 922(q)

by its terms was a criminal statute that "has nothing to do with

`commerce' or any sort of economic enterprise, however broadly

one might define those terms."      Id.   Furthermore, the Court noted

that the statute "contains no jurisdictional element which would

ensure, through case-by-case inquiry, that the firearm possession

in question affects interstate commerce."       Id. at 1631.   And the

Court noted that the government had conceded that neither the

statute nor its legislative history contained any findings

concerning the effects upon interstate commerce of possession of

a gun in a school zone.      Id.

             The government's Category Three justifications were

twofold.   First, the government argued that possession of a gun

in a school zone may result in an increase in violent crime,

which in turn increases societal costs through increased

insurance costs and also decreases travel to unsafe areas.         Id.
at 1632.   Second, the government argued that guns in schools

threaten the learning environment, which in turn creates a less

productive citizenry and adversely affects the national economy.

Id.   The Court rejected these arguments as potentially limitless

justifications for virtually any conceivable Congressional

legislation.     Id.   Anything that might lead to violent crime


                                   17
could be regulated under the government's "cost of crime"

argument, the Court noted, as well as anything that was related

to the productivity of individual citizens, including such

traditional areas of state law as family law.      Id.   Seeing no

other justification for the law, the Court found it

unconstitutional.

          The district court in this case found that section 2119

was constitutional, but did so without the benefit of Lopez.          The

parties initially briefed the Commerce Clause issue before us

without the benefit of Lopez as well, leading us to hold the case

pending the Court's decision in Lopez and then to request

supplemental briefing.

          Exercising plenary review of the district court's legal

determination that section 2119 is constitutional, we will

affirm.

                                  A.

             The government's primary argument fits within the third

category of problems which Congress may permissibly regulate

under its Commerce Clause power:       Congress may "regulate those

activities having a substantial relation to interstate commerce,

. . . i.e., those activities that substantially affect interstate
commerce."    Lopez, 115 S. Ct. at 1629.    According to the

government, section 2119 is justified under Category Three for

two reasons:     (1) Congress had a rational basis for believing

that carjacking substantially affects interstate commerce; and

(2) section 2119 has, as an element of the offense, a requirement




                                  18
that there be a constitutionally adequate nexus with interstate

commerce.    We agree with both arguments.

                                  1.

                                  (a)

             Although ultimately the federal courts are the arbiters

of constitutional questions, "the Commerce Clause grants Congress

extensive power and ample discretion to determine its appropriate

exercise."    Lopez, 115 S. Ct. at 1634 (Kennedy, J., concurring).

We therefore must give substantial deference to a Congressional

determination that it had the power to enact particular

legislation.    As Justice Kennedy noted in his concurrence in

Lopez,
            [t]he history of the judicial struggle to
            interpret the Commerce Clause during the
            transition from the economic system the
            Founders knew to the single, national market
            still emergent in our own era counsels great
            restraint before the Court determines that
            the Clause is insufficient support to an
            exercise of the national power.

Id.   And again, "Whatever the judicial role, it is axiomatic that

Congress does have substantial discretion and control over the

federal balance" between the national government and the states.

Id. at 1639.     Deference to Congressional judgments about the

contours of Commerce Clause power stems in part, as Justice

Kennedy explained, from the fact that Congress is a coordinate

branch of the federal government charged with the government's

legislative authority.     Id. at 1634.




                                  19
           Indeed, the primary check upon Congressional action is

its direct responsibility to the will of the people.   This has

sometimes been stated categorically:
          The wisdom and the discretion of Congress,
          their identity with the people, and the
          influence which their constituents possess at
          elections are, in this, as in many other
          instances . . . the sole restraints on which
          they have relied, to secure them from its
          abuse. They are the restraints on which the
          people must often rely solely, in all
          representative governments.

Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 197 (1824) (Marshall,
CJ.).    Notwithstanding the ultimate check of the ballot box,

however, it is beyond peradventure (and was recently and

forcefully demonstrated in Lopez itself) that the federal courts

also must play a role in regulating the exercise of Congressional

power:
           When the conduct of an enterprise affects
           commerce among the States is a matter of
           practical judgment, not to be determined by
           abstract notions. The exercise of this
           practical judgment the Constitution entrusts
           primarily and very largely to Congress,
           subject to the latter's control by the
           electorate. Great power was thus given to
           the Congress: the power of legislation and
           thereby the power of passing judgment upon
           the needs of a complex society. Strictly
           confined though far reaching power was given
           to this Court: that of determining whether
           the Congress has exceeded limits allowable in
           reason for the judgment which it has
           exercised.

Polish National Alliance v. National Labor Relations Board, 322

U.S. 643, 650 (1944) (emphasis added).   Because the legislature

has no "structural mechanisms to require those officials to

undertake [the] principled task [of safeguarding federalism], and



                                 20
[because of] the momentary political convenience often attendant

upon their failure to do so," it is incumbent upon the courts to

ensure that Congress does not overstep constitutional boundaries.

Lopez, 115 S. Ct. at 1639 (Kennedy, J., concurring).    "[T]he

federal balance is too essential a part of our constitutional

structure and plays too vital a role in securing freedom for us

to admit inability to intervene when one or the other level of

Government has tipped the scales too far."    Id.

          The Supreme Court's jurisprudence makes it abundantly

clear that our job in this case is not to second-guess the

legislative judgment of Congress that carjacking substantially

affects interstate commerce, but rather to ensure that Congress

had a rational basis for that conclusion.    Chief Justice

Rehnquist explained in Lopez,
          In Jones & Laughlin Steel, the Court warned
          that the scope of the interstate commerce
          power "must be considered in the light of our
          dual system of government and may not be
          extended so as to embrace effects upon
          interstate commerce so indirect and remote
          that to embrace them, in view of our complex
          society, would effectively obliterate the
          distinction between what is national and what
          is local and create a completely centralized
          government." [NLRB v. Jones & Laughlin Steel
          Corp., 301 U.S. 1, 37 (1937)] . . . . Since
          that time, the Court has heeded that warning
          and undertaken to decide whether a rational
          basis existed for concluding that a regulated
          activity sufficiently affected interstate
          commerce.

Lopez, 115 S. Ct. at 1629 (emphasis added).    See also, e.g., id.

at 1658 (Breyer, J., dissenting) ("the specific question before

us, as the Court recognizes, is not whether the `regulated



                               21
activity sufficiently affected interstate commerce,' but, rather,

whether Congress could have had a `rational basis' for so

concluding").    "[T]he proper test requires an analysis of whether

the regulated activity `substantially affects' interstate

commerce."    Lopez, 115 S. Ct. at 1630.    We therefore turn to that

inquiry.

                                 (b)

             The carjacking statute at issue in this case began as

the first section (section 101) of what became the Anti Car Theft

Act of 1992, Public Law No. 102-519.       In December 1991 and March

1992, Representative Charles E. Schumer held hearings on H.R.

4542, a multi-faceted piece of legislation addressing many

aspects of auto theft.    As he explained, the purpose of the

hearings was to "examine the scope of the auto crime problem, the

different sectors of the auto theft industry and why it's so hard

to catch and convict auto thieves."    Anti-Car Theft Act of 1992:

Hearings on H.R. 4542 Before the Subcomm. on Crime and Criminal

Justice of the House Comm. on the Judiciary, 102d Cong., 1st and

2d Sess. 3 (1991 and 1992) ("Anti-Car Theft Hearings") (statement

of Rep. Schumer).

            At those hearings, numerous persons testified about the

scope and growth of the problem of auto theft in the United

States.    More pertinent to our inquiry, testimony at those

hearings also provided evidence that carjacking was emerging as a

new and growing aspect of the auto theft problem.       See Id. 31-32
(testimony of Ron Thrash) (carjacking not a serious problem in

New York City in terms of numbers, but "in other portions of the


                                  22
country . . . they're having an increase in that particular type

of crime"); 69 (testimony of Richard Jeffares) ("We do see an

increase in carjacking . . . but we do not have statistics

available on this"); 228 (prepared statement of Herman Brandau)

(noting that organizations formed utilizing federal grants under

the proposed Act "can help direct resources to the problems in

particular areas which need the most attention.     Most frightening

is the emerging problem of carjacking").     Additionally, materials

submitted for the hearings provided evidence that thieves who

begin their auto theft careers as joy riders tend to become

professionals.    Id. at 268 (letter from William J. Lundy to Lyle

Nirenberg of 3/23/92) (study "indicated that the people who get

involved in [auto] theft for profit started out as joy riders who

found that it could be turned into a profitable business"); see

also id. at 306-310 (discussion in study).0

          The House Report accompanying H.R. 4542 consisted of

three parts:     House Report (Judiciary Committee) No. 102-851(I)

(August 12, 1992), House Report (Energy and Commerce Committee)

No. 102-851(II) (Sept. 22, 1992), and House Report (Ways and

Means Committee) No. 102-851(III) (Sept. 23, 1992), all reprinted


0
      Additional hearings were held in September 1992 before the
House Subcommittee on Commerce, Consumer Protection, and
Competitiveness of the House Energy and Commerce Subcommittee.
See Anti-Car Theft and Content Labeling: Hearing on H.R. 4220,
H.R. 4228, H.R. 4230 and H.R. 4542 Before the Subcomm. on
Commerce, Consumer Protection, and Competitiveness of the House
Comm. on Energy and Commerce, 102d Cong., 2d Sess. (1992). These
hearings focused on efforts to label automobile parts, to make it
more difficult to trade in the auto theft "after market" for
stolen parts.


                                  23
in 1992 U.S.C.C.A.N. 2829.0   Those reports included the following

significant findings:
>         "Automobile theft has become the nation's number one
          property crime problem. More than 1.6 million motor
          vehicles were reported stolen in 1991, an increase of
          34% since 1986. The stolen automobiles were worth an
          estimated $8-9 billion, representing over 50% of the
          value of property lost to crime." House Report No.
          102-851(I) at 14.

>         "Auto theft has become a very large and lucrative
          business. The typical auto thief is no longer a
          teenager seeking a joyride. Now, auto theft is an
          industry peopled by professional criminals operating as
          part of profit-making enterprises." Id.

>         Auto thieves "turn stolen cars into money in three
          ways": (1) bringing stolen vehicles to "chop shops,"
          where they are taken apart and sold for parts;
          (2) "washing" the titles by obtaining an apparently
          valid title for stolen automobiles; and (3) exporting
          the vehicles for sale abroad. "Enterprises using all
          three profiteering methods regularly engage in
          interstate, even international, trafficking of
          automobiles and auto parts. Just as important, auto
          thieves have a severe and deleterious effect on
          interstate commerce by imposing significant costs on
          automobile consumers." Id. at 14-15.

>         "In addition to economic costs, car owners are
          increasingly subject to violent crime. The most recent
          development in auto theft is `armed carjacking.' In
          these incidents, two or three criminals approach a car
          waiting at a traffic light, or stopped by means of a
          deliberate `fender-bender' accident, and force the
          driver to turn over the keys at gunpoint." Id. at 15.

>         "Auto crime enforcement has been conducted primarily at
          the state and local level. There are significant
          barriers to enforcement, however, that have resulted in
          49 out of 50 auto thieves escaping punishment. Cars
          are stolen so easily and dismantled so rapidly that
          police intervention at the point of theft is rare.
          Also, overburdened state and local law enforcement
          agencies are often unable to give auto theft the
          attention it deserves. Even when criminals are caught

0
      There was no Senate report.


                                 24
          with a stolen car, it can be difficult to make a case
          in court for auto theft because the defendant can claim
          that he purchased the car without knowing that it had
          been stolen." Id. at 15.

>         "[T]heft of motor vehicles is a national problem. It
          is, however, a complex problem that . . . is broader
          than carjacking and chop shop related thefts." House
          Report No. 102-851(II) at 12.

>         The legislation is not aimed at joyriding.   Id. at 13.

>         "Perhaps relating to the opportunity for profit,
          criminals are increasingly committing violent crime in
          the form of `armed carjacking.'" House Report
          No. 102-851(III) at 2.

          H.R. 4542 was taken up for vote by both houses of

Congress in October 1992.   Certainly, during the floor debate on

the Act, legislators in both the House and Senate expressed

outrage at the violent aspects of carjacking,0 but statements

also show that Congress believed carjacking to be a profit-making


0
      E.g., 138 Cong. Rec. H11,819 (statement of Rep. Ramstad)
("People are outraged and terrified by the heinous carjacking
epidemic currently upon us. How can any civilized nation
tolerate the brutal killing of a mother dragged 2 miles to her
death, while desperately trying to reach for her infant child
inside her commandeered car? How can any civilized people
tolerate such despicable, outrageous criminal acts? They cannot
and they will not"); id. at H11,820 (statement of Rep. Collins)
("The most shocking case [of carjacking] involved a young mother,
who was dragged 2 miles to her death during a carjacking in
Savage, MD, and whose baby was literally thrown from the car.
This has absolutely galvanized public opinion and outcry that
this Congress act now to address this awesome despicable crime");
id. at H11,821 (statement of Rep. Fazio) ("I doubt there are very
many people in this area who have not heard about the young
mother dragged to her death by carjackers. This senseless
tragedy is but one of the many which has been occurring with
increasing regularity across the country"); 138 Cong. Rec.
S17,960 (daily ed. Oct. 8, 1992) (statement of Sen. Lautenberg)
("There are many dimensions to the vehicle theft problem, Mr.
President. Perhaps the most disturbing is the emerging problem
of violent carjacking").


                                25
crime,0 and one which was a growing part of the interstate and

international auto theft problem.0

          Congress apparently concluded that the national and

international problem of auto theft required a comprehensive

approach to law enforcement.   Thus, each provision of the Anti

Car Theft Act of 1992 was designed to address one or more

elements of the interstate business of automobile theft.    The Act

0
      E.g., 138 Cong. Rec. H11,821 (daily ed. Oct. 5, 1992)
(statement of Rep. Hoyer) ("Carjacking is not just an impulsive,
joyriding crime, but is oftentimes motivated by profit"); id.
(statement of Rep. Fazio) ("Auto theft is no longer confined to
youngsters out looking for a vehicle for joyriding. It has
evolved into carjacking -- a version of auto theft that involves
armed robbery of a vehicle while the driver is present -- an
extremely lucrative business in this country. Carjacking has
become a high-growth industry that includes both professional
thieves and parts shops that deal in stolen auto parts,
merchandise which can be worth up to 4 times as much as the car
itself. And the crime is becoming more and more linked to
violence -- to severe beatings, and even murder"); 138 Cong. Rec.
S17,961 (daily ed. October 8, 1992) (statement of Sen. Pressler)
("Law enforcement officials have theorized vehicle thieves find
it easier to use force than to deal with anti-theft devices
installed in newer model cars. Additionally, carjackers can
obtain the keys and registration papers for the cars they
steal").
0
      E.g., 138 Cong. Rec. H11,818 (daily ed. Oct. 5, 1992)
(statement of Rep. Schumer) ("Our constituents are being
terrorized by an insidious new form of car theft called
carjacking"); id. at H11,821 (statement of Rep. Lowery)
(carjacking provision is "a tough response to what has become a
national problem"); id. at H11,821-22 (statement of Rep. Norton)
("With good reason, H.R. 4542 makes armed carjacking a Federal
offense punishable by imprisonment for up to 15 years. These
thefts often cross state lines, and, indeed, to do an effective
job, law enforcement agencies have had to work regionally and
nationally, rather than just locally"); 138 Cong. Rec. S17,961
(daily ed. October 8, 1992) (statement of Sen. Lautenberg)
(noting that car theft is especially prevalent in New Jersey, and
stating that "[c]arjacking threatens to spread rapidly around the
nation, as criminals engage in copycat crimes. To prevent such a
plague, we need to bring Federal resources to bear"). See also
statement of Rep. Fazio, supra n.13.


                                26
not only criminalized carjacking (section 101), but also

increased the fines and prison terms for importation and

exportation of stolen vehicles (section 102) and interstate

transportation or possession of such vehicles (section 103), and

criminalized the operation of chop shops for dismantling stolen

vehicles (section 105).0   The Act also provided grants for the

development of local "anti car theft committees" (section 130-

133), mandated the development of a federal/state task force for

addressing certain issues related to auto theft and fraud

(section 140), developed a national system for combatting

automobile title fraud (sections 201-04), expanded the coverage

of federal law mandating the marking of automobile parts and

requiring automobile repair shops to use the markings to avoid

the use of stolen parts (sections 301-06), and mandated stricter

Custom Service inspections in order to prevent exportation of

stolen automobiles (section 401).

          Together, the findings and floor statements -- and the

structure of the Act itself -- suggest the following.   Congress

specifically found that auto theft is an interstate problem --

both that it is often an interstate business itself (albeit an

illegal one) and that it gnawed away at the innards of the

American economy by imposing other costs on society as well.

Congress believed that auto theft was a vast, illicit trade

substantially affecting interstate and foreign commerce.     Auto

theft cost consumers both through the direct economic losses

0
      Section 104 provided for civil and criminal forfeiture in
certain cases involving auto theft.

                                 27
caused by having their property taken from them, and through

increased insurance costs.   Congress further believed that

carjacking was not mere joyriding, but a new and violent form of

the illicit interstate business of auto theft.      Finally, Congress

believed that the national problem of auto theft required a

comprehensive, national response addressing the many different

aspects of the auto theft problem, because prior state efforts

had failed to combat the problem effectively.

                                (c)

            Bishop, Stokes, and the dissent assail the findings of

Congress on a number of grounds.      First, they contend the Supreme

Court in Lopez created a "bright line" rule that unless an

activity is "commercial" or "economic," it is beyond the power of

Congress to regulate no matter what its effect upon interstate

commerce.   Stokes Supp. Reply Br. at 2.    Because carjacking is

not "commercial" or "economic," appellants contend, it is simply

beyond the power of Congress to regulate.

            We cannot accept this argument.    The Court in Lopez

disapproved of the statute at issue because possession of a

handgun was neither economic nor "an essential part of a larger
regulation of economic activity, in which the regulatory scheme

could be undercut unless the intrastate activity were regulated."

Lopez, 115 S. Ct. at 1631.   By contrast, we can easily appreciate

how Congress could readily (and rationally) have believed that

carjacking is both economically motivated and part of a greater

economic activity.   Indeed, the rationale supporting such a

conclusion, and distinguishing this case from Lopez, is patently


                                 28
obvious.   First, carjacking is economic in a way that possession

of a handgun in a school zone is not.   When a criminal points a

gun at a victim and takes his or her car, the criminal has made

an economic gain and the victim has suffered an undeniable and

substantial loss.   Replicated 15,000 or 20,000 times per year,

the economic effects are indeed profound.   See infra n.22.   By

comparison, no matter how many criminals possess guns in school

zones, there is no direct economic effect that arises from the

crimes.0

           Furthermore, Congress enacted the carjacking provision

as one aspect of a national solution to a national economic

problem.   Every automobile theft is, by definition, local in its

particulars, yet Congress could have rationally believed that it

had to regulate carjacking -- whether or not it was strictly

"commercial" or "economic" -- as one aspect of its comprehensive

response to the national and international business of criminal

auto theft.


0
      Relatedly, appellants argue that the Supreme Court in Lopez
rejected the theory that the "costs of crime" can support a
finding that an activity substantially affects interstate
commerce. Bishop Supp. Br. 10. This misreads Lopez, as well. In
Lopez, the economic impact of mere possession of a handgun in a
school zone was speculative at best. One of the government's
arguments was that gun possession might lead to violent crimes,
the costs of which would be spread throughout society through
increased insurance premiums. Lopez, 115 S. Ct. at 1632. By
contrast, in enacting the Anti Car Theft Act of 1992, Congress
did not rest its findings of substantial effect upon interstate
commerce solely upon increased insurance costs, but also relied
upon the direct costs to consumers from lost property resulting
from auto theft. Thus, the "cost of crime" justification used by
Congress in this case is much more concrete than the theory
rejected by the Court in Lopez.


                                29
            The dissent argues that Congress' Commerce Clause power

under category three is limited to regulation of "a voluntary

economic exchange."   Dissent at 4, 32.    The Supreme Court has

never before used this definition and the dissent does not state

how or from where it is derived, nor how the definition accounts

for prior Supreme Court cases which involved no voluntary

economic exchange.    See, e.g., Wickard v. Fillburn, 317 U.S. 111

(1942) (regulating the production and consumption of home-grown

wheat).    Where the Court has used a potentially ambiguous term,

as "commercial" arguably is, we prefer to apply the definitions

used by the court itself.    Thus, we are content to rely on Lopez

to define commercial as including those activities which form a

part of an economic enterprise.    Lopez, 115 S.Ct. at 1631.

            Bishop and Stokes also contend that, whatever Congress

may have believed about carjacking, it is simply irrational to

believe that carjackers are professional thieves out for profit.

Instead, they contend, carjackings are quintessential local

crimes of violence.    "Common sense suggests that it is highly

unlikely that sophisticated theft rings would engage in

carjacking in order to get cars to deliver to chop shops for

profit when it is so easy to steal cars without having to resort

to the obvious dangers involved in a crime of violence."     Bishop

Supp. Br. at 4.    Again, we disagree.   Of course, no one would

dispute that carjacking is often violent -- and indeed often

achieves its economic end only because of the violence employed.
However, appellants' arguments are unpersuasive on at least two

grounds.    First, it is incumbent upon a party seeking to undercut


                                  30
Congressional fact-finding to offer something more than mere

"common sense" intuitions about "the way things are."      Yet

appellants provided no data to the district court suggesting that

they have a better grasp than Congress about what motivates

carjackers or how sophisticated auto theft rings operate, and we,

as an appellate tribunal, are hardly in a position to do so based

upon our own conjectures.0

          Second, available information actually undercuts

appellants' "common sense" assertions.     In a 1992 report on

carjacking, the Department of Justice noted that one of the

motives behind carjacking is "to derive a profit from the resale

of the vehicle or its parts."      Department of Justice, An Analysis

of Carjacking in the United States (Oct. 14, 1992) at 3.0        Chop

shops, salvage switching of vehicle identification numbers,

exportation, and insurance fraud are some of the well defined

activities that the study identified as for profit activities

conducted by carjackers.     Id.   According to the report, law

0
      Nor have appellants provided us with any information
supporting their intuitions, assuming that it was appropriate for
them to do so at this late stage.
0
      While the report notes that economic gain is not the only
or even the principal motive behind carjacking, the fact that
additional motives exist is not relevant to our inquiry. We must
simply determine whether Congress could have rationally concluded
that carjacking bears a substantial relationship to interstate
commerce. In order to meet this burden, economic gain need not
be the exclusive motive for all carjackers. Congress'
determination that carjacking affects interstate commerce can be
supported as long as economic gain is a motive. Cf. United States
Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980)
("Where, as here, there are plausible reasons for Congress'
action, our inquiry is at an end. It is, of course,
`constitutionally irrelevant whether this reasoning in fact
underlay the legislative decision.') (citation omitted).


                                   31
enforcement officials have theorized that modern anti-theft

devices have made it easier to carjack many vehicles than to

steal them when they are parked.        Id. at 2 (see also infra n.21).

In addition, both contemporary news reports and reported case law

bear witness to the fact that carjackers are often not joy

riders, but rather criminals out for profit from the sale of a

stolen automobile or its parts.0    Thus, Congress' conclusions




0
      See Emily Culbertson, Man Pleads Guilty to Carjacking
Spree, The (Philadelphia) Legal Intelligencer, Jan. 10, 1995, at
5 (defendant admits that he and friends carjacked automobile,
stripped it for parts, and then burned the remains); Jane K.
Martinez, Cars Parked Askew Lead to 4 Arrests, The Tampa Tribune,
June 24, 1995, at 1 (police say carjacking ring had stolen six
cars worth more than $100,000 that were "likely headed for a chop
shop"); Jeannette DeSantis, 2 Arrested in "Chop Shop" Case, Los
Angeles Times, Feb. 14, 1995, at B1 (police say foiled carjacker
led them to chop shop); Vicky Ferstel, Ex-High School Athlete
Pleads Guilty in Carjacking, The (Baton Rouge) Advocate, Dec. 16,
1994, at 3B (witness at trial testifies that carjackers took
stolen automobile to mechanic in an attempt to have the
automobile stripped for parts); Mary Murphy, Police Arrest 4,
Seize 19 Vehicles in Theft-Ring Bust, The Orlando Sentinel,
Sept. 30, 1994, at C1 (police found carjacked truck at illegal
chop shop); S.K. Bardwell, "She Would Have Given Them the Keys in
a Heartbeat", The Houston Chronicle, May 17, 1994, at A1 (police
say carjackers usually have accomplices follow them in another
automobile so that they can strip the stolen vehicle for parts
and then flee). see also United States v. Three Male Juveniles,
49 F.3d 1058, 1060 (5th Cir. 1995) (defendants who carjacked
automobile in Texas allegedly intended to take the automobile to
California and "liquidate the vehicle to obtain funds to purchase
crack cocaine, which they then intended to sell for a profit").
Although Three Male Juveniles involved a prosecution under 18
U.S.C. § 371 (conspiracy to unlawfully take a motor vehicle while
possessing a firearm) and 18 U.S.C. § 2111 (unlawfully taking a
motor vehicle while possessing a firearm), rather than section
2119, it did involve a carjacking, and it lends further support
to the conclusion that economic gain, rather than mere violence
for its own sake, is often at the heart of carjackings.


                                   32
about the nature and effects of carjacking have been borne out by

time.0

           Appellants additionally argue that "it appears that

there has never been any study or determination as to whether the

purpose of a carjacking is to resell a car illegally or whether

it is simply a crime of violence.     There is certainly no

indication in the House Report that carjackers are, generally,

members of so-called `sophisticated theft rings' who are reaping

enormous profits from the theft of autos."     Bishop Supp. Br. 4.

This argument, however, assumes that Congress must meet a strict

standard of specificity in finding facts and reporting its

conclusions.   That is not so.   "Congress is not obligated, when

enacting its statutes, to make a record of the type that an

administrative agency or court does to accommodate judicial

review."   Turner Broadcasting System, Inc. v. FCC, 114 S. Ct.

2445, 2471 (1994) (opinion of Kennedy, J.).     Congress need not

even rely solely upon evidence provided in hearings.     See

Stafford v. Wallace, 258 U.S. 495, 513 (1922) ("It was for

Congress to decide, from its general information and from such

special evidence as was brought before it, the nature of the

evils actually present or threatening, and to take such steps by


0
      Of course, the fact that a legislative prediction does not
come true does not necessarily mean that legislation premised
upon it was irrational, provided there was evidence supporting
the prediction. "Sound policymaking often requires legislators
to forecast future events and to anticipate the likely impact of
these events based on deductions and inferences for which
complete empirical support may be unavailable." Turner
Broadcasting System v. FCC, 114 S. Ct. 2445, 2471 (1994) (opinion
of Kennedy, J.).


                                 33
legislation within its power as it deemed proper to remedy

them").0   Congress rationally believed that carjacking was a new



0
      Of course, we do not know all of the information that was
known to the legislators who passed the Anti Car Theft Act of
1992. That is one of the reasons why it would be difficult to
second-guess Congress if that were our role. As Justice Souter
said in assessing the value of findings in Lopez, "In a case
comparable to this one, we may have to dig hard to make a
responsible judgment about what Congress could reasonably find,
because the case may be close, and because judges tend not to be
familiar with the facts that may or may not make it close."
Lopez, 115 S. Ct. at 1656 (Souter, J., dissenting). We know what
was said at the hearings, and we know what was written in the
legislative reports. Yet almost certainly the legislators had
other data before them that is not part of the evidence in the
"legislative history" of the Act -- data from their own personal
experiences, their discussions with constituents, and their own
reading. For example, during the period during which H.R. 4542
was under consideration, newspapers and periodicals, usually
quoting police or even carjackers, reported that carjackers often
strip stolen automobiles for their parts (e.g., David
Kocieniewski, 2 B'klyn Men Are Nabbed in Manhattan Carnaping,
Newsday, Oct. 13, 1992, at 22); that they often sell stolen
automobiles to illegal "chop shops" (e.g., To Foil a Thief, The
Economist, Oct. 17, 1992, at 30; Jennifer Nagorka, Carjack
Suspects Arrested; Police: 2 May Be Tied to as Many as 20 Cases,
Dallas Morning News, Oct. 10, 1992, at 33A; Nora Zamichow,
"Carjackings," Violent Form of Auto Theft, Reported on the Rise,
Los Angeles Times, Oct. 9, 1992, at A3; James Harney, Greed,
Drugs Drove Detroit's "King", USA Today, Oct. 7, 1992, at A2;
Arnold Abrams, Police Unit to Deal With Carjacking; County to Aid
Great Neck Peninsula, Newsday, June 7, 1992, at 1; Joe Hughes,
Car Theft Takes New Turn; Number of "Carjackings" Accelerating in
San Diego, The San Diego Union-Tribune, March 17, 1992, at A1);
and that carjackings were increasing for a variety of reasons,
including the fact that modern anti-theft devices make it safer,
easier and more profitable to carjack than to steal a parked car
(e.g., Zamichow, supra; Ben Barber, Terror on the Roads, Calgary
Herald, Oct. 4, 1992, at B2; Gordon Witkin et al., Willing to
Kill for a Car, U.S. News & World Report, Sept. 21, 1992, at 40,
42; "I Want Your Car, Just Get Out": Carjackers Growing Problem,
Orlando Sentinel Tribune, Sept. 20, 1992, at A12); Abrams, supra;
Susan Forrest, Car Thieves Find Another Way; County Being Plagued
by Rash of "Carjackings", Newsday, March 26, 1992, at 35; Hughes,
supra).


                                 34
but substantial0 and growing aspect of the vast interstate auto

theft problem.   As we noted earlier (supra pp. 21-24), Congress

heard evidence that carjacking was a new form of auto theft that

was spreading throughout the nation.   It also was presented with

evidence that even thieves who begin as joy riders tend to become

professionals -- professionals who would feed the illicit auto

theft aftermarket for stolen vehicles and parts.    Thus, Congress

may have believed that even if a carjacker's first crime was

committed for some non-economic motive, he or she would likely

soon be a part of the national auto theft problem.   In such

circumstances, Congress need not have refrained from legislating

until the carjacking problem reached crisis proportions.

Katzenbach v. McClung, 379 U.S. 294, 301 (1964).0

                               (d)


0
      News reports at the time of the passage of the Anti Car
Theft Act of 1992 indicated that there were 15,000 to 20,000
carjackings per year. Ben Barber, Terror on the Roads, Calgary
Herald, Oct. 4, 1992, at B2. If the average loss for each
automobile theft in 1992 was $5,000 (see Anti-Car Theft Hearings,
supra, at 7 (statement of Lee P. Brown); id. at 210 (statement of
David F. Snyder)), the direct costs of carjacking to victims was
between $75,000,000 and $100,000,000. Cf. Hodel v. Indiana, 452
U.S. 314, 325 (1981) (disapproving district court finding that
only an insignificant amount of interstate commerce was involved
in case, and noting that "the 0.04% of corn production" at stake
"would have had an approximate value of $5.16 million which is
surely not an insignificant amount of commerce").
0
      Neither Bishop nor Stokes appear to contend that, even if
Congress had a rational basis for deciding that carjacking
substantially affects interstate commerce, it nevertheless
enacted a statute that was not a "reasonable and appropriate"
means of addressing the perceived evil. See Heart of Atlanta
Motel v. United States, 379 U.S. at 258-59. Inasmuch as this
argument may have been raised, however, we believe that
criminalizing carjacking was a wholly reasonable and appropriate
response to the problem.


                                35
           In addition to their complaints about the

Congressional findings, Bishop and Stokes also protest that there

was no showing that they were members of a criminal enterprise or

sophisticated car theft ring.    Bishop Supp. Br. 5.   This

argument, too, misconceives Congressional power.    It is within

Congressional authority to criminalize or regulate activities

that, although purely local and intrastate themselves, comprise a

class of activities that, when aggregated, substantially affect

interstate commerce.   Lopez, 115 S. Ct. at 1631; Russell v.

United States, 471 U.S. 858, 862 (1985); Hodel v. Indiana, 452

U.S. 314, 324 (1981); Fry v. United States, 421 U.S. 542, 547

(1975); Perez v. United States, 402 U.S. 146, 154 (1971);

Maryland v. Wirtz, 392 U.S. 183, 193 (1968); Wickard v. Filburn,

317 U.S. 111, 127-28 (1942).    "If interstate commerce

[ultimately] feels the pinch, it does not matter how local the

operation which applies the squeeze."     United States v. Women's

Sportswear Mfg. Ass'n, 336 U.S. 460, 464 (1949).    Since Congress

rationally believed that carjacking, as an economic (i.e. profit-

making) activity, substantially affects interstate commerce, we

do not "have the power to excise, as trivial, individual

instances falling within [that] rationally defined class of

activities . . . ."    Maryland v. Wirtz, 392 U.S. at 193.
                                (e)

          Bishop and Stokes finally argue that permitting the

federal government to criminalize carjacking would be an

"unwarranted intrusion into the states' primary authority to

define and enforce criminal law."     Bishop Supp. Br. 7.   Yet


                                 36
again, appellants lean on Lopez, but find no support.      Obviously,

this statute is a criminal law, and by virtue of that fact it

intrudes upon states' traditional dominion over the criminal law.

Lopez, 115 S. Ct. at 1631 n.3 ("Under our federal system, the

`States possess primary authority for defining and enforcing the

criminal law'").     Yet not every federal foray into criminal law

is invalid.     Here, we believe that there is no great upset of the

careful balance of federalism.

             Congress recognized that auto theft had traditionally

been combatted on the state level, but found that auto theft

(including carjacking) was a national problem with a substantial

impact upon commerce, and that state efforts to combat auto theft

had failed to halt the growth of the auto theft industry.      Supra

pp. 23-26.    In the same Act in which it criminalized carjacking,

Congress mandated funds to support local anti-car theft efforts

and created a federal/state task force to address issues involved

in the problem.     Thus, Congress did not ignore its "sworn

obligation to preserve and protect the Constitution in

maintaining the federal balance . . . ."    Lopez, 115 U.S. at 1639

(Kennedy, J., concurring).    Instead, exercising its "substantial

discretion and control over the federal balance" (id. at 1639),
Congress determined that the national problem warranted the

enactment of curative legislation.     We see this not as wrongful

usurpation, but rather reasoned, responsible legislation.

             Nor do we believe that finding section 2119

constitutional sets the stage for future upset of the

federal/state balance.     Local activities may become the subject


                                  37
of national legislation when they are found to be part of a

national problem with a substantial impact upon interstate

commerce.   Congress reasonably found the local activity of

carjacking to be a part of the national auto theft problem, and

it criminalized carjacking as one rather minor aspect of a

comprehensive effort to solve that problem.0   Finding that

section 2119 passes constitutional muster does not suggest that

every local criminal activity may be criminalized by Congress, or

even that every such activity that results in economic gain may

be criminalized.   It does suggest that if a criminal activity is

rationally believed to be one of the conduits of a nationwide and

international pipeline of illegal activity, Congress may

justifiably step in and regulate that activity although it is

wholly intrastate.0

0
      We note in passing that President Bush's statement upon
signing the Anti Car Theft Act of 1992 singled out the carjacking
provision for particular praise, noting that "[t]his bill makes
armed carjacking a Federal offense. The recent wave of these
carjackings has made the need for action clear." Statement By
President George Bush Upon Signing H.R. 4542, 28 Weekly Comp. of
Pres. Doc. 2122 (Nov. 2, 1992). We would find this of relatively
minor significance but for the fact that the Supreme Court in
Lopez specifically noted President Bush's concern upon signing
the Gun-Free School Zone Act that, "[m]ost egregiously," the
possession statute "inappropriately overrides legitimate state
firearms laws with a new and unnecessary Federal law. The
policies reflected in these provisions could legitimately be
adopted by the States, but they should not be imposed upon the
States by Congress." See Lopez, 115 S. Ct. at 1631 n.3, quoting
Statement of President George Bush on Signing the Crime Control
Act of 1990, 26 Weekly Comp. of Pres. Doc. 1944, 1945 (No. 29,
1990).
0
      In this way, section 2119 is no less intrusive into areas
traditionally reserved for state supervision than was the
loansharking law upheld in Perez v. United States, 402 U.S. 146
(1971) -- a case cited approvingly and relied upon throughout
Lopez. See Lopez, 115 S. Ct. at 1629-31. In Perez, Congress had


                                38
                                2.

            Unlike the statute in Lopez, section 2119 contains a

"jurisdictional element" which ostensibly limits its application

to activities substantially related to interstate commerce.

Relying upon United States v. Bass, 404 U.S. 336 (1971), and

Scarborough v. United States, 431 U.S. 563 (1977), the government

contends that because section 2119 requires the government to

prove beyond a reasonable doubt that the carjacking victim's

motor vehicle "has been transported, shipped or received in

interstate or foreign commerce," the requisite interstate nexus

is shown in every case in which conviction is secured.    This

jurisdictional element, the government contends, wholly

distinguishes Lopez and renders section 2119 constitutional.     We

agree.    The mere presence of a jurisdictional element, however,

does not in and of itself insulate a statute from judicial

scrutiny under the Commerce Clause, or render it per se

constitutional.   To the contrary, courts must inquire further to

determine whether the jurisdictional element has the requisite


criminalized loansharking because it believed it to be a
significant means by which enterprises engaged in organized crime
"launder" the proceeds of their illegal activities. Perez, 402
U.S. at 149-50, 155-56. The law did not require the government
to prove that a particular extortionate extension of credit was
made by a racketeer or that it had anything to do with interstate
commerce. Yet the Supreme Court found that Congress had
reasonably believed that national efforts were required to combat
organized crime. The Court reviewed the significant amount of
factual data that was before Congress when it enacted the law
(id. at 155-56), but added that it did so "not to infer that
Congress need make particularized findings in order to legislate.
We relate the history of the Act in detail to answer the
impassioned plea of petitioner that all that is involved in
loansharking is a traditionally local activity" (id. at 156-57).


                                39
nexus with interstate commerce.     Lopez, 115 S.Ct. at 1631

(stating that the statute at issue had "no express jurisdictional

element which might limit its reach to a discrete set of firearm

possessions that additionally have an explicit connection with or

effect interstate commerce.").    We must, therefore, determine

whether the jurisdictional component in this case limits the

statute to items that have an explicit connection with, or effect

upon, interstate commerce.   We conclude that it does.

          Because section 2119 is limited to cars that have

traveled in interstate or foreign commerce, the Supreme Court's

decisions in Bass and Scarborough compel the conclusion that the

jurisdictional element in section 2119 provides a nexus

sufficient to protect the statute from constitutional infirmity.

In Bass, the Court interpreted former 18 U.S.C. § 1202(a) (now 18

U.S.C. § 922(g)(1)), which had criminalized a felon's "recei[pt],

possess[ion], or transport[ation] in commerce or affecting

commerce . . . [of] any firearm."      Bass, 404 U.S. at 337.   Bass,

a convicted felon, was convicted of possessing firearms, but the

government had not alleged or proven that the firearms had been

possessed in commerce or affecting commerce.     Before the Supreme

Court, the government contended that it need not do so, since the

phrase "in commerce or affecting commerce" modified only

"transportation," and not "receipt" or "possession."     The Court

found the statute to be ambiguous, and therefore applied two

rules of construction.   First, the Court determined that,

following the rule of lenity, it should construe section 1202(a)

to require the government to prove that the "receipt" or


                                  40
"possession" of a firearm were "in commerce or affecting

commerce," just as it had to prove that a "transportation" of

firearms met that qualification.      Id. at 347-48.   Second, it

applied the rule that "unless Congress conveys its purpose

clearly, it will not be deemed to have significantly changed the

federal-state balance."    Id. at 349.    This principle, as well,

counseled that the Court require the government to prove that

Bass's possession of the firearms was in or affecting commerce.

The government would meet this burden, the Court explained, if it

"demonstrates that the firearm received has previously traveled

in interstate commerce."    Id. at 350.    The Court recognized that

this was "not the narrowest possible reading of the statute," but

it found that, "given the evils that prompted the statute and the

basic legislative purpose of restricting the firearm-related

activity of convicted felons, the readings we give to the

commerce requirement, although not all narrow, are appropriate."

Id. at 351.    Since the government had not sought to prove any

interstate nexus, Bass's conviction could not stand.

          In Scarborough, the Supreme Court revisited former

section 1202(a), this time to describe the nature of the proof

required of the government in order to establish that a

possession had been "in commerce or affecting commerce."

Scarborough had been convicted of possessing firearms as a

convicted felon, notwithstanding his argument that "proof that

the firearms had at some time traveled in interstate commerce did

not provide an adequate nexus between the possession and

commerce."    Scarborough, 431 U.S. at 566.   The Court framed the


                                 41
question presented as "whether proof that the possessed firearm

previously traveled in interstate commerce is sufficient to

satisfy the statutorily required nexus between the possession of

a firearm by a convicted felon and commerce."    Id. at 564.    To

the Court, this question was one of simple statutory

construction.    The Court reiterated that "Congress is aware of

the `distinction between legislation limited to activities "in

commerce" and an assertion of its full Commerce Clause power so

as to cover all activity substantially affecting interstate

commerce.'"     Id. at 571 (emphasis added), quoting United States

v. American Bldg. Maintenance Industries, 422 U.S. 271, 280

(1975).   The Court noted that
           the purpose of [former section 1202(a)] was
           to proscribe mere possession but that there
           was some concern about the constitutionality
           of such a statute. It was that observed
           ambivalence that made us unwilling in Bass to
           find the clear intent necessary to conclude
           that Congress meant to dispense with a nexus
           requirement entirely. However, we see no
           indication that Congress intended to require
           any more than the minimal nexus that the
           firearm have been, at some time, in
           interstate commerce.

Scarborough, 431 U.S. at 575.    The Court explained that it had

decided not to follow dicta in Bass that had suggested that there

might be a stricter nexus requirement for possession than for

receipt of a firearm.    The Court noted that the requirement

"would make sense, . . . but that that was not the choice

Congress made.    Congress was not particularly concerned with the

impact on commerce except as a means to insure the

constitutionality of [section 1202(a)]."    Id. at 575 n.11.    Since



                                  42
the government had proven that the firearms that Scarborough had

possessed had at some time traveled in interstate commerce, the

Court affirmed his conviction.

            Bass and Scarborough did not directly address

Congressional power under the Commerce Clause, but certain

principles are unmistakably inherent in those decisions.     In both

decisions, the Court did not believe that its construction of

former section 1202(a) raised any constitutional concern. Indeed,

in Bass the Court believed that its construction saved the

statute from possible constitutional infirmity.    Second, in

Scarborough the Court equated Congress's insertion of the

jurisdictional element in former section 1202(a) with fulfillment

of the legislature's constitutional obligation to ensure that the

statute fell within "its full Commerce Clause power . . .

cover[ing] all activity substantially affecting interstate

commerce."   Scarborough, 431 U.S. at 571 (emphasis added), 575 &

n.11.   That is, although the Court in Scarborough did not

explicate the constitutional underpinnings of its decision, it

quite clearly found that a jurisdictional element like that in

Scarborough ensured that each conviction had the requisite
constitutional nexus with interstate commerce.    Had that not been

the case, the Court would have had to construe the statute more

narrowly, so as to avoid constitutional infirmity if at all

possible.    See United States v. Five Gambling Devices, 346 U.S.

441, 448 (1953) (plurality opinion) ("The principle is old and

deeply imbedded in our jurisprudence that this Court will

construe a statute in a manner that requires decision of serious


                                 43
constitutional questions only if the statutory language leaves no

reasonable alternative").

            In Lopez, the Supreme Court confronted a statute

(section 922(q)) similar to former section 1202(a), but without

any language requiring that the government prove that the gun

possessed in the school zone had been possessed in or affecting

commerce.    The Court rued this omission, noting that the statute

"contains no jurisdictional element which would ensure, through

case-by-case inquiry, that the firearm possession in question

affects interstate commerce."   Lopez, 115 S. Ct. at 1631.     The

Court described Bass as an "example" of a case involving a

statute that had such a jurisdictional element, but stated that,

"[u]nlike the statute in Bass, § 922(q) has no express

jurisdictional element which might limit its reach to a discrete

set of firearm possessions that additionally have an explicit

connection with or effect on interstate commerce."   Lopez, 115 S.

Ct. at 1631.

            Section 2119 has an element that ensures that the motor

vehicle involved in the carjacking has "an explicit connection

with or effect on interstate commerce" just like the firearms in
                     0
Bass and Scarborough.    In what was likely an attempt to follow


0
      The fact that the motor vehicle involved in a carjacking
had once been transported, shipped, or received in interstate or
foreign commerce provides no less nexus between a carjacking and
interstate commerce than the fact that a firearm once traveled in
interstate commerce provides with respect to possession of that
firearm by a felon. In both cases, the jurisdictional element is
not directed at the activity sought to be punished, but rather at
an element necessary to the crime but unrelated to the culpable
behavior.


                                 44
these decisions -- and particularly Scarborough, which found that

jurisdiction was satisfied by the mere proof that the possessed

firearm had previously traveled in interstate commerce --Congress

required that the government prove that the stolen motor vehicle

"had been transported, shipped, or received in interstate or

foreign commerce" in order to secure a conviction.

          Appellants attempt to escape the implications of Bass

and Scarborough by arguing that jurisdictional elements like the

one in section 2119 were construed by the Court in Lopez "to

require a case-by-case inquiry that the criminal act in question

affects interstate commerce."     Bishop Supp. Br. 11.   We do not

believe that the Court intended that distinction, however, and we

think it unlikely to have done so given the clear statement in

Scarborough establishing that the jurisdictional element in

former section 1202(a) (the travel of a firearm in interstate

commerce) had nothing to do with the wrong sought to be curbed

(possession of guns by felons).     Scarborough, 431 U.S. at 572.0

0
      We thus reject any attempt to distinguish Scarborough and
Bass on the ground that Congress, in enacting the felon-in-
possession statute, was "directed ultimately at stopping the
interstate trading of weapons which land in the hands of felons."
Stokes Supp. Br. 11. Stokes has no authority for the proposition
that Congress, in prohibiting possession of guns by felons, was
aiming at the movement of guns towards felons, rather than the
possession of guns by felons. As stated in the text, Scarborough
stated quite the opposite.

      We also reject Stokes' attempt to distinguish Scarborough
on the ground that it dealt with firearms, which are "inherently
deadly and dangerous objects" which Congress is empowered to
regulate "just as it may regulate any offensive interstate
trade." Stokes Supp. Br. 11. The dangerousness of the object is
not the source of Congressional power; the connection to
interstate commerce is. See generally Lopez, passim.


                                  45
In Scarborough and Bass, the Court found it sufficient for

Commerce Clause purposes for Congress to require the government

to establish the nexus with interstate commerce by proving a

jurisdictional element unrelated to the culpable behavior.     Had

the Court in Lopez intended to fundamentally change the law and

require a closer connection between the jurisdictional element

and the culpable conduct, one would have expected it to have been

more explicit.0

          The necessary implication of Bass and Scarborough is

that the jurisdictional element in section 2119 independently

refutes appellants' arguments that the statute is

constitutionally infirm.   We therefore join other courts of

appeals in upholding the statute on this ground, as well.      See

United States v. Martinez, 49 F.3d 1398, 1401 n.3 (9th Cir.

1995); (relying on Scarborough to uphold the statute); United

States v. Johnson, 22 F.3d 106, 108-09 (6th Cir. 1994).

                                B.

          The government also argues that the statute passes

constitutional muster under Category Two (to wit, that Congress

can regulate instrumentalities of interstate commerce and persons

and things in interstate commerce) because motor vehicles are



0
      Until that time, we are not at liberty to overrule existing
Supreme Court precedent. As Justice Kennedy explained, "If a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions." Rodriguez De Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).


                                46
"the quintessential instrumentalities of modern interstate

commerce."    Again, we agree.0

             The Supreme Court has made clear that airplanes,

railroads, highways and bridges constitute instrumentalities of

interstate commerce which Congress can regulate under the

Commerce Clause.     E.g. Lopez, 115 S.Ct. at 1629 (airplanes);

Shreveport Rate Cases, 234 U.S. 342 (1914) (railroads); Alstate

Constr. Co. v. Durkin, 345 U.S. 13 (1953) (highways); Overstreet

v. North Shore Corp., 318 U.S. 125, 129 (1943) (intrastate bridge

over navigable waterway).0    Congress may regulate threats to

these instrumentalities "even though the threat may come only

from intrastate activities."      Lopez, 115 S. Ct. at 1629.

Instrumentalities differ from other objects that affect

interstate commerce because they are used as a means of


0
      As we have previously noted (supra p. 16), Lopez involved
only a regulation that was justified, if at all, under Category
Three. Lopez, 115 S. Ct. at 1630. As such, Lopez does not
affect our analysis here. See generally United States v.
Robertson, 115 S. Ct. 1732 (1995) (noting that "effects" test has
no role outside of cases involving intrastate activities that are
regulated because of their substantial effects upon interstate
commerce).
0
      The dissent criticizes us for citing to opinions that
interpret federal statutory language that Congress included to
ensure the statutes did not exceed Congress' Commerce Clause
power. However, the dissent fails to acknowledge that each
opinion, in order to decide the statutory question involved,
explicitly recognizes the foregoing mediums of transportation to
be instrumentalities of interstate commerce. Moreover, unlike
the dissent, we do not believe that the Court would conclude that
activities which fell within each statute's jurisdictional
language would fall outside of Congress' Commerce Clause power.
If the Court did, it would have overlooked its own command to
read statutes narrowly to avoid possible constitutional
infirmities whenever possible. See United States v. Five
Gambling Devices, 346 U.S. 441, 448 (1953) (plurality opinion).


                                   47
transporting goods and people across state lines.   Trains and

planes are inherently mobile; highways and bridges, though

static, are critical to the movement of automobiles.   It would be

anomalous, therefore, to recognize these categories of

instrumentalities but to suggest that the similarly mobile

automobile is not also an instrumentality of interstate commerce.

          Notably, none of the instrumentalities we have

mentioned are used exclusively as interstate conduits.     Railroads

often transport goods between two points within a state,

especially in such large states as Pennsylvania, California,

Alaska and Texas.   Cessna aircraft fly from Pittsburgh to

Philadelphia, never leaving the airspace of Pennsylvania, just as

countless flights shuttle daily between Houston and Dallas or Los

Angeles and San Francisco.   Highways are used at least as often

to travel within states as among them.   Therefore, the fact that

automobiles are often used for intrastate travel does not

differentiate them from these other instrumentalities.0

          Stokes argues that "motor vehicles are not inherently

instrumentalities of interstate commerce which justify any

regulation which involves them in any way.   Rather, they can be

regulated as instrumentalities of interstate commerce only when

the regulation directs itself to a specific interstate function."


0
      Nor would we find it compelling if we were shown that a
greater percentage of railcars or airplanes travel interstate on
any given day than the percentage of automobiles that travel
interstate on any given day. To the contrary, we are confident
that a far greater volume of people and goods are transported
interstate by means of motor vehicles than by railroads or
airplanes.

                                48
Stokes Supp. Br. 8.   The dissent agrees, arguing that Congress

could only protect motor vehicles against intrastate threats such

as carjacking if the car was traveling in interstate commerce.

Dissent at 20.0   In Southern Ry. Co. v. United States, 222 U.S.

20 (1911), the Supreme Court rejected the same distinction

between vehicles that are traveling in interstate commerce and

vehicles which, though capable of interstate travel, are

traveling intrastate when regulated.   In Southern R. Co., the

Court recognized that Congress had the power to regulate boxcars

that traveled exclusively intrastate because of their inherent

mobility and connection to interstate commerce.   "[I]t is no

objection to such an exertion of [Commerce Clause] power that the

dangers intended to be avoided arise, in whole or in part, out of

matters connected with intrastate commerce."   Id. at 26.

Similarly, in the Shreveport Rate Cases, 234 U.S. 342 (1914), the

Court recognized Congress' power to regulate rates for completely

intrastate rail trips.   Finally, in Overstreet v. North Shore

Corp., 318 U.S. 125 (1943), the Supreme Court found that a wholly

0
      Notably, the dissent points to the language of 18 U.S.C.
§ 32, which prohibits destruction of civil aircraft "used,
operated, or employed in interstate, overseas, or foreign air
commerce." This statute does not limit its scope to civil
aircraft which are traveling interstate at the time of attack.
"Congress intended not only to protect civil aircraft while
actually operating in interstate commerce, but also to protect
such as is used or employed in interstate commerce, and also the
parts, materials and facilities used by such aircraft." United
States v. Hume, 453 F.2d 339, 340 (1971) (per curiam) (emphasis
added). As § 32 thus reflects, the power to regulate
instrumentalities of interstate commerce is the power to regulate
vehicles used in interstate commerce, i.e. that have traveled, do
travel, or will travel in interstate commerce whether or not they
are actually traveling in interstate commerce when regulated.


                                 49
intrastate bridge that connected an island to a road that then

connected to an interstate highway was an instrumentality of

interstate commerce despite the fact that goods, when they

traveled over the bridge, necessarily traveled in intrastate

commerce.   Thus, Stokes, Bishop, and the dissent mistake

Congress' power to regulate instrumentalities as a power to

regulate vehicles only when those instrumentalities are being

used in interstate commerce when Congress' power, in fact,

derives from the objects' status as instrumentalities.

            Stokes relies upon United States v. Heightland, 865

F.2d 94 (6th Cir. 1989), which he believes supports his assertion

that motor vehicles are instrumentalities of interstate commerce

"only in their interstate role."       However, in Heightland the

Sixth Circuit was addressing whether the assault and murder of a

truck driver at a coal mine endangered a motor vehicle "which was

used, operated, or employed" in interstate commerce.        18 U.S.C.

§ 33.   That the truck was accosted on an intrastate journey,

carrying coal ultimately headed to Virginia, was one factor the

court used in determining whether the truck was used in

interstate commerce, but the court did not state that an

interstate destination was a requirement of the statute or of the

Commerce Clause.    Id. at 96.   To the contrary, the court noted

the broad intent of Congress to "vindicat[e] these offenses,

which often take place in remote areas where State law

enforcement may not be effective."      Id., quoting 1984

U.S.C.C.A.N. at 3500).    Heightland certainly does not state that




                                  50
motor vehicles are only instrumentalities when bound on

interstate journeys.

          We are also unpersuaded that intrastate air and rail

travel can be regulated as part of a "seamless web" but motor

vehicle travel cannot -- i.e., that poorly maintained intrastate

boxcars endanger other instrumentalities of interstate commerce

while carjacking does not.   We recognize, of course, that

airspace is limited and requires more careful management to

protect interstate commerce.   Yet as between boxcars and ordinary

cars, the distinction breaks down.    A carjacker in Newark does

not differentiate between commuters from New York as compared to

commuters from Hackensack.   A resident from Cherry Hill, New

Jersey is just as subject to carjacking in Philadelphia as a

resident of Bucks County.    In short, the danger which carjacking

presents to the use of a motor vehicle as an instrumentality of

commerce is presented to both interstate and intrastate drivers,

passengers and goods.0

          As Chief Justice Taft recognized nearly three-quarters

of a century ago, the introduction of the automobile ushered in

"a radical change in transportation of persons and goods . . . ."

Brooks v. United States, 267 U.S. 432 , 438 (1925).    In the

present age, cars represent Americans' primary mode of


0
      The dissent argues that Congress may only regulate vehicles
which have been hired to travel across state lines. In doing so,
the dissent excludes from interstate commerce all commuters and
salespeople who drive across state lines to reach their place of
work and their costumers. We do not find such a limitation
reasonable or warranted by any precedential authority, nor does
the dissent cite any to support its limitation.


                                 51
transportation, both within and among the States.     See, e.g.,

Thoms, Amtrak:    Rail Renaissance or Requiem?   49 Chi-Kent L. Rev.

29, 30 (1972) ("The decline of railroad passenger service is a

familiar story.     The automobile has replaced all other vehicles

as the dominant mode of transportation").     Commuters, salespeople

and haulers rely upon motor vehicles daily to maintain the flow

of commerce; see also U.S. Bureau of the Census, Statistical

Abstract of the United States:     1994 at 622 Table No. 994

(private automobiles accounted for 1,663 billion passenger-miles

of intercity passenger traffic in 1992, whereas domestic airways

accounted for 367, buses 24, and railroads 14).

           As such, we can only conclude that motor vehicles are

instrumentalities of interstate commerce.     Thus, Congress may

criminalize activities affecting their use even though the

wrongful conduct, such as carjacking, occurs wholly intrastate.

Because section 2119 is such a regulation, it is constitutional

on that basis as well.

                                  C.

           Appellants contend that the Supreme Court's Lopez

decision is a sharp break with the Court's precedents.     According

to them, "the Lopez decision is a strong signal to the lower
courts to eschew a casual calculus of whether interstate commerce

is substantially implicated in a federal statutory scheme in

favor of a carefully considered factual determination."        Bishop

Supp. Br. 2.     We, however, do not believe that Lopez calls for

federal courts to supplant Congressional judgments with their

own.   That would, indeed, be a profound departure from prior law,


                                  52
and it is important to keep in mind that Justices Kennedy and

O'Connor, who fully concurred in the majority opinion, did not

view the majority that way.   Rather, Justices Kennedy and

O'Connor counseled "great restraint" before a court finds

Congress to have overstepped its commerce power, and believed the

Court's opinion to have been a "necessary though limited

holding."   Lopez, 115 S. Ct. at 1634 (Kennedy, J., concurring).

Thus, despite protestations to the contrary, the winds have not

shifted that much.

                                IV.

            For the foregoing reasons, the decision of the district

court will be affirmed.




                                 53
1
UNITED STATES OF AMERICA v. KEVIN BISHOP, No. 94-5321 and

UNITED STATES OF AMERICA v. EDWARD STOKES, No. 94-5387.
BECKER, Circuit Judge. Concurring in Part and Dissenting in Part.

          Carjacking is a heinous offense -- violent and extremely frightening.

Accordingly, I can well understand the anger and frustration that impelled Congress

enact 18 U.S.C. § 2119, thereby making carjacking a federal crime.   Nevertheless, I

agree with the majority that Congress had the authority to enact this statute under

constitutional power "to regulate commerce with foreign Nations, and among the seve

States. . . . "   U.S. Const., Art. I, § 8, cl. 3.

          Numerous carjackings occur in this country every year, and I acknowledge

force of the anecdotal evidence reported by the majority to the effect that at leas

carjacked vehicles end up in "chop shops."   Carjacking may therefore be said to

contribute, in some degree, to the operation of the interstate car-theft rings that

Congress sought to regulate by the Anti-Car-theft Act of 1992, of which § 2119 was

A careful reading of this Act's legislative history, however, precludes any

misidentification of the concerns that motivated Congress's enactment of this provi

Whatever justifications the majority may now proffer, it is clear that Congress ena
the carjacking statute as a response to its accurate perception of carjacking as a

of violence.   And in the a

bsence of congressional findings to the contrary -- none are in evidence here -- th

majority's conclusion that Congress could have rationally believed that prosecuting

carjacking was an essential part of dealing with a larger economic burden on inters

commerce (i.e., interstate car-theft rings) and that carjacking itself, therefore,

substantially affects interstate commerce, borders on gossamer.




                                             2
           I do not gainsay that six months ago the majority's opinion would have ca

the day.   But that was before United States v. Lopez, 115 S. Ct. 1624 (1995), which

fairly read, reflects a sea change in the Supreme Court's approach to these types o

questions.     That view is widely shared by the media in general and the legal press

particular.0    In contrast, the majority views Lopez as either a narrow decision or

something of a "sport."     The majority observes, referencing the separate opinions o

Justices O'Connor and Kennedy, that "despite protestations to the contrary, the win

not shifted that much."    This passage is apparently meant to suggest that Justices

O'Connor and Kennedy form an intermediate bloc which would view Lopez as case-speci

remind my colleagues, however, that both Justices O'Connor and Kennedy joined in th

Justice's opinion.    Since five is more than four, I view Lopez as a beacon that we

follow, and the direction in which the beacon points compels my vote to invalidate

carjacking statute as beyond the broad reach of Congress's Commerce Clause power.

           In particular, all five justices in the Lopez majority refused to apply t

Court's previous caselaw "upholding regulations of activities that arise out of or

connected with a commercial transaction, which viewed in the aggregate, substantial

affects interstate commerce," to "a criminal statute that by its terms has nothing

with `commerce' or any sort of economic enterprise."     Lopez, 115 S. Ct. at 1630-31.
doing the Court required "a determination whether an intrastate activity is commerc
0
 See e.g. Bennett L. Gershman, Judicial "Conservatism", N.Y. L. J. 2 (June 21, 1995)
Lopez, the Court may have uprooted nearly 60 years of Commerce Clause jurisprudence
Herman Schwartz, Court Abandons Rational-Basis Test, LEGAL TIMES 25-26 (May 8, 1995)
imposition of judicial limits on Congress' commerce clause regulation of private
activities thus marks a major shift in judicial attitude." (emphasis added)); Dean
L. Huffman, Lopez Pops Feds Ballooning Powers, NAT'L L. J. A21 (May 22, 1995) ("The
holding, even as cautiously explained by Chief Justice Rehnquist . . . is, as Justi
P. Stevens says in dissent, "radical." There is no other way to reverse nearly 60
of total deference to Congress on the meaning of the commerce clause." (emphasis ad
Stuart Taylor, Jr., Judging with Pinpoint Accuracy, THE RECORDER 10 (May 8, 1995)
(rescribing the comment of Yale Law Professor Bruce Ackerman describing Lopez as "o
the opening cannonades in the coming constitutional revolution").


                                               3
noncommercial."   Id. at 1633.    If the intrastate activity is commercial, the "subst

effects" jurisprudence applies, allowing Congress to regulate the activity if it in

aggregate substantially affects interstate commerce; otherwise, the doctrine is

inapplicable and affords Congress no basis for regulation.    In spite of Lopez's lim

on the application of its "substantial effects" jurisprudence to intrastate commerc

activity, the majority upholds the constitutionality of § 2119 by concluding that

carjacking, a violent criminal activity, is a commercial transaction.    See maj. op.

          I disagree with this conclusion, for I read the Lopez Court's reference t

"commercial transaction" as referring to a voluntary economic exchange.    I am reinf

in this view by the fact that the majority runs afoul of the Lopez Court's admoniti

any definition of "commercial" must be one that provides "real limits" on the scope

Commerce Clause authority.   Lopez, 115 S. Ct. at 1633.    Yet, under the majority's b

definition of commercial transaction, Congress could clearly constitutionally feder

all intrastate car-theft, all intrastate crimes of theft, and perhaps nearly all cr

activity occurring within a state.    The majority's arguments prove far too much.

          Moreover, in the wake of Lopez, I believe that a criminal statute such as

§ 2119, which does not involve a commercial transaction, cannot be upheld as the ma

tries to do -- by piling inference upon inference to construct from anecdotal data
argument that carjacking is an essential part of the operation of car-theft rings.

Rather, non-commercial enactments, such as § 2119, should only be upheld to the ext

that adequate data, available either by way of congressional findings or otherwise,

establishes that the proscribed non-commercial activity has a sufficient relationsh

interstate commercial activity.

          Importantly, the Supreme Court recognized in Lopez that "[u]nder our fede
system the administration of criminal justice rests with the States . . . .    When C

criminalizes conduct already denounced as criminal by the States, it effects a `cha


                                               4
the sensitive relation between federal and state criminal jurisdiction.'"                  Lopez, 1

Ct. at 1631 (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1720 (1993)) (citations

omitted).0    In this case, state law already directly governs the defendants' conduct

since New Jersey, like many of it sister states,0 has criminalized carjacking.0                  In

0
 Similar sentiments are echoed in the recently submitted "Proposed Long Range Plan
Federal Courts":

             Congress should commit itself to conserving the federal courts as a
             distinctive judicial forum of limited jurisdiction in our system of
             federalism. Civil and criminal jurisdiction should be assigned to the
             federal courts only to further clearly defined and justified national
             interests, leaving to the state courts responsibility for adjudicating
             all other matters. . . . In principle, criminal activity should be
             prosecuted in a federal court only in those instances in which state
             court prosecution is not appropriate or where federal interests are
             paramount.

COMMITTEE ON LONG RANGE PLANNING -- JUDICIAL CONFERENCE OF THE UNITED STATES, PROPOSED LONG RANGE PLA
FEDERAL COURTS 23 (March 1995). See also Thomas M. Mengler, "The Sad Refrain of Tough
Crime: Some Thoughts on Saving the Federal Judiciary from the Federalization of Sta
Crime," 43 U. KANSAS L. REV. 503 (1995).
0
  In fact, as the government concedes, the New Jersey criminal penalty exceeds the p
provided by the federal carjacking statute in this case.
0
  See, e.g. CAL. PEN. CODE § 215 (1995); 11 DEL. C. § 222 (1994); D.C. CODE § 22-2903 (1
FLA. STAT. § 812.133 (1994); BURNS IND. CODE ANN. § 35-42-5-2 (1994); LA. REV. STAT. 14:6
(1995); MD. ANN. CODE art. 27, § 348A (1994); MASS. ANN. LAWS ch. 265, § 21A (1995); MI
ANN. § 97-3-117 (1993); SOUTH CAR. CODE ANN. § 16-3-1075 (1993); VA. CODE ANN. § 18.2-58
(1995).
0
  The defendants could be prosecuted under NJ § 2C:15-2, which provides:
                A. CARJACKING DEFINED. A person is guilty of carjacking if in the
            course of committing an unlawful taking of a motor vehicle, as defined
            in N.J.S. 39:1-1, or in an attempt to commit an unlawful taking of a
            motor vehicle he:
                (1) inflicts bodily injury or uses force upon an occupant or person
            in possession or control of a motor vehicle;
                (2) threatens an occupant or person in control with, or purposely
            or knowingly puts an occupant or person in control of the motor
            vehicle in fear of, immediate bodily injury;
                (3) commits or threatens immediately to commit any crime of the
            first or second degree; or
                (4) operates or causes said vehicle to be operated with the person
            who was in possession or control or was an occupant of the motor
            vehicle at the time of the taking remaining in the vehicle. An act
            shall be deemed to be "in the course of committing an unlawful taking

                                                      5
enacting this criminal statute, Congress improperly interfered with the primary aut

of New Jersey to define and enforce its criminal code. Intrastate crimes of violenc

the carjacking in this case, are properly left to the states, whose law enforcement

agencies and courts are well suited to handle such criminal activity.0

           In Part III I will explain in still greater detail why I conclude that th

carjacking statute cannot be justified as substantially affecting interstate commer

But before reaching that issue, I will first take up the points advanced by the gov

as the two primary bases for upholding the carjacking statute, neither of which, I

are sufficient to uphold § 2119 under the Commerce Clause.   First, I examine the

majority's reliance on Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 1963 (

and demonstrate why the fact that the Dodge Shadow carjacked here once travelled in

interstate commerce is not a sufficient interstate nexus to render this statute

constitutional under the Commerce Clause.   Then, in part II, I explain why § 2119 c

be justified as a regulation of an instrumentality of interstate commerce.   Because

agree with the majority's discussion of the double jeopardy issue, I join in Part I

the majority's opinion, and to that extent this is a concurring as well as dissenti

opinion.

           of a motor vehicle" if it occurs during an attempt to commit the
           unlawful taking of a motor vehicle or during an immediate flight after
           the attempt or commission.

           B. GRADING. Carjacking is a crime of the first degree and upon
           conviction thereof a person may, notwithstanding the provisions of
           paragraph (1) of subsection a. of N.J.S. 2C:43-6, be sentenced to an
           ordinary term of imprisonment between 10 and 30 years. A person
           convicted of carjacking shall be sentenced to a term of imprisonment
           and that term of imprisonment shall include the imposition of a
           minimum term of at least five years during which the defendant shall
           be ineligible for parole.

N.J. Stat. § 2C:15-2 (1994).
0
  Not surprisingly, local, as opposed to federal, law enforcement officials made the
arrests in this case.


                                             6
1. THE SCARBOROUGH ARGUMENT

           In October of 1992, as a part of the Anti-Car-Theft Act, P.L. 102-519, Co

enacted 18 U.S.C. § 2119, which provides:
          Whoever, possessing a firearm as defined in section 921 of this title,
          takes a motor vehicle that has been transported, shipped or received
          in interstate or foreign commerce from the person or presence of
          another by force and violence or by intimidation, or attempts to do
          so, shall be fined under this title or imprisoned . . . .


18 U.S.C.A. § 2119 (West Supp. 1995) (emphasis added).       The majority correctly reco

that this provision differs from § 922(q), the statute involved in Lopez, since § 2

contains a jurisdictional element -- the requirement that the accused "take[] a mot

vehicle that has been transported, shipped or received in interstate or foreign com

-- which § 922(q) lacked.

           The majority goes on to state that
                The mere presence of a jurisdictional element, however, does not
           in and of itself insulate a statute from judicial scrutiny under the
           Commerce Clause, or render it per se constitutional. To the contrary,
           courts must inquire further to determine whether the jurisdictional
           element has the requisite nexus with interstate commerce.


Following on, it reasons that it:
          must, therefore, determine whether the jurisdictional component in
          this case limits the statute to items that have an explicit connection
          with, or effect upon, interstate commerce.

The court concludes that it does.


           These protestations are laudable, but they stand in sharp contrast to the

discussion that follows which does not support them.       Rather, I believe that the

majority's essential reasoning, like that of       the Ninth Circuit in United State v.

__ F.3d ___, ___ (9th Cir. 1995) [1995 U.S. App. LEXIS 16432], is that the presence




                                               7
this statutory element itself renders § 2119 constitutional,0 reasoning which suppo

government's contention that Lopez would have been decided differently by the Court

§ 922(q) (which prohibited the possession of a gun within a 1000 feet of a school)

contained a requirement that the gun had at some point been transported in intersta

commerce.

            I cannot agree that the force of the Lopez decision is so restricted.   Th

because, in order for a particular congressional enactment regulating an intrastate

activity to pass constitutional muster under the Commerce Clause, the enactment mus

fit within one of the three enumerated categories of congressional power.    The

jurisdictional element in such cases functions only to narrow the class of regulate

activity.    As the Court in Lopez recognized, in distinguishing prior case law, § 92

"contains no jurisdictional element which would ensure, through case-by-case inquir

the [regulated conduct] affects interstate commerce."    Lopez, 115 S. Ct. at 1631 (e

added).   In other words, a jurisdictional element functions only to limit the regul

to interstate activity or to ensure that the intrastate activity which is regulated

satisfies one of the three tests of congressional power.    Section 2119 fails in thi

regard, since this provision regulates intrastate activity0 and the jurisdictional e



0
  While the majority does not address the subject, I will assume that this jurisdict
element requires the government to establish that "a fully assembled `motor vehicle
been transported in interstate commerce rather than . . . [merely requiring a showi
that] either the `motor vehicle' or the motor vehicle's parts, prior to assembly, m
interstate commerce." United States v. Johnson, 56 F.3d 947, 956-57 (8th Cir. 1995
0
  In this regard, § 2119's jurisdictional requirement is distinguishable from a requi
that the regulated entity actually be "engaged in interstate commerce." See United
v. Robertson, 115 S. Ct. 1732, 1732-33 (1995) (per curiam) (examining the question
a regulated entity was "engaged in interstate commerce"). If § 2119 contained such
requirement, the government would need to establish that the defendants were in fac
working as a part of a car-theft ring engaged in interstate commerce. While such a
requirement would render § 2119 constitutional, the statute, as enacted, simply lac
requirement that the regulated person(s) be engaged in interstate commerce.


                                              8
in no way limits the statute's application to ensure that it fits within one of the

branches of congressional Commerce Clause authority.

               The majority, like the Oliver court, simply offers no analysis as to how

§ 2119's jurisdictional element limits, in any relevant manner, the crime of carjac

that it fits within one of the three enumerated branches of congressional authority

Rather, both opinions rely on the decision of the Supreme Court in Scarborough v. U

States, 431 U.S. 563, 97 S. Ct. 1963 (1977), which the majority candidly admits did

engage in any analysis of the authority of Congress to enact laws under the Commerc
           0
Clause.

               As the majority recognizes, the Scarborough decision expanded upon the Co

prior opinion in United States v. Bass, 404 U.S. 336, 92 S. Ct. 515 (1971), which,

Scarborough, involved what was then § 1202(a) of Title 18.       This provision provided

any convicted felon "who receives, possesses, or transports in commerce or affectin

commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for n

than two years, or both."      In Bass, the "Government proceeded on the assumption tha

§ 1202(a)(1) banned all possessions and receipts of firearms by convicted felons, a

no connection with interstate commerce had to be demonstrated in individual cases."

404 U.S. at 338, 92 S. Ct. at 517.      In response to this argument, the defendant con
that "the statute did not reach possession of a firearm not shown to have been `in

commerce or affecting commerce,' and that, if it did, Congress had overstepped its

constitutional powers under the Commerce Clause." Bass, 404 U.S. at 338, 92 S. Ct.

0
    Indeed the majority summarily concludes:
                  Because section 2119 is limited to cars that have traveled in
             interstate or foreign commerce, the Supreme Court's decisions in Bass
             and Scarborough compel the conclusion that the jurisdictional element
             in section 2119 provides a nexus sufficient to protect the statute
             from constitutional infirmity.




                                                 9
          The Court rejected the government's interpretation of the statute, refusi

adopt the government's "broad reading in the absence of a clearer direction from

Congress," because the statute's "sanctions are criminal and because, under the

Government's broader reading, the statute would mark a major inroad into a domain

traditionally left to the States."   Id. at 339, 92 S. Ct. at 518.    Therefore, the C

concluded that "the commerce requirement in § 1202(a) must be read as part of the

`possesses' and `receives' offenses."    Id. at 350, 92 S. Ct. at 524; id. ("Absent a

clearer statement of intention from Congress than is present here, we do not interp

§ 1202(a) to reach the `mere possession' of firearms.").   The Court reasoned that

"[a]bsent proof of some interstate commerce nexus in each case, § 1202(a) dramatica

intrudes upon traditional state criminal jurisdiction."    Id.   Because the governmen

not proven even the minimal nexus that the Court held the statute to require, the C

overturned the conviction, and thus "d[id] not reach the question whether, upon

appropriate findings, Congress can constitutionally punish the `mere possession' of

firearms."    Id. at 339 n.4, 92 S. Ct. at 518 n.4.

          Following Bass, the Court confronted in Scarborough the question of how t

government might satisfy its statutory burden under the Bass Court's reading of the

statute, which required that a defendant possess the weapon "in commerce or affecti
commerce."0   Through a careful parsing of § 1202(a)'s legislative history, the Court

concluded that in order to be convicted under the statute, the government need only

that "the firearm possessed by the convicted felon traveled at some time in interst

commerce."    Scarborough, 431 U.S. at 568, 97 S. Ct. at 1966.



0
 In Bass, the Court noted, by way of example, that the government could satisfy this
burden under the statute, "if at the time of the offense the gun was moving interst
on an interstate facility, or if the possession affects commerce." Bass, 404 U.S. a
92 S. Ct. at 524.


                                              10
          That decision, as the majority concedes, was exclusively one of statutory

construction, explicating the intent of Congress in enacting § 1202(a).    The Court'

entire analysis focused on this issue of congressional intent -- what Congress requ

the phrase "in commerce or affecting commerce." Noticeably absent from the opinion,

majority recognizes, is any analysis of whether the activity regulated by the statu

constitutes a constitutional exercise of congressional power under the Commerce Cla

Given this fact, the relevance of the Scarborough decision to Commerce Clause

jurisprudence is dubious.0   I agree that the Commerce Clause issue was implicit in

result reached by the Scarborough Court, which upheld the conviction.0    However, the

majority errs in relying on a putative holding of Scarborough (perhaps "phantom hol

might be more apt) to conclude that the interstate jurisdiction element renders the

statute constitutional under the Commerce Clause.0
0
  The Lopez Court observed that "[u]nlike the statute in Bass, § 922(q) has no expres
jurisdictional element which might limit its reach to a discrete set of firearm
possessions that additionally have an explicit connection with or effect on interst
commerce." Lopez, 115 S. Ct. at 1631 (emphasis added). This statement is consiste
the requirement that the jurisdictional element limit the regulation to interstate
activity or ensure that the regulated intrastate activity fall within one of three
categories of congressional power under the Commerce Clause.
0
  I do note that though the Commerce Clause issue easily could have been mentioned,
not.
0
  Notwithstanding the fact that the Court's decision in Scarborough was devoid of an
Commerce Clause analysis, the majority supports its unflinching application in this
by relying on language in Rodriguez de Quijas v. Shearson/American Express, Inc., 4
477, 109 S. Ct. 1917 (1989), where the Court cautioned: "If a precedent of this Cou
direct application in a case, yet appears to rest on reasons rejected in some other
of decisions, the Court of Appeals should follow the case which directly controls,
to this Court the prerogative of overruling its own decisions." 490 U.S. at 484, 1
Ct. at 1921-22 (emphasis added). In Rodriguez, the Court of Appeals had concluded
predispute agreement to arbitrate claims under the Securities Act of 1933" was
enforceable, and did not "requir[e] resolution of the claims . . . in a judicial fo
despite that fact that previously in Wilko v. Swan, 346 U.S. 427, 74 S. Ct. 182 (19
the Supreme Court had held that "an agreement to arbitrate future controversies" un
Securities Act of 1933 was "void" under § 14 of that Act. Rodriguez, 490 U.S. at 4
S. Ct. at 1919. The Court of Appeals had reasoned that while subsequent Supreme Co
decisions had not directly addressed the holding of Wilko, which was directly appli
subsequent decisions had reduced Wilko to "obsolescence." Rodriguez de Quijas v.


                                             11
           Even if it were proper to rely on Scarborough as Commerce Clause preceden

majority errs, in my view, in defining the scope of Scarborough's putative Commerce

holding as broadly as it does, because § 1202(a) is distinguishable from § 2119.     S

§ 1202(a)'s jurisdictional requirement could, more properly, be viewed as a rationa

restriction on the illegal interstate trade in guns pursuant to the first branch of

Congress's Commerce Clause authority, the well established "authority of Congress t

the channels of interstate commerce free from immoral and injurious uses . . . ." L

115 S. Ct. at 1629 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

256, 85 S. Ct. 348, 357 (1964)). At the time of the enactment of § 1202(a), federal

prohibited the sale of guns to felons.   See 18 U.S.C. § 922(d) (1976) (providing th

shall be unlawful for a licensed gun distributor to sell or give a firearm to a per

under indictment for or convicted of a crime punishable by imprisonment for a term

exceeding one year).   A fortiori, felons who had purchased their weapons after thei

felony conviction would have done so through illegal channels.    Accordingly, § 1202

which prohibited felons from possessing a gun that traveled in interstate commerce,

have constituted a rational means for Congress to deal with illegal interstate traf

in guns.

           Section 2119, in contrast, cannot be justified in this fashion.   Its
jurisdictional element limits the reach of the carjacking statute to automobiles th

legitimately traveled in interstate commerce.     But, we cannot rationally conclude t


Shearson/Lehman Bros., Inc., 845 F.2d 1296, 1299 (5th Cir. 1988).     While I ackno
the binding nature of this decision, it is clearly distinguishable. Scarborough, a
decision analyzing the legislative intent surrounding the enactment of § 1202(a) (a
statute since repealed by Congress) and devoid of any Commerce Clause analysis, sim
cannot have "direct application" in a case concerning the power of Congress to enac
federal carjacking statute under its Commerce Clause power. Moreover, while the bro
application of the statute in Scarborough is probably undermined by Lopez, my conte
that Scarborough is inapplicable to this action does not arise from the Court's dec
in Lopez.


                                             12
Congress seeks to regulate legitimate interstate trade in automobiles from manufact

dealer or from dealer to victim. Rather, § 2119 extends solely to intrastate crimin

activity, which bears no rational nexus to the fact that the automobile in question

some point legitimately shipped interstate. Hence, the jurisdictional element does

any way rationally limit the class of activity Congress seeks to regulate.   The con

motivating Congress to enact § 2119 are the same whether the automobile was manufac

within the state where the crime occurred or elsewhere.0

          The reasoning of the majority and the Oliver court, which would essential

permit Congress to regulate any activity so long as the statute contains some inter

jurisdictional element (no matter how tenuous its relation to the regulated activit

simply too broad.   The majority's holding effectively renders the Supreme Court's t

part Commerce Clause analysis superfluous, and permits Congress, through the inclus

a meaningless interstate commerce provision, to "convert congressional authority un

Commerce Clause to a general police power of the sort retained by the States."   Lop

S. Ct. at 1634.   For instance, the majority's logic would permit a federal law outl

the theft of a Hershey kiss from a corner store in Youngstown, Ohio by a neighborho

juvenile on the basis that the candy once traveled in interstate commerce to the st

from Hershey, Pennsylvania.   Similarly, the majority's broad reading would vest Con
with power under the Commerce Clause to enact a federal law requiring students in p

schools to read their homework assignments, so long as the government establishes t




0
 The improvidence of the majority's reliance on the jurisdictional requirement is
demonstrated by the fact that Congress, in enacting § 2119, expressed concern that
single week last year in Detroit, 74 cars were stolen in armed carjackings." H.R.
851, 102d Cong., 2d Sess., pt. 1, at 15, 1992 U.S.C.C.A.N. 2829, 2831. It defies l
assert that Congress rationally sought to criminalize only those carjackings occurr
Detroit which involved these relatively few cars in Michigan manufactured outside o
state.


                                             13
textbooks were published in another state.0       The majority's reasoning destroys any

"distinction between what is truly national and what is truly local."       Lopez, 115 S

at 1634.0

            Accordingly, I conclude that § 2119 would constitute a constitutional exe

of congressional authority only if the intrastate activity regulated fit within one

"three broad categories of activity that Congress may regulate under its commerce p

Lopez at 1629.    In upholding this conviction, the majority relies on two of these t

categories, concluding that § 2119 is constitutional under Congress's power (1) to

"regulate and protect the instrumentalities of interstate commerce," and (2) to reg

those activities with a "substantial effect on interstate commerce."       Lopez, 115 S.

1629-30.    I take both of these rationales up in turn.

2. INSTRUMENTALITIES   OF   INTERSTATE COMMERCE

            Despite the fact that § 2119 does not govern the use of automobiles as

instrumentalities of interstate commerce, the majority, again joining the Ninth Cir

Oliver, __ F.3d at ___, upholds the constitutionality of the statute on the theory


0
  See Paul D. Kamenar, The Feds Lose a Piece of Their Rock; Commerce Clause Should N
Infinite, LEGAL TIMES 25 (May 3, 1995) (recounting the criticism of commentator Georg
that under the Lopez dissent's broad reading of Commerce Clause authority, Congress
"pass a federal law requiring students to do their homework").
0
  In overturning § 2119 as beyond the scope of Congress's Commerce Clause authority i
United States v. Cortner, 834 F. Supp. 242 (M.D. Tenn. 1993), rev'd 30 F.3d 135 (6t
1994), Judge Wiseman had a similar view of this argument:

            To say . . . that because something once traveled in interstate
            commerce it remains in interstate commerce after coming to rest in a
            given state is sheer sophistry. . . . [I]f it is sufficient to invoke
            the powers of the Commerce Clause that something has been manufactured
            outside of the state of Tennessee and previously transported here, 90%
            of the merchandise on every merchant's shelf will qualify and any
            robbery of any store can be federalized by the Congress under this
            rationale.

Id. at 243.


                                                  14
automobiles often are used as instrumentalities of interstate commerce.   In so doin

majority dramatically expands the scope of Congress's power under this branch of Co

Clause authority.

          The majority correctly recognizes that "Congress is empowered to regulate

protect the instrumentalities of interstate commerce, or persons or things in inter

commerce, even though the threat may come only from intrastate activities." Lopez,

Ct. at 1629.   However, in crafting the scope of this category of congressional auth

courts have, to date, appropriately limited its application to congressional regula

instrumentalities actually engaged in interstate commerce, or objects such as railc

railway bridges, which are integrally related to an interstate commerce network.     W

automobiles can indeed be used to engage in interstate commerce (and an automobile

not be travelling interstate to be used in interstate commerce), the federal carjac

statute, unlike those statutes upheld in prior cases, in no way regulates

instrumentalities in any way engaged in interstate commerce. Rather, § 2119 is a cr

statute of general application, which, by its terms, lacks any nexus to the use of

automobiles in interstate commerce.

          In my view, congressional authority under this branch of its Commerce Cla

power has been shaped by two cases, cited by the Supreme Court in Lopez -- Southern
Railroad Co. v. United States, 222 U.S. 20, 32 S. Ct. 2 (1911) and Shreveport Rate

234 U.S. 342, 34 S. Ct. 833 (1914) -- and by a statement in dicta in Perez v. Unite

States, 402 U.S. 146, 150, 91 S. Ct. 1357, 1359 (1971) (Perez was a "substantial ef

decision, see discussion infra).

          The first of these cases, Southern R.R., involved the application of the

Appliance Act to a non-conforming railroad car used solely for hauling within one s
on "`a part of a through highway' over which traffic was continually being moved fr

State to another."   222 U.S. at 23, 32 S. Ct. at 3.   The Court upheld the applicati


                                             15
the regulation to the intrastate railcars, since such a close relationship existed

the intra- and inter- state traffic that congressional power could be "exerted to s

the safety of the persons and property transported" in interstate commerce, even th

the "dangers intended to be avoided arise, in whole or in part, out of matters conn

with intrastate commerce."   Id. at 27, 32 S. Ct. at 4.

          Similarly, in the Shreveport Rate Cases, the Court upheld the ICC's abili

regulate the "relation" between inter- and intra- state rail rates by requiring an

increase in the price of the intra-state rate.    In both these cases the Court was

concerned with the regulation of "intrastate transactions of interstate carriers".

Shreveport Rate Cases, 234 U.S. at 353, 34 S. Ct. at 837 (emphasis supplied).   Give

caselaw, the majority's conclusion that § 2119 constitutes a regulation of an

instrumentality of interstate commerce because cars can be used as instrumentalitie

interstate commerce dramatically extends congressional power under this category of

authority.

          The Supreme Court's discussion in Perez v. United States, 402 U.S. at 150

Ct. at 1359, is not to the contrary.   In Perez, the Court recognized that Congress

protect the "instrumentalities of interstate commerce, as for example, the destruct

an aircraft (18 U.S.C. § 32)."   Id. at 150, 91 S. Ct. at 359.   At the time of Perez
provided a criminal penalty for "[w]hoever willfully sets fire to, damages . . . an

aircraft used, operated, or employed in interstate, overseas, or foreign air commer

While the majority correctly recognizes that motor vehicles are often used as

instrumentalities of interstate commerce (e.g., commercial trucking, interstate bus

services, travelling salespeople, and even perhaps commuters), § 2119, unlike 18 U.

§ 32, does not involve the protection of an item used as an instrumentality of inte




                                             16
commerce.0    If § 2119 were limited, like § 32, to the carjacking of automobiles "en

in interstate commerce," this statute would indeed proscribe interference with an i

being used as an instrumentality of interstate commerce, which Congress could prope

regulate under this branch of Commerce Clause authority.    However, § 2119's scope i

dramatically broader, given that it governs all automobiles (regardless of their

connection to interstate commerce) including those, like the one involved in this c

which are clearly not being used as instrumentalities of interstate commerce.

             It is enough for the majority that intrastate carjacking threatens both i

and out-of-state motorists. But to reiterate, this is not the proper focus under th

prong of Commerce Clause analysis.    In regulating under this branch of authority, C

can protect instrumentalities of interstate commerce.    The fact that a motorist fro

Cherry Hill, New Jersey, is subject to a risk of carjacking in Philadelphia, does n

convert this motorist's automobile into an instrumentality of interstate commerce

equivalent to a commercial train or airplane transporting passengers and goods both

and intra-state.0          The regulation of air and rail travel is simply not a vali

analogy.     Such federal regulation is proper since both airplanes and trains are, ne

exclusively, used as instrumentalities of interstate commerce -- that is, air and r

travel involves, overwhelmingly, the sale of both inter- and intra-state transporta

0
  The majority recognizes this important distinction between the carjacking statute
U.S.C. § 32 in dismissing Stokes' reliance on United States v. Heightland, 865 F.2d
(6th Cir. 1989). See maj. op. at 49.
0
  In Cortner, Judge Wiseman recognized that,

             [i]f anything that will take you across a state line is an
             "instrumentality of commerce," then there is justification for
             Congress to regulate anything done on a bicycle or, for that matter,
             on foot. The Framers traveled to Philadelphia on horseback or by
             horse and carriage. Can it be imagined that in constructing the
             Commerce Clause they intended to regulate and punish horse stealing?

834 F. Supp. at 243.


                                               17
services for persons and/or cargo.0 We do not deal here with the ability of Congress

regulate or protect intra- and inter-state bus or commercial truck travel. Such reg

is clearly proper, since it, in contrast to § 2119, would involve the regulation of

instrumentalities of interstate commerce.   Rather, we deal here with a regulation

governing all automobiles in all instances.

          In reaching its conclusion, the majority misreads the scope of existing S

Court precedent.   Foremost, its reliance on Alstate Const. Co. v. Durkin, 345 U.S.

S. Ct. 565 (1953) and Overstreet v. North Shore Corp., 318 U.S. 125, 63 S. Ct. 494

is simply misplaced.   These cases address the question whether, pursuant to a statu

regulating an entity "engaged in interstate commerce," the regulated entity in fact

within this statutory requirement. As the Court explained, Overstreet was
          another case in which we must define the scope of the Fair Labor
          Standards Act. The precise question is whether petitioners, who are
          engaged in maintaining or operating a toll road and a drawbridge over
          a navigable waterway which together constitute a medium for the
          interstate movement of goods and persons, are "engaged in commerce"
          within the meaning of §§ 6 and 7 of the Act, . . . [where] "commerce"
          [is defined as] "commerce . . . among the several States."


318 U.S. at 126 & n.2, 63 S. Ct. at 495-96 & n.2 (footnote and citations omitted).
Court concluded that they were.

          Alstate was a similar case.   Alstate was a road contractor which also

manufactured a road surfacing material. Most of its work was to install the materia

railroads and interstate roads.   The Court observed that:

0
 To the extent that federal aviation regulation governs non-commercial aircraft, a
distinction from the regulation of automobiles remains, given that the use of non-
commercial airplanes dramatically implicates the safety of interstate commercial ai
travel, which depends on the regulation of all planes using our nation's air space
manner not present in the regulation of automobiles. See Northwest Airlines v. Min
322 U.S. 292, 303, 64 S. Ct. 950, 956 (1944) (Jackson, J., concurring) ("Air as an
in which to navigate is even more inevitably federalized by the commerce clause tha
navigable water. . . . Congress has recognized the national responsibility for reg
air commerce. Federal control is intensive and exclusive.").


                                              18
          he who serves interstate highways and railroads serves commerce. By
          the same token he who produces goods for these indispensable and
          inseparable parts of commerce produces goods for commerce. We
          therefore conclude that Alstate's off-the-road employees were covered
          by the Fair Labor Standards Act because engaged in "production of
          goods for commerce."

          As the Supreme Court once again clarified in United States v. Robertson,

Ct. 1732, 1732-33 (1995) (per curiam), the question whether an entity is "engaged i

interstate commerce" under an applicable statute is a question quite different from

whether a statute, lacking any such requirement, otherwise falls within Congress's

Commerce Clause authority.   See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 19

95 S. Ct. 392, 399 n.12 (1974) ("The jurisdictional inquiry under [a statute], turn

it does on the circumstances presented in each case and requiring a particularized

judicial determination, differs significantly from that required when Congress itse

defined the specific persons and activities that affect commerce and therefore requ

federal regulation." (emphasis added)).

          The Court in Overstreet did bolster its conclusion that the bridge operat

engaged in interstate commerce by the fact that it operated a bridge which "constit

a medium for the interstate movement of goods and persons."   Overstreet, 318 U.S. a

63 S. Ct. at 496.   However, the application of the statute to the entities in both
Overstreet and Alstate rested first and foremost on the Court's statutory conclusio

the business was "engaged in interstate commerce."   Id., Alstate, 345 U.S. at 15-16

S. Ct. at 567.

          In sum, the majority and the Oliver court reason that because cars are so

used as instrumentalities of interstate commerce, Congress can regulate any aspect

automobiles (and automobile traffic) under this branch of congressional authority.

Federal power under the Commerce Clause, in my view, is not this broad.   The fact t
automobiles can be used as instrumentalities of interstate commerce does not grant



                                             19
Congress plenary authority to regulate the use and operation of every individual's

automobile.    Such an approach would constitute a dramatic encroachment on the regul

of automobiles, a traditional area of state concern, and would permit Congress to p

federal laws requiring individuals to wear seatbelts (as opposed to requiring that

manufactured with seatbelts) or banning motorists from making a right turn at a red

light.0   Previous Commerce Clause jurisprudence has never before viewed congressiona

power to regulate the instrumentalities of interstate commerce this broadly.           With

decision, the majority dramatically and improperly enhances the scope of federal po

under this branch of Congress's Commerce Clause authority.

3. SUBSTANTIAL EFFECT   ON   INTERSTATE COMMERCE

           The majority's principal justification in upholding the constitutionality

§ 2119 is that Congress could have rationally concluded that carjacking has a subst

effect on interstate commerce.            In its discussion, the majority does an excellent j

recounting the congressional findings with regard to the entire Anti-Car-Theft Act.

maj. op. at 21-23. However, by recounting this legislative history, the majority co

the relevant issues.         We do not deal here with the constitutionality of this entire

with the effect of car-theft rings, in the whole, on the economy.            Rather, our conc

with whether Congress could have rationally concluded that carjacking substantially
affects interstate commerce through its role in interstate car-theft operations.



0
 I note in this regard that existing federal automobile regulation of this genre (i.
the federal speed limit) has been exerted under the Spending Clause, not the Commer
Clause. See 23 U.S.C. § 154 (Supp. 1995) (conditioning receipt of federal highway
on a state's enforcement of federally-imposed speed limits). It has long been reco
that "`the power of Congress to authorize expenditure of public moneys for public p
is not limited by the direct grants of legislative power found in the Constitution.
South Dakota v. Dole, 483 U.S. 203, 207, 107 S. Ct. 2793, 2796 (1987) (quoting Unit
States v. Butler, 297 U.S. 1, 66 (1936)).



                                                      20
           Section 2119's legislative history is devoid of any findings in this rega

which should come as no surprise, since in enacting this provision Congress was con

not with the economic effects of carjacking or with the relationship between carjac

and interstate car-theft operations, but rather with curtailing this well-publicize

of violence.   This intent is abundantly clear from the legislative history cited by

majority: "In addition to economic costs, car owners are increasingly subject to vi

crime.   The most recent developments in car-theft is `armed carjacking.'"   H.R. REP.

102-851, 102d Cong., 2d Sess., pt. 1, at 15 (1992), reprinted in 1992 U.S.C.C.A.N.

2831 (emphasis added); id., pt. 3, at 2, 1992 U.S.C.C.A.N. at 2895 ("Perhaps relati

the opportunity for profit, criminals are increasingly committing violent crime in

form of `armed carjacking.'"); see also 138 CONG. REC. H11,819 (1992) (statement of

Ramstad) ("People are outraged and terrified by the heinous carjacking epidemic cur

upon us.   How can any civilized nation tolerate the brutal killing of a mother drag

miles to her death . . . ?   How can any civilized people tolerate such despicable,

outrageous criminal acts?    They cannot and they will not."); id. at H11,820 (statem

Rep. Collins) ("The most shocking case, involv[ing] a young mother who was dragged

miles to her death . . . has absolutely galvanized public opinion and outcry that t

Congress act now to address this awesome despicable crime.").

           Given this legislative history, it is clear that § 2119 was enacted to de
carjacking as a crime of violence, not, as the majority now contends, to confront t

effects of carjacking on the interstate economy.   Congress has not made any finding

support the conclusion that carjacking has a substantial effect on interstate comme

Congress made no such findings since, as the majority surmises, maj. op. at 42, Con

viewed § 2119's jurisdictional requirement, discussed supra at 7-16, as constitutio
sufficient.    I recognize that "Congress need [not] make particularized findings in

to legislate."   Perez, 402 U.S. at 156, 91 S. Ct. at 1362 (cited in Lopez, 115 S. C


                                              21
1631 ("Congress is normally not required to make formal findings as to the substant

burdens that an activity has on interstate commerce.")).   Accordingly, I point to t

of congressional findings only to demonstrate, that like the statute in Lopez, no s

findings are available to support the government's contention that the intrastate a

has a substantial effect on commerce.   See Lopez, 115 S. Ct. at 1630-32 ("[T]o the

that congressional findings would enable us to evaluate the legislative judgment th

activity in question substantially affected interstate commerce, even though no suc

substantial effect was visible to the naked eye, they are lacking here.").

          Given the lack of congressional findings, the majority constructs for Con

an argument that carjacking has a substantial effect on interstate commerce.   The

majority's argument is essentially two-fold; it contends: (1) that carjacking, itse

a commercial transaction which, in the aggregate, substantially affects interstate

commerce; or (2) that Congress could have rationally concluded that § 2119 was a ne

element in thwarting the operation of car-theft rings, which Congress found to

substantially affect interstate commerce.

          In the first instance, the majority submits that carjacking can be upheld

regulation of an intrastate commercial transaction which, through repetition, has a

substantial effect on interstate commerce.   Maj. op. at 26-27 & n.20 (citing Hodel
Indiana, 452 U.S. 314, 325 (1981)).   In so doing, the majority runs afoul of Lopez.

          Importantly, the Court in Lopez concluded that the regulation of non-econ

intrastate activity could not be upheld under its cases dealing with the "regulatio

activities that arise out of or are connected with a commercial transaction, which

in the aggregate, substantially affects interstate commerce."   Lopez, 115 S. Ct. at

In limiting the application of its "substantial effects" jurisprudence to intrastat
economic or commercial activity, the Court recognized that its prior caselaw in thi

satisfied this limitation:


                                             22
          we have upheld a wide variety of congressional Acts regulating
          intrastate economic activity where we have concluded that the activity
          substantially affected interstate commerce. Examples include the
          regulation of intrastate coal mining; Hodel, supra, intrastate
          extortionate credit transactions, Perez, supra, restaurants utilizing
          substantial interstate supplies, McClung, supra, inns and hotels
          catering to interstate guests, Heart of Atlanta Motel, supra, and
          production and consumption of home-grown wheat, Wickard v. Filburn,
          317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942). These examples are
          by no means exhaustive, but the pattern is clear. Where economic
          activity substantially affects interstate commerce, legislation
          regulating that activity will be sustained.


Lopez, 115 S. Ct. at 1630.

          In articulating this important limitation on its Commerce Clause jurispru

the Lopez court "admitted[] [that] a determination whether an intrastate activity i

commercial or noncommercial may in some cases result in legal uncertainty." Id. at

But the Court recognized that "so long as Congress' authority is limited to those p

enumerated in the Constitution, and so long as those enumerated powers are interpre

having judicially enforceable outer limits, congressional legislation under the Com

Clause always will engender `legal uncertainty.'"   Id.   Following Lopez, the Court

United States v. Robertson reiterated this new important limitation on its substant

effects jurisprudence: "The `affecting commerce' test was developed in our jurispru

to define the extent of Congress's power over purely intrastate commercial activiti
nonetheless have substantial interstate effects."   115 S. Ct. at 1733 (emphasis add

          The majority concludes that the Court's limitation of its substantial eff

jurisprudence to intrastate commercial or economic activity does not preclude appli

of the doctrine to § 2119 since, in the majority's view, carjacking is a commercial

transaction.   In reaching this conclusion, the majority's analysis evidences none o

"legal uncertainty" that concerned the Court in Lopez, 115 S. Ct. at 1633, since it

sufficient for the majority that "[w]hen a criminal points a gun at a victim and ta
or her car, the criminal has made an economic gain and the victim has suffered an


                                             23
undeniable substantial loss."   Maj. op. at 27.    The majority then attempts to measu

"economic effect" of carjacking by concluding that it is equivalent to the sum of t

value of all carjacked automobiles.   See maj. op. at 32 n. 20.     In my view, the maj

definition of commercial transaction is too broad and thereby runs afoul of the Lop

Court's requirement that the definition of "commercial" provide "real limits" on th

of Commerce Clause authority.   115 S. Ct. at 1633 (rejecting the primary dissent's

contention that "Congress could rationally conclude that schools fall on the commer

side of the line," on the grounds that such a "rationale lacks any real limits beca

depending on the level of generality, any activity can be looked upon as commercial

          The majority sweeps within its definition of commercial activity all crim

acts which involve a coercive (non-consensual) transfer of economic benefit from vi

perpetrator.   A definition of this breadth would not only include carjacking, but a

would clearly include all crimes of theft. Indeed, if Chief Judge Posner is correct

perhaps it includes all criminal activity.   See RICHARD A. POSNER, ECONOMIC ANALYSIS   OF   LA

18 (4th ed. 1992) (contending that "[m]urder, robbery, burglary, larceny, rape, ass

and battery, mayhem, false pretenses, and most other common law crimes (i.e., crime

punishable under the English common law)" all "represent a pure coercive transfer e

of wealth or utility from victim to wrongdoer").    While I concede that it is far fr
clear what the Court meant in Lopez by a "commercial transaction," I submit that th

preferable definition of commercial transaction requires an activity involving a vo

economic exchange.0   To define a commercial transaction as broadly as the majority d

any activity involving a transfer of wealth from victim to wrongdoer -- is to embra

0
 The Court's decision in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82 (1942), "pe
the most far reaching example of Commerce Clause authority over intrastate activity
Lopez, 115 S. Ct. at 1630, is not to the contrary. Wickard dealt with the producti
consumption of home grown wheat, an activity that undeniably bears a connection wit
voluntary economic exchange -- the need vel non of the regulated entity (the farmer
purchase wheat in the market place. See Wickard, 63 S. Ct. at 84, 90-91.


                                             24
Commerce Clause jurisprudence that includes within its scope a broad array of crimi

activity, which "[u]nder our federal system, the States possess primary authority f

defining and enforcing . . . ."    Lopez, 115 S. Ct. at 1630-31 (internal quotation m

omitted).

            The majority's second "substantial effects" argument is somewhat distinct

its first.    It contends that Congress could have rationally concluded that carjacki

"an essential part of a larger regulation of economic activity, in which the regula

scheme could be undercut unless the intrastate activity were regulated."    Id. at 16

the majority's view, Congress could have concluded that criminalizing carjacking wa

essential part of the regulation of car-theft rings, which are interstate commercia

enterprises that Congress found to have a substantial effect on interstate commerce

            Given the lack of congressional findings on the nexus between carjacking

car-theft rings, the majority constructs its argument from anecdotal evidence drawn

newspaper reports suggesting that some carjackers have sold automobiles into car-th

rings.   In addition, the majority relies on police reports and some statements by

congressmen that suggest that modern anti-theft devices have made it easier to carj

many vehicles than to steal them when they are parked.   The majority also relies on

Department of Justice Report on carjacking.   See An Analysis of Carjacking in the U
States (Oct. 14, 1992).   Such reliance is misplaced, given that the thrust of this

directly undercuts the majority's contention that carjacking forms a part of the op

of car theft rings.

            After discussing car theft rings (i.e., chop shops, salvage switching of

identification numbers, exportation, and insurance fraud), the report states:
               In each of the above instances, there was relatively little
          danger to the American public as the sole motive was to obtain the
          vehicle for its value. In contrast, the new carjacking problem is
          more akin to the violent street crimes associated with street gangs
          and the drug subculture. . . .


                                              25
               The primary motives appear to be transportation for a getaway
          after robbing the driver, a source of transportation to commit another
          crime, joyriding, and to a lesser degree, to derive a profit from the
          resale of the vehicle or its parts.



Department of Justice, An Analysis of Carjacking in the United States (Oct. 14, 199

2-3 (emphasis supplied) ("The San Juan Division notes that only eight percent of th

vehicles carjacked in their division are recovered suggesting that they are either

chopped, replated, or exported.")
          From these several sources, the majority reasons that carjacking is becom

more effective way for car-theft rings to steal cars.   Maj. op. at 29.    While the m

has done a fine job in constructing this argument in its attempt to preserve the

constitutionality of § 2119, I cannot agree that Congress could have rationally con

that carjacking constitutes conduct that contributes significantly to the operation

car-theft operations.   This is especially so in view of the fact that the number of

reported carjackings at the time of the enactment of the Anti-Car-theft Act of 1992

constituted less than 2% of the number of autos stolen in this country on an annual

basis.0

          The majority draws the legal support for its argument from the Court's op

in Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357 (1971), where, as the major

recognizes, the Court upheld a criminal loan sharking provision because Congress co

that intrastate loan sharking constituted a significant aspect of the operation of

organized crime, which had an adverse effect on interstate commerce.      While the leg

framework of the majority's argument is similar to Perez, this case is clearly
0
 See Department of Justice, An Analysis of Carjacking in the United States (Oct. 14,
at 33; Nancy Gibbs, Hell on wheels; Car Crime is no longer a matter of stealing par
of taking lives -- and an American icon becomes less and less of a sanctuary, TIME 4
(August 16, 1993) ("The FBI estimates that there were 25,000 carjackings last year
[which] is still only a tiny fraction of the 1.6 million annual car thefts.").


                                             26
distinguishable, since in Perez the Court relied on extensive congressional finding

"grew out of a `profound study of organized crime, its ramifications and its implic

undertaken by some 22 Congressmen," id. at 155, 91 S. Ct. at 1362 (quoting 114 CONG.

at 14391).          These findings in turn relied on an executive branch report stating "th

sharking was `the second largest source of revenue for organized crime,' and is one

which the underworld obtains control of legitimate businesses."                               Id. (quoting THE CH

OF   CRIME   IN A   FREE SOCIETY, A REPORT   BY THE   PRESIDENT'S COMMISSION   ON   LAW ENFORCEMENT   AND   ADMINISTRATI

JUSTICE 190 (February 1967)).

                The Perez Court recognized that these findings "supplied Congress with th

knowledge that the loan shark racket provides organized crime with its second most

lucrative course of revenue, exacts millions from the pockets of people, coerces it

victims into the commission of crimes against property, and causes the takeover by

racketeers of legitimate businesses."                    402 U.S. at 156, 91 S. Ct. at 1362 (emphasis

added).        Given these findings, the majority cannot assert that the role of carjacki

the operation of inter-state car-theft rings approaches anywhere near the essential

of loan sharking in the operation of organized crime.                          Indeed, in constructing its

argument the majority can point to little more than random newspaper clippings to s

that carjacking has any relationship to interstate car-theft rings, let alone a
relationship comparable to that of loan sharking to organized crime.                                  Accordingly,

cannot agree that the majority's analysis establishes a relationship between carjac

and car-theft rings of a degree that satisfies existing constitutional requirements

                                                         IV. CONCLUSION

                In sum, I believe that non-commercial intrastate crimes, even ones receiv

publicity in the national media, are a matter of state and not federal concern.                                       Pr
courts were correct to conclude that although § 2119 "may stretch the outer limits

Commerce Clause, under current doctrine it is not unconstitutional."                                  United States


                                                                27
Overstreet, 40 F.3d 1090, 1093 (10th Cir. 1994) (emphasis added).   However, after L

believe that the outer boundary has shifted, since, as I have demonstrated, Lopez i

just another Supreme Court case, but a watershed.   For all of the foregoing reasons

respectfully dissent.




                                            28
