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March 8, 1993


The opinion of the court was delivered by: EDUARDO C. ROBRENO


 This case involves a prosecution under the recently enacted federal anti-carjacking statute. The defendant has moved to dismiss the indictment on the grounds that the statute is unconstitutional and that the indictment is vague. For the reasons stated below, the motion will be denied and the case shall proceed to trial as scheduled.


 On December 1, 1992 a grand jury indicted the defendant on one count of conspiracy to commit armed carjacking (18 U.S.C. § 371 and § 2119), one count of armed carjacking (18 U.S.C. § 2119), one count of carrying a firearm during and in relation to a violent crime (18 U.S.C. § 924(c)), and three counts of obstruction of justice (18 U.S.C. § 1512(b)(1)). The indictment alleges that defendant and an accomplice stole an automobile at gunpoint from the male owner of the vehicle and his female associate, and that the defendant subsequently, on three separate occasions, attempted to influence a grand jury witness.


 a. The Commerce Clause

 The federal government may act only pursuant to a power granted to it by the United States Constitution. McCulloch v. Maryland, 17 U.S. 316, 405, 4 L. Ed. 579 (1819). Among the powers specifically enumerated in the Constitution is the power of the federal government to regulate interstate commerce. This power is set forth in the Commerce Clause, U.S. Const. art. 1, § 8, cl. 3. *fn2" It is now said that "the Commerce Clause forms the broadest base of Congressional power," Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989), cert. denied, 493 U.S. 1070, 110 S. Ct. 1112, 107 L. Ed. 2d 1019 (1990), providing only a "nominal check" on the federal power to regulate. In Re TMI Litigation Cases Consol. II, 940 F.2d 832, 876 (3d Cir. 1991) (Scirica, J., concurring), cert. denied sub nom., U.S. , 112 S. Ct. 1262 (1992).

 The modern test for the validity of the congressional exercise of Commerce Clause powers was stated in Hodel v. Indiana, 452 U.S. 314, 325, 101 S. Ct. 2376, 2383-84, 69 L. Ed. 2d 40 (1981): "A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends." The exercise of Commerce Clause power will support the enactment of federal criminal statutes in at least three contexts: One, where the regulation relates to things "in commerce," be it misuse of the channels of interstate commerce, e.g., Brooks v. United States, 267 U.S. 432, 45 S. Ct. 345, 69 L. Ed. 699 (1925) (rejecting Commerce Clause challenge to the Dyer Act, 18 U.S.C. § 2312, which outlaws the interstate transportation of stolen vehicles); Hoke v. United States, 227 U.S. 308, 33 S. Ct. 281, 57 L. Ed. 523 (1913) (rejecting Commerce Clause challenge to the Mann Act, 18 U.S.C. § 2421, which outlaws the interstate transportation of persons for purposes of prostitution); Gooch v. United States, 297 U.S. 124, 56 S. Ct. 395, 80 L. Ed. 522 (1936) (rejecting Commerce Clause challenge to the "Lindberg Law," 18 U.S.C. § 1201, which outlaws kidnappings that are related to interstate transportation or commerce), or legitimate use of the channels of interstate commerce, *fn3" e.g., United States v. Darby, 312 U.S. 100, 61 S. Ct. 451, 85 L. Ed. 609 (1941) (rejecting Commerce Clause challenge to statute prohibiting employers from paying wages below a certain rate if the employees manufacture goods for interstate commerce); Barrett v. United States, 423 U.S. 212, 96 S. Ct. 498, 46 L. Ed. 2d 450 (1976) (federal statute prohibiting felon's possession of firearms transported in interstate commerce applies to situations in which the interstate transportation occurred before the felon's possession); two, where the targeted activity occurs solely intrastate but affects interstate commerce, e.g., intrastate loan sharking (18 U.S.C. § 891, et seq.); *fn4" and three, where the regulation involves protection of the instrumentalities of interstate commerce themselves, e.g., 18 U.S.C. § 32 (criminalizing the destruction of aircraft). *fn5"

 Testing the anti-carjacking statute against the sweep of the Commerce Clause in these three categories, the Court has little difficulty rejecting defendant's contention. First, the statute applies only if the stolen car at issue is "transported, shipped or received" in interstate commerce prior to the theft. *fn6" Since the statute applies only to cars that have crossed state lines, it applies only to things which are said to be "in commerce." Regulation of things "in commerce" represents the earliest and most traditional congressional exercise of Commerce Clause powers. See, e.g., Gibbons v. Ogden, 22 U.S. 1, 6 L. Ed. 23 (1824) (Commerce Clause justifies regulation over licensing of ships); Reid v. Colorado, 187 U.S. 137, 23 S. Ct. 92, 47 L. Ed. 108 (1902) (upholding federal regulation over interstate transportation of diseased livestock); McDermott v. Wisconsin, 228 U.S. 115, 33 S. Ct. 431, 57 L. Ed. 754 (1913) (upholding federal regulation over labelling requirements for goods travelling through interstate commerce); see also Darby7 and Barrett, supra, and Nowak, Rotunda, Constitutional Law (4th ed.), at 144 ("When persons or items traveled between two states, there could be no question that they constituted interstate commerce."). Given the Supreme Court's historic acceptance of the assertion of federal control over things that travel, or have travelled, in interstate commerce, the power of Congress to regulate as it did in § 2119 cannot be seriously questioned.

 Secondly, Congress perceived an impact on interstate commerce arising out of automobile theft. The House Judiciary Committee in its report found that car thieves profit through three different methods: 1) by dismantling stolen cars at "chop shops" in order to resell their parts, 2) by obtaining title in one state to cars stolen from another state, thereby taking advantage of the states' inability to swiftly communicate with each other with regard to stolen vehicles, and 3) by exporting stolen cars to foreign countries. H.R. Rep. No. 851, 102d Cong. 2d Sess., pt. 1, at 14 (1992). The report goes on to state that:

Enterprises using all three profiteering methods regularly engage in interstate, and even international trafficking of automobiles and auto parts. Just as important, auto thieves have a severe and deleterious effect on interstate commerce by imposing significant costs on automobile owners. The most obvious cost is reflected in increasing [sic] high automobile insurance premiums. . . . In addition, car owners often must take expensive security measures -- such as anti-theft devices and off-street parking -- to protect their investment. These costs depress the interstate commerce in automobiles by making car ownership significantly more expensive for consumers.

 Id. at 14-15. The report also states that:

Automobile theft has become the nation's number one property crime problem. More than 1.6 million motor vehicles were reported stolen in 1991, an increase of 34% since 1986. The stolen automobiles were worth an estimated $ 8-9 billion, representing over 50% of the value of property lost to crime.

 Id. at 14. The report also noted that "auto crime enforcement has been conducted primarily at the state and local level. There are significant barriers to enforcement, however, that have resulted in 49 out of 50 auto thieves escaping punishment." Id. at 15. ...

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