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May 1, 2000


The opinion of the court was delivered by: Greenaway, District Judge.


Defendant Robert Spinello is charged in a three-count indictment with committing a bank robbery. Defendant now asks this Court to dismiss the indictment because the federal bank robbery statute, 18 U.S.C. § 2113, impermissibly exceeds Congress's authority under the Commerce Clause, U.S. Const., Art. I, § 8 cl. 3.*fn1 As discussed below, this Court finds that the statute is constitutional — both on its face and as applied. Defendant's motion is denied, and the indictment will stand.


Defendant has been charged with committing an armed robbery of the First Savings Bank ("First Savings") in Edison, New Jersey on January 13, 1999. The government charges that Defendant entered the bank with a handgun concealed in a folded newspaper, walked up to a teller, revealed the gun, and told the teller to give him money in denominations of fifty and one-hundred dollar bills. As the robber exited the bank with $3,500.00 in cash, the teller exclaimed that she had been robbed. A customer followed the robber and saw him enter a green sports-utility vehicle. The customer identified the car as bearing either New Jersey license plate number VR6669G or V669G. The latter plate number belongs to a green 1998 Ford Explorer registered to Defendant's wife. Two eyewitnesses identified Defendant during a show-up at First Savings later that afternoon.*fn2

On September 16, 1999, the grand jury handed down the instant indictment. It charges Defendant with one count of bank robbery, in violation of 18 U.S.C. § 2113 (a) and 2, one count of bank robbery with a dangerous weapon, in violation of 18 U.S.C. § 2113 (d) and 2, and one count of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924 (c) and 2. Defendant has pleaded not guilty to each count.


Defendant argues that the crime charged in the indictment is not a proper exercise of Congress's authority under the Commerce Clause and is thus not subject to federal jurisdiction. Specifically, Defendant contends that the decision of the Supreme Court of the United States in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), mandates a reexamination of the justification for § 2113.*fn3 Defendant further claims that even if § 2133 is found facially constitutional, the indictment here still does not pass constitutional muster.

I. Congressional Legislative Power under the Commerce Clause

The Commerce Clause empowers Congress to "regulate Commerce . . . among the several States." U.S. Coust., Art. I, § 8, cl. 3. In Lopez, the Supreme Court struck down the Gun-Free School Zones Act, 18 U.S.C. § 922 (q)(1)(A) (1988 ed. Supp. V) (the "GFSZA" or "922 (q)"), as unconstitutional. The GFSZA made the possession of a firearm on the grounds, or within 1,000 feet of the grounds, of a public, parochial, or private school a federal criminal offense. See Lopez, 514 U.S. at 551 and n. 1, 115 S.Ct. 1624. The Court determined that the GFSZA exceeded Congress's Commerce Clause authority.

The Lopez Court surveyed its Commerce Clause jurisprudence, which has interpreted the Constitution to permit congressional regulation pursuant to this power in three general areas: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) "those activities having a substantial relation to interstate commerce." Id. at 558-59, 115 S.Ct. 1624. After quickly determining that 922(q) could not be analyzed pursuant to the first two categories, the Court proceeded to scrutinize it under the third prong, to determine "whether the regulated activity `substantially affects' interstate commerce." Id. at 559, 115 S.Ct. 1624.*fn4

Unlike most statutes enacted pursuant to the commerce power, 922(q) lacked a jurisdictional component — that is, it failed to link the possession of the firearm to interstate commerce. See id. at 561-62, 115 S.Ct. 1624 (citing United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), which interpreted and approved of statute prohibiting receipt, possession, or transport in commerce of any firearm). According to the Court, such a link would "ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 561, 115 S.Ct. 1624.*fn5 In the absence of an express commercial nexus, the Court examined 922(q) for other indicia of a substantial relationship with interstate commerce, but found that the specific proscribed act had "nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. Indeed, the Court was unable to discern any broader economic activity impacted by the presence of guns in school zones: "Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Id. The Court declared instead that the problem of guns in schools is a local, noncommercial issue outside the province of federal regulation. See id. at 567-68, 115 S.Ct. 1624.

Following Lopez, defendants across the United States have lodged constitutional challenges to myriad federal criminal statutes, arguing, as Defendant does here, that the legislation exceeded congressional authority and that the issue is properly left to the states. The Third Circuit has rejected many such challenges, upholding the federal statutes as permissible exercises of Congress's commerce power. See, e.g., United States v. Rodia, 194 F.3d 465 (3d Cir. 1999) (upholding federal statute prohibiting intrastate possession of child pornography as within commerce power); United States v. Parker, 108 F.3d 28 (3d Cir. 1997) (upholding Child Support Recovery Act, which criminalizes failure to pay past due support obligations); United States v. Rybar, 103 F.3d 273 (3d Cir. 1996) (upholding federal statute criminalizing possession of a machine gun); United States v. Gateward, 84 F.3d 670 (3d Cir. 1996) (upholding federal statute barring felons from possessing firearms); United States v. Bishop, 66 F.3d 569 (3d Cir. 1995) (upholding federal carjacking statute).*fn6 The constitutionality of § 2113, upheld by the Ninth Circuit in United States v. Harris, 108 F.3d 1107, 1109 (9th Cir. 1997), is a matter of first impression in this Circuit.

II. Substantial Effect on Commerce*fn7

Mindful of Justice Kennedy's concurring admonition in Lopez that courts must "observe `great restraint' before determining that Congress's actions were not supported by the Commerce clause," the Third Circuit has construed Lopez to require a two-step analysis to ascertain whether a federal statute regulates activity with a "substantial effect" on interstate commerce. See United States v. Rybar, 103 F.3d 273, 278 (3d Cir. 1996) (quoting Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring)). This Court must first inquire "whether Congress could rationally conclude that the regulated activity substantially affects interstate commerce." Rybar, 103 F.3d at 278. If there was a rational basis for the legislation, this Court must then determine whether the chosen means ...

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