[00:00:01] Speaker 01:
I'll call the case again, do it right.

[00:00:17] Speaker 04:
Good morning, Your Honors, and may it please the Court, Michael Rotger from the Department of Justice on behalf of the Appellants of the United States.

[00:00:24] Speaker 04:
With the Court's permission, I'd like to reserve four minutes for a bottle, if that's acceptable.

[00:00:28] Speaker 01:
Does it usually work out very well?

[00:00:30] Speaker 01:
I'm going to do my best.

[00:00:31] Speaker 04:
I'll do my best.

[00:00:32] Speaker 04:
I'll monitor the clock.

[00:00:33] Speaker 04:
Your Honors, this is a government appeal from an order of the District Court dismissing an indictment that charged the defendants with using an instrumentality of interstate commerce, specifically an automobile, to carry out a kidnapping resulting in death.

[00:00:48] Speaker 04:
In dismissing the indictment, the district court held that an automobile is not an instrumentality of interstate commerce and that even if it is or even if it were, Congress doesn't have authority to restrict or regulate the intrastate uses of such instrumentalities.

[00:01:05] Speaker 04:
This court reviews both of those legal conclusions de novo and it should reverse.

[00:01:09] Speaker 04:
An automobile is a quintessential instrumentality of interstate commerce.

[00:01:13] Speaker 04:
The Supreme Court has held, and the defendants agree, that planes and trains are instrumentalities of interstate commerce.

[00:01:20] Speaker 04:
And there's no basis for differentiating automobiles.

[00:01:23] Speaker 04:
Indeed, as we pointed out in our brief, all the circuits to consider this issue, and there are seven, have all held that automobiles are instrumentalities.

[00:01:30] Speaker 01:
There have been some pretty good dissents, too, though.

[00:01:34] Speaker 04:
There have been dissents, yes.

[00:01:35] Speaker 04:
But the holdings of the majorities, obviously, were that automobiles are instrumentalities.

[00:01:39] Speaker 04:
And I would respectfully suggest that none of the reasons that were given by the district court for rejecting that consensus view is persuasive.

[00:01:49] Speaker 04:
What I'd like to do is just take a few minutes and walk through the district court's analysis to sort of highlight where we think the district court went astray.

[00:01:57] Speaker 04:
The first reason that the district court gave for its conclusion is that this court's prior decision in Morgan somehow already held that automobiles are not instrumentalities of interstate commerce.

[00:02:09] Speaker 04:
I would point out that I don't read the defendants to even be defending that line of reasoning, but I want to be clear.

[00:02:15] Speaker 04:
This court didn't address the issue because it wasn't presented.

[00:02:18] Speaker 04:
The facts of Morgan were an interest in kidnapping where a car, a cell phone, and a GPS were all used.

[00:02:25] Speaker 04:
But the indictment only charged the cell phone and the GPS.

[00:02:28] Speaker 04:
It didn't charge the automobile.

[00:02:30] Speaker 04:
So this court never had occasion to pass on that question.

[00:02:33] Speaker 04:
And that's why certainly if it didn't pass on it, it certainly didn't decide that automobiles are not.

[00:02:38] Speaker 04:
So I think we can move Morgan to one side and the district court was simply wrong.

[00:02:42] Speaker 03:
Kind of a notable omission though.

[00:02:44] Speaker 03:
I mean, yeah, if you're talking about the Internet, I mean, there's as many aspects of that that, you know, could be potentially flaws.

[00:02:53] Speaker 03:
It just seems like the Morgan court, you know, it seemed like and of course a car would be an instrument of instrumentality.

[00:03:02] Speaker 04:
And I think they could have said that.

[00:03:04] Speaker 04:
I think it would have been gratuitous because the indictment didn't charge it.

[00:03:10] Speaker 04:
That's why we have this case.

[00:03:11] Speaker 03:
Yes, exactly.

[00:03:12] Speaker 04:
So it keeps us all busy and occupied.

[00:03:14] Speaker 04:
Moving on past Morgan, the District Court next rejected the two principal cases that the government relied on, one from the Sixth Circuit and one from the Seventh.

[00:03:23] Speaker 04:
The Sixth Circuit decision won them, I'd like to address first.

[00:03:27] Speaker 04:
Wyndham was an intrastate kidnapping case where the indictment charged and the defendant was guilty to using both an automobile and a cell phone to perpetrate the kidnapping.

[00:03:38] Speaker 04:
What the district court said here is, well that's distinguishable because we don't have a cell phone here, we only have the car.

[00:03:44] Speaker 04:
That's a distinction without a legal significance, Your Honors, for the very simple reason that the statute itself proscribes the use of any instrumentality singular.

[00:03:54] Speaker 04:
It doesn't require the government to prove multiple instrumentalities.

[00:03:58] Speaker 04:
Any instrumentality singular would be sufficient.

[00:04:02] Speaker 04:
I would also emphasize that there's nothing in the Wyndham opinion, if you read the opinion carefully, and I'm sure the court will, there's nothing in the opinion that suggests that the result would have been different in that case if the defendant had not used a cell phone.

[00:04:15] Speaker 04:
That is, if it was based solely on an automobile.

[00:04:18] Speaker 04:
So again, we think the distinction the district court gave for rejecting Wyndham is simply incorrect as a legal matter.

[00:04:26] Speaker 04:
The other case is, of course, the Seventh Circuit decision in Proto.

[00:04:30] Speaker 04:
Proto is on point with this case in the sense that the only instrumentality charge was an automobile.

[00:04:36] Speaker 04:
There's no dispute about that.

[00:04:38] Speaker 04:
The issue in Proto was that the defendant argued that the only way an automobile is an instrumentality is if it's used in interstate commerce.

[00:04:47] Speaker 04:
What the Seventh Circuit did is they issued two holdings.

[00:04:49] Speaker 04:
First, it said as a legal matter that they rejected Prothos' argument that the instrumentality must be used in interstate commerce as a legal matter.

[00:04:59] Speaker 04:
They said cars as a category are instrumentalities of interstate commerce.

[00:05:04] Speaker 04:
But it went on to note that even if it accepted Prothos' argument, it wouldn't have changed anything because in that case, the car was in fact used in interstate commerce.

[00:05:15] Speaker 04:
The fact that the car happened to be used was sort of a gratuitous fact of that case, but the central holding of Proto is that automobiles as a class are instrumentalities, and the court affirmed the judgment where that was the only instrumentality that was used.

[00:05:31] Speaker 04:
Once again, the district court's effort to sort of dismiss Proto as sort of dicta or the fact that it required proof of an interstate connection is simply, we think, misguided.

[00:05:42] Speaker 03:
It was striking to me in your brief that

[00:05:44] Speaker 03:
You really disavow any limiting principle here.

[00:05:48] Speaker 03:
And, you know, more or less a car can't have, the federal government has the plenary authority to regulate anything to do with a car.

[00:06:01] Speaker 03:
Presumably, you know, federal speed limits and seatbelt requirements.

[00:06:07] Speaker 03:
I mean, is that true?

[00:06:08] Speaker 03:
I mean, if it's a car, Congress can do anything.

[00:06:12] Speaker 04:
I would say this, Your Honor,

[00:06:15] Speaker 04:
Congress is, when Congress regulates instrumentalities, it's exercising its category two authority and it has broader authority to regulate the channels and the instrumentalities of commerce than it does to regulate activities that in the aggregate have a substantial effect.

[00:06:29] Speaker 04:
We're not taking a position on whether Congress can impose federal speed limits.

[00:06:33] Speaker 04:
This case doesn't present that question.

[00:06:35] Speaker 03:
What I would say though is that- Well, our opinion's gonna open the door for that moment.

[00:06:39] Speaker 03:
Well, I don't think so.

[00:06:40] Speaker 03:
I think that all you have to do- How do we write an opinion that Cabins

[00:06:44] Speaker 03:
Congress's plenary authority in this area?

[00:06:48] Speaker 04:
Well, first of all, the statute itself cabins the extent of the statute, because the statute doesn't say any use of any instrumentality, no matter how incidental.

[00:06:56] Speaker 04:
The statute itself has a limiting principle, which is that the instrumentality has to be used to either commit or further the crime.

[00:07:04] Speaker 04:
So as we said in our brief, Your Honors, and I understand Your Honor was pointing out we don't have an affirmative limiting principle as to Congress's authority, but as to the statute itself,

[00:07:14] Speaker 04:
Any incidental use of a cell phone, if an abductor is holding their captive and they happen to get on their cell phone to check the weather because they want to drive their captive somewhere, I mean any incidental use is not going to be sufficient but here what you're talking about is using an automobile is integral to the facilitation of the crime because the victim was abducted from the hotel and driven to a remote location 10 miles down the road

[00:07:38] Speaker 03:
We're talking about motor vehicles, all correct.

[00:07:42] Speaker 03:
I'm sorry?

[00:07:44] Speaker 03:
It's a motor vehicle, is the... Motor vehicle, automobile, car, I think we're using those interchangeably.

[00:07:51] Speaker 03:
I'm just wondering, is a scooter a motor vehicle, golf cart?

[00:07:57] Speaker 03:
We've had other cases, hardly carjacking statutes raise some of these same problems.

[00:08:01] Speaker 03:
Sure.

[00:08:01] Speaker 04:
Yeah, it's an interesting question.

[00:08:02] Speaker 04:
I think that a scooter probably would qualify as an instrumentality.

[00:08:07] Speaker 01:
It would.

[00:08:07] Speaker 04:
It would.

[00:08:08] Speaker 04:
A golf cart?

[00:08:10] Speaker 04:
Yeah, I think that they would.

[00:08:11] Speaker 04:
A tractor?

[00:08:12] Speaker 04:
Yeah, I think that they would.

[00:08:15] Speaker 04:
If you're asking, I mean, I don't view those in the same category as automobiles, so again, if you wanted to find the categories of motor vehicles, but let me say why I don't think that's really a concern.

[00:08:24] Speaker 04:
I'm not aware of a single case, a federal case or even a state case, where someone has been abducted or kidnapped using a limed scooter or using a golf cart.

[00:08:33] Speaker 04:
That's just not the object of choice that kidnappers use.

[00:08:36] Speaker 04:
So I don't think you're ever going to have to confront that question.

[00:08:39] Speaker 04:
But if you're asking whether, as a statutory matter, a scooter or a golf cart would qualify as an instrumentality, I think it's a tougher case, but I think that they would.

[00:08:47] Speaker 05:
Isn't the problem, though, that we're not only addressing a statutory issue, but a constitutional issue?

[00:08:55] Speaker 05:
In Article 1, Section 8, it is a little troubling if we enunciate a precedent saying that a scooter or a bicycle or a tricycle or a tractor

[00:09:07] Speaker 05:
Could the subject of regulation falls within Congress's domain?

[00:09:14] Speaker 05:
Is that a problem?

[00:09:17] Speaker 04:
It's a hypothetical problem that could come to exist.

[00:09:20] Speaker 01:
This statute has never... It's not a hypothetical problem when you're writing an opinion.

[00:09:24] Speaker 01:
No, I understand.

[00:09:25] Speaker 01:
You're asking us to say it's an instrumentality of commerce, and that opens the door to all this.

[00:09:31] Speaker 01:
And that's why Judge Timkovich was pressing you on limiting principles, because we

[00:09:37] Speaker 01:
I understand.

[00:09:40] Speaker 01:
just for this statute?

[00:09:42] Speaker 04:
Well, I think you look at the decisions respectfully of your sister circuits that have all written opinions.

[00:09:46] Speaker 04:
They're not adopting sweeping rules that kind of extend beyond the facts of the case.

[00:09:50] Speaker 04:
And if the government were to choose to prosecute a kidnapping that involves a scooter or a go-kart or a golf cart, excuse me, then it would be litigated in that case whether the limits have been transcended.

[00:10:02] Speaker 04:
But I think for purposes of this case, you have seven circuits that have all looked at the issue and said automobiles, whatever else you can say about other instrumentalities,

[00:10:10] Speaker 04:
automobiles are sort of the modern-day equivalent of planes and trains that everyone agrees are intelligent.

[00:10:17] Speaker 04:
Well, just to be clear, I'm not talking about the carjacking stage.

[00:10:20] Speaker 04:
I'm not even talking about 1201.

[00:10:21] Speaker 04:
You're talking about Congress.

[00:10:22] Speaker 04:
I'm just talking about the constitutional issue.

[00:10:25] Speaker 04:
Well, and I think part of the struggle, Judge Baccarat, is that the Supreme Court, when they have dealt and addressed the limits of Congress's authority, they've all been category three cases.

[00:10:34] Speaker 04:
There really is no precedent from the Supreme Court or even this court that has said,

[00:10:38] Speaker 04:
that there are limits to how far Congress can go.

[00:10:41] Speaker 04:
So we are sort of treading into uncharted waters.

[00:10:44] Speaker 04:
And that's why I'm suggesting that a more restrained approach, which only focuses on automobiles, I think would put the court on safer ground.

[00:10:50] Speaker 04:
I understand the concern that it opens it up, but the fact that there's never been a single prosecution that we're aware of involving a scooter or a golf cart suggests that it's not going to open the floodgates.

[00:11:01] Speaker 04:
The one other observation, and I realize I'm cutting into my own rebuttal time, but I think it's important to make,

[00:11:07] Speaker 04:
This court has had a decade, this circuit has had a decade of experience since Morgan.

[00:11:12] Speaker 04:
And of course Morgan held that cell phones are instrumentalities of commerce that Congress can regulate and prescribe their use in the commission of a crime.

[00:11:20] Speaker 04:
We haven't witnessed a torrent

[00:11:22] Speaker 04:
of federal kidnapping prosecutions or other prosecutions based on the use of cell phones.

[00:11:27] Speaker 04:
The government has not used this as leverage to kind of open the door and now start aggressively prosecuting these cases.

[00:11:34] Speaker 04:
And I would suggest that given the ubiquity of automobiles, there are almost as many automobiles as there are cell phones, I don't think there's any reason to be concerned that a whole thing... I know that we... I spot you that, but traditionally this crime would have been a state

[00:11:48] Speaker 03:
you know, murder state kidnapping prosecution.

[00:11:51] Speaker 03:
Right.

[00:11:51] Speaker 03:
And for whatever reason that, you know, the U.S.

[00:11:54] Speaker 03:
attorney decided it needed to prosecute this.

[00:11:56] Speaker 03:
Right.

[00:11:57] Speaker 03:
This crime.

[00:11:58] Speaker 03:
So you say, well, it's never happened.

[00:12:00] Speaker 03:
You know, the federal government is not traditionally prosecuted, you know, state looking type crimes.

[00:12:07] Speaker 01:
Sure.

[00:12:07] Speaker 03:
And, you know, so there's a little cottage industry of, you know, carjacking and, you know, now kidnapping.

[00:12:14] Speaker 03:
Sure.

[00:12:15] Speaker 03:
Becoming federal prosecution.

[00:12:17] Speaker 03:
You say, well, they've never done it, but they're doing it now.

[00:12:21] Speaker 04:
They've never done it with scooters, was my point, just to be clear.

[00:12:23] Speaker 03:
But I understand your point, and I guess what I would say... And just to be clear, motorcycle would clearly be covered by this.

[00:12:31] Speaker 04:
Yes, yes.

[00:12:33] Speaker 04:
I think, Your Honor, that the

[00:12:35] Speaker 04:
The concern here is that, remember, we did have a statute on the books, a kidnapping statute, for 75 years that covered interstate kidnappings.

[00:12:43] Speaker 04:
The very fact that Congress chose to amend the statute in 2006 suggested that that wasn't effectual, that it wanted to expand the types of prosecutions.

[00:12:53] Speaker 04:
It wanted the federal government to be more proactive in this area.

[00:12:56] Speaker 04:
That's a policy choice for Congress to make.

[00:12:58] Speaker 04:
Congress is entitled to do that consistent with its Category 2 authority.

[00:13:03] Speaker 03:
I know you want your rebuttal, but just one last question.

[00:13:07] Speaker 03:
This vehicle, the crime, the kidnappers traveled on a United States highway, but I don't think you really

[00:13:18] Speaker 03:
raise that as a factor?

[00:13:19] Speaker 04:
No, because the statute doesn't cover channels of commerce.

[00:13:23] Speaker 04:
It covers instrumentality.

[00:13:24] Speaker 04:
So we're not relying on the fact that they use the road.

[00:13:26] Speaker 03:
So it doesn't matter if the car travels on interstate highway?

[00:13:29] Speaker 04:
Not for purposes of this statute, because again, whether or not Congress can do that, you wouldn't even reach the constitutional question because the statute is not implicated.

[00:13:37] Speaker 04:
Regardless of my rebuttal time, I'm more than happy to answer any of the court's questions.

[00:13:40] Speaker 04:
If not, I'll submit and preserve the balance.

[00:13:42] Speaker 04:
Thank you, Your Honor.

[00:14:02] Speaker 00:
May it please the court, Jake Rochebeau from the Federal Public Defender's Office for the appellee, Mr. Chavarria.

[00:14:08] Speaker 00:
And I've agreed to reserve at least three minutes for Mr. Romero's counsel.

[00:14:15] Speaker 00:
I'd like to start by saying that the constitutional and statutory issues, the analysis is the same here.

[00:14:22] Speaker 00:
Because when Congress used the term instrumentalities of interstate commerce in section 1201,

[00:14:30] Speaker 00:
it was clearly intending to incorporate that as a legal term of art.

[00:14:36] Speaker 00:
And it is a cardinal rule of statutory interpretation that when Congress uses a legal term of art, it intends it to have that meaning.

[00:14:46] Speaker 00:
So here, the scope of Commerce Clause authority is incorporated into the statute.

[00:14:55] Speaker 00:
So all these hypotheticals about what is the

[00:14:57] Speaker 00:
the full scope of Congress's Commerce Clause authority under Category 2, the statute incorporates all of that.

[00:15:05] Speaker 00:
So these hypotheticals about whether a scooter could be used in furtherance of the kidnapping, these are all relevant questions contrary to what the government says.

[00:15:13] Speaker 03:
What's the task for determining whether something's a term of art?

[00:15:23] Speaker 00:
I'm not sure what the exact test is.

[00:15:25] Speaker 00:
I think it's pretty evident.

[00:15:26] Speaker 00:
You're telling me that this is a specialty, a set of words.

[00:15:32] Speaker 00:
How do I know that?

[00:15:34] Speaker 00:
Because courts routinely refer to the second category from Perez and Lopez as instrumentalities of interstate commerce.

[00:15:43] Speaker 00:
The statute added that language after Perez and Lopez.

[00:15:49] Speaker 00:
It's from 2006.

[00:15:51] Speaker 00:
The way the statute is written, it has five subsections, A12345.

[00:15:56] Speaker 00:
All of those are expressed jurisdictional hooks.

[00:16:00] Speaker 00:
So A2 and A3 are about the territorial jurisdiction of the United States.

[00:16:05] Speaker 00:
A four and five are about the kidnapping of foreign and federal officials, and A one is where they use instrumentalities of interstate commerce.

[00:16:14] Speaker 00:
So clearly, Congress is intending to invoke the second category of the Lopez and Perez.

[00:16:24] Speaker 03:
How could Morgan, the cell phone, how can that case be correctly decided, given your position in this case?

[00:16:34] Speaker 03:
I mean, a car looks more like an instrumentality of interstate commerce than a cell phone.

[00:16:40] Speaker 00:
I disagree, Your Honor.

[00:16:41] Speaker 00:
A cell phone is, and to be fair, I assume that we're talking about a cell phone that is actually operational and connected to, has some sort of cellular service or connected to the internet.

[00:16:53] Speaker 03:
So if it's an airplane mode, is that?

[00:16:55] Speaker 03:
Make a difference?

[00:16:57] Speaker 00:
Honestly, potentially it could.

[00:16:59] Speaker 00:
I mean, actually no.

[00:17:00] Speaker 00:
It wouldn't because you look at the nature of the thing and if it is a cell phone that's connected to the internet, then it is a per se instrumentality of interstate commerce.

[00:17:11] Speaker 00:
It doesn't matter in that moment, at the moment the kidnapper used it, that it was being used in interstate commerce at that precise moment.

[00:17:19] Speaker 03:
Why does the connectivity to the internet matter?

[00:17:25] Speaker 00:
From the Supreme Court's case law, the most clear sort of scope of instrumentalities of interstate commerce is these interconnected networks and systems.

[00:17:37] Speaker 00:
So when the Supreme Court in Perez and Lopez has talked about category two, they cite as an example the Shreveport Railroad cases and another railroad case.

[00:17:48] Speaker 00:
And those cases specifically say interstate railway systems.

[00:17:51] Speaker 00:
They're not talking about purely interstate rail.

[00:17:54] Speaker 03:
But there are purely interstate rail lines, private rails.

[00:18:00] Speaker 03:
I think you endorse airplanes and trains as instrumentalities, but both of those, like a car, can be used purely interstate.

[00:18:15] Speaker 03:
Is the rail network and the fact that a plane can cross state boundaries, why is that different than a car traveling on

[00:18:24] Speaker 03:
integrated nationwide highway system.

[00:18:28] Speaker 00:
Well, so first, I wouldn't say that I've endorsed that literally all aircraft and literally all... Well, I thought if they're per se, it's totally wrong.

[00:18:38] Speaker 00:
So what I've said are the statutes.

[00:18:41] Speaker 00:
So for example, what the Supreme Court cites is Section 32, which is destruction of aircraft.

[00:18:47] Speaker 00:
They use that as an example of Congress regulating the instrumentalities of interstate commerce.

[00:18:51] Speaker 00:
And those are only applied to commercial aircraft that are actually used, employed, or engaged in interstate commerce.

[00:19:01] Speaker 00:
And then similarly, the motor vehicle statute is motor vehicles that are actually involved in the carrying of passengers or cargo in interstate commerce.

[00:19:11] Speaker 03:
So those types I have definitely preceded.

[00:19:14] Speaker 03:
If you use an Uber for a kidnapping, is that

[00:19:17] Speaker 03:
Would that be in the statute?

[00:19:20] Speaker 00:
Yes.

[00:19:21] Speaker 00:
And I think probably even a vehicle that's used by Uber, even if it's not.

[00:19:27] Speaker 03:
So because Uber is... Door-delivery, that could be an instrumentality.

[00:19:32] Speaker 03:
Sorry?

[00:19:33] Speaker 03:
Door-vehicle could be an instrumentality of interstate commerce.

[00:19:37] Speaker 00:
Yes, Your Honor, because it's part of this interconnected system of interstate commerce.

[00:19:44] Speaker 01:
Let me ask you about...

[00:19:45] Speaker 01:
You said the cell phone, even if it were on airplane mode, would be an instrumentality of interstate commerce because it's connected all the time.

[00:19:57] Speaker 01:
What about a motor vehicle that has been driven on an interstate?

[00:20:02] Speaker 01:
One of the interstate highways.

[00:20:05] Speaker 01:
Once it's been used for that purpose, does it become an instrumentality of commerce so this would be covered?

[00:20:13] Speaker 00:
No, Your Honor, I wouldn't say that.

[00:20:15] Speaker 01:
I mean, I would say interstate... What is the distinction between that and why is it different that the car maybe isn't on an interstate highway or isn't driving on an interstate trip and the cell phone that's on airplane mode so it can't be used outside of the... So I think the cell phone on airplane mode is analogous and more similar to

[00:20:42] Speaker 00:
an interstate railroad system or railroad company, just their intra-state, a rail car that's traveling intra-state on one of those interstate railroad company's lines, those are still regulated by, can be regulated under

[00:21:04] Speaker 00:
by Congress under the second category because the interstate railway network itself is an instrumentality of interstate commerce.

[00:21:13] Speaker 00:
It doesn't matter the particular use of that, whether it was just interstate.

[00:21:17] Speaker 00:
So a cell phone that has cell service and is connected to the internet is by its nature a instrumentality of interstate commerce.

[00:21:27] Speaker 00:
It doesn't matter that in the moment it wasn't connected to the internet.

[00:21:31] Speaker 05:
So you're saying that under 1201A,

[00:21:34] Speaker 05:
that it doesn't matter in response to Judge Hart's that the automobile had once been used in interstate commerce.

[00:21:41] Speaker 05:
It has to be used in interstate in order to perpetrate the kidnapping?

[00:21:48] Speaker 00:
I would say that, so I would draw a distinction between personal vehicles that are not generally employed or used in interstate, for commercial purposes, interstate commerce.

[00:22:00] Speaker 00:
Those are not just categorically.

[00:22:02] Speaker 05:
It's my vehicle.

[00:22:03] Speaker 05:
It's personal vehicle.

[00:22:05] Speaker 05:
I use it to perpetrate a kidnapping.

[00:22:09] Speaker 05:
Does it have to be used by me interstate in order to trigger 1201A?

[00:22:17] Speaker 00:
I don't think it would reach that because

[00:22:20] Speaker 00:
Here we're looking at whether the object is by its nature an instrumentality of interstate commerce at all times.

[00:22:27] Speaker 00:
So I think you'd have to show that the motor vehicle used

[00:22:33] Speaker 00:
is a commercial motor vehicle, like it's a FedEx truck or it's an Uber.

[00:22:38] Speaker 00:
It is actually engaged in and generally employed in interstate commerce, like those vehicles are.

[00:22:46] Speaker 00:
Generally.

[00:22:47] Speaker 05:
Generally.

[00:22:48] Speaker 05:
But then why do you tell Judge Hartz, as I understand it, that if it had been used interstate, let's say every day for a year, it travels between Colorado and Wyoming, and then it's sold to me.

[00:23:02] Speaker 05:
and I use it only in Oklahoma to perpetrate a kidnapping in Oklahoma, you're saying that it is not an instrumentality of interstate commerce because I am only using it in Oklahoma, but it has been used in the past by its nature.

[00:23:17] Speaker 05:
You said you look to the nature of the thing.

[00:23:19] Speaker 05:
The nature of the thing is it's a vehicle that had generally been used in interstate commerce.

[00:23:24] Speaker 00:
Well, I think that by that point, that would be akin to say, you know,

[00:23:29] Speaker 00:
I think the nature of the object can change if its use has changed.

[00:23:32] Speaker 00:
So like an airplane that's grounded because it doesn't have an engine in it anymore.

[00:23:37] Speaker 00:
Or a train that no other objects.

[00:23:42] Speaker 05:
Or a plane that travels only between Philadelphia and Pittsburgh every day.

[00:23:46] Speaker 05:
A commuter plane.

[00:23:47] Speaker 05:
It's never gone outside of Pennsylvania.

[00:23:50] Speaker 05:
Is that an instrumentality of interstate commerce?

[00:23:53] Speaker 00:
If it's literally never gone outside of the state and it's

[00:23:56] Speaker 00:
employed only by some sort of private operator that also doesn't engage in interstate commerce or doesn't move people or cargo outside of the state and never has, then I could see an argument that that's not an instrumentality of interstate commerce.

[00:24:13] Speaker 01:
What we have though is a number of statutes, but one of the cases today where the hook for interstate commerce is that you used an object that had traveled in interstate commerce on one occasion.

[00:24:33] Speaker 01:
When you accomplish, Congress could immediately change amend this statute and say if you use anything not that was instrumentality of Congress, but that had traveled within your state Congress,

[00:24:48] Speaker 01:
You get this case and a lot more, too.

[00:24:54] Speaker 01:
There's a great opinion by Judge McConnell on US versus Pat, and maybe you're familiar with that, which she explained why that hook doesn't really fit any of the Supreme Court categories.

[00:25:07] Speaker 01:
But we said there's Supreme Court precedent, that that hook works, and it's used all the time.

[00:25:17] Speaker 01:
If you really accomplish anything by throwing out this statute, number one, and number two, knowing that they can do that, why would Congress have used the term instrumentality instead here?

[00:25:32] Speaker 00:
Because we look at the intent of Congress, why did they use instrumentalities of interstate commerce?

[00:25:37] Speaker 00:
Because they wanted it appropriately.

[00:25:39] Speaker 00:
They limited the statute only to instrumentalities of interstate commerce.

[00:25:43] Speaker 00:
It doesn't apply.

[00:25:44] Speaker 00:
They could have used broader language like a kidnapping in or affecting interstate commerce, which I realize we're running out of time.

[00:25:49] Speaker 00:
If I could just defer to counsel, if I could just quickly finish

[00:25:53] Speaker 00:
When Congress intends to use the full scope of their Commerce Clause authority, they use the phrase, in or affecting interstate commerce.

[00:26:00] Speaker 00:
And that is the signal to courts.

[00:26:02] Speaker 00:
The Supreme Court has said that this court has said that that's when they're trying to exercise the entirety of their Commerce Clause authority.

[00:26:08] Speaker 00:
When they use more narrow terms, they are not trying to do that.

[00:26:10] Speaker 00:
So here, Congress is trying to limit it to instrumentalities of interstate commerce and motor vehicles are not, per se, instrumentalities of interstate commerce.

[00:26:16] Speaker 00:
Thank you.

[00:26:17] Speaker 01:
And give counsel three minutes.

[00:26:19] Speaker 01:
It's not this fault that we ask the question.

[00:26:23] Speaker 02:
Morning, Your Honors.

[00:26:25] Speaker 02:
Ken Del Valle on behalf of Mr. Romero.

[00:26:29] Speaker 02:
I want to address... He's going to set the clock.

[00:26:31] Speaker 02:
Give him three minutes, please.

[00:26:33] Speaker 02:
Thank you.

[00:26:36] Speaker 02:
I want to address Wyndham.

[00:26:38] Speaker 02:
Wyndham was a guilty plea to a 1201 kidnapping.

[00:26:42] Speaker 02:
And later on, Wyndham filed a pro se motion saying that the factual basis of his plea agreement did not sustain his guilty plea.

[00:26:52] Speaker 02:
The sixth affirmed, quote, based on the district court's acceptance of Wyndham's guilty plea.

[00:26:59] Speaker 02:
That was the issue there.

[00:27:01] Speaker 02:
That's the first lines of the case.

[00:27:03] Speaker 02:
And the 1010 and 1011, the court states again, quote, in this case, neither party can test kidnapping took place intrastate.

[00:27:14] Speaker 02:
That was not even an issue in Wyndham.

[00:27:17] Speaker 02:
Romero and Chavarria do contest that.

[00:27:20] Speaker 02:
That's the issue.

[00:27:22] Speaker 02:
The court then found that the use of a cell phone and an automobile satisfied the 1201 interstate commerce clause requirements.

[00:27:31] Speaker 02:
But they said cell phone and automobile.

[00:27:34] Speaker 02:
They didn't just say automobile.

[00:27:37] Speaker 02:
At 1013, the Wyndham Court states, quote, thus the Seventh Circuit reasoning in Protho coheres with the Sixth Circuit precedent.

[00:27:48] Speaker 02:
Now the Sixth Circuit is using Protho, but Protho

[00:27:52] Speaker 02:
was an actual interstate travel case.

[00:27:55] Speaker 02:
Protho used his vehicle to travel from Indiana to Illinois to rape a 10-year-old girl.

[00:28:03] Speaker 02:
The issue in Protho, as you read through the whole case, was really Protho's identity.

[00:28:08] Speaker 02:
Who was the perpetrator?

[00:28:10] Speaker 05:
But on A-28, Protho said, we look, as I think your co-counsel said, at the nature of the regulated objects class

[00:28:20] Speaker 05:
hear automobiles rather than the particular use of one member of that class, the Ford Explorer that matters.

[00:28:26] Speaker 05:
So don't we look at the nature of an automobile as an instrumentality that is mobile, like airplanes, like railroads?

[00:28:36] Speaker 02:
Yes.

[00:28:38] Speaker 02:
But in that case, all that language, there was actual interstate comments.

[00:28:42] Speaker 02:
There was actually from one state to the other.

[00:28:44] Speaker 02:
If I use the cell phone to call my bookie,

[00:28:49] Speaker 02:
I'm committing a crime.

[00:28:51] Speaker 02:
But if I throw it in my bookie's head and dig him with it, this is an instrumentality of interstate commerce.

[00:28:59] Speaker 02:
But how do I use it?

[00:29:00] Speaker 02:
If I hit my bookie on the head with it, is that a federal crime?

[00:29:03] Speaker 02:
And that's essentially what the government is asking you to do.

[00:29:07] Speaker 02:
Any crime that uses a card can now become a federal crime.

[00:29:12] Speaker 02:
A couple of kids driving up and stealing some beer off a federal highway

[00:29:17] Speaker 02:
into a rest stop have now committed a federal crime.

[00:29:22] Speaker 02:
And what does that do?

[00:29:23] Speaker 02:
That allows the government to do selective prosecution.

[00:29:26] Speaker 02:
That does not warn the general public of the nature of the statute.

[00:29:30] Speaker 05:
Well, we do know, don't we, because of 1201A1, that whatever Congress had in mind, it must have meant something other than the kidnapper traveling in interstate commerce, because that is separately identified

[00:29:47] Speaker 05:
as a predicate for guilt under 1201A1.

[00:29:51] Speaker 05:
So whatever Congress meant by an instrumentality of interstate commerce must have meant something in addition or other than the kidnapper actually going interstate in order to perpetrate the kidnapping, right?

[00:30:06] Speaker 02:
I agree, yes.

[00:30:07] Speaker 02:
The first part of 1201 states crossing state lines, you have to transport somebody.

[00:30:17] Speaker 05:
So what sense then would it make if, under your definition, that we define instrumentality of interstate commerce to mean that in perpetrating this kidnapping, the automobile had to cross state lines?

[00:30:33] Speaker 05:
Because irrespective of that language, it's already going to be separately a predicate for guilt under

[00:30:42] Speaker 05:
under the other part of the disjunctive segment in 1201.

[00:30:46] Speaker 02:
Yeah, they do have to cross state lines.

[00:30:49] Speaker 02:
My position is, if you read the beginning part of 1201, it implies that state lines will be crossed when you transport the victim.

[00:31:00] Speaker 02:
There's language on the transporting of the victim across state lines.

[00:31:05] Speaker 05:
you use an instrumentality of interstate commerce.

[00:31:07] Speaker 05:
So that's my question.

[00:31:08] Speaker 05:
So doesn't the second part of the disjunctive or using an instrumentality of interstate commerce have to assume that this instrumentality is not being used across state lines?

[00:31:19] Speaker 02:
Correct.

[00:31:25] Speaker 03:
Do you endorse your co-council's position that commercial vehicles would be subject to this kidnapping statute?

[00:31:35] Speaker 03:
No.

[00:31:36] Speaker 03:
No, I do not.

[00:31:38] Speaker 02:
As long as it's interstate, it doesn't meet the transporting interstate requirement.

[00:31:48] Speaker 01:
Thank you.

[00:31:55] Speaker 04:
Thank you so much.

[00:31:58] Speaker 04:
Two very brief points, if I may, and one of them I struggled to find the answer, Judge Timkovich, to your question about term of art, because I left my glasses up here.

[00:32:05] Speaker 04:
So it's a little hard to see, but I was able to figure it out.

[00:32:10] Speaker 04:
Pages 10 to 11 of our reply brief, we teased out the very question that Your Honor asked about the meaning of a term of art.

[00:32:18] Speaker 04:
It's the Supreme Court, the fountainhead decision, of course, is Maricet.

[00:32:22] Speaker 04:
And the Supreme Court said, where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice.

[00:32:31] Speaker 04:
That's the definition of a term of art.

[00:32:33] Speaker 04:
More recently, and again, this is on page 11.

[00:32:35] Speaker 04:
There's several cases that are cited.

[00:32:37] Speaker 04:
The key, as the Supreme Court has said, is that the statutory term has to have a well-settled meaning of common law.

[00:32:43] Speaker 04:
And the best example I can give of that, Your Honors, is this Court's own decision in In re Antrobus, which is cited in our brief.

[00:32:50] Speaker 04:
Antrobust was construing the meaning of the phrase writ of mandamus as used in the Crime Victims' Rights Act.

[00:32:57] Speaker 04:
And what this court said is, yeah, writ of mandamus is a term of art.

[00:33:01] Speaker 04:
It dates back to centuries old English common law.

[00:33:05] Speaker 04:
It has a well-accepted meaning and a well-understood meaning, and so we're going to treat it as a term of art.

[00:33:10] Speaker 04:
The situation we have here is different.

[00:33:12] Speaker 04:
Instrumentality is a term that the Supreme Court has used, but it doesn't have that fixed meaning.

[00:33:16] Speaker 04:
That's the problem.

[00:33:18] Speaker 04:
There are certain data points where we know certain things, planes and trains are instrumentalities, but it doesn't have a fixed meaning in common law, and that's why the term of art approach doesn't apply.

[00:33:28] Speaker 04:
The second point that I want to make just in my closing seconds is the suggestion about a commercial limitation on the statute.

[00:33:35] Speaker 04:
I would just say that that's engrafting something onto the statute that Congress didn't include.

[00:33:40] Speaker 04:
The statute says any instrumentality.

[00:33:42] Speaker 04:
Congress could have said any commercial instrumentality.

[00:33:45] Speaker 04:
It didn't say that.

[00:33:45] Speaker 04:
It said any.

[00:33:46] Speaker 04:
And as the court is well aware, any is a term of breadth.

[00:33:49] Speaker 04:
So the idea that we're going to sort of somehow limit it to a subclass, I think that just goes against the text of the statute.

[00:33:55] Speaker 04:
If the court has no further questions, I appreciate the court's time.

[00:33:58] Speaker 04:
We would ask the court to reverse the judgment or remand so this case can proceed to trial or guilty plea or some disposition.

[00:34:05] Speaker 01:
Thank you so much, Your Honors.