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.
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
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