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United States District Court, District of New Jersey, D.

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 are reasonably adapted to the constitutionally permissible end. See id. (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)).

Before turning to § 2113 specifically, this Court must define the proper frame-work for its inquiry. That is, the Court must determine whether it is considering whether Congress could rationally conclude that banking substantially affects commerce, or whether bank robberies substantially affect banking and commerce, or solely whether Congress had a rational basis for concluding that this particular offense — a $3,500 robbery from a bank with no branches outside New Jersey — substantially affects interstate commerce.

The parties do not, contest that banking generally substantially affects interstate commerce. On the other hand, a challenge to the bank robbery statute based on the overall impact of banking on commerce would sweep too broadly. Defendant urges this Court to scrutinize the effect of the particular charged offense on commerce. To focus on that analysis, however, would be too restrictive. In this Court's view, the appropriate inquiry must consider whether Congress had a rational basis to conclude that bank robbery substantially affects interstate commerce.

Section 2113 emerges intact from this analysis. Federal law may permissibly proscribe an act that, in the aggregate, substantially affects interstate commerce even if each individual violation may not. "[W]here a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968)); see also United States v. Parker, 108 F.3d 28, 30 (3d Cir. 1997) ("Even `local activities may become the subject of national legislation when they are found to be part of a national problem with a substantial impact upon interstate commerce.'") (quoting United States v. Bishop, 66 F.3d 569, 584 (3d Cir. 1995)).

In Lopez, however, the economic impact was nowhere to be found, since "[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at 567, 115 S.Ct. 1624. In the Court's view, to uphold 922(q) because violence adversely impacts the learning environment, and in turn, reduces economic productivity, would vitiate any distinction between national and state regulation "because, depending on the level of generality, any activity can be looked upon as commercial." Id. at 565, 115 S.Ct. 1624.

In United States v. Rodia, 194 F.3d 465 (3d Cir. 1999), by contrast, the Third Circuit affirmed the defendant's conviction for violating a federal statute prohibiting intrastate possession of child pornography. The clause under which the defendant had been convicted required only that some "precursor material," such as film or cameras, had moved in interstate commerce. Setting aside the jurisdictional element as "almost useless," id. at 473, the Rodia court analyzed the statute to ascertain if it was a legitimate regulation of activity with a substantial effect on interstate commerce. It found Congress's conclusion that a substantial interstate market exists in child pornography to be "eminently reasonable." Id. at 475. Turning to the appropriateness of the means, Rodia found it also reasonable to believe that discouraging intrastate possession would help reduce the interstate demand for child pornography. The statute thus met the requirements of the Commerce Clause. See id. at 481-82.

The government asserts that the rationality of Congress's bank robbery prohibition is clear. It argues that Congress reasonably foresaw a need to protect the assets of individuals and entities engaged in interstate commerce, and rationally concluded that bank robbery threatens these assets, the commercial operations of banks, and public confidence in them. By making the robbery of these federally insured funds a federal offense, would-be robbers are prevented from harming and impeding the flow of commerce. See generally H. Rep. 81-2520, reprinted in 1950 U.S.C.C.A.N. 2863 at 2864 (amending § 2113 to cover robberies of state-chartered federally insured savings and loan associations ("S & Ls") because of pattern where federally chartered (and therefore protected by federal law enforcement) S & Ls were not robbed, but state-chartered and state-protected S & Ls remained robbery targets).

Defendant asserts that specific data concerning the effect of robbery on interstate commerce are necessary to answer the question properly, and that the absence of evidence detailing the connection between robbery and commerce undermines the statute and the indictment here.*fn8

The Lopez Court made clear, however, that Congressional findings are not typically required to justify the exercise of commerce authority. In Lopez, in contrast to other federal statutes, the substantial effect — or any link to interstate commerce, for that matter — was not "visible to the naked eye," and the Court declared that findings might have proven helpful in the Court's evaluation of the rationality of the legislative judgment that the activity impacted interstate commerce. See Lopez, 514 U.S. at 562-63, 115 S.Ct. 1624.

Thus, the absence of detailed, numeric findings is not dispositive, particularly here, where the connection to interstate commerce is plainly apparent. The target of the offense at issue here — a bank — is an integral part of interstate commerce, regardless of whether the individual bank has interstate branches or whether the amount stolen totals millions of dollars. It is not, as Defendant suggests, the equivalent of a theft of petty cash from a school, and does not invoke the spector of limitless federal regulation, which concerned the Lopez Court.

Moreover, this Court may not substitute its judgment for that of Congress. Rather, it must look at what Congress has done and determine if a rational basis supports that action. See United States v. Parker, 108 F.3d 28, 30 (3d Cir. 1997) (upholding Child Support Recovery Act) (citing Bishop, 66 F.3d at 577 (analyzing carjacking statute in light of Lopez)). If bank robberies, of whatever sum, interrupt the course of bank business throughout the nation and challenge the security of federally insured monies, then a legislative decision to prohibit those robberies appears rational indeed.

It is also rational to conclude that the disruption and threat to the flow of business from bank robbery — a combination of prevention efforts and training, response to robberies, emotional and institutional recovery, and actual dollar loss — substantially affects interstate commerce. This Court need not examine detailed economic study to conclude that these reasonable grounds exist. And, it cannot seriously be disputed that criminalizing the source of that negative impact is a reasonable means to achieve the objective of protecting the flow and functioning of interstate banking. See, e.g., Bell v. United States, 462 U.S. 356, 362, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983) (discussing § 2113 and its "congressional goal of protecting bank assets").*fn9

Defendant contends that even if § 2113 is constitutional on its face, its application in this particular case exceeds Congress's commerce authority. Defendant's argument that the charged offense has an insufficient connection to commerce hinges largely on United States v. McGuire, 178 F.3d 203 (3d Cir. 1999). In McGuire, the defendant was convicted of aiding and abetting the bombing of his mother's car under 18 U.S.C. § 844 (i), which criminalizes the arson of any vehicle or other real or personal property used in any activity affecting interstate commerce. The victim was the co-owner of a local catering business, which was damaged indirectly when the victim's partner stopped working to aid her recovery. See id. at 205-06. The sole connection to interstate commerce was a carton of Tropicana orange juice produced in Florida and found in the trunk of the car. See id. at 206. The Third Circuit deemed the link to interstate commerce insufficient and reversed.

Reaffirming the constitutionality of the statute generally, the McGuire court rejected the notion that a de minimis effect on interstate commerce — no matter how attenuated — is enough to support federal jurisdiction. See id. at 209-10. The court did not, however, require that the particular use or offense have a substantial effect. See id. at 212 n. 10. The court refused to adopt a bright-line rule for measuring "substantial effect," but cautioned against aggregating individual local offenses "too broadly" in order to connect them to interstate commerce. Id. at 212. If that approach were followed, "[e]ven such a seemingly parochial action as borrowing a cup of sugar from a neighbor can be viewed as part of the stream of commerce that extends to refineries overseas." Id. at 210. Nevertheless, Congress may regulate "activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Lopez, 514 U.S. at 561, 115 S.Ct. 1624.

Thus Lopez and its progeny, including McGuire, have made clear that each individual offense prosecutable under a statute need not have a substantial relation to interstate commerce. See, e.g., Lopez, 514 U.S. at 558, 561, 115 S.Ct. 1624. Certain connections to interstate commerce are indeed too trivial or attenuated to support federal jurisdiction, such as the mere possession of a container of orange juice by a local business or the borrowing of a cup of sugar. Provided the link is not too remote, however, the specific offense need not have an independent substantial relationship.*fn10

Much as the statute at issue in McGuire sought to protect business property used in interstate commerce, § 2113 seeks to protect commercial entities and their assets. See McGuire, 178 F.3d at 207-08. The McGuire court inquired whether the business harmed by the proscribed act bore a sufficient relation to interstate commerce to support the exercise of jurisdiction. In McGuire, it did not. Posing a similar question in this case, however, strongly supports the exercise of jurisdiction. Although the $3,500 stolen from First Savings may not alone alter the course of interstate commerce, the bank itself is inextricably linked to interstate commerce as a conduit for, and participant in, nationwide transactions. Congress could rationally and reasonably conclude that the economic effects of this robbery, which extend beyond the mere dollar amount, warrant federal jurisdiction.

In concluding, this Court must note the closely analagous situation found in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), where the Supreme Court affirmed a conviction for a purely intrastate extortionate credit transaction totaling approximately $3,000.00. See id. at 147-48, 91 S.Ct. 1357. The Perez Court recognized the impact of such "loan-sharking" on interstate commerce and declared an intrastate extortionate credit transaction of a relatively small sum permissibly proscribed by federal law. See id. at 156, 91 S.Ct. 1357; see also Lopez, 514 U.S. at 559-60, 115 S.Ct. 1624 (approving Perez as an appropriate exercise of commerce power).

As in Perez, here, neither the relatively small sum nor the seemingly intrastate nature of the offense is fatal to the indictment. This bank robbery cannot be divorced from the impact bank robberies as a whole have on banking and commerce. Accordingly, Defendant's motion is denied and the indictment will stand.*fn11


For all of the foregoing reasons, Defendant's motion to dismiss the indictment is denied.

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