Lead Opinion
Mark A. Morgan, a real estate developer, and two codefendants were charged with participating in two schemes to bribe a Kansas City, Missouri councilman to influence the councilman’s votes on two local ordinances. In a superseding indictment, the Government charged Morgan with two
Morgan later filed this 28 U.S.C. § 2255 motion to vacate his conviction and sentence asserting § 666 was unconstitutional as applied in his case because “[t]he government neither alleged nor proved that the conduct for which [he] was indicted, convicted, and sentenced had any connection with the expenditure of federal funds or posed any threat to the integrity and proper operation of a federal program.” See Salinas,
Because Morgan has procedurally defaulted his claim by failing to raise it on direct review, he can raise the claim in collateral proceedings only if he first shows either cause and actual prejudice or
Morgan argues he is actually innocent because his conduct was beyond the power of the federal government to proscribe. Relying on Salinas and later circuit cases, Morgan contends § 666 cannot be constitutionally applied unless the Government proves a federal interest is implicated by his offense conduct, and the record does not support a finding of that federal connection in his case. Given the constitutional constraints on the statute’s reach, Morgan says, a violation of § 666, as that statute is properly construed, never occurred. Pointing to Bousley, Morgan asserts his is a classic claim of factual innocence.
We conclude Morgan’s is not an actual innocence claim he may raise for the first time on collateral review. In Bousley, a defendant who pleaded guilty to using a firearm in connection with a drug trafficking crime before the Supreme Court clarified the use requirement in Bailey v. United States,
Unlike the situation faced in Bousley after Bailey clarified the meaning of use in § 924(c), there is no definitive announcement in Salinas clarifying the elements of § 666. There is no intervening controlling precedent between the time of Morgan’s guilty plea and collateral proceedings that has clearly established Morgan’s actions do not constitute a crime and thus that he is actually innocent of the charged offense. Because the Supreme Court in Salinas no more than suggested the requirement Morgan asserts is absent in his case, Morgan cannot show “ ‘it is more likely than not that no reasonable juror would have convicted him.’ ” Bousley,
Even if Morgan could show a “gateway” factual innocence claim, his underlying constitutional claim does not challenge his guilty plea. See id. at 624,
[a]s a general rule, “[a] defendant’s knowing and intelligent guilty plea forecloses ‘independent claims relating to the deprivation of constitutional rights that occurred before the entry of the guilty plea.’ ” United States v. Vaughan,13 F.3d 1186 , 1187 (8th Cir. 1994) (quoting Tollett v. Henderson,411 U.S. 258 , 267,93 S.Ct. 1602 ,36 L.Ed.2d 235 (1973)). There are exceptions to this rule, however; a person may, despite a valid guilty plea, pursue a certain type of claim that has been variously defined as a claim that attacks “the State’s power to bring any indictment at all,” United States v. Broce,488 U.S. 563 , 575,109 S.Ct. 757 ,102 L.Ed.2d 927 (1989), that protects a defendant’s “right not to be haled into court,” Blackledge v. Perry,417 U.S. 21 , 30,94 S.Ct. 2098 ,40 L.Ed.2d 628 (1974), and that “the charge is one which the State may not constitutionally prosecute,” Menna v. New York,423 U.S. 61 , 62-63 n. 2,96 S.Ct. 241 ,46 L.Ed.2d 195 (1975) (per curiam). We have often interpreted these Supreme Court cases to foreclose claims that raise “nonjurisdictional” issues and to permit only claims that question the trial court’s “jurisdiction.”
Weisberg v. State of Minnesota,
We conclude the district court properly rejected Morgan’s § 2255 motion as procedurally barred.
Concurrence Opinion
specially concurring.
I am pleased that the majority opinion explicitly recognizes a facial constitutional challenge exception to the procedural default doctrine. The facial constitutional challenge exception has deep roots. See Ex parte Siebold,
Although I join the majority opinion, I write separately (perhaps only for my own benefit) to lament the fact that Morgan may not raise the one claim that has merit. An administrative panel of this court granted Morgan a certificate of appealability (COA) that permitted him to raise only an actual innocence challenge to his federal-program bribery conviction, 18 U.S.C. § 666. The administrative panel’s decision effectively sounded the death-knell for Morgan’s appeal because, without doubt, Morgan is not actually innocent of that crime. At his change-of-plea hearing, Morgan pleaded guilty to each of the elements of § 666. Hence Morgan cannot sustain the sole challenge he may raise in this appeal. Cf. DeRoo v. United States,
Morgan does have a meritorious claim. We simply cannot reach that claim because it wasn’t included in his COA. His meritorious claim is a facial constitutional challenge to § 666, the very challenge we ae-knowledge in the majority opinion — a cruel irony.
Section 666 prohibits acts of bribery, theft, and fraud against state and local governments (and certain other organizations) receiving funds under federal assistance programs. See Fischer v. United States,
(1) offer anything with a value of more than $5000;
(2) to any agent of a state or local government; and
(3) that government receives more than $10,000 per year in federal funds.
See 18 U.S.C. § 666.
The statute’s sweeping language implies that the federal government may prosecute bribers whose activities bear no direct relation to the government’s receipt of federal funds. See Salinas v. United States,
Two circuits have recently discussed the constitutionality of § 666, and upheld the law as a valid exercise of Congress’s
The approach taken by the Second and Third Circuits is fundamentally flawed for two reasons. First, and most obviously, federal courts are not free to rewrite the federal penal code. The Supreme Court has repeatedly admonished courts not to inject new elements into federal criminal statutes.
Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. Only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language. This proposition is not altered simply because application of a statute is challenged on constitutional grounds. Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature.
United States v. Albertini,
Second, even if a “nexus” element could be added in an effort to resuscitate § 666, the result would be wholly ineffectual. To put it bluntly, Congress lacks the power under the Spending Clause to enact criminal laws governing third-party conduct. Judicial efforts to render § 666 palatable by adding an element to the crime cannot alter our Constitution’s basic limitation on federal legislative power. No amount of creative drafting permits the judiciary to preserve a statute that Congress plainly lacked the power to create.
Congress may not pass laws unless it acts pursuant to an express grant of power or authority in Article I of the Constitution. Section 666 cannot properly be linked to any grant of Congressional power in the Constitution. Hence, Congress exceeded its proper authority in enacting § 666; the law is unconstitutional, void ab initio. To explain this conclusion in greater depth requires a brief review of the two Article I provisions upon which Congress might have relied to justify enactment of § 666. See Crawford v. Davis,
Every court that has addressed the issue has concluded that Congress adopted § 666 pursuant to its Spending Clause power. See, e.g., United States v. McCormack,
[t]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.
U.S. Const, art. I, § 8, cl. 1.
While Congress may disburse funds under this grant of power, Congress may not make laws. Congress may indirectly regulate state conduct by attaching “strings” to grants of money given to state and local governments, see South Dakota v. Dole,
Indeed, Congress’s Spending Clause power is comprehensible only by analogy to principles of contract law. See Pennhurst State Sch. & Hosp. v. Halderman,
In enacting § 666, however, Congress did not contract with states or local governments. Neither did Congress bestow gifts of funds upon those governments. Rather, Congress passed a federal criminal statute designed to punish conduct that falls within the domain of traditional state concerns (bribery, embezzlement, fraud, etc.). Section 666 reaches beyond punishment of the state and local governments who receive those funds to proscribe the conduct of third persons who aren’t parties to the funding contract. Spending Clause power is not that broad.
The Spending Clause nowhere authorizes Congress to criminally legislate. Thus § 666 floats far from Congress’s Spending Clause moorings. See Engdahl,
No court has suggested that Congress rested its power to enact § 666 on the Commerce Clause. Nor do the House and Senate Reports imply any such intent on the part of Congress. That’s not really surprising; section 666 bears little coherent relationship to commerce. The text of § 666 reveals only a strong connection to federal funds. Section 666(b) has been termed a “jurisdictional provision,” likely on the theory that if the bribee obtains at least $10,000 in federal funds, then the federal government has an interest in prosecuting. But this $10,000 threshold does nothing to screen out intra state bribery. Most intrastate bribery falls outside the ambit of Congress’s Commerce Clause power. Thus Congress could not have grounded § 666 on its Commerce Clause power.
Article I contains numerous explicit grants of power to Congress. But none of these powers remotely concerns federal criminal penalties for bribery. I am forced to conclude — albeit with some reluctance — that Congress lacked the power to enact § 666 as a federal crime. My reluctance stems largely from the fact that “[n]o court ... has ever struck down a federal statute on grounds that it exceeded the Spending Power.” Commonwealth of
Section 666 is, I believe, the only federal crime whose supposed constitutional basis is the Spending Clause. That may speak volumes. Congress may well realize the fragile power of the Spending Clause— in particular, the fact that the Clause confers upon Congress no criminal lawmaking power.
Had Morgan been permitted to raise a facial constitutional challenge to his conviction by the administrative panel, I would strike down § 666 as an unconstitutional exercise of Congress’s Spending Clause power. Because the administrative panel has placed the matter beyond my grasp, however, I must respectfully concur, despite my deep reservations about the soundness of Morgan’s conviction.
Notes
. It’s worth noting that this exception is not jurisdictional in character, although many courts have erred in this direction. The Sie-bold Court described its holding as jurisdictional, see Siebold,
. DeRoo and its predecessor cases forbid prisoners from raising issues not included within their COAs. We have not held, in my view, that a hearing panel is likewise forbidden from expanding the scope of a COA. Although I would have preferred to do precisely that in Morgan’s case, restraint counsels a different conclusion. A COA is “law of the case,” and it is perhaps best that the eventual hearing panel not reconsider the administrative panel’s judgment in establishing the scope of a prisoner’s COA.
. I acknowledge Justice Kennedy’s constitutional speculations, see Salinas, 522 U.S. at 60-61,
. The Sixth Circuit has explicitly rejected an additional “nexus” element. See United States v. Dakota,