John Gregory Lambros v. USA

1The Honorable Mark W. Bennett, Chief Judge, United States District Court for
the Northern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-1848
___________
United States Of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa
Michael John Kluver, *
* [UNPUBLISHED]
Appellant. * ___________
Submitted: November 7, 2000
Filed: November 15, 2000
___________
Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
___________
PER CURIAM.
In this direct criminal appeal, Michael J. Kluver challenges the sentence imposed
by the District Court1 for the Northern District of Iowa after he pleaded guilty to two
counts of bank robbery. The district court sentenced him to 87 months imprisonment
and three years supervised release on each count, to be served concurrently. Citing
United States v. Lopez, 514 U.S. 549 (1995), Kluver’s counsel argues that the court
lacked jurisdiction to indict, convict, and sentence Kluver because Congress acted

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without constitutional authority in enacting the federal bank robbery statute, 18 U.S.C.
§ 2113. Counsel also has moved to withdraw pursuant to Anders v. California, 386
U.S. 738 (1967), and Kluver has filed a pro se supplemental brief, raising the Lopez
challenge and arguing that counsel was ineffective for failing to raise the issue
sufficiently in the district court. For the reasons discussed below, we affirm the
judgment of the district court.
To obtain Kluver’s convictions under the statute, the prosecutor had to establish-
-and did--that the two entities Kluver robbed (a bank and a credit union) were federally
insured. See 18 U.S.C. § 2113(f), (g). This requirement provided the necessary
connection to interstate commerce. See United States v. Harris, 108 F.3d 1107, 1109
(9th Cir. 1997) (FDIC-insured bank is instrumentality of interstate commerce, and
§ 2113 thus is valid exercise of Congress’s Commerce Clause power).
Ineffective assistance claims generally are best presented in 28 U.S.C. § 2255
motions. See United States v. Martinez-Cruz, 186 F.3d 1102, 1105 (8th Cir. 1999).
We consider the instant ineffective assistance claim here, however, because the district
court addressed the issue by asking counsel at the plea hearing--when Kluver raised a
pro se Lopez challenge to the district court’s jurisdiction--why counsel had not moved
for dismissal of the indictment based on jurisdictional grounds, see United States v.
Logan, 49 F.3d 352, 361 (8th Cir. 1995), and by thereafter considering and rejecting
the challenge to its jurisdiction. We conclude counsel was therefore not ineffective for
failing to raise this argument. See Dyer v. United States, 23 F.3d 1424, 1426 (8th
Cir.1994) (counsel’s failure to raise meritless issue is not ineffective assistance).
After review of counsel’s Anders brief and Kluver’s supplemental brief, along
with our independent review of the record in accordance with Penson v. Ohio, 488 U.S.
75 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion to
withdraw and affirm the judgment of the district court.

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We deny Kluver’s motions on appeal for oral argument and to find the
government in violation of federal appellate rules.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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