           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.
