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U.S. v. Bishop

filed: September 7, 1995.

UNITED STATES OF AMERICA
v.
KEVIN BISHOP APPELLANT, NO. 94-5321. UNITED STATES OF AMERICA V. 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).

Before: Becker, Lewis and Garth, Circuit Judges.

Author: Lewis

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 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.

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, 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 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,*fn1 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.*fn2

II.

Stokes argues that the Double Jeopardy Clause of the Fifth Amendment*fn3 prohibited the district court from imposing consecutive sentences upon him for carjacking in violation of 28 U.S.C. § 2119*fn4 and use of a firearm during the commission of a violent felony in violation of 28 U.S.C. § 924(c).*fn5 Our standard 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 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 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).*fn6 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 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 . . . .

The 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, "by 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 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 been construed broadly to permit regulation of a great deal of modern life.*fn7 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.*fn8

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.*fn9 Because we will address 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 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 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 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,

the 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.

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 [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). "The 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 ...


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