RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Waucaush v. United States No. 03-1072 ELECTRONIC CITATION: 2004 FED App. 0282P (6th Cir.) File Name: 04a0282p.06 STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: John A. Shea, Ann Arbor, Michigan, for Appellant. William J. Sauget, ASSISTANT UNITED UNITED STATES COURT OF APPEALS STATES ATTORNEY, Detroit, Michigan, for Appellee. FOR THE SIXTH CIRCUIT COLE, J., delivered the opinion of the court, in which _________________ GILMAN, J., joined. SCHWARZER, D. J. (pp. 21-25), delivered a separate dissenting opinion. ROBERT ALLEN WAUCAUSH , X Petitioner-Appellant, - _________________ - - No. 03-1072 OPINION v. - _________________ > , R. GUY COLE, JR., Circuit Judge. This case reminds us UNITED STATES OF AMERICA , - that names can be deceiving. We must determine whether, Respondent-Appellee. - under the Racketeer Influenced Corrupt Organizations Act N (“RICO”), 18 U.S.C. § 1962, the activities of a Detroit-area Appeal from the United States District Court street gang known as the Cash Flow Posse (“CFP”) had a for the Eastern District of Michigan at Detroit. substantial effect on the nation’s cash flow. Petitioner Robert No. 01-73671—Nancy G. Edmunds, District Judge. Waucaush challenges, via 28 U.S.C. § 2255, his conviction and sentence resulting from his pleading guilty to conspiring Argued: March 19, 2004 to violate RICO. He argues that in light of Congress’s limited authority under the Commerce Clause, the conduct underlying Decided and Filed: August 26, 2004 his convictions fell short of RICO’s requirement that the regulated enterprise “affect interstate or foreign commerce.” Before: COLE and GILMAN, Circuit Judges; The district court disagreed and denied his petition; we SCHWARZER, Senior District Judge.* REVERSE.
_________________ I. BACKGROUND
COUNSEL On July 16, 1997, federal prosecutors unveiled an indictment against seven members of the CFP, including ARGUED: John A. Shea, Ann Arbor, Michigan, for Waucaush, charging in relevant part that they violated and Appellant. William J. Sauget, ASSISTANT UNITED conspired to violate RICO. Said statute prohibits “any person employed by or associated with any enterprise engaged in, or activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of * The Honorable William W Schwarzer, Senior United States District such enterprise’s affairs through a pattern of racketeering Judge for the Northern District of California, sitting by designation.
1 No. 03-1072 Waucaush v. United States 3 4 Waucaush v. United States No. 03-1072
activity[.]” The indictment alleged that, to protect their turf, his plea, the Supreme Court, in Morrison and Jones, further Waucaush and his colleagues murdered, conspired to murder, restricted the reach of the Commerce Clause. And in Bousley and (during less successful outings) assaulted, with intent to v. United States, 523 U.S. 614, 620 (1998), the Court held murder, members of two rival gangs that sought to expand that a constitutional challenge to a guilty plea may invoke their operations in Detroit. On April 16, 1998, Waucaush subsequent “decisions of [the Supreme Court] holding that a moved to dismiss the indictment. He argued that, within the substantive federal criminal statute does not reach certain meaning of the statute and the Constitution, those acts did not conduct.” affect interstate commerce. The district court denied the motion five days later, and, on May 7, 1998, Waucaush pled A. Procedural Default guilty to RICO conspiracy. Waucaush later had second thoughts. On June 9, 1998, acting as his own lawyer, he Waucaush, however, did not challenge the intelligence of moved to withdraw his plea, claiming that it was unknowing his plea on direct appeal, and the Court held in Bousley that and involuntary. Disagreeing, the district court denied his “even the voluntariness and intelligence of a guilty plea can motion, and on March 9, 1999, sentenced Waucaush to prison be attacked on collateral review only if first challenged on for life. With new counsel, Waucaush appealed, and in an direct review.” Id. at 621. Although Waucaush would unpublished opinion, see United States v. Waucaush, 2000 normally have lost his chance to challenge the plea, Bousley WL 1478361 (6th Cir. Sept. 27, 2000), we affirmed. detailed two circumstances that would excuse a defendant’s failure to raise such a claim on direct appeal: (1) there was In May 2000, the Supreme Court decided two cases (further both “cause” for the default and “prejudice” that would result discussed below) that articulated additional restrictions on the from failing to consider the challenge; or (2) the defendant scope of the Commerce Clause. See United States v. was “actually innocent” of the crime to which he pled. Id. at Morrison, 529 U.S. 598 (2000); Jones v. United States, 529 622. U.S. 848 (2000). Following these decisions, charges against one of Waucaush’s co-defendants, whom the district court We first consider the exception for actual innocence. “To had yet to sentence, were dismissed. But Waucaush—who on establish actual innocence, [Waucaush] must demonstrate that September 27, 2001, pursuant to 28 U.S.C. § 2255, in light of all the evidence, it is more likely than not that no collaterally challenged his conviction, relying on the same reasonable juror would have convicted him.” Id. (internal commerce arguments as did his co-defendant—did not fare as quotations omitted). In other words, we must look at all the well. On December 9, 2002, the district court denied his evidence in the record, and determine whether—as a matter petition. Receiving a certificate of appealability from the of law—the Government could establish that Waucaush district court on all of his claims, Waucaush timely appealed. violated the RICO statute.
II. ANALYSIS Actual innocence does not mean that Waucaush must be innocent of all bad deeds. The question before us is whether Waucaush argues that his plea was unintelligent, and thus Waucaush is actually innocent of violating RICO. Put void, due to his and the district court’s misunderstanding of another way, the inquiry is whether the record contains the reach of RICO’s commerce element. At the time of his evidence that the CFP, the enterprise in question, affected plea, the scope of Congress’s commerce power was controlled commerce within the meaning of RICO. In rebutting the by United States v. Lopez, 514 U.S. 549 (1995). Following claim of actual innocence, “the Government [is] permitted to No. 03-1072 Waucaush v. United States 5 6 Waucaush v. United States No. 03-1072
present any admissible evidence of [Waucaush’s] guilt even to be coextensive with Commerce Clause). This means that if that evidence was not presented during [Waucaush’s] plea we may draw on cases that interpret (in light of the colloquy and would not normally have been offered before Commerce Clause) the commerce element of statutes other [the Supreme Court’s decisions in Morrison and Jones.]” Id. than RICO, as well as cases that interpret the Commerce at 624. We look not just at the facts to which Waucaush Clause directly. admitted when he pled guilty, but also at any other evidence of his guilt that the Government has marshaled. Waucaush is RICO regulates enterprises, not people. Although RICO actually innocent, and therefore entitled to bring the otherwise “does not require the violent acts themselves to have any defaulted challenge to his plea, only if the entire record before connection to interstate commerce other than that they were us fails to demonstrate that he violated RICO. committed for the purpose of establishing or maintaining a position within the enterprise,” United States v. Crenshaw, Contrary to the positions of the Government and the district 359 F.3d 977, 984 (8th Cir. 2004), the predicate acts must still court, Waucaush may be actually innocent even though he further the goals of an enterprise that itself affects commerce. admitted as part of his plea that his activities “affected The indictment in our case defines the enterprise as Waucaush interstate commerce.” To illustrate: imagine that Waucaush and his colleagues, who banded together to form a street gang had admitted to stealing apples from the Post Office, was in Detroit. Accordingly, when we determine whether the advised by his counsel and the court that apples were enterprise affected interstate commerce, we look to the vegetables, and pled guilty to “stealing vegetables from a activities of the CFP. federal building.” If the Supreme Court later held that, as a matter of law, apples were not vegetables, Waucaush would The parties disagree whether the CFP’s effect on commerce be actually innocent of “stealing vegetables.” Just as must be substantial, or whether a minimal effect will suffice. Waucaush’s misinformed admission of a legal conclusion The Government contends that it need show only that the would not have turned apples into vegetables, his guilty plea CFP’s activities had a minimal effect on commerce. It relies in today’s case could not have created an effect on commerce on United States v. Riddle, 249 F.3d 529 (6th Cir. 2001), that the law did not otherwise recognize. which stated that “a de minimis connection suffices for a RICO enterprise that ‘affects interstate commerce.’” Id. at At the core, Waucaush argues that he is actually innocent 537. But a minimal connection sufficed in Riddle only of violating RICO because the statute reaches only enterprises because the enterprise itself had engaged in economic “engaged in, or the activities of which affect, interstate or activity—it operated an illegal gambling business, extorted foreign commerce.” 18 U.S.C. § 1962(c). The Government money, and fenced stolen merchandise. Id. at 537. See also, does not contend that the CFP was itself “engaged in” e.g., Crenshaw, 359 F.3d at 986 (upholding RICO conviction interstate commerce. See United States v. Robertson, 514 when intrastate acts of violence furthered economic U.S. 669 (1995) (per curiam). It argues only that the CFP’s enterprise); United States v. Espinoza, 2002 WL 31769470, activities “affect[ed]” interstate commerce. Because we at*3 (7th Cir. Dec. 5, 2002) (same); United States v. should avoid interpreting a statute to prohibit conduct which Feliciano, 223 F.3d 102, 118 (2d Cir. 2000) (same); United Congress may not constitutionally regulate, RICO’s meaning States v. Miller, 116 F.3d 641, 674 (2d Cir. 1997) (same). As of “affect[ing] interstate or foreign commerce” cannot exceed the Ninth Circuit put it, in upholding a RICO conviction the bounds of the Commerce Clause. See Jones 529 U.S. at predicated on only a de minimis effect on commerce, “the 852 (interpreting commerce element of federal arson statute heart of [the defendant’s] crimes, drug trafficking and No. 03-1072 Waucaush v. United States 7 8 Waucaush v. United States No. 03-1072
extortion, are quintessential illegal economic activities.” 2003) (upholding federal authority to prohibit robbery of an United States v. Shryock, 342 F.3d 948, 984 n.6 (9th Cir. “armored car messenger, engaged in the performance of his 2003). duties, inside a department store on his regular route .... [who] had just taken possession of $130,014.03 in cash and The problem with the Government’s reliance on Riddle and checks”); Norton v. Ashcroft, 298 F.3d 547, 557 (6th Cir. its cousins is that unlike those cases, there is no evidence in 2002) (upholding federal authority to prohibit physical our case that the CFP was involved in any sort of economic obstruction and destruction of a business); United States v. enterprise. The Supreme Court in Morrison “reject[ed] the Smith, 182 F.3d 452, 456 (6th Cir. 1999) (upholding federal argument that Congress may regulate noneconomic, violent authority to prohibit robbery of stores that sold substantial criminal conduct based solely on that conduct’s aggregate amounts of products shipped from out-of-state). Along these effect on interstate commerce.” Morrison, 529 U.S. at 617- lines, the Government argues that the CFP’s intrastate acts of 18. Although one CFP member had previously been arrested violence substantially affected commerce because the murder for trafficking drugs, an activity that is economic, United of rival gang members prevented them from selling drugs. States v. Tucker, 90 F.3d 1135, 1140 (6th Cir. 1996), the Cf. United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. Government admits that these drug charges were unrelated to 2004) (upholding federal authority under the Hobbs Act to the activities of the CFP. Nor has the Government produced punish “defendants who agreed to rob cocaine from the stash evidence indicating that CFP did anything like peddle house of narcotics traffickers”). cigarettes, see United States v. Abdullah, 162 F.3d 897, 901 (6th Cir. 1998) (upholding federal authority to prohibit But as evidence that the victims sold narcotics, the intrastate trafficking of untaxed cigarettes); instigate credit Government offers only a decision from an intermediate fraud, see United States v. Valenzeno, 123 F.3d 365, 367-68 appellate court in Illinois. See People v. Jamesson, 768 (6th Cir. 1997) (same for fraudulently obtaining consumer N.E.2d. 817 (Ill.App. 2001). Bousley, however, stressed that credit); organize gambling, see United States v. Wall, 92 F.3d the Government’s evidence refuting actual innocence must be 1444, 1447-52 (6th Cir. 1996) (same for operating gambling admissible. Bousley, 523 U.S. at 624. An opinion’s “Facts” business), or anything else economic. All that is left is section plainly is not. In any event, the opinion which the violence qua violence—which the Supreme Court in Government classifies as “evidence” tells us only that the Morrison, 529 U.S. at 613, plainly classified as conduct of the Illinois chapter of one of the CFP’s targeted gangs “ha[s] noneconomic strain. been [involved] in numerous violent incidents involving narcotics, batteries, aggravated batteries, assaults, and Consequently, in our case, where the enterprise itself did numerous other criminal activities.” Jamesson, 768 N.E.2d not engage in economic activity, a minimal effect on at 821. That the Detroit-area victims belonged to a gang commerce will not do. More significant interstate whose affiliates in Illinois sold an unknown quantity of drugs commercial ripples might have arisen, for instance, had the with an unknown frequency at an unknown point in time tells CFP attacked individuals or organizations who were us nothing about whether and to what extent drugs were sold conducting or assisting interstate business. See United States by the Detroit gang members targeted by the CFP. v. Laton, 352 F.3d 286, 301-02 (6th Cir. 2003) (upholding federal authority to prohibit arson of fire station that both puts This is a problem, given the Government’s obligation to out fires besetting businesses and affects local insurance show that the CFP’s effect on commerce was substantial. In rates); United States v. Dupree, 323 F.3d 480, 485 (6th Cir. Jones, the Supreme Court held that, in light of the Commerce No. 03-1072 Waucaush v. United States 9 10 Waucaush v. United States No. 03-1072
Clause, the incineration of a private residence did not affect Indeed, most individuals and organizations cannot help but interstate commerce within the meaning of the federal arson buy products that traveled in interstate commerce, or statute. Jones, 529 U.S. at 850. Presumably, the owners of occasionally talk to colleagues in, or travel to, other states for the torched home held jobs and bought interstate goods as some reason or another. If we were to label these occasional part of their day-to-day lives, but the Court deemed these acts of interstate commerce as “substantial,” federal authority attenuated effects on commerce insufficient. Likewise, in under the Commerce Clause would be virtually limitless. Wang, we found that no substantial effect on interstate “Allowing the government to meet the interstate commerce commerce resulted when the defendant “robbed private requirement [in a federal criminal prosecution] through only citizens in a private residence of approximately $4,200, a a nominal showing of a connection to interstate commerce mere $1,200 of which belonged to a restaurant doing business would do as much to ‘completely obliterate’ the distinction in interstate commerce.” Wang, 222 F.3d at 240. See also between national and local authority as if no jurisdictional United States v. Corp, 236 F.3d 325, 332 (6th Cir. 2001) requirement existed at all.” United States v. Odom, 252 F.3d (federal government may not regulate mere possession of 1289, 1296 (11th Cir. 2001). homemade child pornography). Even if we assume that some of the people that the CFP killed were drug-dealers, we have At the end of the day, we are left with an enterprise whose no evidence that they were dealing drugs or carrying drug activity was intrastate, noneconomic, and without substantial money when they were killed, or that their deaths effects on interstate commerce. The CFP’s violent enterprise significantly disrupted the interstate market for drugs. It is surely affected interstate commerce in some way—a corpse certainly conceivable that the CFP’s rivals sold sizable cannot shop, after all. But we may not “follow the but-for quantities of drugs, or that their deaths affected the drug trade. causal chain from the initial occurrence of violent crime (the But on this question, the record is silent. suppression of which has always been the prime object of the States’ police power) to every attenuated effect upon The Government’s final argument is that, as the district interstate commerce.” Morrison, 529 U.S. at 615. Because court found, the CFP “eventually became associated with a a reasonable jury could not conclude that Waucaush’s national gang.” Neither the Government nor the district court enterprise, the CFP, affected interstate commerce, Waucaush fleshed out the interstate commerce implications of this fact, is actually innocent of violating RICO. His actual innocence but the argument presumably would be that by associating excuses his failure to challenge his plea on direct appeal, such with these national gangs, the CFP would have affected that we may consider the challenge now. interstate commerce through correspondence, travel and the like. As with its bedfellows, this line of reasoning—as B. Intelligence of the Plea applied to this particular case, at least—fails to unearth effects on interstate commerce that are more than minimal. The only We are asked to consider the intelligence of Waucaush’s evidence of any interstate activity by the CFP is that in 1996, admission during the plea colloquy that his activities some of its members talked over gang business while in “affected interstate commerce.” According to Bousley, a plea Mexico City. Matched up alongside the ten-year period is constitutionally unintelligent if “the record reveals that covered by the indictment, this lone instance of crossing state neither [Waucaush], nor his counsel, nor the court correctly lines is a needle in a haystack. understood the essential elements of the crime with which he was charged.” Id. at 618-19. Waucaush contends that although he admitted that his conduct “affected interstate No. 03-1072 Waucaush v. United States 11 12 Waucaush v. United States No. 03-1072
commerce,” he, along with his lawyer, the prosecutor, and the process of law is quite clearly established by the Due Process district court, was mistaken about the legal significance of Clause, and thus there is a sense in which any action that that element. violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established When he pled guilty, Waucaush believed, and in fact was right. Much the same could be said of any other told by the district court, that a purely intrastate act of constitutional or statutory violation.” Anderson v. Creighton, violence that had only minimal, indirect effects on interstate 483 U.S. 635, 639 (1987). See also Asher v. Baxter Int’l Inc., commerce could nonetheless satisfy—as a matter of law—the — F.3d — (7th Cir. July 29, 2004) (Easterbrook, J.) (“The “affect[ed] interstate commerce” element of RICO. But as we fundamental problem is that the statutory requirement of explained above, Lopez suggested, and Morrison and Jones ‘meaningful cautionary statements’ is not itself meaningful.”). later confirmed, that this understanding of the statute was That Waucaush knew generally that RICO required a legally erroneous: the effect on commerce caused by the “substantial effect on interstate commerce” sheds little light CFP’s acts of violence were, as a matter of law, insufficiently on whether he meaningfully understood the governing law. “substantial” to establish a violation of RICO. And because he had an incorrect understanding of the reach of RICO’s If there is any doubt that Waucaush’s plea was requirement that the enterprise “affect interstate commerce,” unintelligent, we need look no further than the history of this Waucaush pled guilty to conduct which was simply not a very case—in which the district court affirmatively ruled that federal crime. This type of misunderstanding—a the conduct alleged (and to which Waucaush later admitted) misconception about the statute’s legal scope that results in satisfied RICO’s “affecting commerce” element. Although the defendant pleading guilty to conduct which was not a the dissent contends that there is no support in the record that crime—typifies an unintelligent guilty plea. the district court misinformed Waucaush about the scope of RICO’s “affecting commerce” element, the dissent’s The dissent argues that when Waucaush pled guilty, “he conclusion is at odds with much of the case’s procedural understood that to convict him the government would be history. Waucaush and his co-defendants initially relied on required to prove that the Cash Flow Posse’s activities Lopez in moving to dismiss their indictments on the grounds substantially affected interstate commerce.” (Dissent at 23) that Congress lacked the authority to regulate their conduct Yet the requirement that a guilty plea be intelligent would under the Commerce Clause. The district court rejected their evaporate if intelligence is defined only as the ability to motions, holding that Congress could indeed regulate their articulate the governing legal rule—however deprived of conduct because [the facts to which Waucaush would later context that rule may be. For this reason, the Supreme Court admit] “suffice to demonstrate an interstate commerce nexus has admonished that a guilty plea “cannot be truly voluntary sufficient to support the indictment.” In essence, Waucaush unless the defendant possesses an understanding of the law in asked the district court “Does the conduct to which I am relation to the facts.” Boykin v. Alabama, 395 U.S. 238, 243 admitting satisfy RICO’s ‘affect[ing] commerce’ element?” n.5 (1969) (citations omitted) (emphasis added). In the and the district court answered “Yes!” similar context of qualified immunity, the Supreme Court has explained that when measuring whether an actor understands Having already once told Waucaush that the conduct to the legal landscape, the formal ability to recite the governing which he would be admitting would satisfy RICO’s “affecting standard is no substitute for a meaningful understanding of commerce” element, the district court then accepted the substance of that standard. For instance, “the right to due Waucaush’s plea of guilty. In so doing, the district court was No. 03-1072 Waucaush v. United States 13 14 Waucaush v. United States No. 03-1072
again required to determine that the conduct to which at 756-58. Unlike the defendant in Brady, who misjudged Waucaush was admitting had satisfied each and every only the collateral consequences of his plea, Waucaush element of RICO, for “[w]hen the district court accepted [the mistakenly believed that the conduct to which he was defendant’s] plea, it had a duty . . . to ensure that the plea was admitting satisfied each element of the statute under which he both voluntary . . . and supported by a sufficient factual was charged. basis.” In re Hanserd, 123 F.3d 922, 927 (6th Cir. 1997) (emphasis added). See also FED . R. CRIM . P. 11(f) Nor does Brady’s language require a different result. The (“Notwithstanding the acceptance of a plea of guilty, the court dissent quotes from a passage in Brady, 397 U.S. at 757, in should not enter a judgment upon such plea without making which the Supreme Court explained that “[w]e find no such inquiry as shall satisfy it that there is a factual basis for requirement in the Constitution that a defendant must be the plea.”). Of course, there cannot be a sufficient factual permitted to disown his solemn admissions in open court that basis for the plea unless the facts to which the defendant is he committed the act with which he is charged simply admitting satisfy each and every element of the because it later develops that the State would have had a statute—including, in this case, the statute’s requirement that weaker case than the defendant thought.” Thus, if Waucaush the enterprise “affect[ed] interstate commerce.” We now had admitted in open court that the CFP ran a commercial know—and even the dissent agrees—that the facts did not gambling enterprise, he would not be able to rescind this satisfy this element, and that the district court was simply admission if it later turned out that the Government did not mistaken. In concluding that Waucaush’s plea of guilty was have any evidence of this. Cf. Parker v. North Carolina, 397 intelligent, the dissent assumes that Waucaush had insight U.S. 790, 796-98 (1970) (rejecting a challenge to a guilty plea into the law that exceeded even the very district court that had based because defendant’s misjudgment about the convicted him. admissibility of his confession to a burglary went only to the strength of the factual evidence that the government could Nor does the dissent adequately answer the obvious produce). What would be key in this situation—the type of question raised by its position: If it was so clear to Waucaush situation identified by Brady—is that the facts to which that the facts to which he was admitting did not constitute a Waucaush admitted at the time would have satisfied RICO’s federal crime, why did he plead guilty? Relying on Brady v. “affecting commerce element.” United States, 397 U.S. 742, 757 (1970), the dissent suggests that Waucaush merely misjudged the strength of the The situation in our case is exactly the opposite, and has Government’s case, and that “[a] voluntary plea of guilty does nothing to do with the rule articulated in Brady. Our not become vulnerable because later developments indicate determination that Waucuash’s plea was unintelligent turns that the plea rested on an insufficient factual basis.” (Dissent neither on newly discovered evidence nor from a conclusion at 25 n.2) Yet Brady says no such thing. There, the that the existing evidence is no longer credible. The facts to defendant pled guilty to avoid facing the death penalty, which which Waucaush admits now are the same facts to which he subsequent decisions made clear would have been unavailable admitted when he pled guilty. As even the dissent even if the defendant had gone to trial. The Court held that acknowledges, those facts alone—the only facts to which his plea was intelligent, however, because although he had Waucaush has ever admitted—make him actually innocent of misjudged the potential sentence he could have received if he violating RICO. The only change in Waucaush’s was convicted at trial, he did not misunderstand the understanding has come from the legal significance of those substantive law underlying his offense. See Brady, 397 U.S. facts: his admission that his conduct violated RICO, and the No. 03-1072 Waucaush v. United States 15 16 Waucaush v. United States No. 03-1072
district court’s acceptance of his plea based on that conduct, its holding on the fact that “[o]n the record before us, . . . the was simply incorrect as a matter of law. carry prong cannot support either of the [defendant’s] convictions.” Id. According to Hanserd, “[t]hat Bailey had Thus, our case mirrors Hanserd. There, the defendant pled yet to be decided when Hanserd entered his plea serve[d] only guilty to using a firearm in furtherance of a drug-trafficking to strengthen this conclusion.” Id. (emphasis added) The offense. Following the Supreme Court’s decision in Bailey v. court in Hanserd thus made explicit that its holding would United States, 516 U.S. 137 (1995), a decision that limited the have been the same even if Bailey had been decided at the type of conduct that constitutes “use,” it became clear that the time of the defendant’s plea; that Bailey came later was mere factual conduct to which the defendant admitted did not gravy. constitute a crime within the meaning of the statute. We held that the defendant’s plea was involuntary because the Second, even if we did not mean what we held in Hanserd, subsequent decision in Bailey “ma[de] it clear that the court, and the dissent’s old/new dichotomy were dispositive, the counsel, and accused were all operating under what we now dissent is incorrect that Morrison and Jones broke no new know was a too-inclusive view of § 924(c)’s reach.” ground. Lopez certainly sparked a new era in Commerce Hanserd, 123 F.3d at 927. The same mistake infected Clause jurisprudence, explicitly holding for the first time that Waucaush’s plea: judge, counsel, and accused were all the Commerce Clause extends to purely intrastate activity operating under a too-inclusive view of RICO’s reach. Like only when that activity “substantially affects” interstate in our case, the facts to which the defendant admitted had not commerce. The Government had argued that the statute at changed, but the defendant’s understanding of the legal issue, the Gun Free School Zone Act, which prohibited the significance of those facts had. possession of a firearm within 1,000 yards of a school, substantially affected interstate commerce because guns Attempting to distinguish Bousley and Hanserd, the dissent carried the risk of violence, which might interfere with argues that “in Hanserd, a post-plea decision determined for students’ education, which would render them less equipped the first time that the government would have to provide for the workforce. See Lopez, 514 U.S. at 564. In rejecting additional proof (that the defendant used the gun ‘during and that argument, the Court refused to “pile inference upon in relation’ to the drug offense) to obtain a conviction, a fact inference in a manner that would bid fair to convert not known to Hanserd when he pled.” (Dissent at 24-25) The congressional authority under the Commerce Clause to a dissent’s distinction is misplaced along two dimensions. general police power of the sort retained by the States.” Id. at First, a plea can be unintelligent even if the law was clear at 567. Yet the holding of Lopez was, at the time, constrained the time: the question is not whether the law was clear, but to its facts: it established no categorical prohibition on the whether the defendant was aware of the law (clear or federal regulation of the aggregate commercial effects of otherwise). If a defendant who stole a pencil from Wal-Mart noncommercial activity, such as violence. pled guilty to murder solely on that basis, surely the dissent would not argue that the defendant simply misjudged the Contemporaneous scholarship confirmed this limited strength of the Government’s case. See id. (“The overly understanding of Lopez. Writing after Lopez but before broad interpretation of the scope of § 924(c) was as wrong Morrison, Professor Tribe questioned whether “future before Bailey as it is now. Bailey did not change the statute’s applications of Lopez will turn entirely, or even meaning; it clarified what § 924(c) has always meant since its predominately, on deciding whether a regulated activity is enactment.” (emphasis added)). Indeed, Hanserd itself rested sufficiently ‘commercial’ to qualify for the ‘substantial No. 03-1072 Waucaush v. United States 17 18 Waucaush v. United States No. 03-1072
effects’ test and the aggregation principle. The Lopez Court U.S. at 857, the Supreme Court held that in light of the did not expressly hold that only economic or commercial Commerce Clause, the federal arson statute could not be activities could be regulated by Congress whenever they meet construed to encompass the arson of a private, noncommercial these impact tests.” 1 LAURENCE H. TRIBE, AMERICAN dwelling. Because losing one’s house has obvious CONSTITUTIONAL LAW 823 (3d ed. 2000) (emphasis added). commercial effects, the refusal to distinguish Lopez on that After concluding that the holding of Lopez did not itself basis indicated that Lopez would be read broadly. Prior to compel what we now know to be the holding of Jones, this was by no means assured, as evidenced by the Morrison—and the basis for our invalidation of Waucaush’s contrary holding of the unanimous lower court decision which conviction—Professor Tribe noted that “Lopez’s larger Jones reversed. See United States v. Jones, 178 F.3d 479, 480 significance must therefore remain, at least for now, a matter (7th Cir. 1999) (Easterbrook, J.) (“Lopez says that the power of speculation.” Id. at 832. See also, e.g., John Copeland of Congress is limited to activities that substantially affect Nagle, The Commerce Clause Meets the Delhi Sands Flower- commerce, while proof of a small effect will satisfy the Loving Fly, 97 MICH. L. REV . 174, 176 (1998) (“Whether statute.” (internal citation omitted)). And in Morrison, the Lopez marks a dramatic shift in Commerce Clause Court held that Congress lacked authority to provide a federal jurisprudence or is instead destined to be a ‘but see’ citation cause of action to victims of gender-motivated violence. The remains to be seen.”). evidence in Morrison indicated that the economic impact of actual gender-motivated violence was far more direct and What is important, of course, is not so much that Jones and apparent than that of mere possession of a weapon near a Morrison broke new ground, but that the new ground they school. That the former did not “substantially affect interstate broke is the basis upon which we hold that the CFP’s conduct commerce” revealed again that Lopez could not be did not substantially affect interstate commerce. Lopez did constrained to its facts. not hold that all noneconomic intrastate activity was beyond the pale of the Commerce Clause, nor did it hold categorically Most importantly, Morrison debuted the categorical rule that purely intrastate violence was off-limits to regulation by that directly controls the case before us: “We accordingly the federal government. Rather, the statute invalidated by reject the argument that Congress may regulate noneconomic, Lopez was unsustainable because it regulated the possession violent, criminal conduct based solely on that conduct’s of a device that might lead to violence, in a setting where that aggregate effect on interstate commerce.” Morrison, 529 violence might interfere with learning, with the result that U.S. at 617. See also id. at 656 (Breyer, J., dissenting) (“The diminished learning might—at some point well into the majority holds that the federal commerce power does not future—inhibit interstate commerce. Before Jones and extend to such noneconomic activities as noneconomic, Morrison, such a speculative chain of causation was easily violent criminal conduct that significantly affects interstate distinguishable from the facts in our case, in which the commerce only if we aggregate the interstate effect[s] of defendants were alleged actually to have murdered several individual instances.” (internal quotations omitted)); Julie individuals on the city streets (and thereby preventing the Goldscheid, United States v. Morrison and the Civil Rights victims from working, shopping, or doing anything else Remedy of the Violence Against Women Act: A Civil Rights commercial). Law Struck Down in the Name of Federalism, 86 CORNELL L. REV . 109, 111 (2000) (“[Morrison] established that Congress It was Jones and Morrison that definitively prevented cannot enact laws under the Commerce Clause that regulate Congress from regulating the CFP’s conduct. In Jones, 529 noneconomic, violent criminal conduct based only on the No. 03-1072 Waucaush v. United States 19 20 Waucaush v. United States No. 03-1072
conduct’s aggregate effect on interstate commerce.”). by [Garcia] compels the conclusion that this Court lacks Morrison built on Lopez, but also expanded it. jurisdiction to decide the RICO charges brought by the Government in this case” and further noted that those cases For this reason, the dissent’s observation that Morrison “place[d] limitations on the reach of federal jurisdiction over “relied on” Lopez, (dissent at 23) is irrelevant to whether non-economic crimes.” Waucaush meaningfully understood the substance of the charges against him. As commentators recognized following Finally, to prohibit Waucaush from taking advantage of its release, “[Lopez] did not say absolutely that only Morrison and Jones would ignore the reason that the Supreme commercial activities can be reached by the ‘affects’ branch Court has applied retroactively decisions that narrow the of Congress’s ‘commerce authority’ . . . . It only indicated substantive scope of criminal statutes: to do otherwise would that it would be harder to so reach it. But how much harder? “produce a class of persons convicted of conduct the law does What more would be necessary before the Court will allow not make criminal.” Schriro v. Summerlin, 124 S.Ct. 2519, Congress to reach an activity, not itself commercial, but 2523 (2004). Because Waucaush’s misunderstanding of the which affects interstate commerce?” Lawrence Lessig, law led him to plead guilty to conduct which the law had not Translating Federalism: United States v. Lopez, 1995 SUP . made a crime, his plea was unintelligent and his conviction CT . REV . 125, 203 (1995). See also, e.g., Larry Kramer, The cannot stand. Supreme Court, 2000 Term—Forward: We the Court, 115 HARV . L. REV . 4, 141 (2001) (“[In Lopez, t]he Justices had III. CONCLUSION not yet clarified how they planned to determine substantiality, other than to suggest what looked like a principle of The district court’s judgment is therefore REVERSED, and proximate causation[.]”); Charles Fried, The Supreme Court, the case is REMANDED to the district court for entry of an 1995 Term—Forward: Revolutions?, 109 HARV . L. REV . 13, order granting Waucaush’s petition. 41 (1995) (“The projective power of the precedent will depend on how Lopez's conclusion that the statute's relation to commerce was not substantial will be understood and applied.”). Morrison addressed these questions—which went to the heart of the charges against Waucaush—for the first time. Accordingly, and most importantly, the district court’s own conduct in this case confirms that Morrison and Jones added to the understanding of the Commerce Clause that Lopez initially set forth. Prior to Morrison and Jones, the district court refused to dismiss the charges against Waucaush and his co-defendants on the basis of Lopez alone. After Morrison and Jones were decided, the district court granted a rehearing to one of Waucaush’s codefendants who had not yet been sentenced. The district court then ruled that “the recent Supreme Court authority [(Morrison and Jones)] relied upon No. 03-1072 Waucaush v. United States 21 22 Waucaush v. United States No. 03-1072
______________ determining whether Waucaush’s plea was unintelligent is whether he “correctly understood the essential elements” of DISSENT the RICO charge. ______________ The majority asserts that “Waucaush believed, and in fact WILLIAM W SCHWARZER, Senior United States District was told by the district court, that a purely intrastate act of Judge, dissenting. I respectfully dissent. While I agree that violence that had only minimal, indirect effects on interstate Waucaush can overcome the procedural bar to his claim, I am commerce could nonetheless satisfy—as a matter of law—the unable to agree with the majority’s conclusion that his plea ‘affect[ed] interstate commerce’ element of RICO.” Slip op. was constitutionally unintelligent. Waucaush, his counsel and at 11. There is no support in the record for this assertion. To the district court were aware of United States v. Lopez, 514 the contrary, prior to entering his plea, Waucaush joined in U.S. 549 (1995), which established the basic Commerce his codefendant Rodriguez’s motion to dismiss the Clause jurisprudence under which this court has continuously indictment. J.A. at 141. The motion argued, citing Lopez, operated. Waucaush thus pled guilty under a jurisprudential that the government was required to prove that the activities regime that remains unchanged today, and he cannot be found of the alleged RICO enterprise “substantially affected” to have misunderstood the essential elements of the crime interstate commerce, but that “[e]ven accepting the with which he was charged. government’s other allegations as true, it cannot possibly establish that the activities of the alleged enterprise, even As the majority opinion correctly points out, “a plea is aggregated, affected interstate commerce in even the smallest constitutionally unintelligent if ‘. . . neither [Waucaush], nor way.” J.A. at 132-34. And the district court advised his counsel, nor the court correctly understood the essential Waucaush at the plea colloquy that at trial “[t]he government elements of the crime with which he was charged.’” Slip op. at 10 (citing Bousley v. United States, 523 U.S. 614, 618-19 (1998)) (emphasis added); see also In re Hanserd, 123 F.3d 922, 926 (6th Cir. 1997) (“[A] guilty plea is involuntary where the defendant lacks knowledge of one of the elements nature of the charge against him. Those defendants later required for conviction.”).1 Thus, the critical question in attempted to challenge the ir guilty pleas when it became evident that they had misjudged the strength of the Go vernmen t’s case . . . . For example, Brady, who pleaded guilty to kidnaping, 1 maintained that his plea was neither voluntary nor intelligent In Bousley, the Supreme Co urt elaborated the parameters governing because it was induced by a death penalty provision later held a collateral attack on the intelligence of a guilty plea: unco nstitutional. We rejected Brad y’s voluntariness argum ent, explaining that a “plea of guilty entered by one fully aware of [Petitioner contends] that neither he, nor his counsel, nor the the direct conseq uences” of the plea is voluntary in a court correctly understood the essential elements of the crime constitutional sense . . . . W e further he ld that Brady’s plea was with which he was charged. We re this contention proven, intelligent because, although later judicial decisions indicated petitioner’s plea would be . . . constitutionally invalid. that at the time of his plea he “did not correctly assess every relevant factor entering into his decision,” . . . he was advised by Our decisions in Bra dy v. Un ited States, McM ann v. competent counsel, was in control of his mental faculties, and Richardson and Parker v. North Carolina . . . are not to the “was made aware of the nature of the charge against him.” contrary. Each of those cases involved a criminal defendant who plead ed guilty after being correctly informed as to the essential 523 U .S. at 618-19 (citations omitted). No. 03-1072 Waucaush v. United States 23 24 Waucaush v. United States No. 03-1072
would . . . have to prove that the Cash Flow Posse was The Jones Court similarly rested its analysis on Lopez. The engaged in and its activities affected interstate commerce.” Court rejected a construction of a federal arson statute that would allow prosecution of arsonists who burn privately- Thus, when Waucaush pled guilty he understood that to owned buildings that have no direct connection to interstate convict him the government would be required to prove that commerce, holding that, “[g]iven the concerns brought to the the Cash Flow Posse’s activities substantially affected fore in Lopez, it is appropriate to avoid the constitutional interstate commerce. He also knew that the Lopez Court had question.” 529 U.S. at 857-58. The Court found that a broad announced the principle that Congressional regulation of non- construction of the statute would run afoul of Lopez’s holding economic activity cannot be upheld on the theory that the because it would allow untrammeled Congressional activity, “viewed in the aggregate, substantially affects regulation of noneconomic criminal conduct. Id. at 858. interstate commerce.” Lopez, 514 U.S. at 561. Lopez therefore informed him that, because the RICO charge Thus, at the time of Waucaush’s plea, the law was involved non-economic activity by the Cash Flow Posse, the established—and known to him—that to be subject to government would not be permitted to employ the regulation, an activity must “substantially affect[]” interstate aggregation theory to prove a substantial effect. commerce. Lopez, 514 U.S. at 559. Nothing in Morrison or Jones changed that standard. Cases decided after Waucaush’s plea did nothing to undermine or add to these requirements. The Supreme The majority’s reliance on Hanserd, slip op. at 13, 15-16, Court’s decisions in United States v. Morrison, 529 U.S. 598 is symptomatic of the error that underlies its analysis. There, (2000), and Jones v. United States, 529 U.S. 848 (2000), on the defendant had pled guilty to a charge of using a firearm in which the majority rests its argument, simply applied and a drug trafficking offense in violation of 18 U.S.C. § 924(c). elaborated the principle of Lopez. In Morrison, the Court 123 F.3d at 924. After Hanserd’s plea, the Supreme Court struck down 42 U.S.C. § 13981 as being beyond Congress’s decided Bailey v. United States, 516 U.S. 137 (1995), holding Commerce Clause power. It found the case to be “controlled that “[t]o sustain a conviction under the ‘use’ prong of by [the] decision[] in Lopez,” 529 U.S. at 602, stating: “Since § 924(c)(1), the Government must prove that the defendant Lopez most recently canvassed and clarified our case law actively employed the firearm during and in relation to the governing this third category of Commerce Clause regulation predicate crime.” Id. at 150. Hanserd had not been charged [relating to those activities that substantially affect interstate with any substantive drug offense. This court found that, as commerce], it provides the proper framework for conducting a consequence of the intervening decision in Bailey, Hanserd the required analysis of §13981.” Id. at 609. The Court “lack[ed] knowledge of one of the elements required for observed that—as with the statute at issue in Lopez—§ 13981 conviction” at the time of his plea, and because his “plea was regulated noneconomic criminal conduct and contained no not made with an adequate understanding of the law, it was express jurisdictional statement. Id. at 613. The Court relied not voluntary.” Hanserd, 123 F.3d at 926-27. on Lopez in rejecting the argument that a substantial effect on interstate commerce may be shown by tallying the aggregate The obvious distinction between Hanserd and the instant effects of noneconomic activities. Id. at 615-17. Thus, in case is that in Hanserd, a post-plea decision determined for Morrison the Court merely applied the Commerce Clause the first time that the government would have to provide analysis it had already set forth in Lopez. additional proof (that the defendant used the gun “during and in relation” to the drug offense) to obtain a conviction, a fact No. 03-1072 Waucaush v. United States 25
not known to Hanserd when he pled. In this case, by contrast, Waucaush knew all of the elements of the crime, and no subsequent case changed the proofs necessary for conviction. Thus, the record does not show that Waucaush was “misinformed as to the true nature of the charge against him.” Bousley, 523 U.S. at 619.2 In sum, this is simply not a case of a defendant’s “misunderstanding of the law” as it stood at the time of the plea. Slip op. at 19. Nor is it a case of a subsequent change of the law rendering the prior conviction one “for conduct that was not illegal.” Hanserd, 123 F.3d at 924. I would therefore affirm the judgment.
2 The majority confuses the issue when it argues that the court had a duty to ensure that the plea was both voluntary and supported by a sufficient factual basis. Slip op. at 12-14. A voluntary plea of guilty does not beco me vulnerable beca use later developments indicate that the plea rested on an insufficient factual basis. Brady v. United States, 397 U.S . 742, 757 (197 0) (“W e find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he com mitted the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had though t.”); see also United States v. Turner, 272 F.3d 380, 389 -90 (6th Cir. 200 1) (stating that a guilty plea waives all nonjurisdictional defenses to an ind ictment, and holding that “the failure of the government to prove a nexus between the crime and interstate commerce is not jurisdictional in a sense that it deprives the district court of subject matter jurisdiction”). Thus, even if the facts proffered by the government in support of the plea were insufficient to sustain a verdict, that does not render the plea subject to collateral attack.