# United States v. William Bryan

> Court of Appeals for the Eleventh Circuit · November 14, 2025

URL: https://www.frixlaw.com/law-library/cases/11203410

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** November 14, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- 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

## Opinion text

USCA11 Case: 22-12792 Document: 76-1 Date Filed: 11/14/2025 Page: 1 of 56

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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20 Opinion of the Court 22-12792

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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24 Opinion of the Court 22-12792

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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26 Opinion of the Court 22-12792

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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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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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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22-12792 Opinion of the Court 37

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.
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11203410. Public record. Not legal advice.