Lead Opinion
COLE, J., delivered the opinion of the court, in which GILMAN, J., joined. SCHWARZER, District Judge, (pp. 263-66), delivered a separate dissenting opinion.
OPINION
This case reminds us that names can be deceiving. We must determine whether, under the Racketeer Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, the activities of a Detroit-area street gang known as the Cash Flow Posse (“CFP”) had a substantial effect on the nation’s cash flow. Petitioner Robert Waucaush challenges, via 28 U.S.C. § 2255, his conviction and sentence resulting from his pleading guilty to conspiring to violate RICO. He argues that in light of Congress’s limited authority under the Commerce Clause, the conduct underlying his convictions fell short of RICO’s requirement that the regulated enterprise “affect interstate or foreign commerce.” The district court disagreed and denied his petition; we REVERSE.
I. BACKGROUND
On July 16, 1997, federal prosecutors unveiled an indictment against seven members of the CFP, including Waucaush, charging in relevant part that they violated and 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 such enterprise’s affairs through a pattern of racketeering activity[.]” The indictment alleged that, to protect their turf, Waucaush and his colleagues murdered, conspired to murder, and (during less successful outings) assaulted, with intent to murder, members of two rival gangs that sought to expand their operations in Detroit. On April 16, 1998, Waucaush moved to dismiss the indictment. He argued that, within the meaning of the statute and the Constitution, those acts did not affect interstate commerce. The district court denied the motion five days later, and, on May 7, 1998, Waucaush pled guilty to RICO conspiracy. Waucaush later had second thoughts. On June 9, 1998, acting as his own lawyer, he moved to withdraw his plea, claiming that it was unknowing and involuntary. Disagreeing, the district
In May 2000, the Supreme Court decided two cases (further discussed below) that articulated additional restrictions on the scope of the Commerce Clause. See United States v. Morrison,
II. ANALYSIS
Waucaush argues that his plea was unintelligent, and thus void, due to his and the district court’s misunderstanding of the reach of RICO’s commerce element. At the time of his plea, the scope of Congress’s commerce power was controlled by United States v. Lopez,
A. Procedural Default
Waucaush, however, did not challenge the intelligence of his plea on direct appeal, and the Court held in Bousley that “even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.” Id. at 621,
We first consider the exception for actual innocence. “To establish actual innocence, [Waucaush] must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Id. (internal quotations omitted). In other words, we must look at all the evidence in the record, and determine whether — as a matter of law — the Government could establish that Waucaush violated the RICO statute.
Actual innocence does not mean that Waucaush must be innocent of all bad deeds. The question before us is whether Waucaush is actually innocent of violating RICO. Put another way, the inquiry is whether the record contains evidence that the CFP, the enterprise in question, affected commerce within the meaning of RICO. In rebutting the claim of actual innocence, “the Government [is] permitted to present any admissible evidence of [Waucaush’s] guilt even if that evidence was not presented during [Waucaush’s] plea colloquy and
Contrary to the positions of the Government and the district court, Waucaush may be actually innocent even though he admitted as part of his plea that his activities “affected interstate commerce.” To illustrate: imagine that Waucaush had admitted to stealing apples from the Post Office, was advised by his counsel and the court that apples were vegetables, and pled guilty to “stealing vegetables from a federal building.” If the Supreme Court later held that, as a matter of law, apples were not vegetables, Waucaush would be actually innocent of “stealing vegetables.” Just as Waucaush’s misinformed admission of a legal conclusion would not have turned apples into vegetables, his guilty plea in today’s case could not have created an effect on commerce that the law did not otherwise recognize.
At the core, Waucaush argues that he is actually innocent of violating RICO because the statute reaches only enterprises “engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S.C. § 1962(c). The Government does not contend that the CFP was itself “engaged in” interstate commerce. See United States v. Robertson,
RICO regulates enterprises, not people. Although RICO “does not require the violent acts themselves to have any connection to interstate commerce other than that they were committed for the purpose of establishing or maintaining a position within the enterprise,” United States v. Crenshaw,
The parties disagree whether the CFP’s effect on commerce must be substantial, or whether a minimal effect will suffice. The Government contends that it need show only that the CFP’s activities had a minimal effect on commerce. It relies on United States v. Riddle,
The problem with the Government’s reliance on Riddle and its cousins is that unlike those cases, there is no evidence in our ease that the CFP was involved in any sort of economic enterprise. The Supreme Court in Morrison “reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Morrison,
Consequently, in our case, where the enterprise itself did not engage in economic activity, a minimal effect on commerce will not do. More significant interstate commercial ripples might have arisen, for instance, had the CFP attacked individuals or organizations who were conducting or assisting interstate business. See United States v. Laton,
But as evidence that the victims sold narcotics, the Government offers only a decision from an intermediate appellate court in Illinois. See People v. Jamesson,
This is a problem, given the Government’s obligation to show that the CFP’s effect on commerce was substantial. In Jones, the Supreme Court held that, in light of the Commerce Clause, the incineration of a private residence did not affect interstate commerce within the meaning of the federal arson statute. Jones,
The Government’s final argument is that, as the district court found, the CFP “eventually became associated with a national gang.” Neither the Government nor the district court fleshed out the interstate commerce implications of this fact, but the argument presumably would be that by associating with these national gangs, the CFP would have affected interstate commerce through correspondence, travel and the like. As with its bedfellows, this line of reasoning — as applied to this particular case, at least — fails to unearth effects on interstate commerce that are more than minimal. The only evidence of any interstate activity by the CFP is that in 1996, some of its members talked over gang business while in Mexico City. Matched up alongside the ten-year period covered by the indictment, this lone instance of crossing state lines is a needle in a haystack.
Indeed, most individuals and organizations cannot help but buy products that traveled in interstate commerce, or occasionally talk to colleagues in, or travel to, other states for some reason or another. If we were to label these occasional acts of interstate commerce as “substantial,” federal authority under the Commerce Clause would be virtually limitless. “Allowing the government to meet the interstate commerce requirement [in a federal criminal prosecution] through only a nominal showing of a connection to interstate commerce would do as much to ‘completely obliterate’ the distinction between national and local
At the end of the day, we are left with an enterprise whose activity was intrastate, noneconomic, and without substantial effects on interstate commerce. The CFP’s violent enterprise surely affected interstate commerce in some way — a corpse cannot shop, after all. But we may not “follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States’ police power) to every attenuated effect upon interstate commerce.” Morrison,
B. Intelligence of the Plea
We are asked to consider the intelligence of Waucaush’s admission during the plea colloquy that his activities “affected interstate commerce.” According to Bous-ley, a plea is constitutionally unintelligent if “the record reveals that neither [Waucaush], nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged.” Id. at 618-19,
When he pled guilty, Waucaush believed, and in fact was told by the district court, that a purely intrastate act of violence that had only minimal, indirect effects on interstate commerce could nonetheless satisfy — as a matter of law — the “affect[ed] interstate commerce” element of RICO. But as we -explained above, Lopez suggested, and Morrison and Jones later confirmed, that this understanding of the statute was legally erroneous: the effect on commerce caused by the CFP’s acts of violence were, as a matter of law, insufficiently “substantial” to establish a violation of RICO. And because he had an incorrect understanding of the reach of RICO’s requirement that the enterprise “affect interstate commerce,” Waucaush pled guilty to conduct which was simply not a federal crime. This type of misunderstanding — a misconception about the statute’s legal scope that results in the defendant pleading guilty to conduct which was not a crime- — typifies an unintelligent guilty plea.
The dissent argues that when Waucaush pled guilty, “he understood that to convict him the government would be required to prove that the Cash Flow Posse’s activities substantially affected interstate commerce.” (Dissent at 23) Yet the requirement that a guilty plea be intelligent would evaporate if intelligence is defined only as the ability to articulate the governing legal rule — however deprived of context that rule may be. For this reason, the Supreme Court has admonished that a guilty plea “cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." Boykin v. Alabama,
If there is any doubt that Waucaush’s plea was unintelligent, we need look no further than the history of this very case— in which the district court affirmatively ruled that the conduct alleged (and to which Waucaush later admitted) satisfied RICO’s “affecting commerce” element. Although the dissent contends that there is no support in the record that the district court misinformed Waucaush about the scope of RICO’s “affecting commerce” element, the dissent’s conclusion is at odds with much of the case’s procedural history. Waucaush and his co-defendants initially relied on Lopez in moving to dismiss their indictments on the grounds that Congress lacked the authority to regulate their conduct under the Commerce Clause. The district court rejected their motions, holding that Congress could indeed regulate their conduct because [the facts to which Waucaush would later admit] “suffice to demonstrate an interstate commerce nexus sufficient to support the indictment.” In essence, Waucaush asked the district court “Does the conduct to which I am admitting satisfy RICO’s ‘affect[ing] commerce’ element?” and the district court answered “Yes!”
Having already once told Waucaush that the conduct to which he would be admitting would satisfy RICO’s “affecting commerce” element, the district court then accepted Waucaush’s plea of guilty. In so doing, the district court was again required to determine that the conduct to which Waucaush was admitting had satisfied each and every element of RICO, for “[w]hen the district court accepted [the defendant’s] plea, it had a duty ... to ensure that the plea was both voluntary ... and supported by a sufficient factual basis.” In re Hanserd,
Nor does the dissent adequately answer the obvious question raised by its position: If it was so clear to Waucaush that the facts to which he was admitting did not constitute a federal crime, why did he plead guilty? Relying on Brady v. United States,
Nor does Brady’s language require a different result. The dissent quotes from a passage in Brady,
The situation in our case is exactly the opposite, and has nothing to do with the rule articulated in Brady. Our determination that Waucuash’s plea was unintelligent turns neither on newly discovered evidence nor from a conclusion that the existing evidence is no longer credible. The facts to which Waucaush admits now are the same facts to which he admitted when he pled guilty. As even the dissent acknowledges, those facts alone — the only ■ facts to which Waucaush has ever admitted — make him actually innocent of violating RICO. The only change in Waucaush’s understanding has come from the legal significance of those facts: his admission that his conduct violated RICO, and the district court’s acceptance of his plea based on that conduct, was simply incorrect as a matter of law.
Thus, our case mirrors Hanserd. There, the defendant pled guilty to using a firearm in furtherance of a drug-trafficking offense. Following the Supreme Court’s decision in Bailey v. United States,
Attempting to distinguish Bousley and Hanserd, the dissent argues that “in Hanserd, a post-plea decision determined for the first time that the government would have to provide additional proof (that the defendant used the gun ‘during and in relation’ to the drug offense) to obtain a conviction, a fact not known to Hanserd when he pled.” (Dissent at 265-66) The dissent’s distinction is misplaced along two dimensions. First, a plea can be unintelligent even if the law was clear at the time: the question is not whether the law was clear, but whether the defendant was aware of the law (clear or otherwise). If a defendant who stole a pencil from Wal-Mart pled guilty to murder solely on that basis, surely the dissent would not argue that the defendant simply misjudged the strength of the Government’s case. See id. (“The overly broad interpretation of the scope of § 924(c) was as wrong before Bailey as it is now. Bailey did not change the statute’s meaning; it clarified what § 9%U(c) has always meant since its enactment.” (emphasis added)). Indeed, Han-serd itself rested its holding on the fact that “[o]n the record before us, ... the carry prong cannot support either of the [defendant’s] convictions.” Id. According to Hanserd, “[t]hat Bailey had yet to be decided when Hanserd entered his plea serve[d] only to strengthen this conclusion.” Id. (emphasis added) The court in Hanserd thus made explicit that its holding would have been the same even if Bailey had been decided at the time of the defendant’s plea; that Bailey came later was mere gravy.
Second, even if we did not mean what we held in Hanserd, and the dissent’s old/new dichotomy were dispositive, the dissent is incorrect that Morrison and Jones broke no new ground. Lopez certainly sparked a new era in Commerce Clause jurisprudence, explicitly holding for the first time that the Commerce Clause extends to purely intrastate activity only when that activity “substantially affects” interstate commerce. The Government had argued that the statute at issue, the Gun Free School Zone Act, which prohibited the possession of a firearm within 1,000 yards of a school, substantially affected interstate commerce because guns carried the risk of violence, which might interfere with students’ education, which would render them less equipped for the workforce. See Lopez,
Contemporaneous scholarship confirmed this limited understanding of Lopez. Writing after Lopez but before Morrison, Professor Tribe questioned whether “future applications of Lopez will turn entirely, or even predominately, on deciding whether a regulated activity is sufficiently ‘commercial’ to qualify for the ‘substantial effects’ test and the aggregation principle. The Lopez Court did not expressly hold that only economic or commercial activities could be regulated by Congress whenever they meet these impact tests.” 1 Laurence H. Tribe, American Constitutional Law 823 (3d ed.2000) (emphasis added).
What is important, of course, is not so much that Jones and Morrison broke new ground, but that the new ground they broke is the basis upon which we hold that the CFP’s conduct did not substantially affect interstate commerce. Lopez did not hold that all noneconomic intrastate activity was beyond the pale of the Commerce Clause, nor did it hold categorically that purely intrastate violence was off-limits to regulation by the federal government. Rather, the statute invalidated by Lopez was unsustainable because it regulated the possession of a device that might lead to violence, in a setting where that violence might interfere with learning, with the result that diminished learning might — at some point well into the future — inhibit interstate commerce. Before Jones and Morrison, such a speculative chain of causation was easily distinguishable from the facts in our case, in which the defendants were alleged actually to have murdered several individuals on the city streets (and thereby preventing the victims from working, shopping, or doing anything else commercial).
It was Jones and Morrison that definitively prevented Congress from regulating the CFP’s conduct. In Jones,
Most importantly, Morrison debuted the categorical rule that directly controls the case before us: “We accordingly reject the argument that Congress may regulate noneconomic, violent, criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Morrison,
For this reason, the dissent’s observation that Morrison “relied on” Lopez, (dissent at 265) is irrelevant to whether Waucaush meaningfully understood the substance of the charges against him. As commentators recognized following its release, “[Lopez ] did not say absolutely that only commercial activities can be reached by the ‘affects’ branch of Congress’s ‘commerce authority’ .... It only indicated that it would be harder to so reach it. But how much harder? What more would be necessary before the Court will allow Congress to reach an activity, not itself commercial, but which affects interstate commerce?” Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 Sup.Ct. Rev. 125, 203 (1995). See also, e.g., Larry Kramer, The Supreme Court, 2000 Term-Forward: We the Court, 115 Harv. L.Rev. 4, 141 (2001) (“[In Lopez, t]he Justices had not yet clarified how they planned to determine substantiality, other than to suggest what looked like a principle of proximate causation[.]”); Charles Fried, The Supreme Court, 1995 Term — Forward: Revolutions?, 109 Harv. L.Rev. 13, 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 by [Garcia] compels the conclusion that this Court lacks jurisdiction to decide the RICO charges brought by the Government in this case” and further noted that those cases “placefd] limitations on the reach of federal jurisdiction over non-economie crimes.”
Finally, to prohibit Waucaush from taking advantage of Morrison and Jones would ignore the reason that the Supreme Court has applied retroactively decisions that narrow the substantive scope of criminal statutes: to do otherwise would “produce a class of persons convicted of conduct the law does not make criminal.” Schriro v. Summerlin, — U.S. -,
III. CONCLUSION
The district court’s judgment is therefore REVERSED, and the case is REMANDED to the district court for entry of an order granting Waucaush’s petition.
Dissenting Opinion
dissenting.
I respectfully dissent. While I agree that Waucaush can overcome the proce
As the majority opinion correctly points out, “a plea is constitutionally unintelligent if ‘... neither [Waucaush], nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged.’ ” Maj. op. at 258 (citing Bousley v. United States,
The majority asserts that “Waucaush believed, and in fact was told by the district court, that a purely intrastate act of violence that had only minimal, indirect effects on interstate commerce could nonetheless satisfy — as a matter of law — the ‘affect[ed] interstate commerce’ element of RICO.” Maj. op. at 258. There is no support in the record for this assertion. To the contrary, prior to entering his plea, Waucaush joined in his codefendant Rodriguez’s motion to dismiss the indictment. J.A. at 141. The motion argued, citing Lopez, that the government was required to prove that the activities of the alleged RICO enterprise “substantially affected” interstate commerce, but that “[e]ven accepting the government’s other allegations as true, it cannot possibly establish that the activities of the alleged enterprise, even aggregated, affected interstate commerce in even the smallest way.” J.A. at 132-34. And the district court advised Waucaush at the plea colloquy that at trial “[t]he government would ... have to prove that the Cash Flow Posse was engaged in and its activities affected interstate commerce.”
Cases decided after Waucaush’s plea did nothing to undermine or add to these requirements. The Supreme Court’s decisions in United States v. Morrison,
The Jones Court similarly rested its analysis on Lopez. The Court rejected a construction of a federal arson statute that would allow prosecution of arsonists who burn privately-owned buildings that have no direct connection to interstate commerce, holding that, “[g]iven the concerns brought to the fore in Lopez, it is appropriate to avoid the constitutional question.”
Thus, at the time of Waucaush’s plea, the law was established — and known to him — that to be subject to regulation, an activity must “substantially affect[ ]” interstate commerce. Lopez,
The majority’s reliance on Hanserd, maj. op. at 259-60, 260-61, is symptomatic of the error that underlies its analysis. There, the defendant had pled guilty to a charge of using a firearm in a drug trafficking offense in violation of 18 U.S.C. § 924(c).
The obvious distinction between Hanserd and the instant case is that in Hanserd, a post-plea decision determined for the first time that the government would have to provide additional proof (that the defendant used the gun “during and in relation” to the drug offense) to obtain a conviction, a fact 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,
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. Maj. op. at 263. Nor is it a case of a subsequent change of the law rendering the prior conviction one “for conduct that was not illegal.” Hanserd,
Notes
. In Bousley, the Supreme Court elaborated the parameters governing a collateral attack on the intelligence of a guilty plea:
[Petitioner contends] that neither he, nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged. Were this contention proven, petitioner's plea would be ... constitutionally invalid.
Our decisions in Brady v. United States, McMann v. Richardson and Parker v. North Carolina ... are not to the contrary. Each of those cases involved a criminal defendant who pleaded guilty after being correctly informed as to the essential nature of the charge against him. Those defendants later attempted to challenge their guilty pleas when it became evident that they had misjudged the strength of the Government's case .... For example, Brady, who pleaded guilty to kidnapping, maintained that his plea was neither voluntary nor intelligent because it was induced by a death penally provision later held unconstitutional. We rejected Brady's volun-tariness argument, explaining that a "plea of guilty entered by one fully aware of the direct consequences” of the plea is voluntary in a constitutional sense .... We further held that Brady's plea was intelligent because, although later judicial decisions indicated that at the time of his plea he "did not correctly assess every relevant factor entering into his decision,” ... he was advised by competent counsel, was in control of his mental faculties, and "was made aware of the nature of the charge against him.”
523 U.S. at 618-19 ,118 S.Ct. 1604 (citations omitted).
. 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. Maj. op. at 259-60. A voluntary plea of guilty does not become vulnerable because later developments indicate that the plea rested on an insufficient factual basis. Brady v. United States,