COMES NOW the defendant,*, by and through his attorney, *, Assistant Federal Public Defender for the District of Kansas, and moves this Court to dismiss counts 1 through 6 of the seven count indictment (attached hereto) on constitutional grounds involving violations of the Double Jeopardy Clause and the Commerce Clause found in the Fifth Amendment and Article I, § 8, clause 3 (respectively) of the United States Constitution. On behalf of said motion, defendant states as follows:

I. THE PROSECUTION OF BENTLEY PURSUANT TO 18 U.S.C. §§ 1951 AND 924(c) MUST BE DISMISSED BECAUSE THE HOBBS ACT STATUTE IS UNCONSTITUTIONALLY VOID OF AN INTERSTATE NEXUS TO SUBSTANTIALLY AFFECT COMMERCE.

Under Article I, § 8, clause 3 of the United States Constitution, Congress has the power to "regulate Commerce with foreign Nations, and among several States, and with Indian Tribes...." Congress "may exercise only the powers granted to it" by the Constitution. McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 405 (1819) (emphasis added). The Commerce Clause is neither self-executing nor an affirmative command that Congress shall regulate. It is an enumerated power, which Congress may execute within its authority.

"[U]nlike the reserved police powers of the States, which are plenary unless challenged as violating some specific provision of the Constitution, the connection with interstate commerce is itself a jurisdictional prerequisite for any substantive legislation by Congress under the Commerce Clause." Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 311 (1981) (Rehnquist, J., concurring). Congressional jurisdiction under the Commerce Clause reaches, in the main, three categories: (1) the use of channels of interstate or foreign commerce; (2) protection of the instrumentalities of interstate commerce; and (3) those activities affecting interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971). Without question, this case involves only the third Perez category. Pursuant to this power, Congress may regulate intrastate activities, but only "if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions." NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (emphasis added); see also, Wickard v. Filburn, 317 U.S. 111, 125 (1942) (activity must exert a "substantial economic effect on interstate commerce").

Although Congress must exercise its judgment in determining whether certain conduct substantially affects interstate commerce, it remains the courts' duty to exercise its "far-reaching power . . . to determin[e] whether the Congress has exceeded limits allowable in reason for the judgment which it has exercised." Polish Nat'l Alliance v. NLRB, 322 U.S. 643, 650 (1944).

Throughout history, the Commerce Clause has been broadly construed to allow Congress to regulate many activities, however, to permit this power to go unchecked would allow "the National Government [to] devour the essentials of state sovereignty." National League of Cities v. Usery, 426 U.S. 833, 855 (1976).

Here, the purported interstate nexus centers on the robbery charges alleged in counts 1, 3, and 5. (18 U.S.C. § 1951(a), "Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery . . . ." However, to imply that by simply enacting legislation with the aforementioned language thereby implicitly affects interstate commerce simply has been rejected by the Supreme Court. Kirschbaum Co. v. Walling, 316 U.S. 517 (1942).

In Kirschbaum, the Supreme Court was called upon to determine the extent of coverage of the Fair Labor Standards Act. The Court viewed this task as "marking out the extent to which Congress has exercised its constitutional power over commerce," which was also "one of accomodation as between assertions of new federal authority and historic functions of the states." Id., at 520. Because Congress had varied the extent of its jurisdiction many times, even in the same subject area, the Court concluded that "[w]e cannot, therefore, indulge in the loose assumption that when Congress adopts a new scheme for federal industrial regulation, it thereby deals with all situations falling within the general mischief which gave rise to the legislation." Id., at 521.

The task before this court is similar to that in Kirschbaum, to decide, in an area of traditional state primacy, the extent to which Congress intended to exercise its jurisdiction. When, as here, Congress enacts novel legislation that intrudes on traditional state functions, it is appropriate that courts require that Congress make clear the link between a regulated activity and its constitutional authority. It is particularly appropriate to do so in cases that do not obviously fall within enumerated powers. Jones & Laughlin, 301 U.S. at 30 (the "distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal system").

In the words of now Chief Justice Rehnquist, "Congress must show that the activity it seeks to regulate has a substantial effect on interstate commerce." Virginia Surface Mining, 452 U.S. 264, 313 (1981) (Rehnquist, J., concurring) (emphasis supplied). Furthermore, "[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." Id., at 311 (Rehnquist, J., concurring).

Regardless of the degree to which Congress has demonstrated the impact of the regulated activity on intestate commerce, the Supreme Court has never accepted the conclusions of Congress without question. Rather, the Court has always undertaken its own review of the legislation's propriety under the Commerce Clause. The Supreme Court has recognized that the Constitution gave it a "[s]trictly confined though far-reaching power . . .: that of determining whether Congress has exceeded limits allowable in reason for the judgment which has been exercised." Polish Nat'l Alliance, 322 U.S. at 650.

The reasons for this are evident. When Congress intrudes into a traditional area of state regulation, without finding that the regulated activity substantially affects interstate commerce, it encourages litigants to supply their own findings whenever they can theorize that the activity bears some relationship to commerce. Anyone can show that a chosen activity in some way affects commerce. (See e.g., shoplifting scenario regarding the sack of potatoes and pack of cigarettes, infra) As the Supreme Court noted, "[s]cholastic reasoning may prove that no activity is isolated within the boundaries of a single State, but that cannot justify absorption of legislative power by the United States over every activity." Polish Nat'l Alliance, 322 U.S. at 650.

For an activity to fall within the Commerce Clause, there must not only be a nexus, but it must substantially affect commerce. As is shown in defendant's Motion to Dismiss for Failure to State a Federal Offense (filed this same day), the government has failed to establish why counts 1, 3, and 5 are federal offenses. To date, the defendant is uncertain which theory the government is proceeding upon as to counts 1, 3, and 5. Whichever theory they may later chose to follow, however, can not sufficiently establish the requisite interstate nexus making this criminal under 18 U.S.C. § 1951. The Commerce Clause requires not only a direct nexus to interstate commerce, but that it must substantially affect commerce.

If, in fact, this Court holds that the Hobbs Act is constitutional, the government could conceivably then federalize the stealing of any item that at some time in history had traveled in interstate commerce. For example, the mere crime of shoplifting a pack of cigarettes or sack of potatoes is federalized because they were shipped into Kansas from North Carolina and Idaho respectively. ⁽¹⁾

The government's charging of the Hobbs Act also directly contradicts 18 U.S.C. § 659. Under that statute, a person who steals property that has traveled in interstate commerce but that has reached its final destination is not subject to punishment by the federal government. The scope of the statute is limited to goods that are transported and moved in interstate commerce. This protection is no longer needed once the item has reached its destination. United States v. Garber, 626 F.2d 1144, 1147-48 (3d Cir. 1980). That statute specifically talks about items that are transported by freight. Under this statute, once the product has reached its destination, it is no longer in interstate commerce because then it would be within the purview of the state's laws and regulations. 18 U.S.C. § 659.

Congress has a legitimate concern with interstate commerce. However, regulation of the intrastate transportation of goods is far beyond the scope of the Commerce Clause. As a regulation of non-economic activity without a substantial nexus to interstate commerce, the Hobbs Act statute went beyond those limits established by our founding fathers and is unconstitutional. Title 18, U.S.C. § 1951 (Hobbs Act) is not constitutional, and cannot be justified as a valid exercise of the Commerce Clause merely because the object of the offense was at one time in interstate commerce. Thus, counts 1, 3, and 5 of the indictment must be dismissed.

Furthermore, the charges in counts 2, 4, and 6 must also be dismissed because to be guilty of violating 18 U.S.C. § 924(c), Edmundson must be guilty of an underlying crime of violence which may be prosecuted in a court of the United States. Here the underlying crime of violence was the carjacking statute which, as argued above, cannot be prosecuted in a court of the United States. Thus, counts 2, 4, and 6 must be dismissed as well.

II. THE DOUBLE JEOPARDY CLAUSE PRECLUDES THE PROSECUTION OF BENTLEY ON BOTH VIOLATING 18 U.S.C. §§ 1951 AND 924(c), BASED ON ONE CRIME OF VIOLENCE OFFENSE.

Counts 2, 4, and 6 charge the defendant, *, with the use or carrying of a firearm during and in relation to a crime of violence, to wit: the robbery charges found in counts 1, 3, and 5. Defendant submits the charging of counts 1, 3, and 5 with the charging of counts 2, 4, and 6 are in violation of the Double Jeopardy Clause. U.S. Const. Amend. V.

It is beyond question that if the same elements test of Blockburger and United States v. Dixon, ___ U.S. ___, 113 S.Ct. 2849 (1993) is applied, the convictions in this case are in violation of the Double Jeopardy Clause. This is because the elements of the offense which the government must prove to obtain a conviction in counts 1, 3, and 5 are by definition included in the elements of the offense which the government must prove to get a conviction in counts 2, 4, and 6.

The statute set forth in 18 U.S.C. § 924(c) makes it an offense, in pertinent part, for whoever, during and in relation to any crime of violence for which he may be prosecuted in a court of the United States, uses or carries a firearm. The elements of the offense then are the elements for the federal felony crime of violence, plus use or carrying a weapon during and in relation to the federal felony crime of violence. Thus, in the indictment in this case, in counts 1, 3, and 5 the government alleges the elements of a federal felony crime of violence. In counts 2, 4, and 6, the government alleges a violation of 18 U.S.C. § 924(c) as follows:

On or about January 22, 1994 [March 12, 1994, and March 20, 1994] in the District of Kansas, *, did unlawfully use or carry a firearm during and in relation to a crime of violence for which he may be prosecuted in a court of the United States to wit: the robbery of a Checker's grocery store at 1915 E. Pawnee, [Food Barn grocery store at 2445 S. Seneca, and Hobby Lobby at 665 N. Ridge Road] Wichita, Kansas. In violation of Title 18, United States Code, Section 924(c)(1).

It is clear that in order to prove the offense listed in 18 U.S.C. § 924(c) as alleged in counts 2, 4, and 6, the government must prove each of the elements of the offense alleged in counts 1, 3, and 6, plus use or carrying of a weapon. The elements of each offense can be compared as follows:

Thus, as the statute and the indictment reflect, in order to prove an offense in violation of 18 U.S.C. § 924(c), the government must prove a violation of 18 U.S.C. § 1951, plus an extra element. Each offense does not and cannot require proof of an element which is not also common to the other.

The Supreme Court in United States v. Dixon, --- U.S. ---, 113 S.Ct. 2849 (1993) overruled Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673 (1983) when it ruled that the Blockburger "same elements" test for determining whether multiple convictions violate the Double Jeopardy Clause is the one and only test for double jeopardy, regardless if the convictions are the result of separate prosecutions or multiple punishments from a single prosecution.

The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life and limb."

In the words of Justice Souter:

In providing that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb," U.S. Const. Amdt. 5, the Double Jeopardy Clause protects against two distinct types of abuses. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). It protects against being punished more than once for a single offense, or "multiple punishment." Where a person is being subjected to more than one sentence, the Double Jeopardy Clause ensures that he is not receiving for one offense more than the punishment authorized...

In addressing multiple punishments, "the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Courts enforcing the federal guarantee against multiple punishment therefore must examine the various offenses for which a person is being punished to determine whether, as defined by the legislature, any two or more of them are the same offense. Over 60 years ago, this Court stated the test still used today to determine "whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment." Id., at 166, 97 S.Ct., at 2225.

"[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

The Blockburger test "emphasizes the elements of the two crimes." Brown, supra, 432 U.S., at 166, 97 S.Ct., at 2226.

United States v. Dixon, ___ U.S. ___, 113 S.Ct. 2849, 2881 (1993), (Souter,J., concurring in part and dissenting in part.)

The Supreme Court previously has held the double jeopardy clause does not prohibit punishment for both a federal felony offense and use of a weapon during that offense under 18 U.S.C. § 924(c). Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 678 (1983) (Where Congress authorizes cumulative punishments for even the same offense, the Double Jeopardy Clause of the Fifth Amendment is not offended). However, the Supreme Court decision in Dixon necessarily overrules Hunter.

To understand the importance of the holding in Dixon it is necessary to understand some of the history of double jeopardy jurisprudence. Although the double jeopardy clause protects against both multiple punishments for the same offense resulting from a single prosecution, and separate prosecutions for the same offense, the Supreme Court has not always agreed as to whether the test for each of these protections should be the same. Thus, in Grady v. Corbin, ___ U.S. ___, 110 S.Ct. 2084 (1990), the defendant's two convictions would not have been found to be in violation of the Double Jeopardy Clause under the so-called "Blockburger" test: each conviction required proof of an element that the other did not. However, the Supreme Court found that the same elements test was not sufficient in that case. Instead the court found that when the issue is successive prosecutions for a single offense, the test must be different; therefore, a different, broader, test was used.

On the other hand, in Hunter, the defendant's multiple convictions would have been found to be in violation of the Double Jeopardy Clause under the "Blockburger" same elements test. In that case the defendant was faced with two state statutes much like those at issue in this case: a statute providing a penalty for a violent offense and another statute providing a separate penalty for committing the same violent offense. The court stated that because both punishments resulted from a single prosecution, the test must be different, and the "same elements" test was inapplicable.

The decision in Hunter relied in turn on language in Albernaz v. United States, 450 U.S. 333, and Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432 (1980) to conclude that in a single prosecution, multiple punishments for the same offense as defined in Blockburger are prohibited only in the absence of clear congressional intent to the contrary, i.e., there is no Constitutional protection for multiple punishment for a single offense in a single prosecution if that is what Congress intended. However, as Justice Stewart, joined by Justices Marshall and Stevens pointed out in a concurrence in Albernaz:

No matter how clearly it spoke, Congress could not constitutionally provide for cumulative punishments unless each statutory offense required proof of a fact that the other did not, under the criterion of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.

Since Congress has created two offenses here, and since each requires proof of a fact that the other does not, I concur in the judgment.

Albernaz, 450 U.S. at 345 (Stewart, J., concurring).

In his dissent in Hunter, Justice Marshall stated:

The Double Jeopardy Clause forbids either multiple prosecutions or multiple punishment for "the same offence." See, e.g., North Carolina v. Pearce, 395 U.S. 711, 717-718, 89 S.Ct. 2072, 2076-2077, 23 L.Ed.2d 656 (1969); United States v. Benz, 282 U.S. 304, 307-308, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931); Ex parte Lange, 18 Wall. 163, 169, 173-175, 21 L.Ed. 872 (1874). Respondent was convicted of both armed criminal action and the lesser included offense of first-degree robbery, and he was sentenced for both crimes. Had respondent been tried for these two crimes in separate trials, he would plainly have been subjected to multiple prosecutions for "the same offence" in violation of the Double Jeopardy Clause. See Harris v. Oklahoma, 433 U.S. 682, 97 s.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). For the reasons stated below, I do not believe that the phrase "the same offence" should be interpreted to mean one thing for purposes of the prohibition against multiple prosecutions and something else for purposes of the prohibition against multiple punishment.

Hunter, 459 U.S. at 369 (Marshall, J., dissenting).

In Dixon, Justice Scalia writing for the majority agreed with Justice Marshall's dissent in Hunter: there is now but a single test to determine whether the double jeopardy clause has been violated. The test will be the same whether the issue is multiple prosecutions or multiple punishments: a person cannot be prosecuted or punished twice for the same offense. Whether or not separate statutes punish for the same offense is determined by the "Blockburger" test: does each offense require proof of a fact that the other does not.

The majority opinion in Dixon held:

In both the multiple punishment and multiple prosecution contexts, this Court has concluded where the two offenses for which the defendant is punished or tried cannot survive the "same-elements" test, the double jeopardy bar applies. ...

Dixon, 113 S.Ct. at 2856 (citations omitted) (emphasis added). Such a position has been adopted along the lines of charging violations of 18 U.S.C. § 924(c) and § 2119, regarding the carjacking statute. Following the Supreme Court's pronouncement in Dixon, three courts have found that when a defendant has been charged not only with a violation of 18 U.S.C. § 2119 (carjacking), but also with violating 18 U.S.C. § 924(c), the 924(c) count is multiplicious and violates the Double Jeopardy Clause. See United States v. Centeno-Torres, ___ F.Supp. ___ (DC PR, 7-7-94); United States v. Moore, 832 F.Supp. 335 (N.D. Al., 10-4-93); United States v. Smith, 831 F.Supp. 549 (E.D. Va., 9-28-93).

In response to Justice Souter's dissent arguing that a different double jeopardy test applies depending on whether there are separate prosecutions or multiple punishments in a single prosecutions, Justice Scalia writing for the majority stated:

The centerpiece of Justice SOUTER's analysis is an appealing theory of a "successive prosecution" strand of the Double Jeopardy Clause that has a different meaning from its supposed "successive punishment" strand. We have often noted that the Clause serves the function of preventing both successive punishment and successive prosecution, see, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), but there is no authority, except Grady, for the proposition that it has different meanings in the two contexts. That is perhaps because it is embarrassing to assert that the single term "same offence" (the words of the Fifth Amendment at issue here) has two different meanings--that what is the same offense is yet not the same offense.

Dixon, 113 S.Ct. at 2860, (emphasis added, italics in original).

Furthermore, Justice Souter, joined by Justice Stevens, indicated doubt as to the validity of the decision in Missouri v. Hunter by referring readers to the above quoted concurring opinion of Justice Stewart in the following passage: "For purposes of this case I need express no view on this question, whether the proscription of punishment for state-law offenses that fail the Blockburger test can somehow be overcome by a clearly shown legislative intent that they be punished separately. See Albernaz v. United States, 450 U.S. 333, 344-335, 101 S.Ct. 1137, 1145-1146, 67 L.Ed.2d 275 (1981) (Stewart, J., concurring in the judgement)."

In Missouri v. Hunter, supra, the Supreme Court was faced with multiple convictions based on statutes that did not each require proof of an element that the other did not. That is, the two convictions would have been found to be in violation of the Double Jeopardy Clause had the Blockburger "same elements" test adopted in Dixon been employed. There, however, the Supreme Court relied on language in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137 (1981) and Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432 (1980) to find that the multiple convictions did not violate the Double Jeopardy Clause. The court found that the "same elements" test to determine whether two convictions violate the Double Jeopardy Clause did not apply explicitly because there was but one prosecution. That is, the court in Hunter did exactly what the court in Dixon found would be "embarrassing": it asserted there is a different test for multiple punishments in a single prosecution than for multiple prosecutions. Dixon explicitly overthrew this approach. There is one test and one test only: does each statute require proof of an element that the other does not. Therefore, Hunter is no longer the law.

The Supreme Court decision in Dixon is now the law of the land. However, it is not a new law, but simply applied longstanding precedent. As Justice Scalia noted in dissent in Grady:

the Blockburger definition of "same offence" was not invented in 1932, but reflected a venerable understanding. Blockburger relied on Garvieres v. United States, 220 U.S. 338, 343, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911), which relied on Burton v. United States, 202 U.S. 344, 380-381, 26 L.Ed. 1057 (1906), which relied on Commonwealth v. Roby, 12 Pickering 496 (Mass. 1832)(see supra, at ___), one of the leading early cases. Blockburger and Gavieres also cited Morey v. Commonwealth, 108 mass 433,435 (1871), which also applied Roby. We have applied the Roby-Morey-Gavieres-Blockburger formulation in virtually every case defining the "same offense" since Blockburger.

Grady, 110 S.Ct. at 2100-2101 (citations omitted).

The Gavieres case, was cited in Justice Scalia's dissent in Grady, relied upon by the court in Blockburger, and cited by the majority decision in Dixon, in support of its holding that the same elements test is the test for determining whether two convictions are for the same offence under the Double Jeopardy Clause of the Constitution. The defendant in Gavieres claimed he had been put twice in jeopardy for the same offense. The court stated that the rule to determine whether two convictions violate the Double Jeopardy Clause is whether each conviction is for the same offense; whether the two convictions is for the same offence is determined by whether each charge requires proof of a fact that the other does not. In other words, the so-called "Blockburger" test was already the law of land for determining double jeopardy violations, long before Blockburger was even decided.

Furthermore, as Justice Marshall noted in Hunter:

Blockburger itself was a multiple-punishment case. In rejecting the defendant's double jeopardy claim on the ground that each crime required proof of a fact which the other did not, 284 U.S., at 304, 52 S.Ct., at 182, the Court relied on Justice Brandeis' opinion for the Court in Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927), in which he had expressly analyzed a claim of multiple punishment in constitutional rather than statutory terms and rejected the claim because it would have possible to commit each crime without committing the other, id., at 11, 47 S. Ct., at 253.

Hunter, 103 S.Ct. at 682 fn. 6 (Marshall, J., dissenting).

In summary, counts one through six of the indictment fail the Blockburger test which is today the law of the land. Neither counts 1 and 2, counts 3 and 4, nor counts 5 and 6 require proof of a fact that the other did not. Thus, the indictment violates the Double Jeopardy Clause and must be dismissed. Alternatively, at a

minimum, this Court must dismiss either count 1 or 2, either count 3 or 4, and either count 5 or 6.

The charges contained in counts one through six of the indictment must be dismissed for lack of a rational basis to find a substantial affect on interstate commerce. Further, by charging both carjacking and 924(c) violations in the same indictment for the same offense, the Double Jeopardy Clause of the Fifth Amendment is violated. This motion to dismiss those counts of the indictment should be sustained.

Respectfully submitted,

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1. The defendant does not presume that the government would proceed under this theory of interstate commerce, and does not waive any of the arguments contained in defendant's Motion to Dismiss for Failure to State a Federal Offense. To date, the government has not set forth sufficient facts to establish the necessary element of interstate nexus needed for the defense to defend this case.