U.S. v. Bishop

Citation66 F.3d 569
Decision Date29 September 1995
Docket NumberNos. 94-5321,94-5387,s. 94-5321
PartiesUNITED STATES of America v. Kevin BISHOP, Appellant. UNITED STATES of America v. Edward STOKES, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Kim A. Otis (argued), Haveson & Otis, Princeton, NJ, for appellant Kevin Bishop.

Michael J. Sullivan (argued), Office of Federal Public Defender, Newark, NJ, for appellant, Edward Stokes.

Kevin McNulty (argued), Office of United States Attorney, Newark, NJ, for U.S.

Before: BECKER, LEWIS and GARTH, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

We are called upon in this case principally to perform one of our most delicate duties--determining whether Congress exceeded its constitutional authority in enacting a federal law. At issue is the power of Congress to criminalize "carjacking"--the armed theft of an automobile from the presence of another by force and violence or by intimidation. Congress believed that it had the power to criminalize the carjacking of any motor vehicle that has been transported, shipped or received in interstate or foreign commerce, and accordingly enacted 18 U.S.C. Sec. 2119 to do just that. Edward Stokes and Kevin Bishop were convicted under that statute of carjacking an automobile in East Orange, New Jersey. They appeal their convictions on numerous grounds, most of which require little discussion. However, we address in greater depth two of the arguments: (1) that the Double Jeopardy Clause of the Fifth Amendment prohibited the district court from imposing consecutive sentences for carjacking in violation of 18 U.S.C. Sec. 2119 and use of a firearm during the commission of a violent felony in violation of 18 U.S.C. Sec. 924(c); and (2) that Congress exceeded its constitutional authority in enacting the carjacking statute. We will affirm.

I.

Close to midnight on the warm, pleasant night of July 22, 1994, after getting a bite to eat, Roger Bradley decided to teach his fiancee, Grace Rollins, how to drive the new Dodge Shadow automobile Bradley had purchased just three weeks previously. Bradley chose the parking lot of a Channel store in East Orange, New Jersey for the lesson and pulled his car into the lot. Rollins practiced driving in the parking lot for a while, then decided that she had had enough, and the two got out of the car to switch positions.

As they did so, they were approached by two men. One of the men put a pistol to Bradley's head and demanded the car keys; the other put a hand over Rollins' mouth and held her from behind. After Bradley turned over the keys, the two men drove off, but not before both Bradley and Rollins got a good look at the man who had brandished the gun at Bradley.

Luckily, as the thieves pulled away in the car and Bradley ran out into the road, he spotted a police car that had just pulled into another nearby parking lot. Flagging down the police, Bradley described the incident and his automobile, and provided descriptions of the assailants. This information was broadcast over the police radio.

Officer Morris Rhodes of the East Orange Police Department heard the bulletin, and shortly thereafter an automobile matching the description drove by him. Its occupants fit the general description (two black males) Bradley had provided. Officer Rhodes followed without his lights on while radioing in the license plate number, then switched on the lights and siren when the report came back that the car was the vehicle in question.

The Shadow accelerated and tried to pass another car that was turning, but struck the other car and careened into a building. As Officer Rhodes pulled up to the scene, he saw a man exit through the driver's side window, fall to the pavement, get up, and run. Officer Rhodes gave chase, pulled his gun, and ordered the man to stop. The man stopped and was arrested and handcuffed. That man was Edward Stokes. Two guns were found on the floor of the automobile, but the other man who had been in the car was not found.

Officer Rhodes took Stokes to the police station and booked him, videotaping the procedure. At one point during the booking, one of the officers asked Stokes, who had been limping, what was the matter with his leg. Stokes responded that he had hurt it in an accident.

Within an hour and a half of the carjacking, Bradley and Rollins were taken into a room at the police station, one at a time, to view a suspect. Prior to viewing the suspect, they had heard the police talking about having apprehended the man who had stolen the car. Through a one-way mirror, they both identified Stokes as the man who had held a gun to Bradley's head.

Kevin Bishop was arrested three months later on unrelated charges. Both he and Stokes were later indicted for carjacking in violation of 18 U.S.C. Sec. 2119, use of a firearm during commission of a violent felony in violation of 18 U.S.C. Sec. 924(c), and being felons in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1).

After the district court denied Bishop's motion to dismiss, which had alleged that the carjacking statute was unconstitutional, Bishop pleaded guilty to the charges against him on February 4, 1994. He received a sentence of 210 months of imprisonment, three years of supervised release and a $2,000 fine.

Stokes' case went to trial. Prior to that trial, the district court denied Stokes' motion to suppress evidence of the victims' out-of-court identification of him and to bar the government from using the victims to identify Stokes in court. At trial, the victims testified about their out-of-court identifications of Stokes and identified him as the perpetrator again before the jury. Also, over Stokes' objection, the district court permitted the government to introduce into evidence Stokes' comment during booking about injuring his leg and to show the jury the videotape of Stokes' booking. The jury found Stokes guilty of carjacking and use of a firearm during the commission of a violent felony and (subsequently, in the second half of the bifurcated trial) of being a felon in possession of a firearm. Stokes was sentenced to 248 months of imprisonment, three years of supervised release and a $5,000 fine.

Both Bishop and Stokes appealed, 1 and we consolidated their appeals for purposes of argument and disposition. We have jurisdiction under 28 U.S.C. Sec. 1291.

As we stated at the outset, although both Bishop and Stokes have raised numerous issues, we address in the body of this opinion only two issues: Stokes' argument that the Double Jeopardy Clause of the Fifth Amendment prohibits consecutive sentences for carjacking (18 U.S.C. Sec. 2119) and use of a firearm during the commission of a violent felony (18 U.S.C. Sec. 924(c)); and Bishop's and Stokes' arguments that the carjacking statute is unconstitutional because in enacting the statute, Congress exceeded its authority under the Commerce Clause. 2

II.

Stokes argues that the Double Jeopardy Clause of the Fifth Amendment 3 prohibited the district court from imposing consecutive sentences upon him for carjacking in violation of 18 U.S.C. Sec. 2119 4 and use of a firearm during the commission of a violent felony in violation of 18 U.S.C. Sec. 924(c). 5 Our standard of review is plenary. United States v. Lattany, 982 F.2d 866 (3rd Cir.1992).

Stokes relies on the principle that the Double Jeopardy Clause prohibits multiple punishments for the same offense. However, as the Supreme Court has found, "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).

Attempting to fit within this rubric, Stokes argues that we should apply the rule of statutory construction announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The essential question of that test is "whether each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. at 182. In this case, Stokes argues, since all violations of the carjacking statute necessarily constitute violations of Sec. 924(c), the statutes fail the Blockburger test and their consecutive application would violate double jeopardy "in the absence of a clear indication of contrary legislative intent." Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

Although we have not yet addressed the Double Jeopardy implications of 18 U.S.C. Secs. 924(c) and 2119, Stokes' arguments have been raised in every other court of appeals except the Seventh and D.C. Circuits. Defendants have lost every time. United States v. Centeno-Torres, 50 F.3d 84 (1st Cir.1995); United States v. Mohammed, 27 F.3d 815, 819-20 (2d Cir.1994); United States v. Johnson, 32 F.3d 82, 85 (4th Cir.1994); United States v. Singleton, 16 F.3d 1419, 1425-29 (5th Cir.1994); United States v. Johnson, 22 F.3d 106, 107-08 (6th Cir.1994); United States v. Jones, 34 F.3d 596 (8th Cir.1994); United States v. Martinez, 49 F.3d 1398 (9th Cir.1995); United States v. Overstreet, 40 F.3d 1090 (10th Cir.1994); United States v. Moore, 43 F.3d 568 (11th Cir.1994). Indeed, when one evaluates the statutes at issue, it is evident why no appellate court has accepted Stokes' Double Jeopardy theory, for although Stokes wants us to apply Blockburger, to do so would be to put the cart before the horse. Blockburger applies when the legislative intent is not clear. Here, the statutes are clear. As the Second Circuit noted in Mohammed, "Because the legislative intent to impose a consecutive sentence for the violation of section 924(c) is plain from the language of that provision, ... we need not consider the Blockburger test to conclude that the consecutive sentence imposed in this case did not violate double jeopardy." Mohammed, 27...

To continue reading

Request your trial
137 cases
  • U.S. v. Myers
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • December 9, 2008
    ...the instrumentalities and the people and "things that the instrumentalities are moving." United States v. Bishop, 66 F.3d 569, 598 (3d Cir.1995) (Becker, J., concurring in part dissenting in part); see also Patton, 451 F.3d at 622. The Supreme Court's use of the formula "persons or things i......
  • US v. Lewis
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • September 5, 1996
    ...... United States v. Bishop, 66 F.3d 569, 581 (3d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995). The Supreme Court has held that the regulated ......
  • United States v. Protho
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 20, 2022
    ...followed this course when faced with similar questions, and no circuit has adopted Protho's proposal. See, e.g., United States v. Bishop , 66 F.3d 569, 590 (3d Cir. 1995) ("conclud[ing] that motor vehicles are instrumentalities of interstate commerce"); United States v. Cobb , 144 F.3d 319,......
  • U.S. v. Rybar, 95-3185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 30, 1996
    ...98 F.3d 105 (3d Cir.1996) (rejecting challenge based on Lopez to Drug-Free School Zones Act, 21 U.S.C. § 860(a)); United States v. Bishop, 66 F.3d 569 (3d Cir.1995) (rejecting challenge to car-jacking In its discussion of this issue, the Court contrasted § 922(q) with former 18 U.S.C.App. §......
  • Request a trial to view additional results
7 books & journal articles
  • Of distributive justice and economic efficiency: An integrated theory of the common law
    • United States
    • Research in Law and Economics (vol. 19)
    • September 6, 2000
    ...but the only court to so much as implicitly mention an economic analysis of rape law did so derisively. See U. S. v. Bishop, 66 F.3d 569 (1995). 118. Of course, the traditional theory's inability to explain rape law is only a grounds for invalidating it to the extent that KHZ provides a sup......
  • Cruel and Unusual Federal Punishments
    • United States
    • Iowa Law Review No. 98-1, November 2012
    • November 1, 2012
    ...34. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-218, § 213, 120 Stat. 587, 616. 35. See United States v. Bishop, 66 F.3d 569, 590 (3d Cir. 1995) (“[M]otor vehicles are instrumentalities of interstate commerce.”). 36. See, e.g. , United States v. Jacques, No. 2:08-cr-......
  • Deference Determinations and Stealth Constitutional Decision Making
    • United States
    • Iowa Law Review No. 98-2, January 2013
    • January 1, 2013
    ...(8th Cir. 1995) (declining to apply a Turner Broadcasting I level of deference to a state voter initiative); United States v. Bishop, 66 F.3d 569, 582–83 (3rd Cir. 1995) (deferring to congressional findings in a case challenging the constitutionality of federal carjacking law); Independence......
  • Wetlands, waterfowl, and the menace of Mr. Wilson: commerce clause jurisprudence and the limits of federal regulation.
    • United States
    • Environmental Law Vol. 29 No. 1, March 1999
    • March 22, 1999
    ...v. Coleman, 78 F.3d 154 (5th Cir. 1996); United States v. Hutchinson, 75 F.3d 626 (11th Cir. 1996) (per curiam); United States v. Bishop, 66 F.3d 569 (3d Cir. 1995); United States v. Robinson, 62 F.3d 234 (8th Cir. 1995); United States v. Oliver, 60 F.3d 547 (9th Cir. (122) See, e.g., Unite......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT