United States v. William Bryan

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12792

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM BRYAN,

a.k.a. Roddie,

GREGORY MCMICHAEL,

TRAVIS MCMICHAEL,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 2:21-cr-00022-LGW-BWC-3

____________________

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2 Opinion of the Court 22-12792

Before BRANCH, GRANT, Circuit Judges, and CALVERT,∗ District

Judge.

BRANCH, Circuit Judge:

This appeal arises from the federal convictions of Travis

McMichael, Gregory McMichael, and William Bryan for their

involvement in the tragic shooting death of Ahmaud Arbery. In

Georgia state court, defendants were convicted of murder and

other charges and given life sentences. 1 Following their state trial,

they were tried and convicted in federal court of interference with

rights, in violation of 18 U.S.C. § 245(b)(2)(B), and attempted

kidnapping, in violation of 18 U.S.C. § 1201(a)(1). They now appeal

those federal convictions.2 Defendants do not raise any

constitutional challenges on appeal; instead, they ask us to

overturn their convictions on various evidentiary grounds. But

because sufficient evidence supported their convictions,

defendants’ objections fail. Accordingly, after careful review and

with the benefit of oral argument, we affirm.

∗ Honorable Victoria Calvert, United States District Judge for the Northern

District of Georgia, sitting by designation.

1 See Georgia v. McMichael, et al., No. CR-2000433 (Glynn County Superior

Court).

2 Additionally, Travis and Gregory were tried and convicted of using, carrying,

and brandishing a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(A)(iii), but they challenge those convictions

only insofar as they dispute that they committed a crime of violence (the

interference with rights charge under 18 U.S.C. § 245(b)(2)(B)).

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I. Background

Over the course of defendants’ six-day trial, evidence was

presented regarding (A) the events of February 23, 2020,

culminating in the fatal shooting of Arbery; (B) the criminal and

suspicious activity before February 23, 2020, in the Glynn County,

Georgia neighborhood of Satilla Shores where the shooting

occurred, which defendants claimed justified their pursuit of

Arbery; (C) previous racially charged comments made by each

defendant; (D) whether the streets of Satilla Shores were public;

and (E) whether Travis’s truck was an instrumentality of interstate

commerce. The evidence will be summarized in turn.

A. The events of February 23, 2020

Midday on Sunday, February 23, 2020, Arbery, a black male,

went for a run through Satilla Shores, a non-gated neighborhood.

During his run, he stopped at a construction site in the

neighborhood—a house that had framing up, but did not have

doors, interior walls, or signs telling people to stay away. Arbery

had stopped there before—over the previous four months, Arbery

was spotted three other times on a surveillance camera walking

around at the construction site and inside the vacant home. 3 On

3 Arbery was first spotted on the property on October 25, 2019. The owner of

the property, Larry English, called the police department. A dispatcher was

sent, but no one was found at the scene. English again spotted Arbery on his

property on November 18, 2019; he sent the videos to the police, but by the

time the dispatched officer arrived, Arbery was gone. And on February 11,

2020, Travis McMichael spotted Arbery on English’s property. Travis called

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this particular February afternoon, a neighbor spotted Arbery. The

neighbor thought Arbery walking around the construction site

“seemed suspicious,” and called the non-emergency police line to

make a report.

While the neighbor was on the phone, Arbery left the

construction site of the house and resumed running deeper into the

neighborhood. He eventually ran past the McMichaels’ house,

where Gregory and his son Travis, both white males, lived

together. Gregory, a 64-year-old retired law enforcement officer,

was working in his front yard when Arbery ran past. Gregory had

previously been shown the surveillance footage of Arbery in the

construction area in the preceding months, so Gregory

immediately recognized Arbery. Also suspecting Arbery of some

recent burglaries in the neighborhood, Gregory ran inside and

yelled to his son, “Travis, the guy’s running down the street! Let’s

go, let’s go, let’s go!” Gregory and Travis grabbed their guns—a

911 and reported a burglary in progress. Travis noted that Arbery appeared

to be reaching into his pocket or waistband area. By the time the police

arrived, Arbery was gone.

Prior to February 23, 2020, however, Arbery was not the only person that

surveillance cameras had picked up walking around the vacant property under

construction. Cameras had also spotted a white couple walking into the

vacant home. The owner of the property under construction had reported the

matter to police, and, at the time of Arbery’s death, law enforcement was in

the process of trying to identify the individuals observed in the surveillance

footage.

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.357 Magnum revolver and Remington 12-gauge shotgun,

respectively—and got in Travis’s white F-150 pickup truck.

The McMichaels quickly caught up to Arbery, who at that

point was near co-defendant Bryan’s house. The McMichaels

yelled at Arbery to stop running, but Arbery reversed course and

began running in the opposite direction. Travis put the truck in

reverse in pursuit of Arbery, who then reversed course again.

Bryan, a white male, witnessed this interaction from his

front porch. He did not recognize Arbery or the McMichaels, and

he did not know why Arbery was being chased. But his “instinct”

told him that Arbery had done something wrong. So he shouted

to the McMichaels, “Y’all got him?” He then got in his own pickup

truck and joined the pursuit. By the time he pulled out of his

driveway, the McMichaels had raced ahead of Arbery and blocked

off Arbery’s access to the end of Burford Drive. Arbery changed

directions and started running back toward Bryan’s house, at which

point Bryan placed his car across the road to block Arbery’s path,

but Arbery was able to get around Bryan’s truck and continue

running toward the main exit of the neighborhood. Bryan then

drove ahead and tried to cut off Arbery again. This time, the truck

nicked Arbery, but he was still able to continue running. Bryan

once more drove ahead of Arbery and used his truck to cut off

Arbery’s path, at which point Arbery took a right turn, running

down Holmes Road—yet another road in the Satilla Shores

neighborhood—and Bryan followed in pursuit.

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At this point, the McMichaels had circled the neighborhood

and had blocked Arbery’s path on the other end of Holmes Road.

When Arbery saw the McMichaels, he changed course and ran

back at Bryan and eventually ran past Bryan’s truck. As Bryan was

turning his truck around, the McMichaels drove past Bryan and

Arbery and stopped near the intersection of Holmes Road and

Satilla Drive, again blocking Arbery’s path. Travis exited the

vehicle and stood at the open driver’s side door with his shotgun.

Meanwhile, Gregory was in the bed of the truck with his revolver.

Arbery, who was now running toward that intersection, was

sandwiched between Bryan—who was chasing him from behind—

and the McMichaels—who were waiting with guns near the

intersection.

As Arbery approached the McMichaels, he zig-zagged, and

then ran around the passenger side of Travis’s truck. Travis, who

had been pointing his shotgun at Arbery from the driver’s side of

the truck, moved around to the front of the truck. After Arbery

ran around the passenger side of the truck, Arbery ran at Travis to

grab the shotgun. A struggle ensued and Travis fired at Arbery,

cutting an artery in Arbery’s wrist and puncturing his chest and

lungs. Arbery continued to fight for the shotgun as Travis fired the

shotgun two more times—one time missing Arbery and the other

time hitting Arbery in his left armpit area. After a few seconds,

Arbery stumbled forward and collapsed face first on the street,

where he eventually bled to death.

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Simultaneously, Gregory was on the phone with 911,

reporting that there was “a black male running down the street.”

The call ended as Travis was firing his first shot. Officers,

responding to the call, arrived on the scene shortly after. Neither

the defendants nor the initial officer arriving on the scene rendered

any aid to Arbery. Gregory, Travis, and Bryan talked freely with

officers, giving their explanation of events: that they suspected

Arbery of committing a crime, that Arbery would not stop running,

and that Travis shot Arbery after Arbery lunged at him. No arrests

were made on the scene. Later that afternoon, Gregory, Travis,

and Bryan gave similar interviews at the police station.

B. Criminal and other suspicious activity in Satilla Shores before

February 23, 2020

The defendants attempted to justify their actions by linking

Arbery with recent neighborhood crime. Travis and Gregory

stated that they recognized Arbery as the same person they had

seen on camera at the construction site. 4 Travis and Gregory also

stated that there had been several break-ins and other criminal

4 Notably, however, none of Arbery’s visits were criminal trespass because he

had never been (a) told to leave the property or (b) given notice that access to

the property was forbidden. See O.C.G.A. § 16-7-21.

Further, the government put on evidence—Travis and Gregory’s own

willingness to trespass—that undermined their claim that preventing Arbery

from trespassing is what fueled their pursuit. Travis posted a video on

Facebook showing himself smacking down a no-trespassing sign so that he

could hunt on private property. He also posted a video of him and Gregory

talking about hunting on private property.

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activity in the neighborhood recently. At trial, the main evidence

of this activity came from Facebook posts on the neighborhood

Facebook page. On July 1, 2019, someone posted that several

unlocked cars in the neighborhood had been burglarized. Travis

commented on the post, “Arm up.” On July 14, 2019, Travis posted

that there appeared to be a “hobo camp” under the Fancy Creek

bridge near the neighborhood. 5 Then, on November 19, 2019,

surveillance videos from the house under construction were

posted, showing Arbery walking around the property on

November 18 and a white male and female walking around the

property on November 17. Travis commented, “They find him?”

and “They are starting to play with fire.” On December 8, 2019,

someone posted in the group that thieves had stolen several guns

from a truck. A suspect was caught on a surveillance camera—a

white male. And on January 1, 2020, Travis reported to police that

a gun was stolen from his truck.

In sum, the evidence showed that Arbery had visited a

construction site in Satilla Shores three times, but had not

disturbed anything or committed any crimes, nor was he linked to

any of the other criminal activity in the neighborhood.

5 Gregory also called the non-emergency police line to alert the police that he

saw someone who appeared to be homeless under the Fancy Creek bridge,

and that the man may be responsible for recent automobile break-ins in the

area. The officer who investigated the report testified that the man “appeared

to be Caucasian.”

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C. Defendants’ previous comments

Because the interference with rights charge required the

government to prove that the defendants acted because of Arbery’s

race, the government’s case-in-chief included evidence—private

conversations and social media posts—tending to show that each

of the defendants held longstanding prejudice toward black people

and supported vigilante justice. 6

i. Travis’s comments

Beginning with Travis’s private conversations, the

government presented the following evidence. On Facebook,

Travis was sent a video of a black man playing a joke on a white

man, to which Travis responded, “I’d kill that fucking n[*****].” 7

In another Facebook message, Travis was sent a picture of a white

man dressed up as Trayvon Martin—painted in black face, holding

Skittles and a Snapple, with a red blood splotch in the middle of his

hoodie—with a comment that this man was “[t]he winner of

Halloween 2016.” Travis responded, “Fuck. Yes.” In an Instagram

message, Travis was sent a video depicting a black man putting a

6 Defendants filed a motion in limine to exclude this evidence. The magistrate

judge denied the motion, holding that the evidence was “plainly relevant

[under Federal Rule of Evidence 404(b)] to determining whether Defendants

acted with racial animus during the events forming the basis of the charges

against them.” Defendants do not challenge the admission of this evidence on

appeal.

7 While the evidence presented at trial was uncensored, we have censored the

use of this racial slur throughout the opinion.

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firecracker in his nose, to which Travis responded, “[b]een cooler

if it blew that fucking n[*****]s head off.” And in a text message,

Travis sent a picture of a person with Down syndrome wearing a

shirt that said, “At least I’m not a n[*****]!” In another text message

exchange, Travis stated that he loved his job because “ZERO

n[*****]s work with [him].” Travis also called a coworker a

“n[*****]-lover” because she formerly dated a black man.

The government presented the following evidence of

Travis’s Facebook posts and comments. Travis commented,

“Goddam savages,” on a Facebook video of a black woman stealing

a purse from an elderly white woman’s shopping cart at the

grocery store. Travis posted a video on Facebook of two black

people assaulting two white people, with the caption “Savages.”

Travis then commented on the post that if black “savages” attacked

his family, he “would beat those monkeys to death” and “would

have the same remorse putting them down as [he] would a rabid

coon.”

The government also presented evidence tending to show

Travis’s support for vigilantism. On the neighborhood Facebook

page, Travis referred to thieves as “vermin.” Travis commented

on a Facebook post about a participant to a home invasion robbery

that he kept his “home shotgun loaded with high brass #5’s. [I]t

will rip some[body] to shreds.”

ii. Gregory’s comments

The government presented the following evidence of

Gregory’s racial animus. In response to being told that a civil rights

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leader had died, Gregory stated, “I wish that guy had been in the

ground years ago” and that “[a]ll these blacks are nothing but

trouble; I wish they would all die.” He then proceeded to “rant

against black people.”

Additionally, one of Gregory’s former neighbors testified

that, during a conversation, Gregory referred to one of his former

tenants as a “walrus” because she was “big and black.” He bragged

that when she was late to pay rent, he would cut her air

conditioning off, and when he did that “[y]ou should have seen

how fast her big fat black ass came with the rent check.”

Gregory also posted a meme on Facebook with a quote

stating, “White Irish slaves were treated worse than any race in the

US. When was the last time you heard an Irishman bitching about

how the world owes them a living. You won’t. . . The Irish are not

p[*]ssies looking for free shit. . .” (ellipses in original).

The government also presented posts and comments from

Gregory’s Facebook account tending to show Gregory’s support

for vigilantism. For example, Gregory shared two memes on his

Facebook page. The first was a picture of a woman holding a

shotgun and a baby, with a caption that said, “A gun in the hand is

worth more than the entire police force on the phone.” The

second was a photo of a white man pointing a handgun with the

following quote, “If violent crime is to be curbed, it is only the

intended victim who can do it. The felon does not fear the police,

and he fears neither judge nor jury. Therefore, what he must be

taught is to fear his victim.” And Gregory commented on a post

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about a stolen surfboard, stating “Maybe I will catch the sorry SOB

up here in Ga. We still hang horse and board thieves up here. Woe

be unto the sticky-fingered bastard!”

iii. Bryan’s comments

The government presented the following evidence of

Bryan’s racism. After learning that his daughter was dating a black

man, Bryan messaged someone that his daughter “has her a

n[*****] now” and that the boyfriend would “fit right in with the

monkeys.” Someone also sent Bryan a screenshot of a picture of

his daughter and her boyfriend, along with a comment stating,

“Just wanted to share with you and start your day with a good

PUKE. Don’t it make you proud,” to which Bryan responded,

“Like I said she don’t give a fuck about herself why should we.” On

successive Martin Luther King Jr. holidays, Bryan messaged his

friend to say he was working “so all the n[*****]s can take off!” and

referenced a “monkey parade” happening on that day.

The government also presented evidence that Bryan

associated black people with criminality. Bryan messaged a friend

that his friend’s wife should try to get disability benefits “like the

n[*****]s that don’t need it.” And commenting on a Facebook post

about a dirt bike being stolen, Bryan speculated that a “boot lip”—

a racial slur he used to describe black people—stole it.

D. Whether the streets of Satilla Shores were public or private

Because the interference with rights statute required the

government to prove that the interference occurred because

Arbery was using a facility “provided or administered by a State or

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subdivision thereof,” the government put on evidence that the

roads of Satilla Shores, where the shooting occurred, were public

roads.

The government called Anthony Vicent, the roads and

drainage division manager at the Glynn County Department of

Public Works. Vicent noted that, in 2021, the streets in Satilla

Shores appeared on the county’s list of public records as public

roads. Vicent also discussed public records showing that the

county had responded to citizen service requests for streets in

Satilla Shores, including filling a gap in a curb with asphalt, cleaning

a spill from a trash truck, and remediating flooded roads. Further,

Vicent discussed county records showing that the county budgeted

public funds to pave the streets in Satilla Shores. Vicent testified

that the county did not fulfill these types of maintenance requests

or budget money for private roads. Although records do not show

that the county ever took formal title to these roads—in fact, the

county explicitly denied formal title in 1958—Vicent testified that

he has “no doubt” that the county maintained the streets where

Arbery was pursued and killed. 8

8 As discussed infra note 13, the government also produced (over objection)

Facebook posts from the Satilla Shores Homeowners Facebook Group

discussing the status of the roads. Several months after the shooting, someone

posted, “I am absolutely fed up with the circus in our neighborhood. We are

looking to privatize our streets if anyone wants to get together.” Another

member commented, “You first have to purchase the roads from the County

since they are county-maintained and then you can put up a gate.” And

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E. Whether Travis’s truck was an instrumentality of interstate

commerce used in furtherance of the attempted kidnapping

Because an element of attempted kidnapping is the use of an

instrumentality of interstate commerce, the government

introduced evidence that Travis’s truck was an instrumentality of

interstate commerce. It called FBI specialist Maria Pagan, who

testified that Travis’s truck was manufactured in the United States.

The government also introduced records from the National

Insurance Crime Bureau (“NICB”), authenticated by an affidavit,

that showed that Travis’s truck was manufactured in Missouri.

However, defendants objected to the introduction of the NICB

records because the authenticating affidavit was post-dated several

days in the future. The district court overruled the objection,

holding it was a scrivener’s error, and admitted the records.

F. Procedural History

After the government concluded its case-in-chief, the

defendants moved for a judgment of acquittal on all charges. On

the interference with rights charge, they argued that the

government did not prove that they acted because of Arbery’s race

or because of Arbery’s use of public streets. And on the attempted

kidnapping charge, they argued that the government did not prove

they used an instrumentality of interstate commerce. The district

another commenter suggested forming a homeowners association and

recruiting the help of an attorney.

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court denied the motions. After the close of all evidence,

defendants renewed the motions, which the court again denied.

The jury convicted each of the defendants as charged. The

court sentenced Travis to life imprisonment plus ten years,

Gregory to life imprisonment plus seven years, and Bryan to 420

months’ imprisonment. The court ordered these sentences to run

concurrently with their state sentences.

Gregory and Travis then filed post-judgment motions for

acquittal under Federal Rule of Criminal Procedure 29(c),

reiterating their prior arguments and adding arguments that the

government failed to prove that the streets of Satilla Shores were

“provided or administered” by Glynn County, and that the

government failed to prove that they kidnapped Arbery for

“ransom or benefit or otherwise.” Their motions for acquittal

were again denied, this time in a written order.

As to whether Gregory acted because Arbery was black

(which only Gregory challenged), the court held that “there was

substantial evidence of [Gregory’s] racial animus against black

people introduced at trial,” and the jury could have inferred that

this animus led Gregory “to make assumptions about Arbery’s

character and intent.” Thus, the jury could have concluded that

Gregory “acted as he did because of Arbery’s race.” As to whether

Gregory acted because Arbery was using the streets of Satilla

Shores (which only Gregory challenged), the court held that “[t]he

evidence plainly permitted the jury to reach th[e] conclusion” that

the offenses would not have occurred “but-for” the fact that Arbery

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was using the streets in question. As to whether the streets of

Satilla Shores were public, the court held that the interference with

rights statute only required the county to “provide or administer”

the road, not to formally hold title to the road. Given that the

streets were open to the public and the county used county

resources to maintain the streets, the court held that the evidence

was “more than sufficient” for a jury to reasonably infer that the

roads were public.

On the attempted kidnapping charge, the court held that the

“evidence was more than sufficient to support a finding that the

McMichaels attempted to kidnap Arbery for a benefit”—to satisfy

and promote their own “vigilante desires.” Finally, the court held

that the McMichaels used Travis’s truck as an instrumentality of

interstate commerce. The court held that the truck did not actually

have to be moving in interstate commerce at the time of the

offense, and “there is no serious argument that the jury could not

find the McMichaels used the truck[]” “in the way in which

Congress” intended.

Defendants appealed.

II. Standard of Review

We review the sufficiency of the evidence to support a

conviction de novo, considering the evidence in the light most

favorable to the government and “resolv[ing] any conflicts in the

evidence in favor of the [g]overnment.” United States v. Lander, 668

F.3d 1289, 1296–97 (11th Cir. 2012). Similarly, “[w]e review de novo

the district court’s denial of a motion for judgment of acquittal,

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applying the same standard used in reviewing the sufficiency of the

evidence[.]” United States v. Descent, 292 F.3d 703, 706 (11th Cir.

2002) (italics added).

“The test for sufficiency of evidence is identical” for direct

and circumstantial evidence, “and no distinction is to be made

between the weight given to either direct or circumstantial

evidence.” United States v. Mieres-Borges, 919 F.2d 652, 656–57 (11th

Cir. 1990). Proof of an element of a crime “may be established

through circumstantial evidence or from inferences drawn from

the conduct of an individual.” United States v. Utter, 97 F.3d 509, 512

(11th Cir. 1996). “But where the government relies on

circumstantial evidence, reasonable inferences, and not mere

speculation, must support the jury’s verdict.” United States v.

Wenxia Man, 891 F.3d 1253, 1265 (11th Cir. 2018) (alteration

adopted) (quotations omitted).

“If a reasonable jury could have found [the defendant] guilty

beyond a reasonable doubt, then we cannot overturn the jury’s

determination.” United States v. Vernon, 723 F.3d 1234, 1266 (11th

Cir. 2013) (quotations omitted); United States v. White, 663 F.3d

1207, 1213 (11th Cir. 2011) (“[W]e will not disturb a guilty verdict

unless, given the evidence in the record, no trier of fact could have

found guilt beyond a reasonable doubt.” (quoting United States v.

Hill, 643 F.3d 807, 856 (11th Cir. 2011))). “[T]he evidence need not

be inconsistent with every reasonable hypothesis except guilt, and

the jury is free to choose between or among the reasonable

conclusions to be drawn from the evidence presented at

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trial.” United States v. Watts, 896 F.3d 1245, 1251 (11th Cir. 2018)

(quoting United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989)).

III. Discussion

On appeal, defendants make sufficiency of the evidence

challenges to both their interference with rights convictions and

attempted kidnapping convictions. We consider these challenges

in turn.

A. Challenges to interference with rights convictions

We start with defendants’ challenges to their interference

with rights convictions under 18 U.S.C. § 245(b)(2)(B). Gregory and

Bryan challenge the sufficiency of the evidence supporting the

jury’s underlying findings that the government proved beyond a

reasonable doubt that they acted because of Arbery’s race, and

because of Arbery’s use of the streets of Satilla Shores. And all three

defendants challenge the sufficiency of the evidence supporting the

jury’s underlying finding that the streets of Satilla Shores were

public roads “provided or administered” by Glynn County. As we

explain below, all of their challenges fail.

Before addressing the defendants’ specific arguments related

to their interference with rights convictions, we review the

relevant statute and its elements. A violation of

18 U.S.C. § 245(b)(2)(B) is found when someone

[1] by force or threat of force [2] willfully injures,

intimidates or interferes with, or attempts to injure,

intimidate or interfere with . . . any person

[3] because of his race, color, religion or national

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origin and [4a] because he is or has

been . . . participating in or enjoying any benefit,

service, privilege, program, facility or activity

[4b] provided or administered by any State or

subdivision thereof[.]

18 U.S.C. § 245(b)(2)(B). The third and fourth (both 4a and 4b)

elements are the only elements at issue in this appeal. We address

the relevant elements in turn.

i. There was sufficient evidence that Gregory

and Bryan acted because of Arbery’s race

Gregory and Bryan argue that sufficient evidence did not

support the jury’s underlying finding that Gregory and Bryan acted

because of Arbery’s race. They present slightly different

arguments. Both defendants’ arguments fail.

In order to convict defendants, the government needed to

prove that defendants acted “because of” Arbery’s “race, color,

religion or national origin.” 18 U.S.C. § 245(b)(2)(B). The phrase

“because of” imposes a “but-for” causation requirement. See

Burrage v. United States, 571 U.S. 204, 212–13 (2014) (listing

examples of Supreme Court’s consistent interpretation of the

phrase “because of” in statutes to require but-for causation).9

Importantly, “but-for causality does not require that a single factor

alone produce the particular result.” United States v. Feldman, 936

9 Neither side argues that a standard other than but-for cause applies. And the

jury instructions below interpreted “because of” as requiring but-for

causation, which neither side challenges on appeal.

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F.3d 1288, 1311 (11th Cir. 2019). Other factors can combine to

produce the result, “so long as the other factors alone would not

have done so—if, so to speak, it was the straw that broke the

camel’s back.” Id. (quoting Burrage, 571 U.S. at 211). And of course,

on appeal, our review is limited to whether sufficient evidence

supported the finding that but for Arbery’s race, defendants would

not have acted. See White, 663 F.3d at 1213 (“[W]e will not disturb

a guilty verdict unless, given the evidence in the record, no trier of

fact could have found guilt beyond a reasonable doubt.” (quoting

Hill, 643 F.3d at 856)).

Beginning with Gregory, the government presented

substantial evidence of Gregory’s racial animus in the form of

testimony regarding racially charged comments Gregory made

during private conversations and on his Facebook page. Along

with evidence of racial animus, the government also produced

evidence that Gregory reacted much less severely to a white man

whom he suspected of breaking into neighborhood cars. And

Gregory’s alleged concern over Arbery’s potential trespassing is

undermined by the evidence of Gregory’s own willingness to

trespass. This evidence, viewed in the light most favorable to the

jury verdict, was sufficient for a reasonable juror to find that

Arbery’s race was the determinative factor for Gregory’s actions.

See Lander, 668 F.3d at 1296–97.

Nevertheless, Gregory argues that there was insufficient

evidence that Arbery’s race was the “but-for” cause of Gregory’s

decision to pursue Arbery. Instead, he maintains that the evidence

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showed that his actions—as a retired investigator with decades of

experience—were motivated solely by recognizing Arbery from

the surveillance footage of the home under construction. Gregory

states that the evidence showed that Arbery’s skin color played a

“nonessential contributing role,” and was “a fact of no greater

import to [Gregory’s] calculus than [ ] Arbery’s biological sex, the

shorts he was wearing, his hairstyle, or his tattoos.” We disagree.

Viewing the evidence—that (1) Gregory had made several racially

charged statements, (2) Gregory reacted much less severely when

he suspected a white man of breaking into neighborhood cars, and

(3) Gregory himself trespassed—in the light most favorable to the

verdict, a reasonable juror could have found that Arbery’s race,

rather than his suspected trespassing, was the determinative factor

for Gregory’s actions. While race being the but-for cause of

Gregory’s pursuit of Arbery may not have been the only reasonable

interpretation of the evidence, “the jury is free to choose between

or among the reasonable conclusions to be drawn from the

evidence presented at trial.” Watts, 896 F.3d at 1251 (quoting Poole,

878 F.2d at 1391).

Turning to Bryan, the government also presented

substantial evidence of his racial animus in the form of numerous

racially charged text messages sent by Bryan. And the government

also presented evidence that Bryan associated black people with

criminality, including text messages that Bryan sent his friend

about black people stealing disability checks, a comment on a

Facebook post using a derogatory term to state that a black man

was responsible for stealing a dirt bike, and the fact that Bryan

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22 Opinion of the Court 22-12792

stated that his “instinct” told him that Arbery had done something

wrong despite not knowing anything about the situation.

Bryan argues that he decided to pursue Arbery because he

saw Arbery being chased, and Arbery never called for help or

signaled that he was being unfairly pursued. Thus, he assumed that

Arbery had done something wrong, and he wanted to capture

Arbery’s face on video. But given the totality of the evidence and

circumstances viewed in the light most favorable to the verdict, the

jury could have reasonably inferred that Bryan’s “instinct” and

decision to act were based on Arbery’s race. See Lander, 668 F.3d at

1296–97. Again, while Arbery’s race being the but-for cause of

Bryan’s decision to act may not have been the only reasonable

interpretation of the evidence, “the jury is free to choose between

or among the reasonable conclusions to be drawn from the

evidence presented at trial.” Watts, 896 F.3d at 1251 (quoting Poole,

878 F.2d at 1391).

ii. There was sufficient evidence that Gregory

and Bryan acted because of Arbery’s use of the

streets of Satilla Shores

Gregory and Bryan argue that the jury’s underlying finding

that they acted because of Arbery’s use of the streets of Satilla

Shores was not supported by sufficient evidence. Their arguments

fail.

In order to convict defendants, the government was

required to prove that defendants acted “because of” Arbery’s

enjoyment of a “facility.” 18 U.S.C. § 245(b)(2)(B). As discussed

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above, the phrase “because of” imposes a “but-for” causation

requirement, which the parties do not dispute on appeal. See

Burrage, 571 U.S. at 212–13 (listing examples of Supreme Court’s

consistent interpretation of the phrase “because of” in statutes to

require but-for causation). And all parties agree, and courts have

uniformly held, that a city street is a facility under § 245. See, e.g.,

United States v. Nelson, 277 F.3d 164, 192–93 (2d Cir. 2002) (holding

that “the term ‘facility’ clearly and unambiguously includes city

streets within its meaning”); United States v. Cazares, 788 F.3d 956,

990 (9th Cir. 2015) (same). On appeal, our review is limited to

whether sufficient evidence supported the finding that but for

Arbery’s use of a facility—i.e., the streets of Satilla Shores 10—

defendants would not have acted. See White, 663 F.3d at 1213

(“[W]e will not disturb a guilty verdict unless, given the evidence

in the record, no trier of fact could have found guilt beyond a

reasonable doubt.” (quoting Hill, 643 F.3d at 856)).

Sufficient evidence supported the jury’s underlying finding

that Arbery’s use of the streets of Satilla Shores was a but-for cause

of Gregory’s and Bryan’s actions. The chase started when Gregory

saw Arbery running down the street. Indeed, as soon as Gregory

saw Arbery running down the street, he shouted, “Travis, the guy’s

running down the street! Let’s go, let’s go, let’s go!” Bryan also

started his pursuit after he saw Arbery running down the street.

10 We will tackle the narrower issue of whether the streets of Satilla Shores are

a facility that is “provided or administered by any State or subdivision thereof,”

as required by § 245(b)(2)(B), in Section III.A.iii.

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Additionally, the streets were integral to the offense as the entire

chase and killing occurred on the streets of Satilla Shores. See

Nelson, 277 F.3d at 198 (citing cases for the proposition that

circumstantial evidence is sufficient for jury to infer defendants’

intent to deprive individual of access to a public facility under

§ 245(b)(2)(B)). In other words, the defendants acted because of

Arbery’s use of the streets of Satilla Shores.

Gregory and Bryan argue that Arbery’s presence on the

streets of Satilla Shores was not a determinative factor in their

decision to pursue Arbery, because, had Arbery been running

through the private yards of their neighbors, they still would have

pursued Arbery. While Gregory and Bryan’s argument that they

would have still pursued Arbery even if Arbery were running

through their neighbor’s yards is plausible, the jury was not

required to draw that inference. See Watts, 896 F.3d at 1251. The

streets were integral to the offense—defendants used their trucks

to block Arbery from using the streets to escape. Thus, it was

similarly reasonable to infer that, but for Arbery’s use of the streets

of Satilla Shores, the specific crime would not have occurred.

iii. There was sufficient evidence that the streets

of Satilla Shores are provided or administered

by Glynn County

All three defendants argue that the jury’s underlying finding

that the streets of Satilla Shores are “provided or administered” by

Glynn County as contemplated by § 245 was not supported by

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sufficient evidence. 11 Defendants argue that the phrase “provided

or administered” in the statute does not mean, as the district court

defined the phrase in its order denying defendants’ motion for

acquittal, that “a state or political subdivision maintains the

particular facility in a condition suitable for use.” Instead,

defendants argue that § 245 requires proof that a public entity has

ownership or title over the facility (express or implied), as set out

under Georgia law. As we explain below, their arguments fail.

We start where all statutory construction starts, with the

language of the statute itself. Section 245 prohibits interfering with

the enjoyment of a facility “provided or administered by any State

or subdivision thereof[.]”12 18 U.S.C. § 245(b)(2)(B). The parties

dispute the statutory terms “provided or administered by.” These

terms are not defined by the statute, and when “term[s] go[]

undefined in a statute, we give the term[s their] ordinary meaning,”

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012), as those

11 While Gregory and Travis challenged the sufficiency of the evidence

supporting the jury’s underlying finding that the streets of Satilla Shores are

“provided or administered” by Glynn County in their post-verdict Rule 29

motions, Bryan did not file a post-verdict motion or attempt to adopt the

arguments of his codefendants. When a sufficiency argument is not preserved

below, we will reverse a conviction only if “necessary to prevent a manifest

miscarriage of justice.” United States v. Fries, 725 F.3d 1286, 1291 (11th Cir.

2013) (quoting United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006)).

Although this heightened standard applies to Bryan’s claim, we note that his

challenge fails under any standard for the reasons discussed in this section.

12 The jury was instructed in accordance with the statutory language. The

parties do not challenge the jury instructions.

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terms were “understood at the time the law was enacted,” United

States v. Chinchilla, 987 F.3d 1303, 1308 (11th Cir. 2021). “To

ascertain ordinary meaning, [we] often turn to dictionary

definitions for guidance.” United States v. Lopez, 590 F.3d 1238, 1248

(11th Cir. 2009). The statute was enacted in 1968, so we look to

contemporary sources from around that time for meaning. See id;

Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 73. At that

time, “provide” was defined in relevant part as “to supply what is

needed for sustenance or support.” Webster’s Third New

International Dictionary 1827 (1966). And “administer” was

defined as “to manage the affairs of” or “to direct or superintend

the execution, use, or conduct of.” Id. at 27. Thus, the ordinary

meaning of these terms does not include any requirement of

formal title or ownership. Rather, the ordinary meaning of the

terms “provide” and “administer” are consistent with the district

court’s conclusion that the requirement is met if “a state or political

subdivision maintains the particular facility in a condition suitable

for use.”

Furthermore, contrary to the defendants’ position, the two

cases relied upon by the district court in its analysis—United States

v. White, 846 F.2d 678 (11th Cir. 1988), and United States v. Griffin,

585 F. Supp. 1439 (M.D.N.C. 1983)—are consistent with the plain

and ordinary meaning of “provide” and “administer.” At issue in

both cases was whether the city “provide[d] or administer[ed]” a

parade that it did not organize. In each case, the courts held that

the city did “provide[] or administer[]” the parade—mainly because

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the city had regulations dealing with public demonstrations and

provided police oversight at the parades.

The first case, White, involved a parade organized by the

Southern Christian Leadership Conference (SCLC). 846 F.2d at

682. At the parade, the Ku Klux Klan clashed with black marchers.

Id. Several persons, including police officers that were providing

security for the parade, sustained injuries. Id. One of the Klansmen

was prosecuted under § 245(b)(2)(B). Id. at 684. The district court

acquitted him, holding that the government failed to demonstrate

that the parade was “provided or administered by” the city. Id. at

694. We reversed, explaining that the district court had interpreted

the meaning of “administered” too narrowly. While

acknowledging that the city did not direct the demonstration and

parade organizers were not required to get a permit from the city,

we noted that the city had ordinances regulating public

demonstrations, the SCLC organizers had met with the police chief

two to three days before the march to discuss the details of the

police route, and the police chief agreed to provide extra security.

Id. at 694–95 & n.27. We held that such circumstances fell within

the ambit of § 245’s coverage. Id. at 695.

The second case, Griffin, involved the disruption of an anti-

Klan parade by the Ku Klux Klan. 585 F. Supp. at 1440. Defendants

sought to have their indictment dismissed, arguing, in part, that the

anti-Klan parade was not “administered” by the city. Id. at 1442.

The district court denied the motion. Id. It reasoned that, while

the city could not have prohibited the parade because of its

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28 Opinion of the Court 22-12792

message, the city regulated the time, place, and manner of the

parade, and required the organizers to get a parade permit. Id.

Thus, the district court held that the city “took an active role in

controlling and managing the parade,” as it had “thorough

involvement” in the details of the parade, which “qualifie[d] [the]

parade as having been ‘administered’ by the city . . . within the

meaning of 18 U.S.C. § 245(b)(2)(B).” Id.

Accordingly, “provide[] or administer[]” does not require

the county to own or have title to the facility (express or implied)—

rather, it is sufficient that a county maintain the particular facility

in a condition suitable for use. Thus, defendants falter in placing

dispositive weight (1) on the fact that Glynn County explicitly

rejected the dedication of the streets of Satilla Shores from a private

developer in 1958, and (2) on their argument that Glynn County

has not subsequently impliedly accepted the dedication by

exhibiting “dominion or control” over the streets of Satilla Shores.

Instead, the proper focus is whether sufficient evidence supported

the jury’s underlying finding that the streets of Satilla Shores were

maintained by Glynn County in a condition suitable for use.

Copious evidence supports the jury’s underlying finding that

Glynn County “provided or administered” the streets of Satilla

Shores. For example, Vicent, the roads and drainage division

manager at the Glynn County Department of Public Works,

testified that the streets in Satilla Shores were included in the

department’s list of public roads. Vicent also discussed public

records showing that the county had responded to citizen service

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requests for streets in Satilla Shores—which it does not do for

private roads—including filling a gap in a curb with asphalt,

cleaning a spill from a trash truck, and remediating flooded roads.

Vicent also discussed county records showing that the county

budgeted public funds to pave streets in Satilla Shores. While there

was no direct evidence that the county conducted the work, the

videos from February 23, 2020, show that the streets were in

working order. And although the county explicitly denied formal

title in 1958, Vicent testified that he has “no doubt” that the county

maintained the streets where Arbery was pursued and killed.

Finally, aerial footage of the neighborhood showed that the streets

were open to the public, as there were no visible gates or

restrictions. 13

Defendants’ attempts to undermine the probative value of

Vicent’s testimony and the public records come up short. First,

13 As discussed supra note 8, the government also introduced several Facebook

posts of homeowners in Satilla Shores discussing privatizing the roads,

suggesting that the homeowners in the neighborhood thought that the roads

were public. For the first time on appeal, Travis makes a hearsay challenge to

the district court’s admission of these posts. However, we will not reverse a

conviction based on an unpreserved evidentiary error unless that error was so

prejudicial that it affected the outcome of the district court proceedings. See

United States v. Campbell, 223 F.3d 1286, 1288 (11th Cir. 2000) (applying plain

error to unpreserved evidentiary challenge). And as discussed above, even

without the Facebook posts, sufficient evidence supported the jury’s decision

that the streets of Satilla Shores were “provided or administered by” Glynn

County. Thus, even if admitting the posts was an evidentiary error, the error

was not “so prejudicial that it affected the outcome of the district court

proceedings.” See id.

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30 Opinion of the Court 22-12792

they argue that the service tickets relate mostly to work done

related to or incident to the broader “right-of-way,” not the streets

themselves. But even assuming this distinction matters,

defendants concede that some work was done on the streets

themselves—they just argue it was not significant work. Yet even

on defendants’ view of the record, there were fourteen service

tickets involving a citizen complaint about the “road,” a “roadway

spill,” or “traffic.” Second, they argue that the county commission

minutes that the government introduced were “largely undated,

usually unpaginated, and often incomplete.” But judging the

reliability and probative value of the commission minutes is a task

firmly within the province of the jury. See McGinnis v. Am. Home

Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016) (“It is the

jury’s task—not [the court’s]—to weigh conflicting evidence and

inferences, and determine the credibility of witnesses.” (quotation

omitted)).

Ultimately, defendants have not met their steep burden of

showing that “no trier of fact could have found guilt beyond a

reasonable doubt” based on the evidence in the record. White, 663

F.3d at 1213 (quoting Hill, 643 F.3d at 856). Thus, considering the

evidence in the light most favorable to the government and

“resolv[ing] any conflicts in the evidence in favor of the

[g]overnment,” sufficient evidence supported the jury’s decision

that the streets of Satilla Shores were “provided or administered”

by Glynn County. Lander, 668 F.3d at 1296–97.

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B. Challenges to the attempted kidnapping convictions

The jury convicted Travis, Gregory, and Bryan of attempted

kidnapping under 18 U.S.C. § 1201(a). As relevant here, a violation

of 18 U.S.C. § 1201(a) occurs when someone:

[1] unlawfully seizes, confines, inveigles, decoys,

kidnaps, abducts, or carries away and [2] holds for

ransom or reward or otherwise any

person . . . [3] when . . . the offender . . . uses . . . [an]

instrumentality of interstate or foreign commerce in

committing or in furtherance of the commission of

the offense[.]

18 U.S.C. § 1201(a)(1). Only the second and third elements are at

issue on appeal. All defendants challenge the sufficiency of the

evidence supporting the jury’s underlying finding that they acted

“for ransom or reward or otherwise.” And Travis and Gregory

challenge the sufficiency of the evidence supporting the jury’s

underlying finding that they used an instrumentality of interstate

commerce in furtherance of the offense. Each argument is

discussed in turn.

i. There was sufficient evidence that defendants

acted “for ransom or reward or otherwise”

All three defendants 14 argue that the jury’s underlying

finding that defendants acted for “ransom or reward or otherwise”

14 Travis does not discuss this argument in his brief, other than to adopt the

argument of the other defendants. We may thus decline to consider his

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32 Opinion of the Court 22-12792

was not supported by substantial evidence because the

government did not prove that they acted for a tangible benefit.

Their argument fails.

Under the kidnapping statute, § 1201(a), the government

needed to show that defendants kidnapped Arbery “for ransom or

reward or otherwise.” We have held that “the prosecution need

only establish that the defendant acted for any reason which would

in any way be of benefit.” United States v. Lewis, 115 F.3d 1531, 1536

(11th Cir. 1997) (emphasis in original) (quotation omitted) (holding

that kidnapping victim for “companionship” counted as a benefit);

United States v. Duncan, 855 F.2d 1528, 1536 (11th Cir. 1988) (“The

motivation of rape is admissible to show that the defendant

kidnapped for a benefit . . . .”) Indeed, “almost any purpose

satisfies the § 1201 requirement of kidnapping for a benefit.”

Duncan, 855 F.2d at 1534; see also, e.g., United States v. Parker, 103

F.2d 857, 861 (3d Cir. 1939) (holding that a detective trying to

enhance his reputation by obtaining a confession from a suspect

whom he illegally detained counted as a benefit); Brooks v. United

challenge because sufficiency arguments “are too individualized to be

generally adopted.” United States v. Cooper, 203 F.3d 1279, 1285 n.4 (11th Cir.

2000) (quotation omitted). But even if we considered his argument, it fails on

the merits for the reasons discussed in this section.

Additionally, Bryan failed to raise this argument below. When a sufficiency

argument is not preserved below, the Court will reverse a conviction only if

“necessary to prevent a manifest miscarriage of justice.” Fries, 725 F.3d at 1291

(quoting Greer, 440 F.3d at 1271). This heightened standard applies to Bryan,

although the challenge fails under any standard for the reasons discussed in

this section.

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States, 199 F.2d 336, 336–37 (4th Cir. 1952) (KKK members’ intent

to whip a man and woman and tell them to “stop living together

and making liquor and to attend church” was an adequate benefit).

The jury had ample evidence that defendants attempted to

kidnap Arbery for a benefit. Based on their posts supporting

vigilantism and associating black people with criminality, the jury

could have reasonably inferred that the defendants acted to boost

their reputation as neighborhood crime-stoppers, to remove

suspected criminals from their streets, or to promote their sense of

vigilante justice. Or, based on their racist and often violent

language, the jury could have reasonably inferred that they acted

to gain some personal satisfaction by inflicting violence on a black

man. Id. Under the broad language of the statute and caselaw

interpreting it, any of these motivations constitute a benefit.

ii. There was sufficient evidence that Travis and

Gregory used an instrumentality of interstate

commerce

Travis and Gregory argue that the jury’s underlying finding

that they used Travis’s truck as an instrumentality of interstate

commerce during the commission of the crime was not supported

by sufficient evidence. We disagree.

We begin our discussion by observing that a defendant can

violate the relevant provision of the kidnapping statute,

§ 1201(a)(1), in one of three ways. First, a defendant violates the

statute if his kidnapping victim “is willfully transported in interstate

or foreign commerce.” 18 U.S.C. § 1201(a)(1). Second, a defendant

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34 Opinion of the Court 22-12792

violates the statute if he “travels in interstate or foreign commerce”

during the offense. Id. Or third, a defendant violates the statute if

he “uses the mail or any means, facility, or instrumentality of

interstate or foreign commerce in committing or in furtherance of the

commission of the offense.” Id. (emphasis added).

In this case, only the third way of violating the kidnapping

statute is relevant. The evidence shows, and no party disputes, that

Arbery stayed within the Satilla Shores neighborhood in Glynn

County, Georgia, so he was not “willfully transported in interstate

or foreign commerce.” Id. Similarly, the McMichaels stayed

within the Satilla Shores neighborhood during the shooting, so

they did not “travel[] in interstate or foreign commerce,” either. Id.

Accordingly, we must decide whether the McMichaels used “the

mail or any means, facility, or instrumentality of interstate or

foreign commerce in committing or in furtherance of the

commission of the offense.” Id. Their indictment charged that

they did, when they “used an instrumentality of interstate

commerce (a truck driven by TRAVIS MCMICHAEL and a truck

driven by WILLIAM ‘RODDIE’ BRYAN). Specifically, the three

defendants chased Arbery through the neighborhood, using their

trucks” to chase Arbery and prevent his escape.

We hold that automobiles, like Travis’s truck, are per se

instrumentalities of interstate commerce. Our conclusion flows

directly from the Interstate Commerce Clause of the Constitution

and our precedent interpreting it. The Interstate Commerce

Clause gives Congress the power to “regulate

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Commerce . . . among the several States.” U.S. Const. art. I, § 8,

cl. 3. In interpreting this clause, the Supreme Court has “identified

three broad categories of activity that Congress may regulate under

its commerce power.” United States v. Lopez, 514 U.S. 549, 558

(1995). Those categories are (1) “the use of the channels of

interstate commerce”; (2) “the instrumentalities of interstate

commerce, or persons or things in interstate commerce”; and

(3) “those activities having a substantial relation to interstate

commerce.” Id. at 558–59.

At issue in this case is Lopez’s second category,

“instrumentalities of interstate commerce.” Id. at 558. As set forth

previously, under § 1201(a)(1), the government needed to show

that defendants used an “instrumentality of interstate or foreign

commerce in committing or in furtherance of the commission of

the offense.” We have recognized that “[i]nstrumentalities of

interstate commerce [include] the people and things themselves

moving in commerce, including automobiles.” United States v.

Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (en banc). In Ballinger,

we held that Congress could proscribe the defendant’s conduct,

which involved using “a van (an instrumentality of commerce).”

Id. at 1228. Instrumentalities of interstate commerce also include

“airplanes, boats, and shipments of goods.” Id. at 1226; see, e.g.,

Perez v. United States, 402 U.S. 146, 150 (1971) (referring to an

aircraft as an instrumentality of interstate commerce); Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 189–90 (1824) (explaining that the

commerce power must include the power to regulate “the

admission of the vessels of” another nation or the power to

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36 Opinion of the Court 22-12792

“prescrib[e] what shall constitute American vessels”); cf. Japan Line,

Ltd. v. Los Angeles County, 441 U.S. 434, 445–46 (1979) (holding that

a Japanese company’s “cargo shipping containers” were

“instrumentalities of foreign commerce, both as a matter of fact

and as a matter of law” (footnotes omitted)).

Our recognition in Ballinger that the defendant’s van was an

instrumentality of interstate commerce, and our recognition in this

case that the McMichaels’ truck was an instrumentality of

interstate commerce, neatly fits with how courts have recognized

other channels and instrumentalities of interstate commerce. As

the Supreme Court has explained, the “channels” of interstate

commerce are the “transportation routes through which persons

and goods move,” United States v. Morrison, 529 U.S. 598, 613 n.5

(2000) (quotation omitted), and the “instrumentalities of interstate

commerce” are the “various forms of transportation equipment”

by which a person travels those routes, Japan Line Ltd., 441 U.S. at

444. For example, courts have recognized that railroads are

channels of interstate commerce, see, e.g., Houston, E. & W. Tex. Ry.

v. United States, 234 U.S. 342, 353–54 (1914), and railcars are

instrumentalities of interstate commerce—even when used purely

intrastate, see, e.g., S. Ry. v. United States, 222 U.S. 20, 26–27

(1911). Similarly, airspace is a channel of interstate commerce, see,

e.g., Ickes v. F.A.A., 299 F.3d 260, 263 (3d Cir. 2002), and airplanes

categorically are instrumentalities of interstate commerce, see, e.g.,

Perez, 402 U.S. at 150. Highways, too, are channels of interstate

commerce. See, e.g., Pierce County v. Guillen, 537 U.S. 129, 146–47

(2003); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256–

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58 (1964). Because automobiles are the “transportation

equipment” used to traverse highways, see Japan Line Ltd., 441 U.S.

at 444, automobiles fit as the “instrumentalities” used on highways,

just as railcars and airplanes are the instrumentalities used on

railroads and in airspace, respectively.15 See Ballinger, 395 F.3d at

1225–26. Indeed, in Ballinger we recognized this principle when we

held that Congress could proscribe conduct that “entailed weeks of

travel in a van (an instrumentality of commerce) along interstate

highways (a channel of commerce).” Id. at 1228. 16

As we explained in Ballinger, however, instrumentalities and

channels of interstate commerce need not always be paired for

Congress to regulate them. Instead, we stated that “Congress may

invoke any or all of [Lopez’s] three categories of commerce power

in any piece of legislation.” Id. at 1231 (emphasis added). And

“congressional power to regulate the . . . instrumentalities of

commerce includes the power to prohibit their use for harmful

purposes, even if the targeted harm itself occurs outside the flow

of commerce and is purely local in nature.” Id. at 1226.

15 Were we to hold otherwise, as the dissent urges, by concluding that not all

automobiles are instrumentalities of interstate commerce, we would create a

strange mismatch wherein highways, unlike other channels of interstate

commerce, are categorical “channels” of interstate commerce without a

corresponding, categorical “instrumentality” used to access them.

16 We also recognized that the Supreme Court has, at various times, called

interstate highways “instrumentalities” of interstate commerce. Ballinger, 395

F.3d at 1225 n.3. We concluded, however, that highways are best categorized

“as channels of commerce, since they are routes for the interstate

transportation of people and goods.” Id.

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38 Opinion of the Court 22-12792

Accordingly, Congress may regulate even local use of

instrumentalities of interstate commerce absent an accompanying

channel (e.g., an interstate highway). See S. Ry., 222 U.S. at 27

(upholding amendments to the Safety Appliance Act as applied to

vehicles used in intrastate commerce). Thus, automobiles can be

“instrumentalities of interstate commerce” under § 1201(a)(1)

regardless of whether their use during a kidnapping is interstate or

“purely local.” Ballinger, 395 F.3d at 1226.

By holding that intrastate use of an automobile alone

satisfies the “instrumentality of interstate commerce” element of

18 U.S.C. § 1201(a)(1), we join our two sister circuits to have

considered the same question. 17 See United States v. Windham, 53

17 The dissent leans on a different circuit’s decision that declined to hold motor

vehicles were per se instrumentalities of interstate commerce; however, as the

court there recognized, motor vehicles are a materially different classification

from the automobiles we consider here. See United States v. Chavarria, 140 F.4th

1257, 1266–67 (10th Cir. 2025). In United States v. Chavarria, two defendants

were charged with kidnapping resulting in death under § 1201(a). Id. at 1259.

The superseding indictment, which the district court dismissed, alleged that

the defendants accomplished their crime using “a motor vehicle, a means,

facility, and instrumentality of interstate commerce.” Id. (quotation omitted).

The Tenth Circuit declined to hold that “‘motor vehicles’ are always

presumed to be instrumentalities of interstate commerce” because “motor

vehicle” is a broad term that can encompass, for example, “e-bikes,”

“[l]awnmowers,” “[e]lectric scooters,” “[e]levators,” and “[m]otorized

[w]heelchairs.” Id. at 1265–66. The Tenth Circuit explicitly distinguished out-

of-circuit cases that considered only “car[s]” and “automobile[s]” like we now

consider. Id. at 1266–67. And in any event, the Tenth Circuit did not need to

consider our Ballinger precedent. Moreover, we also note that the indictment

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22-12792 Opinion of the Court 39

F.4th 1006, 1013 (6th Cir. 2022) (holding that “[w]hen a car . . . is

used in committing or in furtherance of a kidnapping for ransom,

reward, or otherwise, the federal kidnapping statute applies”

regardless of whether the car was used interstate (quotation

omitted)); United States v. Protho, 41 F.4th 812, 828–29 (7th Cir.

2022) (holding that under § 1201(a)(1), “it’s the nature of the

regulated object’s class (here, automobiles) rather than the

particular use of one member of that class (Protho’s Ford Explorer)

that matters” in determining whether a defendant used an

instrumentality of interstate commerce); United States v. Frazier,

129 F.4th 392, 402–03 (7th Cir. 2025) (holding that the defendants’

Dodge Durango was an instrumentality of interstate commerce

even though the entire kidnapping “happened in East St. Louis,

Illinois”).

Moreover, other courts have repeatedly held that intrastate

use of automobiles satisfies the “instrumentalities of interstate

commerce” element of the federal crime of carjacking under 18

U.S.C. § 2119. See United States v. Bishop, 66 F.3d 569, 590 (3d Cir.

1995) (“conclud[ing] that motor vehicles are instrumentalities of

interstate commerce” even where “the wrongful

conduct . . . occurs wholly intrastate”); United States v. Cobb, 144

F.3d 319, 322 (4th Cir. 1998) (holding that “[c]ars, like trains and

in this case did not, as it did in Chavarria, simply say “motor vehicle.” Rather,

it specified that the McMichaels used “a truck” in “an attempt to restrain

Arbery, restrict his free movement, corral and detain him against his will, and

prevent his escape.”

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40 Opinion of the Court 22-12792

aircraft” are instrumentalities of interstate commerce even though

“not every car, train, or plane trip has an interstate destination”

because they are “inherently mobile and indispensable to the

interstate movement of persons and goods”); United States v. Oliver,

60 F.3d 547, 550 (9th Cir. 1995) (“[C]ars are themselves

instrumentalities of commerce, which Congress may protect.”).

Accordingly, we join our sister circuits and hold that automobiles

are per se instrumentalities of interstate commerce.

That conclusion resolves this issue. Because Travis’s truck

was an automobile, it was an instrumentality of interstate

commerce even though defendants used the truck “purely

local[ly].” Ballinger, 395 F.3d at 1226. Accordingly, the jury had

sufficient evidence to convict defendants of violating § 1201(a)(1). 18

Thus, we reject defendants’ argument to the contrary.

18 Travis argues that the district court abused its discretion in admitting the

NICB records to prove the instrumentality prong of his attempted kidnapping

charge. Travis argues that the affidavit authenticating the records showing

that Travis’s truck was manufactured in the United States contained the

wrong certification date, and that the district court abused its discretion in

calling it a scrivener’s error and allowing the government’s witness to testify

from the records. We review evidentiary rulings for abuse of discretion. See

United States v. Crabtree, 878 F.3d 1274, 1287 (11th Cir. 2018). The district court

did not abuse its discretion in overlooking an obvious scrivener’s error such as

an error in the date, especially because the date had no consequence to the

probative value of the records showing that Travis’s truck was manufactured

in Missouri, and Travis does not dispute the actual content of the records. In

any event, because we determine that automobiles are per se instrumentalities

of commerce, if the admission were error, it was harmless error.

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22-12792 Opinion of the Court 41

Defendants’ argument that the truck was not used in “the

way in which Congress foresaw the instrumentality to be used”

because it was used as a barricade fails too—the truck was used to

drive around the streets of Satilla Shores in pursuit of Arbery, and

then was parked in the street to trap Arbery. It was reasonable for

the jury to conclude that the truck, in being driven on and parked

on a road, was being used as intended.

In response to our conclusion, the dissent raises several

consequentialist concerns and advocates for a case-by-case

determination about whether any given automobile sufficed to be

an instrumentality of interstate commerce. But our decision today,

that automobiles are instrumentalities of interstate commerce,

breaks little new ground. As discussed, our decision naturally flows

from our opinion in Ballinger wherein we stated that “automobiles”

are “[i]nstrumentalities of interstate commerce,” and such

instrumentalities may be federally regulated “even if the targeted

harm occurs outside the flow of commerce and is purely local in

nature.” 395 F.3d at 1226. Moreover, many of our sister circuits

have reached the same (or a very similar) conclusion long before

us. See, e.g., Windham, 53 F.4th at 1013; Protho, 41 F.4th at 828–29;

Cobb, 144 F.3d at 322; Bishop, 66 F.3d at 590; Oliver, 60 F.3d at 550.

Far from blazing a new trail through the wilderness, our decision

today merely walks the paved road laid before us by this Court

sitting en banc and our sister circuits.

The dissent also states that our decision creates

inconsistencies with other statutes that refer to motor vehicles “in”

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42 Opinion of the Court 22-12792

interstate commerce. We disagree. Statutes that regulate vehicles

“in” commerce, by their terms, regulate a different, more limited

class of vehicles than statutes that regulate (as here) vehicles “of”

commerce. The former regulate vehicles actually traveling in

interstate commerce, while the latter regulate vehicles that could

be used in interstate commerce. See Windham, 53 F.4th at 1012–13.

Congress need not legislate to its maximum constitutional

authority in every statute, and the fact that Congress chose to

regulate a more limited class of vehicles in other statutes does not

mean Congress limited § 1201(a)(1) in the same way. See Rodriguez

v. United States, 480 U.S. 522, 526 (1987) (per curiam) (“Deciding

what competing values will or will not be sacrificed to the

achievement of a particular objective is the very essence of

legislative choice . . . .”). Indeed, the textual differences between

the kidnapping statute—referring to “instrumentalit[ies] of

interstate . . . commerce”—and the dissent’s cited statutes—

referring to motor vehicles “in interstate commerce”—is good

evidence that Congress deliberately chose not to limit the

kidnapping statute as the dissent describes. See 18 U.S.C.

§ 1201(a)(1); McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851

F.3d 1076, 1089 (11th Cir. 2017) (en banc) (“When Congress uses

different language in similar sections, we should give those words

different meanings.” (quotation omitted)).

In sum, defendants traveled in a truck in pursuit of Arbery;

therefore, they “use[d] . . . [an] instrumentality of

interstate . . . commerce in committing or in furtherance of the

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22-12792 Opinion of the Court 43

commission of” kidnapping. 18 U.S.C. § 1201(a)(1). Accordingly,

we hold that the jury had sufficient evidence to convict defendants.

IV. Conclusion

For the reasons discussed above, we affirm defendants’

convictions.

AFFIRMED.

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22-12792 CALVERT, J., Dissenting in Part 1

CALVERT, District Judge, Concurring in Part and Dissenting in Part:

I join all of the Court’s opinion except for Part III.B.ii, which

holds that automobiles are per se instrumentalities of interstate

commerce and therefore there was sufficient evidence to affirm

Travis’s and Gregory’s convictions for attempted kidnapping.

Although the majority’s opinion on this point may align with the

view of other circuits, I believe it places our circuit on the wrong

side of a developing split by overly broadening federal jurisdiction

over automobiles.

As the majority explains, to sustain a conviction for

attempted kidnapping when the kidnapped person is not

transported in interstate or foreign commerce, the evidence must

show that the offender “travel[ed] in interstate or foreign

commerce or use[d] the mail or any means, facility, or

instrumentality of interstate or foreign commerce in committing

or in furtherance of the commission of the offense.” 18 U.S.C. §

1201(a)(1). Here, the evidence showed that the defendants used

Travis’s truck to drive on the streets of a residential community to

pursue Arbery and then parked Travis’s truck to block Arbery from

fleeing. There was no interstate travel, no use of the interstate

highway system, no exchange of communications via phone or

text message, and no use of the internet. Nor is there any indication

that Congress, in enacting § 1201, contemplated that automobiles

would be treated as instrumentalities of interstate commerce.

Nonetheless, the majority holds that all automobiles, including

Travis’s truck, are per se instrumentalities of commerce. I believe

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2 CALVERT, J., Dissenting in Part 22-12792

the majority’s holding raises constitutional concerns about the

balance between state and federal prosecution and does not align

with the purpose and text of § 1201.

I.

First, the constitutional issue. In drafting the jurisdictional

element “instrumentalities of interstate commerce” in 18 U.S.C.

§ 1201, it appears Congress drew on United States v. Lopez, 514 U.S.

549, 558–59 (1995), which enumerated categories of activity that

Congress can regulate under its Commerce Clause power. I discuss

the categories in more detail below, but at issue here is the second

Lopez category—that “Congress is empowered 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.” 514 U.S. at 558. Where, as in this

case, Congress writes an offense’s jurisdictional element “to mirror

the Supreme Court’s articulation in Lopez of the nature and extent

of the commerce power,” questions of statutory interpretation and

as-applied constitutional challenges are essentially co-extensive. In

other words, cases involving as-applied challenges are useful

authority in statutory interpretation cases. United States v. Ballinger,

395 F.3d 1218, 1224, 1235 (11th Cir. 2005) (en banc) (“Finally, the

argument that Ballinger has cast as an as-applied challenge to the

constitutionality of § 247 seems really to raise a question of

statutory construction—namely, whether, by its specific terms,

§ 247 covers Ballinger’s conduct.”). Thus, even though Travis and

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22-12792 CALVERT, J., Dissenting in Part 3

Gregory only raised a statutory challenge, unavoidable

constitutional concerns lurk.

In sustaining the convictions at issue, the majority relies on

the en banc Court’s analysis in Ballinger. 395 F.3d at 1226. Ballinger

involved a defendant who drove between four states to burn

churches and was convicted of destruction of religious property on

account of their religious character under a statute requiring a

showing that the “offense is in or affects interstate or foreign

commerce.” Id. at 1223–24 (quoting 18 U.S.C. § 247). Ballinger

appealed his conviction on constitutional grounds, arguing that

“arson is a purely intrastate activity that can rarely, if ever, be ‘in

commerce.’” Id. at 1230.

The Court rejected Ballinger’s argument, explaining that

under Lopez, Congress can regulate three broad categories of

activity under its commerce power: 1) channels of interstate

commerce, such as interstate transportation routes; 2)

instrumentalities of commerce, such as “the people and things

themselves moving in commerce, including automobiles,

airplanes, boats, and shipments of goods”; and 3) those activities

that substantially affect interstate commerce. Id. at 1225–26 (citing

514 U.S. at 558–59).

As the majority points out, the Court in Ballinger agreed that

Congress has the power to prohibit the use of the instrumentalities

of interstate commerce for “harmful purposes, even if the targeted

harm itself occurs outside the flow of commerce and is purely local

in nature.” Id. at 1226. Congress can thus use this power to reach

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4 CALVERT, J., Dissenting in Part 22-12792

intrastate acts “when the perpetrator uses the channels or

instrumentalities of interstate commerce to facilitate their

commission.” Id. The Court concluded:

Congress acted well within the bounds of its

commerce power when it enacted legislation to

prevent conduct like Ballinger’s, which entailed weeks

of travel in a van (an instrumentality of commerce)

along interstate highways (a channel of commerce)

and at least six separate interstate border crossings, all

for the specific purpose of spreading the evil of

church burning through four different states.

Id. at 1228.

The majority notes that Ballinger was explicit that a van there

was an instrumentality of commerce. 395 F.3d at 1228. But the

Court spent several pages discussing Ballinger crossing state lines

and traveling on interstate highways, as well as considering the

purpose of the arson statute and the change to the statute’s

jurisdictional elements after Lopez. Ballinger, 395 F.3d at 1227–40.

The lengthy analysis is, at the very least, an indication that whether

all automobiles are per se instrumentalities is not as straightforward

an inquiry as the majority indicates.

After Ballinger, the Court next addressed the issue of

automobiles as instrumentalities in Garcia v. Vanguard Car Rental

USA, Inc., 540 F.3d 1242, 1250 (11th Cir. 2008). In that case, the

Court held that the Graves Amendment, a federal tort reform

statute protecting rental car companies from certain suits, was

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22-12792 CALVERT, J., Dissenting in Part 5

within Congress’s power to regulate interstate commerce. Id. at

1252–53. One of the arguments advanced in support of the statute

was that cars are per se instrumentalities of commerce; the Court

noted competing views on the extent of the instrumentalities

category:

Ballinger arguably suggests, without explicitly stating,

that persons and things moving in interstate

commerce is the full extent of the instrumentalities

category. But there is also some authority for the

proposition that methods of interstate transportation

and communication are per se instrumentalities of

commerce, regardless of whether the car (or the like)

at issue in a particular case has crossed state

boundaries or is otherwise engaged in interstate

commerce.

Id. at 1249. The Court then expressed doubts about cars always

being instrumentalities of commerce—even when they are not

used in interstate commerce—because it would give Congress

plenary power over many aspects of automobile use typically left

to the states. Id. at 1250.

The majority does not discuss Garcia, and admittedly Garcia

does not rest its holding on whether cars are per se

instrumentalities. But what it did hold was just as important as

what it did not hold. The Court, in not deciding the question of

whether cars are instrumentalities, avoided what it characterized as

a difficult constitutional issue. Id.; see Otto v. City of Boca Raton, 981

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6 CALVERT, J., Dissenting in Part 22-12792

F.3d 854, 871 (11th Cir. 2020) (“[F]ederal courts should ‘avoid

reaching constitutional questions if there are other grounds upon

which a case can be decided.’”) (quoting BellSouth Telecomms., Inc.

v. Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir. 2001)).

Here, we cannot avoid the constitutional issue because

Travis’s truck is the sole alleged basis for federal jurisdiction.1 Even

so, I do not read Lopez and Ballinger to support the categorical

approach to instrumentalities the Seventh Circuit adopted in United

States v. Protho, 41 F.4th 812, 828 (7th Cir. 2022) (“Instead, it’s the

nature of the regulated object’s class (here, automobiles) rather

than the particular use of one member of that class (Protho’s Ford

Explorer) that matters.”). Instead, I agree with the Tenth Circuit’s

decision in United States v. Chavarria, 140 F.4th 1257, 1265 (10th Cir.

2025), which rejected Protho and held that motor vehicles are not

per se instrumentalities.

In Chavarria, the Tenth Circuit explained that under

longstanding Supreme Court precedent, something must “actually

be put to the end of interstate commerce to be an instrumentality of

1 That said, two of the circuit cases the majority relied on need not have

reached the issue of whether automobiles are per se instrumentalities. United

States v. Protho, 41 F.4th 812, 828–29 (7th Cir. 2022) (“Even if we were to accept

Protho’s legal argument, however, there’s no doubt that the Ford Explorer at

issue was used in interstate commerce. On the day of the kidnapping, Protho

drove the Ford Explorer interstate (from his home in East Chicago, Indiana, to

the site of the kidnapping in Calumet City, Illinois).”), cert. denied, 143 S. Ct.

465 (2022); United States v. Windham, 53 F.4th 1006, 1013 (6th Cir. 2022) (“This

Court has held repeatedly and unambiguously that cars and phones are

instrumentalities of interstate commerce.”).

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22-12792 CALVERT, J., Dissenting in Part 7

interstate commerce.” Id. (citing Gibbons v. Ogden, 22 U.S. 1, 194

(1824)). “Certain items,” that court explained, “by virtue of their

class and with judicial economy in mind—permit the reasonable

inference that they are per se instrumentalities of interstate

commerce.” Id. As the majority recognizes, railcars and airplanes

generally qualify for this inference. And as the Tenth Circuit

explained, “[t]he precise planning and careful coordination

between the states required for air and rail traffic sets those modes

of transportation apart as uniquely interstate.” Id. at 1266. But the

motor vehicles, including the automobile at issue in that case, can

be used for all kinds of purely local activity. Id. (“We are convinced

again by the lack of a limiting principle. Going on a picnic? Taking

your child to school? Visiting a relative? Riding an ATV along a

backwoods trail? Simply enjoying the open road?”).2

Resisting the conclusion that the Commerce Clause reaches

these types of activities, the Tenth Circuit synthesized commerce

clause precedent to conclude that when motor vehicles are used

only for non-commercial, intrastate purposes, without any other

allegation of interstate commercial impact, “neither that

employment, nor its regulation or prohibition, falls within the

2 The majority distinguishes Chavarria by pointing out that the indictment in

that case referred to a “motor vehicle,” while the indictment here referred to

a “truck.” 140 F.4th at 1259. While Chavarria discussed the possibility that a

“motor vehicle” could include “e-bikes,” “[l]awnmowers,” “[e]lectric

scooters,” “[e]levators,” and “[m]otorized [w]heelchairs,” id. at 1266, the

motor vehicle in question in that case was a Jeep Cherokee Latitude, a

compact SUV. Id. at 1259.

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8 CALVERT, J., Dissenting in Part 22-12792

purview of the federal constitution.” Id. at 1267 (quoting Gibbons,

22 U.S. at 94–95).

This holding aligns with the Court’s analysis in Ballinger, and

in my opinion, reflects the better approach. Employing this

approach, I would utilize traditional tools of statutory

interpretation, and consider whether the specific facts in an

individual case align both with Congress’s commerce power and

Congress’s purpose in enacting the specific legislation at issue. See

United States v. Bass, 404 U.S. 336, 350 (1970) (“Absent proof of some

interstate commerce nexus in each case, § 1202(a) dramatically

intrudes upon traditional state criminal jurisdiction.”) (emphasis

added); see also United States v. Bishop, 66 F.3d 569, 578–80 (3d Cir.

1995) (relying on congressional findings when considering the

constitutionality of the federal carjacking statute); United States v.

Oliver, 60 F.3d 547, 550 (9th Cir. 1995) (same); Perez v. United States,

402 U.S. 146, 155–57 (1971) (relying on congressional findings on

loan sharking).

A case-by-case approach is appropriate for two reasons. First,

the Supreme Court has been hesitant “to render the ‘traditionally

local criminal conduct’” in which defendants engaged “a matter for

federal enforcement.” Jones v. United States, 529 U.S. 848, 858 (2000)

(quoting Bass, 404 U.S. at 350); see also id. (“‘[U]nless Congress

conveys its purpose clearly, it will not be deemed to have

significantly changed the federal-state balance’ in the prosecution

of crimes.”) (quoting Bass, 404 U.S. at 349). Second, a categorical

approach risks “obliterat[ing] the distinction between what is

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22-12792 CALVERT, J., Dissenting in Part 9

national and what is local in the activities of commerce.” Lopez, 514

U.S. 549, 567 (1995) (quoting A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, 554 (1935)). 3 The Garcia Court provided

examples of how a holding that cars are per se instrumentalities

would vastly broaden federal power, noting that it could be read to

embrace “regulation of such quintessentially state law matters as

traffic rules and licensing drivers.” 540 F.3d at 1250. Given these

constitutional concerns, I cannot agree with the majority’s holding

that all automobiles are per se instrumentalities.

II.

Under a case-by-case approach informed by tools of

statutory interpretation, it becomes clear that the defendants’

attempted kidnapping convictions should be reversed. First, there

is no indication that Congress intended to criminalize all

kidnappings involving an automobile when it amended § 1201. But

see Bass, 404 U.S. at 349 (“In traditionally sensitive areas, such as

legislation affecting the federal balance, the requirement of clear

statement assures that the legislature has in fact faced, and intended

3 I recognize that this Court has held that the internet and telephones are per

se instrumentalities which subject wholly intrastate users to federal

prosecution. United States v. Faris, 583 F.3d 756, 759 (11th Cir. 2009), superseded

on other grounds as stated in United States v. Jerchower, 631 F.3d 1181, 1184 (11th

Cir. 2010)). There are many sound reasons to treat these pieces of technology

differently, including that they require existing interstate technological

infrastructure to function. See Chavarria, 140 F.4th at 1265. In any case, we

should be reluctant to expand the per se categories of instrumentalities subject

to federal jurisdiction for the reasons I discuss elsewhere in this opinion.

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10 CALVERT, J., Dissenting in Part 22-12792

to bring into issue, the critical matters involved in the judicial

decision.”). The element requiring that “the offender . . . uses . . .

any . . . instrumentality of interstate or foreign commerce in

committing or in furtherance of the commission of the offense”

was added via the passage of the Adam Walsh Child Protection and

Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, § 501. The

legislative findings of that Act centered on a connection between

the physical intrastate transfer of custody of children, the

inherently interstate market for child sexual abuse material, and the

use of instrumentalities of interstate commerce such as the

internet. Id. With this context in mind, it is apparent that the

defendants’ use of a truck to chase and block Arbery does not align

with Congress’s intent when it added instrumentalities to § 1201.

That Congress did not consider automobiles to be per se

instrumentalities can also be gleaned from the plain language of

the statute. Prior to the 2006 amendment, federal jurisdiction for

kidnapping existed when a “person is willfully transported in

interstate or foreign commerce” or “the offender travels in

interstate or foreign commerce.” 18 U.S.C. § 1201(a)(1). Congress

then added “or uses the mail or any means, facility, or

instrumentality of interstate or foreign commerce.” Id. If Congress

intended to federalize any kidnapping using an automobile, it

could have simply struck “in interstate or foreign commerce,”

because under the majority’s interpretation, all travel by

automobile, train, or airplane, intrastate or interstate, is covered by

the statute. We should assume that Congress intended each

jurisdictional prong to mean something different. Jones, 529 U.S. at

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22-12792 CALVERT, J., Dissenting in Part 11

857 (“Judges should hesitate . . . to treat statutory terms in any

setting [as surplusage], and resistance should be heightened when

the words describe an element of a criminal offense.” (citing

Ratzlaf v. United States, 510 U.S. 135, 140–41 (1994)); see also

Ballinger, 395 F.3d at 1236 (“In addition to eviscerating the statute

substantively, reading out ‘in commerce’ contravenes basic canons

of statutory interpretation. For one, an interpretation that fails to

give any meaning at all to the statute’s ‘in commerce’ language

violates a cardinal principle of statutory construction that a statute

ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous, void,

or insignificant.”) (citations and quotations omitted). Thus, the

plain language of the statute also undercuts the majority’s

conclusion that § 1201 covers defendants’ intrastate use of a truck.

In addition to blurring the jurisdictional elements of § 1201,

the majority’s holding creates similar inconsistencies in other

criminal statutes involving motor vehicles by rendering

superfluous references to the vehicles being used or transported in

commerce or across state lines. See 18 U.S.C. § 33 (tampering with

motor vehicles “used, operated, or employed in interstate or

foreign commerce”); 18 U.S.C. § 2119 (hijacking a “motor vehicle

that has been transported, shipped, or received in interstate or

foreign commerce”); 18 U.S.C. § 2312 (transporting stolen vehicles

“in interstate or foreign commerce”); 18 U.S.C. § 2313 (sale or

receipt of a motor vehicle “which has crossed a State or United

States boundary after being stolen”); 18 U.S.C. § 2322 (defining

“chop shops” to mean facilities where persons dismantle and

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12 CALVERT, J., Dissenting in Part 22-12792

distribute vehicles or vehicle parts “in interstate or foreign

commerce”); 18 U.S.C. § 3665 (judgment of conviction for

“transporting a stolen motor vehicle in interstate or foreign

commerce” may order confiscation and disposal of firearms).

While Congress may mean different things when it regulates a

vehicle “in commerce” and a vehicle “of commerce,” there is no

indication that Congress intended the kidnapping statute, which

does not even mention motor vehicles, to regulate a broader class

of automobiles than statutes that explicitly regulate and protect

motor vehicles.

III.

In conclusion, rather than a blanket rule for all automobiles,

I would look at the specific use of the automobile and consider

whether that use was consistent with the text of the statute,

Congress’s intent, and the limitations on Congress’s ability to

regulate commerce. Considering all of these factors, it is apparent

that the defendants’ use of a truck to drive and park on streets in a

residential neighborhood was insufficient to confer jurisdiction

under § 1201(a). 4

4 In a footnote, the majority finds that any error in the district court’s

admission of NICB records showing that Travis’s truck was manufactured in

the United States was harmless because automobiles are per se

instrumentalities of commerce. I agree that admission of this evidence is

harmless, but for a different reason: it is irrelevant to whether Travis’s truck is

an instrumentality of commerce.

USCA11 Case: 22-12792 Document: 76-1 Date Filed: 11/14/2025 Page: 56 of 56

22-12792 CALVERT, J., Dissenting in Part 13

I would reverse the defendants’ kidnapping convictions and

remand for resentencing. To the extent the majority holds

otherwise, I respectfully dissent.