USA v. David Larsen, 08-3088.

On January 31, 2004, David Larsen brutally attacked Teri Jendusa-Nicolai, his ex-wife, when she came to his home in Racine County, Wisconsin, to pick up their two young daughters. The couple had divorced three years earlier after an abusive marriage, and Jendusa-Nicolai had recently taken Larsen to court for nonpayment of child support.

Larsen lured her into his home and began to beat her with a baseball bat, strangle, and smother her. When she did not succumb, he bound her head, ankles, and wrists with duct tape and placed her in a garbage can filled with snow. He then put the garbage can, with Jendusa-Nicolai inside, in the back of his pick-up truck and drove to a self-storage facility in Illinois where he had a rented storage locker. He left her there to die, in a cold storage locker, in the snow-filled garbage can with boxes wedged around it to prevent her from climbing out.

During the drive to Illinois, Jendusa-Nicolai managed to free her hands and call 911 from her cell phone. She gave Larsen's home address, and local law enforcement and rescue personnel broke into Larsen's home around 11 a.m. in an attempt to find Jendusa-Nicolai. They remained inside for about 15 minutes-just long enough to ascertain that she was not there.

Jendusa-Nicolai was able to make two more calls from her cell phone: She called her husband at noon and called 911 a second time around 2 p.m. At one point along the route to Illinois, she tried to extend her hand outside the garbage can in an effort to attract the attention of passing motorists. Larsen saw this, hit her again, and confiscated her cell phone.

Larsen was convicted of two counts: kidnapping in violation of 18 U.S.C. § 1201(a)(1), and interstate domestic violence in violation of 18 U.S.C. § 2261(a)(2) and (b)(2) (the Interstate Domestic Violence Act). The district judge sentenced him to life in prison.

Larsen challenges both his convictions and his sentence. His first claim on appeal is a Commerce Clause challenge to the Interstate Domestic Violence Act; he contends that the Act unconstitutionally federalizes purely local violent crime with an insufficient nexus to interstate commerce.

We reject these arguments and affirm.

The Interstate Domestic Violence Act punishes those who use "force, coercion, duress, or fraud" to cause a domestic partner to travel in interstate commerce and who commit a violent crime against the victim "in the course of, as a result of, or to facilitate" that interstate travel.18 U.S.C. § 2261(a)(2). This statute lies well within the scope of Congress's power to regulate the channels or instru-mentalities of, or persons in, interstate commerce.

A. Commerce Clause Challenge to the Interstate Domestic Violence Act

The relevant portion of the Act provides as follows:  A person who causes a spouse, intimate partner, or dating partner to travel in interstate or foreign commerce… by force, coercion, duress, or fraud, and who, in the course of, as a result of, or to facilitate such conduct or travel, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner, shall be punished….  18 U.S.C. § 2261(a)(2).

We conclude, in line with four other circuits, that the Interstate Domestic Violence Act is a proper exercise of Congress's Commerce Clause power. See United States v. Lankford, 196 F.3d 563 (5th Cir. 1999); United States v. Page, 167 F.3d 325 (6th Cir. 1999); United States v. Gluzman, 953 F. Supp. 84 (S.D.N.Y. 1997), aff'd, 154 F.3d 49 (2d Cir. 1998); United States v. Bailey, 112 F.3d 758 (4th Cir. 1997).

Larsen conceptually locates his argument in the third Commerce Clause category. The Act is unconstitutional, he contends, because Congress lacks the authority to punish domestic violence, which is wholly intrastate conduct, non-economic in nature, and does not substantially affect interstate commerce. This argument is misplaced. 

The Act punishes only those who cause a spouse or intimate partner to "travel in interstate or foreign commerce" and who commit a crime of violence "in the course of, as a result of, or to facilitate" that interstate travel. It is the victim's movement in interstate commerce-not the intrastate crime of violence-that implicates the Interstate Domestic Violence Act.

The Supreme Court has long held that movement of persons across state lines is sufficient to permit congressional regulation under the Commerce Clause. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 573 (1997).

Accordingly, we join the Second, Fourth, Fifth, and Sixth Circuits in holding that the Interstate Domestic Violence Act is a valid exercise of Congress's power under the Commerce Clause to regulate the channels or instrumentalities of, or persons in, interstate commerce.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

 

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