United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2560NE

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United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the District

* of Nebraska.

Larry G. Wright, *

*

Appellee. *

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 Submitted: October 24, 1997

Filed: November 14, 1997

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Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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FAGG, Circuit Judge.

Michelle Lempka obtained a protection order from a Nebraska court against

Larry G. Wright. On three occasions, Wright traveled from Omaha, Nebraska to

Council Bluffs, Iowa and violated the order. Wright was indicted under a provision of

the Violence Against Women Act of 1994 (VAWA) that makes it a federal crime to

cross a state line with the intent to violate a protection order and then to violate it. See

18 U.S.C. § 2262(a)(1) (1994). Wright moved to dismiss the indictment, contending

the enactment of § 2262(a)(1) exceeded Congress’s power under the Commerce

Clause. The magistrate judge agreed with Wright, and the district court adopted the

magistrate’s report and recommendation and dismissed the indictment. See United

States
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 v. Wright, 965 F. Supp. 1307 (D. Neb. 1997). The Government appeals, and we have

jurisdiction under 18 U.S.C. § 3731 (1994). We reverse.

We review de novo the constitutionality of a federal statute. See United States

v. Crawford, 115 F.3d 1397, 1400 (8th Cir. 1997), cert. denied, 66 U.S.L.W. 3297

(U.S. Oct. 20, 1997) (No. 97-497). The Supreme Court has identified three broad

categories of activity that fall within the scope of Congress’s Commerce Clause power.

Congress may (1) regulate the use of the channels of interstate commerce, (2) regulate

and protect the instrumentalities of interstate commerce, or persons or things in

interstate commerce, and (3) regulate activities that substantially affect interstate

commerce. See United States v. Lopez, 514 U.S. 549, 558-59 (1995). The district

court determined § 2262(a)(1) falls outside all three categories. Without explanation,

the district court asserted the statute “clearly does not implicate the second category

of permissible legislation.” Wright, 965 F. Supp. at 1311. The district court also ruled

out category three because violating protection orders does not substantially affect

interstate commerce. See id. at 1313. Finally, the court concluded category one did

not apply because crossing state lines to violate a protection order is not a commercial

activity, and thus not a use of the channels of interstate commerce. “[W]hile crossing

a state line may be activity that is ‘interstate,’” the district court explained, “[a]n

interstate movement does not necessarily involve . . . interstate commerce. . . .” Id. at

1308.

We agree the third Lopez category has no bearing on this case. Section

2262(a)(1) expressly requires interstate travel, and “[t]he ‘affecting commerce’ test 

. . . define[s] the extent of Congress’s power over purely intrastate commercial

activities that nonetheless have substantial interstate effects.” United States v.

Robertson, 514 U.S. 669, 671 (1995) (per curiam). If crossing state lines for

noncommercial purposes is not interstate commerce, however, the validity of a number

of statutes besides § 2262(a)(1) would be in doubt. See, e.g., 18 U.S.C. § 43, interstate

travel with intent to disrupt an animal enterprise; 18 U.S.C. § 1073, interstate flight to
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avoid prosecution; 18 U.S.C. § 1952, interstate travel in aid of unlawful activity; 18

U.S.C. § 2101, interstate travel with intent to incite a riot; 18 U.S.C. § 2423(b),

interstate travel for the purpose of engaging in a sexual act with a minor. Contrary to

the district court’s view, see Wright, 965 F. Supp. at 1313-14, the mere fact these

statutes in express terms reach persons who travel in interstate commerce, while

§ 2262(a)(1) regulates persons who cross state lines, is a distinction without a

difference. Although the district court contends “[t]here are many ways to cross state

lines without moving in the channels of interstate commerce,” id. at 1314, neither the

district court nor Wright cites a single case holding that interstate travel is interstate

commerce only if it involves some commercial activity or purpose.

Indeed, the Supreme Court has repeatedly said crossing state lines is interstate

commerce regardless of whether any commercial activity is involved. See Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241, 255-56 (1964); Edwards v.

California, 314 U.S. 160, 172 & n.1 (1941). The Supreme Court rejected the district

court’s contrary view in Caminetti v. United States, 242 U.S. 470 (1917). Caminetti

was convicted of violating the Mann Act by transporting a woman across state lines for

the purpose of making the woman his mistress. See id. at 482-83. Caminetti argued

that because his purpose had nothing to do with commerce, Congress had no power to

outlaw what he had done. See id. at 478-80. The Court disagreed, holding the Mann

Act constitutional as applied to Caminetti’s conduct. See id. at 491-92. Citing

Edwards and Caminetti, the Court recently reaffirmed “the transportation of persons

across state lines . . . has long been recognized as a form of ‘commerce.’” Camps

Newfound/Owatonna, Inc. v. Town of Harrison, Me., 117 S. Ct. 1590, 1596-97 (1997).

Our own cases have also consistently made clear that crossing state lines,

without more, is interstate commerce. In a prosecution for carjacking--the taking by

force of a vehicle that has been transported in interstate commerce, see 18 U.S.C. §

2119 (1994)--evidence the vehicle had crossed state lines for the noncommercial

purpose of transporting a family to a funeral established the required connection with
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interstate commerce. See United States v. Robinson, 62 F.3d 234, 235, 237 n.4 (8th

Cir. 1995). Likewise, the crime of traveling in interstate commerce with intent to avoid

prosecution is complete when the offender crosses a state line with that noncommercial

intent. See Lupino v. United States, 268 F.2d 799, 801 (8th Cir. 1959).

Notwithstanding the weight of adverse authority, Wright claims support for his

position in this passage from Caminetti: “It may be conceded, for the purpose of the

argument, that Congress has no power to punish one who travels in interstate

commerce merely because [that person] has the intention of committing an illegal or

immoral act at the conclusion of the journey.” 242 U.S. at 491. Contrary to Wright’s

view, however, § 2262(a)(1) does not criminalize the interstate travel “of an alleged

perpetrator carrying nothing more than an intent.” Rather, the statute prohibits crossing

a state line with a threatening intent, and then acting on that intent. Thus, § 2262(a)(1)

falls within Congress’s authority “to keep the channels of interstate commerce free

from immoral and injurious uses.” Caminetti, 242 U.S. at 491.

In sum, because § 2262(a)(1) “requires the crossing of a state line,” the conduct

the statute outlaws is “squarely in interstate commerce.” United States v. Bailey, 112

F.3d 758, 766 (4th Cir.) (rejecting Commerce Clause challenge to another provision of

VAWA, 18 U.S.C. § 2261(a), crossing state lines to commit domestic violence), cert.

denied, 118 S. Ct. 240 (1997). Accordingly, § 2262(a)(1) was validly enacted under

Congress’s commerce power. Our holding necessarily means we reject Wright’s

further contention that § 2262(a)(1) violates the Tenth Amendment. Because the

Constitution delegates to Congress the power under which § 2262(a)(1) was enacted,

“‘the Tenth Amendment expressly disclaims any reservation of that power to the

States.’” Crawford, 115 F.3d at 1401 (quoting New York v. United States, 505 U.S.

144, 156 (1992)).

We reverse the district court’s order dismissing Wright’s indictment and remand

for further proceedings consistent with this opinion.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.