*2
ARNOLD, FAGG,
Before RICHARD S.
BYE,
Judges.
Circuit
FAGG,
Judge.
Circuit
Morgan,
develop-
Mark A.
a real estate
er,
charged
and two codefendants were
to bribe
participating
with
two schemes
City,
councilman to in-
a Kansas
Missouri
fluence the councilman’s votes on two local
indictment,
superseding
ordinances.
charged Morgan
the Government
two
United,
469;
to violate 18
conspiracy
Santopietro,
counts of
U.S.C.
(2d Cir.1999) (Salinas
prohibits
the solicitation or
which
may be
agents
of state or
payment of bribes
requiring
read as
a threat
to a federal
governments
local
in connection with
program’s integrity
proper operation
“business, transaction, or ser-
to assure
666 is not unconstitutionally
*3
ies of transactions” valued at
or
$5000
Zwick,
applied); United States v.
199 F.3d
“receives,
government
any
if the
in
more
(3d Cir.1999)
672,
(§
requires gov-
in
year period,
one
benefits
excess of
prove
impli-
ernment to
federal interest is
$10,000
program.”
under a Federal
The
by
conduct);
cated
defendant’s offense
indictment also contained seven substan-
United
v. Phillips,
219 F.3d
§
bribery
tive counts of
in violation of 666.
(5th Cir.2000) (§
412-14
666 does not
alleged
The
the councilman
Government
reach misconduct of local officials whose
City
City,
agent
was an
of Kansas
actions do not
integrity
threaten the
City
government,
the
was a local
federal
or programs);
funds
but see Unit-
City “received federal
benefits
over
Dakota,
ed States v.
$10,000
programs.”
under Federal
Mor- Cir.1999).
responded
The Government
gan filed a motion to dismiss the indict-
City’s receipt
that Kansas
of at
least
ment because it did not
his conduct
allege
$10,000 in federal
provided
benefits
the
expenditure
any
had
connection with the
of necessary federal connection. The district
posed any
federal funds or
threat
to the
Morgan’s
court denied
motion without
integrity
proper operation
and
of a federal
holding
hearing.
In the district court’s
program.
district court denied the
view, Morgan’s
proeedurally
claim was
motion,
Morgan pleaded guilty
and
to two barred because he
ap-
did not raise it on
conspiracy
§
counts of
In
violate
peal,
he
not qualify
did
for the actual
plea agreement, Morgan agreed
the
not to
exception
procedural
innocence
bar be-
appeal.
exchange,
the Government
cause his claim was one of legal, rather
dropped
bribery
the seven
counts. After
factual,
than
error. The district court also
Morgan’s plea,
Court con-
merits,
rejected Morgan’s motion on the
666(a)(1)(B)
§
language
firmed the
does holding
necessary
federal connection
require
prove
not
the Government to
supplied by
city’s receipt
was
of at
bribe affected federal funds. See Salinas
$10,000in
year. Morgan appeal-
least
one
States,
52, 61,
v. United
522 U.S.
118 S.Ct.
ed,
questions
and we certified two
for our
(1997).
469,
serts Morgan Even if could show a cence. claim, un “gateway” factual innocence his claim does not chal Morgan’s derlying is not an We conclude lenge guilty plea. raise for the his See id. 118 actual innocence claim he (if Bousley 1604 shows on remand he collateral review. Bous S.Ct. first time on Bailey, a firearm as defined in pleaded guilty to did not use ley, a defendant who drug with a he will be entitled to consideration of de using a firearm connection plea unintelligent before the faulted claim considered trafficking crime merits); States, Hohn v. requirement clarified the Bai on United use (8th Cir.1999). States, 137, 116 F.3d Once the ley v. United (1995), guilty plea a sought judgment of conviction on S.Ct. 133 L.Ed.2d plea collateral re becomes final and the offender seeks to guilty to attack his petitioner reopen proceeding, inquiry had made the the is ordi Although view. the plea narily underlying confined to whether the appeal claiming guilty no direct his voluntary. plea the district court was both counseled unintelligent was because Broce, him of the misinformed about the elements See United offense, Supreme Court allowed the S.Ct. (1989); Dejan a his actual inno see also v. United
petitioner
chance
show
(8th Cir.2000) (defendant
the default
es
cence and thus excuse
pleaded guilty
required to show
tablishing he
not used the firearm who
was
had
Thus,
plea
constitutionally
infirm to
meaning
Bailey.
guilty
was
within
relief).
cases,
voluntary,
per
courts have
obtain habeas
To be
Bousley and other
intelligently
petitioners collaterally
plea
knowingly
to attack
must be
mitted
plea
“intelligent”
A
is not
unless
pleas
intervening
on the basis of
made.
guilty
receives “real notice of
modifying the substantive crimi
the defendant first
decisions
him,”
offense,
charge against
nature of the
despite proce
the true
defining
nal law
defendant,
default,
attorney,
petitioner
makes a
his
and the
dural
peti
correctly
court
understood the essential
showing of actual innocence—that
Bousley,
face);
of the crime.
vague
elements
See
523 claimed statute was
on its
Johnston,
Morgan
U.S. at
1994)
Circuit
Henderson,
Judge, specially
(quoting Tollett v.
concurring.
258, 267,
36 L.Ed.2d
(1973)).
exceptions
There are
pleased
I am
majority opinion
that the
rule, however;
this
person may,
de-
explicitly recognizes a facial constitutional
spite
guilty plea, pursue
a valid
a certain
challenge exception
procedural
de
type
variously
of claim that has been
*5
fault doctrine. The facial constitutional
a
defined as
claim that attacks “the
challenge exception
deep
roots. See
bring any
State’s
to
indictment at
Siebold,
371,
parte
Ex
100 U.S.
25 L.Ed.
all,”
Broce,
United States v.
488 U.S.
(1879) (seminal case);
717
see also United
563, 575,
757,
109
102
S.Ct.
L.Ed.2d 927
Broce,
563, 574-76,
488 U.S.
109
(1989),
protects
that
“right
a defendant’s
757,
(1989);
S.Ct.
Although —a irony. simi- procedurally in a exception case case, Weisberg v. State lar cf. bribery, acts of prohibits Section (8th Minnesota, 1279-80 theft, and local against state and fraud Parratt, Cir.1994), v. Sodders (and organiza- certain other governments Cir.1982) curiam), (8th (per Coun- tions) under federal assis- receiving funds Parratt, 1n. try v. See Fischer United programs. tance Cir.1982), exception is a sound one. 1780, 1785, States, 667, 120 S.Ct. of ordered system it offends our Surely (2000). The statute en- 146 L.Ed.2d in- prisoner to remain permit liberty for those who: penalties criminal under which when the statute carcerated (1) of more with a value anything offer Congress’ law- exceeded he was convicted $5000; than power to enact. making (2) gov- or local any agent of state I majority opinion, join I Although ernment; and my own (perhaps only for separately write more than receives benefit) lament the fact $10,000 per year federal funds. that has merit. raise the one claim may not § 666. See 18 U.S.C. court panel of this An administrative language implies sweeping statute’s appealabil- certificate of Morgan a granted prose- government may the federal (COA) only him permitted to raise ity direct activities bear no cute bribers whose challenge to his feder- an actual innocence receipt of fed- government’s relation conviction, bribery 18 U.S.C. al-program funds. See Salinas v. United eral decision panel’s § 666. The administrative *6 effectively sounded the death-knell that (recognizing L.Ed.2d 352 doubt, because, without
Morgan’s appeal § almost limit- of 666 authorizes language actually innocent of Morgan is not liability because of the “ex- less criminal change-of-plea hearing, crime. At his In Sali- pansive, unqualified language”). of ele- pleaded guilty to each Morgan case, nas, statutory interpretation a § cannot of 666. Hence ments Congress observed that Supreme Court in challenge may he raise the sole sustain breathtakingly broad crimi- had enacted a appeal. DeRoo v. United this Cf. not asked nal statute. But the Court was (8th Cir.2000) (“[Ajppel- constitutionality § probe speci- late is limited issues review meaning of the challenged only the Salinas appealability.”).2 in fied the certificate 59-60, See id. at words in the statute. have a meritorious claim. Morgan does 469.3 S.Ct. reach that claim because simply cannot We recently discussed the Two circuits have in his COA. His merito- it wasn’t included upheld § constitutionality chal- a facial constitutional rious claim is Congress’s exercise of challenge § we ae- law as valid very lenge to case,” A COA is “law of the conclusion. questions that the Court abandoned —but hearing the eventual Congress perhaps best that approach when liberal it is in the 1940s relief); Powell, pan- panel the administrative not reconsider Stone v. ized federal habeas 465, 474-78, establishing scope of a judgment el’s in (1976).f prisoner’s COA. Kennedy’s acknowledge constitu- pris- I Justice predecessor cases forbid 2. DeRoo and its Salinas, speculations, 522 U.S. at see raising included within tional from issues not oners view, held, they precisely S.Ct. but are my We have not in their COAs. speculations. federal courts Because hearing panel forbidden that a is likewise that — have no is- Although obligation to raise constitutional scope expanding the of a COA. from an sponte, I am unable wrench preferred precisely that in sues sua I would have to do case, holding implied from Salinas. a different constitutional restraint counsels Spending power. Clause drafting permits See United creative the judiciary to v. Santopietro, F.3d 92-94 preserve a statute that Congress plainly (2d Cir.1999); Zwick, United States v. power lacked the to create. (3d Cir.1999). Yet both the Congress may pass not laws unless it Second and Third Circuits were troubled pursuant to an express grant power by the sweeping breadth of 666. Each authority or in Article I of the Constitu- court determined that 666 could be tion. Section 666 cannot properly be saved from infirmity by any grant linked to Congressional reading into the text of the an statute Hence, the Constitution. Congress ex- “germaneness,” “nexus,” additional re- proper ceeded its authority enacting quirement.4 These courts in effect man- 666; unconstitutional, the law is void ab quid pro quo directly date that the impact explain initio. To this conclusion in great- funds that are federal in origin. depth er requires a brief review of the two approach taken the Second and provisions Article I upon Congress which Third is fundamentally Circuits flawed for might have justify relied to enactment of First, two reasons. and most obviously, Davis, § 666. See Crawford federal courts are not free to rewrite the 1281, 1283 (explaining that penal federal code. The Congress need not correctly surmise the repeatedly admonished courts not to authority source of its in order pass inject new elements into federal criminal legislation, ground legislative its statutes. sources). authority multiple in applying gener- Courts criminal laws
ally
plain
Every
must follow the
court that
unambigu-
has addressed the is
meaning
statutory
ous
language.
sue has concluded
Congress adopted
Only
extraordinary
the most
showing of §
pursuant
Spending
its
Clause
contrary
legislative
intentions
his-
See,
power.
e.g., United States v. McCor
tory
justify
departure
will
from that mack,
31 F.Supp.2d
186 n. 18
language.
proposition
This
al-
(D.Mass.1998)
cases);
(collecting
see also
tered simply
application
because
aof
Fischer,
(Thomas, J.,
Judicial efforts to render generally Eng aren’t laivs. See E. adding an element to the crime David cannot dahl, Power, Spending alter our Constitution’s The basic limitation on Duke L.J. (October 1994) (“What federal legislative power. No amount of [federal makes Dakota, explicitly rejected The Sixth Circuit has an Cir. 1999). additional “nexus” element. See United Spending Clause funding contract. to the es- obligatory is that conditions funding] the that broad. contract, apart power from not wholly is as sence to be they happen circumstance autho- nowhere Clause Spending The rule. agency anor in a spelled out statute criminally legislate. to Congress rizes rule, in a statute Although articulated Congress’s from floats far Thus ‘law’; only their no force they have Engdahl, See moorings. Spending Clause they Consequently, is contractual. force (“[Section 666] laek[s] Duke L.J. at 92 ‘Laws of the United among the are not Congress in the Constitution.... any basis of the Con- in Pursuance’ ... made from punish theft power to has no more stitution, Supremacy Clause which the to than it has largesse itsof the beneficiaries applies.”). else. Federal anyone theft from punish to Clause Indeed, Congress’s Spending irrele- property is over federal dominion by analogy only comprehensible power is vant, particular funds once because Penn contract law. See principles of those funds recipient, to a given have been Halderman, Hosp. & hurst State Sch. anymore. The property federal are not 67 L.Ed.2d contemplate not does Constitution pursuant enacted (“[LJegislation tag along should regulatory power federal much power is spending hungi"y dog.”) money like a after federal for federal return nature of a contract: added). (emphasis (cid:127) comply funds, agree to the States Congress suggested that No has court legiti imposed conditions. The federally power to enact 666 on its rested legislate under Congress’ macy of the House Clause. Nor do Commerce on power thus rests whether spending imply any such intent Reports ac voluntarily knowingly Senate the State ”); really not Congress. terms of the ‘contract.’ That’s cepts part cf. Dist., 171 Pub. Sch. Kinman v. Omaha little coher- surprising; section 666 bears (“Title IX 610-11 text relationship to commerce. ent an offer of federal operates to condition only strong connection to reveals recipient not promise by funding on 666(b) has been funds. Section federal discriminate, what amounts essential likely “jurisdictional provision,” termed a to a contract between Government ly theory that the bribee obtains on the recipient of funds. The fact funds, $10,000 then the in federal least Con pursuant title IX was enacted an interest federal that it spending power evidence gress’s $10,000 threshold But this prosecuting. by grant discriminatory only prohibits intra state brib- nothing to screen out does circuits have held recipients. Several bribery falls outside intrastate ery. Most recipients, they grant because are Clause Congress’s Commerce ambit their may not be sued in officials school not have Congress Thus could power. *8 (inter IX.”) under Title capacity individual § 666 on its Commerce Clause grounded omitted). punctuation and citations nal power. however, Congress enacting explicit I contains numerous Article gov- not contract states local did But none of power Congress. grants of Congress bestow Neither did ernments. remotely concerns federal powers these governments. upon funds those gifts of bribery. I am penalties criminal crimi- Rather, passed a federal Congress with some reluc- conclude—albeit forced to punish conduct designed nal statute Congress lacked tance—that state of traditional falls within the domain My reluc- a federal 666 as crime. enact fraud, embezzlement, (bribery, concerns fact from the largely tance stems etc.). beyond punish- 666 reaches Section ... down a has ever struck “[n]o court governments and local ment state that it exceeded grounds federal statute proscribe the funds to who receive those Spending Power.” Commonwealth parties who aren’t persons conduct of third Browner, v.Va.
Cir.1996). IYet find that to be an un-
avoidable conclusion in this instance. is, believe, I only
Section 666 fed- supposed
eral crime whose Spending is the
basis Clause. That
speak Congress may volumes. well realize fragile power Spending Clause— particular, the fact that the Clause con- upon Congress
fers no criminal lawmaking
power. permitted
Had been to raise a
facial constitutional challenge to his convic- by the panel,
tion administrative I would
strike down 666 as an unconstitutional Congress’s
exercise of Spending Clause
power. panel Because the administrative placed beyond my grasp, matter
however, concur, I respectfully must de-
spite my deep reservations about of Morgan’s
soundness conviction. COLLEGE,
CARLETON
Petitioner/Respondent,
NATIONAL LABOR RELATIONS
BOARD, Respondent/Petitioner.
Nos. 99-2916. Appeals,
United States Court of
Eighth Circuit.
Submitted: June
Filed: Oct.