United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2560NE

_____________ United States of America, *
* Appellant, *

* Appeal from the United States
v. * District Court for the District
* of Nebraska. Larry G. Wright, *
* Appellee. *

_____________ Submitted: October 24, 1997

Filed: November 14, 1997

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

_____________ FAGG, Circuit Judge. Michel le Lempka obtained a protection order from a Nebraska court agains t La rry G. Wright. On three occasions, Wright traveled from Omaha, Nebraska t o Council Bluffs, Iowa and violated the o rder. Wright was indicted under a provision of the V iolence Against Women Act of 1994 (VAWA) that makes it a federal crime t o cross a state line with the intent to violate a p rotection order and then to violate it. See 18 U.S.C. § 2262(a)(1) (1994). Wright moved to dismiss the indictment, contending th e enactment of § 2262(a)(1) exceeded Congress’s power under the Commerc e Clause. The magistrate judge agreed with Wright, and the district court adopted th e magistrat e’s report and recommendation and dismissed the indictment. See Unite d States-2-

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. 329 7 (U.S. Oct. 20, 1997) (No. 97-497). The Supreme Court has identified three broa d 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 pro tect the instrumentalities of interstate commerce, or persons or things i n inters tate commerce, and (3) regulate activities that substantially affect interstat e
comm erce. See United States v. Lopez , 514 U.S. 549, 558-59 (1995). The distric t court determined § 2262(a)(1) falls outside all three categories. Without explanation, the district court asserted the statute “clearly does not implicate the second categor y of permissible legislation.” Wright , 965 F. Supp. at 1311. The district court also ruled out category three because violating protection orders does not substantially affec t interstate commerce. See id. at 1313. Finally, the court concluded category one did not apply because crossing state li nes 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 stat e 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 ag ree the third Lopez category has no bearing on this case. Sectio n 2262(a)(1) expressly requires interstate travel, and “[t]he ‘affecting commerce’ test

. . . d efine[s] the extent of Congress’s power over purely intra state commercia l activiti es that nonetheless have substantial inter state effects.” United States v

. Roberts on , 514 U.S. 669, 671 (1995) (per curiam). If crossing state lines fo r 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 disr

upt an animal enterprise; 18 U.S.C. § 1073, interstate flight to-3-

avoid pros ecution; 18 U.S.C. § 1952, interstate travel in aid of unlawful activity; 1 8 U.S. C. § 2101, interstate travel with intent to incite a riot; 18 U.S.C. § 2423(b) , interstate t ravel 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 thes e 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 t

he district court contends “[t]here are many ways to cross state lines w ithout moving in the channels of interstate commerce,” id. at 1314, neither the district cou rt nor Wright cites a single case holding that interstate travel is interstat e commerce only if it involves some commercial activity or purpose.

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

commerce regardless of whether any commercial activity is involved. See Heart o f Atl anta Motel, Inc. v. United States , 379 U.S. 241, 255-56 (1964); Edwards v

. Califor nia , 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 wom an 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. Citin g Edwards and Caminetti , the Court recently reaffirmed “the transportation of person s
across st ate lines . . . has long been recognized as a form of ‘commerce.’” Camp s 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 v ehicle that has been transported in interstate commerce, see 18 U.S.C. § 211 9 (1994)--evidence the vehicle had crossed state lines for the noncommercia l purposeof transporting a family to a funeral established the required connection with-4-

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 comm erce with intent to avoid prosecution is complete when the offender crosses a state l ine with that noncommercial intent. See Lupino v. United States , 268 F.2d 799, 801 (8th Cir. 1959).

Notwithstandin g 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 interstat e
comme rce merely because [that person] has the intention of committing an illegal o r immoral act at the conclusi on 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 allege d perpetrator carrying nothing more than an intent.” Rather, the stat ute prohibits crossing a state line with a threatening intent, and th en acting on that intent. Thus, § 2262(a)(1) falls within Congress’s authority “to keep the channels of interstate commerce fre e from immoral and injurious uses.” Caminetti , 242 U.S. at 491.
In sum, because § 2262(a)(1) “requires th e crossing of a state line,” the conduct the statute outlaws is “s quarely in interstate commerce.” United States v. Bailey , 112 F.3d 758, 766 (4th Cir.) (rejecting Commerce C lause challenge to another provision of VAWA, 18 U.S.C. § 2261 (a), crossing state lines to commit domestic violence), cert. de nied , 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 th e Constitution de legates to Congress the power under which § 2262(a)(1) was enacted, “‘the Tenth Amendment expressly disclaims any reservation of that power to th e 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 Wri ght’s indictment and remand for further proceedings consistent with this opinion.-5-

A true copy.

Attest:

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