United States v. Ellis McHenry , 97 F.3d 125 ( 1996 )

MOORE, J., delivered the opinion of the court, in which CONTIE, J., joined. BATCHELDER, J. (pp. 129-37), delivered a separate dissenting opinion.

MOORE, Circuit Judge.

This appeal presents us with another in a continuing series of challenges to Congress’s authority, after United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), to enact criminal laws under the Commerce Clause. In this instance, the defendant challenges the federal carjacking statute, 18 U.S.C. § 2119, part of the Anti Car Theft Act of 1992. Because we believe § 2119 lies well within the scope of the commerce power, we affirm the judgment of the district court.

I. BACKGROUND

Defendant Ellis McHenry was convicted after a jury trial on three counts of carjacking, three counts of using or carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c), and one count of possession of a firearm as an illegal alien, 18 U.S.C. § 922(g)(5). The carjacking convictions are the only ones at issue here. In a prior appeal, this court rejected McHenry’s argument that punishment under both 18 U.S.C. § 2119 and § 924(c) violated double jeopardy. See United States v. McHenry, Nos. 93-3935, 93-4041, 1994 WL 560927 (6th Cir. Oct.11, 1994) (unpublished opinion). Before his resentencing, the Supreme Court decided United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and McHenry now argues that this decision mandates dismissal of the carjacking counts, even though the district court was not swayed by this argument. There are no disputed facts in this case.¹

II. DISCUSSION

We begin by noting that the carjacking statute has already been upheld in this circuit as a valid exercise of Congress’s commerce power. See United States v. Johnson, 22 F.3d 106, 108-09 (6th Cir.1994). However, Johnson predates Lopez, the first Supreme Court decision in nearly sixty years to invalidate congressional action solely on Commerce Clause grounds. Our narrow mission in the instant appeal, therefore, is to determine whether Lopez necessitates any alteration in Johnson’s conclusion. We join the numerous other circuits that have upheld the carjacking statute in light of Lopez. See United States v. Coleman, 78 F.3d 164, 160 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 230, — L.Ed.2d - (1996); United States v. Hutchinson, 75 F.3d 626, 627 (11th Cir.), cert. denied, — U.S. -, 117 S.Ct. 241, — L.Ed.2d - (1996); United States v. Bishop, 66 F.3d 569, 585 (3rd Cir.), cert. denied, — U.S. -, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995); United States v. Robinson, 62 F.3d 234, 236 (8th Cir.1995); United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995); United States v. Carolina, 61 F.3d 917, 1995 WL 422862, *1-2 (10th Cir.1995) (unpublished opinion).

A. Instrumentalities of Interstate ■ Commerce

In Lopez, the Supreme Court held that the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A) (1988 ed. Supp. V), which criminalized possession of a firearm within 1,000 feet of a school, exceeded Congress’s authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. See — U.S. at -, 115 S.Ct. at 1626. In so holding, the Court first explained that § 922(q) was not an attempt by Congress to “regulate the use of the channels of interstate commerce” or “to regulate and protect the instrumentalities of interstate commerce,” two areas indisputably situated within Congress’s commerce power. Id. at ---, 115 S.Ct. at 1629-30 (emphasis added). As a result, the statute would stand or fall based on the degree to which it satisfied a third category of permissible legislation: “regulation of an activity that substantially affects interstate commerce.” Id. at -, 115 S.Ct. at 1630 (emphasis added). According to the Court, the government had failed to demonstrate that the mere possession of guns in school zones, even viewed in the aggregate, produced the requisite substantial effect. Id. at -, 115 S.Ct. at 1634.

The carjacking statute, by contrast, is explicitly designed to regulate and protect an “instrumentality” of interstate commerce, placing it within the second category of legitimate congressional action (“Category Two”).² As both the Third and Ninth Circuits have recognized, “cars are themselves instrumentalities of commerce, which Congress may protect.” United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995); accord United States v. Bishop, 66 F.3d 569, 588-90 (3d Cir.) (“the quintessential instrumentalities of modem interstate commerce”), cert. denied, — U.S. -, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995).

In describing Congress’s power over in-strumentalities, “or persons or things in interstate commerce,” the Lopez Court noted that regulation and protection are permissible “even though the threat may come only from intrastate activities.” — U.S. at -, 115 S.Ct. at 1629. The Court also clearly distinguished regulation under this category from “Category Three” regulation of intrastate activities “that substantially affect interstate commerce.” Id. at -, 115 S.Ct. at 1630. In other words, the Court set forth distinct yet overlapping categories of Congressional power, in which some regulable intrastate activities would undoubtedly involve instrumentalities of interstate commerce and have a substantial effect on interstate commerce, but some would only possess one characteristic or the other. Congress, according to the Court, was empowered to regulate either category of intrastate activity. Although it might seem anomalous for the Court to have allowed regulation of activities involving instrumentalities that, even in the aggregate, do not substantially affect interstate commerce, such a result is perfectly in keeping with the purposes underlying the Commerce Clause. Instrumentalities of interstate commerce — e.g., cars, trains, airplanes, see Bishop, 66 F.3d at 588 — retain the inherent potential to affect commerce, unlike other objects of regulation. Thus, even if a particular activity involving an instrumentality might not, through repetition elsewhere, substantially affect interstate commerce during the moment of regulation, the activity still falls within Category Two because the object of regulation contains the unique capacity to affect commerce at some future point in time. In the case of carjackings, for instance, the inherent mobility of cars leads to a substantial likelihood that commerce will be affected — if not in the act of carjacking itself, then in subsequent use of the car by whoever eventually possesses it.

As a result, although it has been argued that congressional authority under Category Two should be limited to regulating cars and other instrumentalities “actually engaged in interstate commerce” or “integrally related to an interstate commerce network,” Bishop, 66 F.3d at 597 (Becker, J., dissenting in part), such a rule seems inconsistent with Lopez’s own articulation of the commerce power. Indeed, the rule appears to make Congress’s power under Category Two essentially identical to that which is already afforded under Category Three. In our view, once we determine that congressional action has been directed toward regulating or protecting an “instrumentality” of interstate commerce — e.g., cars, trains, airplanes, ships — that is the end of the Category Two inquiry. The action is a valid exercise of the commerce power.

B. A Substantial Effect on Interstate Commerce

Section 2119 may also be sustained under Category Three, if Congress had a rational basis for concluding that carjacking itself “substantially affects” interstate commerce. We believe that it did. The statute addresses “economic evils of an interstate nature,” even though each instance of the evil activity may not necessarily cross state lines. United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995). As further recognized by the Third Circuit in Bishop, carjacking is itself an economic transaction, albeit a coercive one: “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.” 66 F.3d at 581.

Congress could rationally have believed that the forcible taking of ears, viewed in the aggregate, has a substantial effect on interstate commerce. Indeed, Congress conducted extensive investigations and made specific findings regarding the impact of the “auto theft problem.” H.R.Rep. No. 851, 102d Cong., 2d Sess. 14-16 (1992), reprinted in 1992 U.S.C.C.A.N. 2829, 2830-32. Congress found that carjacking constituted an increasingly prominent type of auto theft, and that auto theft as a whole had profound effects on national and international commerce. Id. According to the House Report, stolen cars represented “over 50% of the value of property lost to crime” in 1991, and auto theft “ha[d] become a very large and lucrative business” involving various illicit schemes: taking cars to “chop shops,” where they are “dismantled and sold for replacement parts”; falsely retitling vehicles for resale under the apparent endorsement of another state; and sealing stolen cars in international shipping containers for export. Id. Indeed, because carjacking involves dispossessing a victim of an item deemed by Congress to be a significant “investment,” Congress could have made the reasonable determination that replacement costs alone were sufficient to justify regulation. Congress could have concluded that victims of carjacking will in many cases need to replace or repair their cars, and that carjacking consequently injects many of its victims back into the car-buying, car-leasing, or car-repair market. Such transactions clearly have a substantial effect on interstate commerce. As the House Judiciary Committee observed, “as much as 64% of an automobile owner’s comprehensive insurance premium is attributable to theft claims,” and carjacking contributes significantly to this total amount of loss: “In a single week last year in Detroit [1991], 74 cars were stolen in armed carjackings.” Id.

This contrasts sharply with the mere possession of a gun in a school zone, which in Lopez was found to have “nothing to do with ‘commerce’ or any sort of economic enterprise.” — U.S. at -, 115 S.Ct. at 1630-31. The carjacking statute was enacted as an integral part of a comprehensive act aimed at deterring auto theft. See Anti Car Theft Act of 1992, Pub.L. No. 102-519, 106 Stat. 3384 (1992). Not only did the act criminalize carjacking, it 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), ... criminalized the operation of chop shops for dismantling stolen vehicles (section 105)[,] ... provided grants for the development of local “anti car theft committees” (section[s] 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).

Bishop, 66 F.3d at 580. Moreover, Congress specifically found that local and state law enforcement efforts had proved inadequate in capturing auto thieves. See H.R.Rep. No. 851 at 15, 1992 U.S.C.C.A.N. at 2831-32. In short, there can be no doubt that Congress considered the “recent development” of carjacking to be part and parcel of an economic problem of national dimension. Id. There can be no doubt that a rational basis exists for finding carjacking to have a substantial effect on interstate commerce.

Lopez recognizes that determinations as to the extent of Congress’s commerce power will often be “one of degree.” — U.S. at -, 115 S.Ct. at 1633 (citation omitted); id. at -, 115 S.Ct. at 1637 (Kennedy, J., concurring) (citation omitted). This is necessarily so when the inquiry focuses on whether a regulated intrastate activity “substantially affects,” rather than merely “affects,” interstate commerce. See Lopez, — U.S. at -, 115 S.Ct. at 1630. Although such formulations are not very precise, “in the nature of things they cannot be,” id. at -, 115 S.Ct. at 1634, and some Commerce Clause cases will undoubtedly present vexing questions that obligate a court “to draw lines, often close and difficult lines.” Id. at -, 115 S.Ct. at 1640 (Kennedy, J., concurring) (citation omitted). Fortunately, this is not one of those close eases. The statutory scheme and legislative history of § 2119 provide ample support for the concept that carjacking is an economic activity that, through repetition, substantially affects interstate commerce. Id. at -, 115 S.Ct. at 1634.

Because we have determined from the outset that the carjacking statute is directed at regulating economic activity, we do not need to address the separate question of whether the statute’s jurisdictional element also renders it constitutional as another species of Category Three regulation. See United States v. Wall, 92 F.3d 1444, 1450 (6th Cir.1996) (absence of jurisdictional element not fatal to federal gambling statute); United States v. Tucker, 90 F.3d 1135, 1141 (6th Cir.1996) (“Lopez did not proclaim a general rule that all federal criminal statutes must include a jurisdictional element.”); cf. United States v. Chesney, 86 F.3d 564, 568-69 (6th Cir.1996) (focusing on sufficiency of firearm statute’s jurisdictional element as basis for valid exercise of commerce power). As a regulation of economic activity, § 2119 withstands constitutional scrutiny even without a demonstration that each individual instance of such activity affects interstate commerce.³

III. CONCLUSION

We agree with the district court that the carjacking statute remains constitutional after Lopez, for two reasons: (1) the statute is designed to regulate and protect instrumen-talities of interstate commerce; and (2) the statute regulates economic activity that Congress could rationally have concluded has a substantial effect on interstate commerce. We reaffirm our holding in United States v. Johnson, 22 F.3d 106, 108-09 (6th Cir.1994). We AFFIRM the district court.

1 . For a fuller exposition, see the prior panel opinion, 1994 WL 560927, at *1.

2 . At the time of McHenry's offenses, the statute stated: “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 (1992). Since 1992, § 2119 has been amended in areas not relevant to this appeal. See 18 U.S.C. § 2119 (1994).

3 . Although we do not reach this issue, we recognize in passing that the Third Circuit did so in Bishop, holding “that the jurisdictional element in section 2119 independently refutes appellants’ arguments that the statute is constitutionally infirm.” 66 F.3d at 588 (emphasis added).