QUESTION PRESENTED FOR REVIEW

THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY OF 18 U.S.C. § 2119 AS AN IMPROPER EXERCISE OF CONGRESS' POWER TO REGULATE INTERSTATE COMMERCE.

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

On March 17, 1993, a seven count Indictment was filed in the Northern District of Ohio charging this defendant with three counts of carjacking in violation of 18 U.S.C. § 2119 (Counts 1, 3, 5); three counts of using or carrying a firearm in relation to a crime of violence (Counts 2, 4, 6), in violation of 18 U.S.C. § 924(c); and one count of receipt and possession of a firearm affecting commerce by an illegal alien in violation of 18 U.S.C. § 922(g)(5). Each separate carjacking charge was the predicate offense for a separate § 924(c) charge; that is, Count 1 was the predicate for

Count 2, Count 3 for Count 4 and Count 5 for Count 6.

This case was assigned to Honorable David D. Dowd, Jr., a judge of that court.

The defendant was arraigned on March 19, 1993, and entered pleas of not guilty.

A motion to dismiss Counts 2, 4 and 6 of the Indictment as being in violation of the double jeopardy clause was filed by the defendant. (R. 18, Motion to Dismiss of 04/12/93). This motion was denied. (R. 22, Memorandum Opinion of 04/30/93). Defendant attempted to appeal that denial to this court as an interlocutory appeal. See Court of Appeals case number 93-3487. (R. 23, Notice of Appeal of 05/04/93). This court refused to hear that appeal.

The case then proceeded to trial on May 25, 1993. The defendant was found guilty by jury verdict as to all seven counts.

The defendant challenged the use of the convictions of counts 2, 4 and 6 in sentencing. The district court vacated the convictions as to those counts, holding that Congress was silent on the issue of whether a § 924(c) enhancement applied where the predicate offense was carjacking. The court granted the government's argument for an upward departure. The defendant was sentenced to prison for a term of 97 months, three years supervised release and a special assessment of Two Hundred Dollars ($200.00). (R. 71, Judgment Order of 08/20/93).

Defendant filed a timely notice of appeal pursuant to Rule 4(b), Federal Rules of Appellate Procedure in order to appeal his convictions and his sentence. (R. 72, Notice of Appeal of 08/27/93).

The government later separately filed its notice of appeal. (R. 78, Notice of Appeal of 09/28/93).

This Court considered and remanded the case to the district court with instructions to resentence the defendant in accordance with the original jury conviction. (R. 88, Order from U.S. Ct. Appeals for 6th Circuit of 03/02/95). The defendant filed a Petition for Writ of Certiorari with the United States Supreme Court. On February 21, 1995, the Supreme Court denied the writ. (R. 89, Order from the Supreme Court of the United States of 02/21/95).

Prior to resentencing defendant filed a motion to dismiss with the district court contending that his convictions of being an illegal alien in possession of a firearm, 18 U.S.C. § 922(g)(5), and three counts of carjacking, 18 U.S.C. § 2119, should be vacated as being improper exercises of power under the Commerce Clause of the United States Constitution. The district court denied this motion. (R. 97, Order Denying Defendant McHenry's Motion to Dismiss of 05/26/95).

On May 22, 1995, the defendant was resentenced on all counts to the custody of the Bureau of Prisons for a period of 603 months with three years supervised release to follow. The sentence of imprisonment consisted of sentences of 63 months as to Counts 1, 3, 5 and 7; five years (60 months) as to Count 2, to be served consecutively as provided by 18 U.S.C. § 924(c); 20 years (240 months) as to Count 4, to be served consecutively as provided by 18 U.S.C. § 924(c); and 20 years (240 months) as to Count 6, to be served consecutively as provided by 18 U.S.C. § 924(c) . See 18 U.S.C. § 924(c). (R. 96, Judgment & Commitment Order of 05/23/95).

The defendant filed a timely notice of appeal pursuant to Rule 4(b), Federal Rule of Appellate Procedure. (R. 98, Notice of Appeal of 05/22/95).

This defendant says that his convictions and resentencing are final and thus appealable to this Court pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Thus, this Court has jurisdiction to hear and determine this appeal.

STATEMENT IN SUPPORT OF ORAL ARGUMENT

The defendant says that oral argument is particularly important herein because the controlling case law in this circuit on this issue was decided prior to the decision of the Supreme Court in United States v. Lopez, 115 S.Ct. 1624 (1995). The Lopez decision so profoundly affects the judicial attitude toward Congress' power to regulate interstate commerce as to make necessary the reconsideration of the constitutionality of all criminal statutes which rely upon that power for validity, including Title 18 U.S.C. § 2119, the carjacking statute.

Therefore, in the interests of substantial justice, this matter should be scheduled for oral argument.

STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT

This defendant raises herein questions relating to the district court's denial of his motion to dismiss based on the unconstitutionality of Title 18 U.S.C. §§ 2119 and 922(g)(5) as being improper exercises of Congress' power to regulate interstate commerce. Defendant McHenry says that this Court's holding in United States v. Johnson, 22 F.3d 106 (6th Cir. 1994) needs to be revisited because of the recent holding in United States v. Lopez, 115 S.Ct. 1624 (1995).

Congress may regulate three broad categories of activity under its power to regulate interstate commerce. First, Congress may regulate the use of channels of interstate commerce. Second, Congress may regulate and protect the instrumentalities of commerce. Finally, Congress may regulate an activity which has a substantial affect on interstate commerce. Lopez, 115 S.Ct. at 1629-30.

In the instant case, the defendant submits that the carjacking statute does not fit into any of the above categories. Defendant argues that merely inserting the magic jurisdictional phrase "transported, shipped or received in interstate commerce" is insufficient, without more, to validate a statute as an exercise of commerce clause power. Defendant submits that for carjacking purposes, cars are neither channels nor instrumentalities of interstate commerce. Moreover, carjacking does not have a substantial economic effect on interstate commerce.

Defendant submits further there must be a rational basis for a finding by Congress that a statute identifies and addresses a subject which substantially affects interstate commerce. Finally, the statute itself must be reasonably adapted to the constitutionally permitted end. Defendant * says that the "rational basis" for the finding that carjacking has an effect on interstate commerce is questionable, and, the statute itself is certainly not reasonably adapted to reaching its stated ends.

For these reasons, Defendant * says that Title 18 U.S.C. § 2119 should be struck down as being an unconstitutional exercise of the commerce power.

STATEMENT OF FACTS

On January 28, February 1, and February 4, 1993, carjackings are alleged to have occurred in Cleveland, Ohio. On February 8, 1993, the defendant, a citizen of Jamaica, was arrested by officers of the Cleveland Police Department in connection with the carjackings. The defendant is also alleged to have been in possession of a firearm.

Defendant was indicted for the alleged carjackings in violation of 18 U.S.C. § 2119 (Counts 1,3,5), a separate count of violating 18 U.S.C. § 924(c), using or carrying a firearm in relation to a crime of violence, as to each carjacking count (Counts 2,4, 6). Defendant was also charged with one count of violating 18 U.S.C. § 922(g)(5), receipt and possession in and affecting commerce by an illegal alien. (Count 7). (R. 13, Indictment of 3/17/93).

Defendant moved the district court to dismiss counts 2, 4 and 6, as violating the double jeopardy clause because they were charged in conjunction with counts 1, 3 and 5. This motion was denied by the district court. Defendant attempted an interlocutory appeal of that denial to this court. (R. 23). See: Court of Appeals case number 93-3497. This court declined to hear said appeal.

The defendant proceeded to jury trial before Honorable David D. Dowd, Judge of the Northern District of Ohio, in Akron. Defendant was convicted on all seven counts.

Defendant filed a sentencing memorandum in which he challenged the use of counts 2, 4 and 6 for sentencing purposes. (R. 63, Sentencing Memorandum of 7/21/93). A supplemental memorandum was filed July 27, 1993. (R. 66, Supplemental Memorandum of 07/27/95).

The district court issued an order vacating the convictions of violations of 18 U.S.C. § 924 (c) in counts 2, 4, and 6. The district court then proceeded to sentence the defendant on the remaining counts 1,3,5 and 7. The district court departed upward and imposed a prison term of 97 months, three years supervised release and Two Hundred Dollars ($200.00) in special assessments.

The defendant appealed the carjacking convictions. The government appealed the vacating and dismissal of counts 2, 4 and 6.

After briefs had been filed with this Court in this case, but before oral argument, this Court decided United States v. Johnson, 22 F.3d 106 (6th Cir. 1994). Johnson held that it was not a double jeopardy violation to cumulatively punish under 18 U.S.C. § 2119, armed carjacking, and 18 U.S.C. § 924(c), use of a firearm in relation to a crime of violence. Johnson also held that the armed carjacking statute was constitutional under the then current commerce clause doctrine. Johnson, 22 F.3d at 109.

Based on the precedent of Johnson this Court reinstated the dismissed counts and remanded the case for resentencing on all counts. (R. 88). The defendant filed a Petition for Writ of Certiorari with the United States Supreme Court. On February 21, 1995 the writ was denied. (R. 89).

The district court then set the case for resentencing. Before the resentencing the Supreme Court decided United States v. Lopez, 115 S.Ct. 1624 (1995). In Lopez the court held that 18 U.S.C. § 924(q), the Gun-Free School Zones Act of 1990, violated the commerce clause because it had nothing to do with commerce or any sort of economic enterprise and did not substantially affect interstate commerce. The court also supported its decision by the fact that § 922(q) did not have a jurisdictional element to tie it to interstate commerce. Lopez, 115 S.Ct. at 1630-31. The defendant filed a motion to dismiss this case based upon the Lopez decision and the unconstitutionality of 18 U.S.C. § 2119 as violating the commerce clause. The district court denied this motion which forms the basis for defendant's present appeal.

The district court proceeded to resentence defendant *. On May 22, 1995 the defendant was sentenced on all counts to the custody of the Bureau of Prisons for a total period of 603 months with three (3) years supervised release to follow. (R. 96).

This appeal follows.

ARGUMENT

I. STANDARD OF REVIEW

This Court reviews questions of law concerning the interpretation and constitutionality of status under a de novo standard. Storer v. French, 58 F.3d 1125 (6th Cir. 1995).

II. THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS BASED ON THE UNCONSTITUTIONALITY OF 18 U.S.C. § 2119 AS AN IMPROPER EXERCISE OF CONGRESS' POWER TO REGULATE INTERSTATE COMMERCE.

In United States v. Johnson, 22 F.3d 106 (6th Cir. 1994), this Court held that the carjacking statute, 18 U.S.C. § 2119 ⁽¹⁾, did not violate the Commerce Clause of the United States Constitution, Article I, Section 8, Cl. 3. ⁽²⁾ However, on April 26, 1995, the Supreme Court decided United States v. Lopez, 115 S.Ct. 1624 (1995). In Lopez the Court considered whether Congress properly exercised its commerce clause power to regulate interstate commerce in enacting 18 U.S.C. § 922(q), the Gun-Free School Zones Act of 1990. In order to rule the Court closely analyzed that clause and the development of the law interpreting that clause to this point. In addition to the opinion of the Court by Chief Justice Rehnquist and joined in by four other justices, two concurring opinions were filed as were two dissenting opinions. The result was a holding that the passage of the act exceeded Congress' commerce clause authority because it was a criminal statute that by its terms had nothing to do with commerce or any sort of economic enterprise or which affected interstate commerce and had no jurisdictional element to ensure a concrete tie to interstate commerce. 115 S.Ct. at pp. 1630, 1631. Mr. * now asserts that in view of the analysis and holding of Lopez this Court should re-examine and re-consider both its holding in Johnson, supra., and the footnotes in two unpublished opinions filed after Lopez. See: United States v. Green, No. 94-6215, 1995 WL 451782, n.2 (6th Cir. July 27, 1995), Appendix A, and United States v. Washington, Nos. 94-6190, 94-6192, 1995 WL 424419, n.2 (6th Cir July 18, 1995), Appendix B. Both Green and Washington were decided by the same panel of judges and were filed just days apart. In each one the panel included a footnote stating that Lopez "does not cause us to alter our conclusion in Johnson", (Washington at n. 2), and "does not affect our decision in Johnson", (Green at n. 2). In Washington the panel also wrote that Congress stated a jurisdictional nexus and that they believed that carjacking substantially affects interstate commerce thus giving Congress the power to enact the carjacking statute. Johnson also noted the language of the statute intended to confer federal jurisdiction in cases of armed takings of motor vehicles which are otherwise intrastate.

A.

Mr. * says that simply adding the magic words "... a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce ..." is not enough, without more, to qualify a statute as a proper exercise of the power to regulate interstate commerce. Further, to hold that merely inserting that incantation into any statute automatically validates it under the commerce clause would mean the end of any concept of federalism by putting Congress beyond any restraint. See: Lopez at pp. 1626, 1627. In Lopez the Court asserted again that under the federal system the states "possess the primary authority for defining and enforcing the criminal law." 115 S.Ct. at 1630, n. 3 (citations omitted). To hold that the mere recitation of this mantra legitimizes any statute is to negate that fundamental principle.

B.

It has been long clear that a statute enacted under the aegis of the commerce clause must be directed at the regulation or enforcement of some recognized proper function of the power created by that clause. See: Lopez, 115 S.Ct. at 1627-1629 for an historical analysis. Those powers may be properly exercised: (1) in order to regulate the use of the channels of interstate commerce; (2) 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 (3), to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. Lopez, 115 S.Ct. at 1629, 1630 (citations omitted). Further, there must be a rational basis for a finding by Congress that a statute addresses a subject which substantially affects interstate commerce. Hodel v. Virginia Surface Mining and Reclamation Assn., Inc., 452 U.S. 264 (1981).

In Johnson this Court held that while it "may well be that the carjacking statute is unwise and encroaches on traditional views of federalism ... it is not unconstitutional under current Commerce Clause doctrine." 22 F.3d at 108, 109 (emphasis added). This Court held that the activity regulated (carjacking) has "an effect" on interstate commerce. (emphasis added). 22 F.3d at 109. Johnson was, of course, decided before the decision in Lopez. The Supreme Court in Lopez wrote that previous case law "has not been clear whether an activity must 'affect' or 'substantially affect' interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause. (citations omitted). We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce." 115 S.Ct. 1630. The Court added: "where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." 115 S.Ct. 1630. (emphasis added). The Johnson court did not analyze these issues beyond merely concluding that, "It is obvious that carjackings as a category of criminal activity have an effect on interstate travel and the travel of foreign citizens to this country." 22 F.3d at 109 (emphasis added). There was no attempt to find a rational basis for the legislation. There was no foundation for finding "an effect" on interstate commerce and certainly nothing to support any possible finding of a "substantial" effect as is required in the now current Commerce Clause doctrine, that is, post Lopez. See also: Hodel v. Virginia Surface Mining and Reclamation Assn., Inc., supra.

C.

Recently, one case, United States v. Oliver, 60 F.3d 547 (9th Cir. 1995), a carjacking case decided after Lopez, held that "cars are themselves instrumentalities of commerce, which Congress may protect." Oliver cited as authority for that holding United States v. Watson, 815 F.Supp. 827 (E.D. PA 1993) which cited Perez v. United States, 402 U.S. 146, 150 (1971). No further authority or analysis was given. This defendant says that this reliance was in error. In United States v. Garcia-Beltran, 890 F.Supp. 67, (D. Puerto Rico 1995), a post-Lopez decision, it was held that carjackings do not involve either channels or instrumentalities of interstate commerce. 890 F.Supp. at 71. This defendant says that for purposes of this statute that cars are neither instrumentalities nor channels of interstate commerce because there is no requirement in the statute that they be moving as or a part of interstate commerce at the time of the taking.

The carjacking statute is meant to cover motor vehicles long after they actually moved as or were a part of interstate commerce. It is obvious, therefore, that the only possible basis for its being a valid exercise of commerce powers is a finding that its purpose is to regulate something which substantially affects commerce rather than a purpose to protect the channels, instrumentalities, things or persons in interstate commerce. Perez, supra, upheld statutes which made loansharking a federal criminal offense. The purpose of those statutes was to deal with the effect Congress found that that activity had on commerce. Perez does not support a holding that motor vehicles which had once passed in interstate commerce are instrumentalities of commerce.

D.

But, this defendant says that even assuming, arguendo, that carjackings have either a "substantial effect" on interstate commerce or that cars are instrumentalities thereof and that there is a rational basis for either finding, the inquiry into the validity of the legislation does not end. Rather, the inquiry shifts to a consideration of whether the legislation itself is "reasonably adapted to the end permitted by the constitution." Hodel, supra., 452 U.S. at 276. Mr. * says that the carjacking legislation does not meet that test.

The legislative history of this statute, as cited in United States v. Martinez, 49 F.3d 1398, 1400, n. 2 (9th Cir. 1995) identified the concerns of Congress about "the increasing rate of motor vehicle theft, the inability of local law enforcement agencies to prosecute perpetrators effectively, and the emergence of carjacking as a 'high growth industry' that involves taking stolen vehicles to different states to retitle, exporting vehicles abroad, or selling cars to 'chop shops' to distribute various auto parts for sale." (citations omitted). It is apparently the intended object of the statute to reach these concerns by making the carjacking of a motor vehicle which had passed in interstate commerce a federal offense. This defendant submits that this legislation is not "reasonably adapted" to the apparent intended purpose.

It is instructive to compare the carjacking statute, 18 U.S.C. § 2119 (hereinafter § 2119), with the statute which makes criminal the theft of goods and chattels from interstate shipments, 18 U.S.C. § 659 (hereinafter § 659). Both statutes are ostensibly designed or intended to protect interstate commerce from thefts. While the protection in § 659 broadly covers all goods and chattels, including, cash, United States v. Bryser, 954 F.2d 79 (2nd Cir. 1992), § 2119 protects only a very limited class, motor vehicles. Section 659 specifically provides that the protected goods and chattels must be "moving as or which are a part of or which constitute an interstate shipment, express, or other property ...". Bryser, supra., 954 F.2d at 83. (emphasis added). In contrast, however, § 2119 applies to all motor vehicles that have "been transported, shipped, or received in interstate or foreign commerce ...". (emphasis added). Most importantly, the statutes differ in that § 659 by its very terms applies to embezzlements, thefts, takings, concealments, or frauds, or deceptions of goods and chattels moving in interstate commerce without limitation as to the method or type of theft. But, § 2119, as amended, applies only to the taking of a motor vehicle "with the intent to cause death or serious bodily harm ...". The original form of § 2119 was even more limited in that it only prohibited the taking of a motor vehicle from another while possessing a firearm.

The comparison of §2119 to §659 is most appropriate because those statutes each deal with offenses of which the essence is the theft of an object. But, if § 2119 is compared to 18 U.S.C. § 2312, Transportation of Stolen Vehicles, it is seen that § 2312 may apply to any stolen vehicle without regard to the manner in which the vehicle was stolen. 18 U.S.C. § 2322(b), Chop Shops, refers to "illegally obtained motor vehicles" with no reference to the manner of acquisition. 18 U.S.C. § 553(a)(1), Importation or Exportation of Stolen Motor Vehicles, etc., refers to stolen motor vehicles with no limitations on the method of theft. Thus it appears that only § 2119 specifies that the motor vehicle must be stolen in a particular way. This leads to seriously questioning the reasonable adaptation of the statute to the professed purpose of dealing with the perceived problems of thefts, increased insurance costs and proliferation of "chop shops."

The significance of these differences is crucial. If Congress really intended to protect interstate commerce from the evils it found, it should have enacted a statute making a federal criminal offense of every theft, of whatever nature, of any motor vehicle which had ever been in interstate commerce. Such a statute would be the only really effective means of addressing the problems which concern Congress. Judicial review of such a statute, however, particularly since Lopez, should result in a holding that it is so impermissibly broad as to disrupt the balance of federal and state interests. The present form of the act should be similarly judged because, although limited as it is, it tilts that balance to an unacceptable degree. It is an invitation to the adding of more weight to the scale in the future when it becomes apparent that this limited approach is inadequate. Section 2119 in either its original or amended form is a statute that requires the courts "to consider our place in the design of the Government and to appreciate the significance of federalism in the whole structure of the Constitution." Lopez, at 1637. "[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scales too far." Lopez at 1638.

This defendant submits that the subject legislation has tipped the scales too far. It should not be necessary to survey the statutes of every state to conclude that each state has laws which make theft of a motor vehicle, robbery, armed robbery, and assault criminal offenses. A general federal motor vehicle theft statute with the only jurisdictional nexus being that a motor vehicle had, at some time before being stolen, passed in interstate commerce would affect the federal-state balance by inserting the federal government into almost every incident of motor vehicle theft or robbery or assault involving the taking of a motor vehicle. The carjacking statute also adversely affects the balance in the same way. Further, if the reasoning of United States v. Mosby, 60 F.3d 454 (8th Cir. 1995) is adopted then the presence of the federal government will be in every such case. In Mosby a conviction for possessing ammunition manufactured and possessed in the State of Minnesota, the state of conviction, was affirmed on the theory that the individual components of the cartridges were in interstate commerce. If that reasoning is applied to § 2119, then every motor vehicle in any state is, without more, a potential subject of that statute. This is a result that cannot be judicially approved.

Arguments similar to those raised herein were made to the Third Circuit Court of Appeals in United States v. Bishop, 1995 WL 524791 (3rd Cir. September 7, 1995). Two judges of the panel held that the imposition of consecutive sentences for carjacking, § 2119, and use of a firearm, § 924(c), are not barred by the Double Jeopardy Clause of the Fifth Amendment and that by the passage of § 2119 Congress did not exceed its constitutional authority under the Commerce Clause.

However, in a well reasoned analysis of the Commerce Clause power vis a vis § 2119, Judge Becker dissented on the basis of the decision in Lopez which he sees as "a sea change in the Supreme Court's approach to these types of questions." See Bishop at p. 20.

Mr. * submits that a careful and objective study of Bishop will result in the adoption of Judge Becker's analysis and reasoning in his dissent so as to make it the basis of the holding of this Court in this case.

III. CONCLUSION

This usurpation by the Congress, of the traditional power of the states to prosecute and punish car thieves is not justified. The effect of the act is to intrude, for impermissible purposes, upon the role of the states by the improper exercise of the Commerce Clause and thus jeopardize the balance between federal and state.

The attention of this Court is respectfully drawn to the last paragraph of the opinion of the Court in Lopez at p. 1633:

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra., at 1629. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Odgen, supra., at 195, and that there will never be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra., at 30, 57 S.Ct., at 621. This we are unwilling to do. (emphasis added).

Mr. * submits that for all the foregoing reasons the carjacking statute, 18 U.S.C. § 2119 should be struck down.

Respectfully submitted

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1. § 2119. Motor vehicles

Whoever, possessing a firearm as defined in section 2119 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so shall--

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.

The first paragraph of this statute was amended September, 1994 to read:

Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or

foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so shall--

A provision was added to the penalty section which allows a death sentence to be imposed.

2. ⁰ The Congress shall have Power . . .To Regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;...