U.S. v. Spinello

• Decision Date: 24 July 2001
• Docket Number: No. 00-3504,00-3504
• Citation: 265 F.3d 150
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA, v. ROBERT SPINELLO, APPELLANT Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 150

265 F.3d 150 (3rd Cir. 2001)

UNITED STATES OF AMERICA, v. ROBERT SPINELLO, APPELLANT

No. 00-3504

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: July 24, 2001

September 11, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY District Judge: The Honorable Joseph A. Greenaway, Jr. (D.C. Crim. No. 99-CR-00536) [Copyrighted Material Omitted]

Mark A. Berman, (Argued) Lawrence S. Lustberg, Gibbons, Del Deo, Dolan, Griffinger & Vecchione One Riverfront Plaza Newark, NJ 07102-5497, Attorneys for Appellant

Robert J. Cleary, (Argued) United States Attorney George S. Leone, Asst. United States Attorney Office of the United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102, Attorneys for Appellees

Before: Roth, Barry, and Ambro, Circuit Judges

OPINION OF THE COURT

Barry, Circuit Judge

We are principally called upon in this appeal to decide two issues of first impression in this Court. The first is one in a long line of post-Lopez¹ challenges to federal statutes on Commerce Clause grounds, this one to the federal bank robbery statute, 18 U.S.C. S 2113. The second asks that we determine whether a recent amendment to the United States Sentencing Guidelines which, in the words of the Sentencing Commission, "defines and describes aberrant behavior" was a mere clarification or a substantive change in the law. We reject the challenge to S 2113 and conclude that the amendment at issue effected a substantive change and, thus, cannot be applied retroactively. Accordingly, we will affirm.

What has brought us to this point is uncomplicated and not in dispute. Shortly before 3:00 p.m. on January 13, 1999, appellant Robert Spinello, an officer with the Edison, New Jersey, Police Department, walked into the First Savings Bank in Edison. He approached a bank teller, flashed the service pistol that he had concealed in a newspaper, placed a plastic bag on the counter, and demanded of the teller, "[G]ive me all your fifty and [one] hundred straps." In response to the teller's statement that she had only one strap each of fifty and one-hundred dollar bills, Spinello told the teller to "keep on going," and then waited as she filled the plastic bag with $3,500 in the following denominations: $1,000 in one hundred dollar bills, $1,000 in fifty dollar bills, $1,000 in twenty dollar bills, and $500 in ten dollar bills. After the bag was filled, Spinello "told [the teller] to count to ten, and then started to walk away." After exiting the bank, Spinello drove to his brother's condominium and stashed the $3,500 in a living room table. Spinello put the money straps and the hat he wore during the robbery into a garbage can, hung his jacket in a closet, and proceeded to the Edison Police Headquarters, where he arrived at approximately 3:30 p.m. for his 3:50 p.m. tour of duty.

Later that same day, Spinello, who had been followed out of the bank by a bank customer who memorized his license plate number, was told by his superiors to go to the bank for questioning by the FBI. After his interview with the FBI, Spinello submitted to a "show-up" identification procedure where he was positively identified by the victim teller. A subsequent search of the Edison condominium revealed $3,500 in the same denominations as had been stolen from the bank. Spinello was arrested.

On September 16, 1999, Spinello was charged by a federal grand jury in a three-count indictment with: (1) bank robbery, in violation of 18 U.S.C. SS 2113(a) and 2; (2) bank robbery with a dangerous weapon, in violation of SS 2113(d) and 2; and (3) use of a firearm in relation to a crime of violence, in violation of SS 924(c) and 2. Prior to trial, Spinello moved to dismiss the indictment, alleging that the bank robbery statute itself, or the application of the bank robbery to the facts of his case, exceeded Congress's power under the Commerce Clause. The District Court denied Spinello's motion. See United States v. Spinello, 95 F. Supp. 2d 242 (D.N.J. 2000). As a result, Spinello went to trial.

On May 17, 2000, the jury convicted Spinello on all three counts of the indictment. Prior to his sentencing, Spinello admitted that he had, in fact, robbed the First Savings Bank and submitted a memorandum that set forth certain facts pertinent to sentencing -- in particular, facts by which he hoped to rebut an obstruction of justice enhancement and support, on various grounds, his motion for a downward departure. Two of those grounds are reraised on appeal -- the aberrational nature of his behavior and the "extraordinary" anguish and remorse he was suffering because of the prosecution of his brother, Michael, for perjury allegedly committed by him in his defense of Spinello. The District Court denied the motion for a downward departure and sentenced Spinello to an aggregate term of 111 months in prison.

Spinello filed a timely notice of appeal. We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742.

I. The Commerce Clause and 18 U.S.C. S 2113

We turn, first, to Spinello's argument that in enacting 18 U.S.C. S 2113 -- the federal statute criminalizing bank robbery -- Congress exceeded its power under the Commerce Clause,² an argument which one of our sister circuits has somewhat pithily described as "popular with criminal defendants these days." United States v. Watts, 256 F.3d 630, 631 (7th Cir. 2001). Relying on United States v. Lopez, 514 U.S. 549 (1995), Spinello claims that, as an intrastate activity, bank robbery -- or, at least, his bank robbery -- does not have a "substantial effect" upon interstate commerce and, thus, S 2113 must fall. "Our review of the statute's constitutionality is plenary, though we must respect Congress's ample discretion to determine the appropriate exercise of its Commerce Clause authority." United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999), cert. denied, 120 S.Ct. 2008 (2000). Indeed, there is a "presumption of constitutionality." United States v. Morrison, 529 U.S. 598, 607 (2000). The precise question we must answer is this: Did Congress have a rational basis for concluding that bank robbery substantially affects interstate commerce? The answer is a ringing "Yes."

In Lopez, the Supreme Court struck down the Gun-Free School Zones Act of 1990, 18 U.S.C. S 922(q), because the Act "neither regulate[d] a commercial activity nor contain[ed] a requirement that possession be connected in any way to interstate commerce." Lopez, 514 U.S. at 551. Lopez was significant not so much because, in terms of its analysis of the commerce power, it plowed new ground. Rather, it was significant -- and jumped on by defendants -- because it was the first case in more than half a century in which the Supreme Court invalidated an act of Congress solely because Congress had exceeded its authority under the Commerce Clause; indeed, S 922(q) bore virtually no relation to interstate commerce. Although, since Lopez, we have upheld numerous federal criminal statutes against challenges that they were impermissible exercise of Congress's commerce power,³ this is our first occasion to consider that challenge when addressed to S 2113.

It is by now familiar teaching, by virtue of Lopez and its progeny and lower court decisions too numerous to count much less mention, that Congress may regulate under its commerce power in three broad categories. First, "Congress may regulate the use of the channels of interstate commerce." Second, "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." And, third, "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce" -- activities that "substantially affect interstate commerce." Lopez, 514 U.S. at 558-59. Because the Gun-Free School Zones Act at issue in Lopez did not involve any channels or instrumentalities of interstate commerce, it could only have survived, if it were to have survived, under the "substantially affects" category, and that was the category on which the Court focused.

With reference to the third category, under Lopez a federal criminal statute that includes a jurisdictional element which would ensure, through case-by-case inquiry, that the prohibited conduct substantially affects interstate commerce would, without more, pass muster as would a statute reaching intrastate economic activity that substantially affects interstate commerce. See id. at 559-61. It is, thus, appropriate to consider, first, whether there is in S 2113 a jurisdictional element which "adequately performs the function of guaranteeing that the final product regulated substantially affects interstate commerce." Rodia, 194 F.3d at 473. If it does, as it did not in Rodia, there would be no necessity to perform the inherently imprecise analysis of S 2113's constitutionality under the remaining Lopez considerations -- and more about those considerations later -- to determine if intrastate bank robbery substantially affects interstate commerce.

A jurisdictional element, as that phrase has been used in and after Lopez, "refers to a provision in a federal statute that requires the government to establish specific facts justifying the exercise of federal jurisdiction in connection with any individual application of the statute." Rodia, 194 F.3d at 471.⁴ Spinello correctly notes that "[t]he mere presence of a jurisdictional element... does not in and of itself insulate a statute from judicial scrutiny under the Commerce Clause, or render it per se constitutional. To the contrary, courts must inquire further to determine whether the jurisdictional element has the requisite nexus with interstate commerce," i.e. whether that element "limits the statute to items that have an explicit connection with, or effect upon, interstate commerce." United States v. Bishop, 66...