                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-2798
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             *
                                          * Appeal from the United States
      v.                                  * District Court for the Western
                                          * District of Missouri.
Mark A. Morgan,                           *
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: September 12, 2000

                                    Filed: October 24, 2000
                                     ___________

Before RICHARD S. ARNOLD, FAGG, and BYE, Circuit Judges.
                           ___________

FAGG, Circuit Judge.

       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 counts of conspiracy to violate 18 U.S.C.
§ 666, which prohibits the solicitation or payment of bribes to agents of state or local
governments in connection with any government "business, transaction, or series of
transactions" valued at $5000 or more if the government "receives, in any one year
period, benefits in excess of $10,000 under a Federal program." The indictment also
contained seven substantive counts of bribery in violation of § 666. The Government
alleged the councilman was an agent of the City of Kansas City, the City was a local
government, and the City "received federal benefits of over $10,000 under Federal
programs." Morgan filed a motion to dismiss the indictment because it did not allege
his conduct had any connection with the expenditure of federal funds or posed any
threat to the integrity and proper operation of a federal program. The district court
denied the motion, and Morgan pleaded guilty to two counts of conspiracy to violate
§ 666. In the plea agreement, Morgan agreed not to appeal. In exchange, the
Government dropped the seven bribery counts. After Morgan's plea, the Supreme
Court confirmed the language of § 666(a)(1)(B) does not require the Government to
prove the bribe affected federal funds. See Salinas v. United States, 522 U.S. 52, 61
(1997). The Court also held the statute's application to the defendant did not extend
federal power beyond its proper bounds. See id. at 60-61. Because the bribe
threatened the integrity and proper operation of the federal program, the statute was
constitutional as applied to the facts of the case. See id. at 61.

       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, 522 U.S. at 60-61; United States v. Santopietro, 166 F.3d 88, 93 (2d Cir.
1999) (Salinas may be read as requiring a threat to a federal program's integrity and
proper operation to assure § 666 is not unconstitutionally applied); United States v.
Zwick, 199 F.3d 672, 687 (3d Cir. 1999) (§ 666 requires government to prove federal
interest is implicated by defendant's offense conduct); United States v. Phillips, No. 98-
30968, 2000 WL 973261, at *5 (5th Cir. July 13, 2000) (§ 666 does not reach
misconduct of local officials whose actions do not threaten the integrity of federal funds
or programs); but see United States v. Dakota, 188 F.3d 663, 668 (6th Cir. 1999). The
Government responded that Kansas City's receipt of at least $10,000 in federal benefits

                                           -2-
provided the necessary federal connection. The district court denied Morgan's motion
without holding a hearing. In the district court's view, Morgan's claim was procedurally
barred because he did not raise it on appeal, and he did not qualify for the actual
innocence exception to procedural bar because his claim was one of legal, rather than
factual, error. The district court also rejected Morgan's motion on the merits, holding
the necessary federal connection was supplied by the city's receipt of at least $10,000
in one year. Morgan appealed, and we certified two questions for our review: (1)
whether 18 U.S.C. § 666 can be constitutionally applied to punish acts of local bribery
that did not threaten the integrity of federal benefits received by the City or the City's
administration of any federal program, and (2) whether Morgan's claim that his conduct
was beyond the power of the federal government to proscribe is a claim of "actual
innocence" he is entitled to raise for the first time on collateral review. "Appellate
review is limited to the issues specified in the certificate of appealability." DeRoo v.
United States, 223 F.3d 919, 923 (8th Cir. 2000).

       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 actual innocence. See Bousley v. United States,
523 U.S. 614, 622 (1998). To establish actual innocence, Morgan must show "'it is
more likely than not that no reasonable juror would have convicted him.'" Id. at 623
(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).

        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.

                                           -3-
       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, 516 U.S. 137 (1995), sought to attack
his guilty plea on collateral review. Although the petitioner had made no direct appeal
claiming his guilty plea was unintelligent because the district court misinformed him
about the elements of the offense, the Supreme Court allowed the petitioner a chance
to show his actual innocence and thus excuse the default by establishing he had not
used the firearm within the meaning of Bailey. Thus, in Bousley and other cases, courts
have permitted petitioners collaterally to attack guilty pleas on the basis of intervening
decisions modifying the substantive criminal law defining the offense, despite
procedural default, if the petitioner makes a showing of actual innocence--that the
petitioner did not commit the offense as modified. Cf. Embrey v. Hershberger, 131
F.3d 739, 741 (8th Cir. 1997) (en banc) (pre-Bousley case).

       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, 523 U.S. at 623. Morgan's
actual innocence claim fails, and he cannot overcome the procedural bar.

       Even if Morgan could show a "gateway" factual innocence claim, his underlying
constitutional claim does not challenge his guilty plea. See id. at 624 (if Bousley shows
on remand he did not use a firearm as defined in Bailey, he will be entitled to
consideration of defaulted unintelligent plea claim considered on merits); Hohn v.
United States, 193 F.3d 921, 922 (8th Cir. 1999). Once the judgment of conviction on

                                           -4-
a guilty plea becomes final and the offender seeks to reopen the proceeding, the inquiry
is ordinarily confined to whether the underlying plea was both counseled and voluntary.
See United States v. Broce, 488 U.S. 563, 574-75 (1989); see also Dejan v. United
States, 208 F.3d 682, 685 (8th Cir. 2000) (defendant who pleaded guilty was required
to show guilty plea was constitutionally infirm to obtain habeas relief). To be
voluntary, the plea must be knowingly and intelligently made. A plea is not
"intelligent" unless the defendant first receives "real notice of the true nature of the
charge against him," and the defendant, his attorney, and the court correctly understood
the essential elements of the crime. See Bousley, 523 U.S. at 618. But Morgan does
not assert his guilty plea was unintelligent, or constitutionally infirm in any other way.
Moreover,
        [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 (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 (1989), that protects a defendant's "right not to be haled into
        court," Blackledge v. Perry, 417 U.S. 21, 30 (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 (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, 29 F.3d 1271, 1279-80 (8th Cir. 1994). A claim that
a statute is facially unconstitutional falls within the exception. See Sodders v. Parratt,
693 F.2d 811, 812 (8th Cir. 1982) (holding guilty plea does not foreclose attack on
constitutionality of criminal statute under which defendant was charged--defendant
claimed statute was vague on its face); United States v. Johnston, 199 F.3d 1015, 1019
n.3 (9th Cir. 1999). No court has applied the exception to a claim, like Morgan's, that

                                           -5-
a statute is unconstitutional as applied. See Johnston, 199 F.3d at 1019 n.3. Nor does
Morgan contend his case falls within the exception.

      We conclude the district court properly rejected Morgan's § 2255 motion as
procedurally barred.

BYE, Circuit Judge, 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, 100 U.S. 371 (1879)
(seminal case); see also United States v. Broce, 488 U.S. 563, 574-76 (1989); Haring
v. Prosise, 462 U.S. 306, 319-22 (1983); Menna v. New York, 423 U.S. 61, 62 & n.2
(1975) (per curiam); Blackledge v. Perry, 417 U.S. 21, 29-30 (1974); United States ex
rel. Swanson v. Reincke, 344 F.2d 260, 261 (2d Cir. 1965); United States v. Gaertner,
583 F.2d 308, 311 (7th Cir. 1978); Journigan v. Duffy, 552 F.2d 283, 288-89 (9th Cir.
1977); Jellum v. Cupp, 475 F.2d 829, 830 (9th Cir. 1973); Owens v. Wainwright, 698
F.2d 1111, 1114-15 (11th Cir. 1983) (per curiam) (implied holding); cf. United States
v. Drew, 200 F.3d 871, 880-83 (D.C. Cir. 2000) (Edwards, C.J., concurring)
(acknowledging the Blackledge-Menna line of cases and urging adherence thereto in
the District of Columbia Circuit).1


      1
        It’s worth noting that this exception is not jurisdictional in character, although
many courts have erred in this direction. The Siebold Court described its holding as
jurisdictional, see Siebold, 100 U.S. at 377, but that was a judicial stratagem. When
Siebold was decided, Congress permitted federal courts to grant habeas relief only in
cases where the sentencing court lacked jurisdiction, hence the Siebold Court had to
strong-arm the unconstitutionality peg into the jurisdictional hole. See generally
Withrow v. Williams, 507 U.S. 680, 718-19 (1993) (Scalia, J., concurring and
dissenting) (explaining that the late 19th century Court expanded the term jurisdiction
to encompass constitutional challenges as part of a thinly-veiled effort to broaden

                                           -6-
       Although we had not explicitly applied the exception in a case procedurally
similar to Morgan’s case, cf. Weisberg v. State of Minnesota, 29 F.3d 1271, 1279-80
(8th Cir. 1994), Sodders v. Parratt, 693 F.2d 811, 812 (8th Cir. 1982) (per curiam),
Country v. Parratt, 684 F.2d 588, 589 n.1 (8th Cir. 1982), the exception is a sound one.
Surely it offends our system of ordered liberty to permit a prisoner to remain
incarcerated when the statute under which he was convicted exceeded Congress’
lawmaking power to enact.

       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, 223 F.3d 919, 923 (8th Cir.
2000) (“[A]ppellate review is limited to the issues specified in the certificate of
appealability.”).2



habeas relief — then limited solely to jurisdictional questions — but that the Court
abandoned that approach in the 1940s when Congress liberalized federal habeas relief);
Stone v. Powell, 428 U.S. 465, 474-78 (1976).
      2
       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.

                                          -7-
       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 acknowledge 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, ___ U.S. ___, 120 S. Ct. 1780, 1785 (2000).
The statute enacts criminal penalties for those who:

      (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, 522 U.S. 52, 56-57 (1997) (recognizing
that the language of § 666 authorizes almost limitless criminal liability because of the
“expansive, unqualified language”). In Salinas, a statutory interpretation case, the
Supreme Court observed that Congress had enacted a breathtakingly broad criminal
statute. But the Court was not asked to probe the constitutionality of § 666. Salinas
challenged only the meaning of the words in the statute. See id. at 59-60.3




      3
        I acknowledge Justice Kennedy’s constitutional speculations, see Salinas, 522
U.S. at 60-61, but they are precisely that — speculations. Because federal courts have
no obligation to raise constitutional issues sua sponte, I am unable to wrench an implied
constitutional holding from Salinas.

                                          -8-
       Two circuits have recently discussed the constitutionality of § 666, and upheld
the law as a valid exercise of Congress’s Spending Clause power. See United States
v. Santopietro, 166 F.3d 88, 92-94 (2d Cir. 1999); United States v. Zwick, 199 F.3d
672, 687 (3d Cir. 1999). Yet both the Second and Third Circuits were troubled by the
sweeping breadth of § 666. Each court determined that § 666 could be saved from
constitutional infirmity by reading into the text of the statute an additional
“germaneness,” or “nexus,” requirement.4 These courts in effect mandate that the quid
pro quo directly impact funds that are federal in origin.

      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, 472 U.S. 675, 680 (1985) (internal citations omitted and
punctuation altered).

      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


      4
       The Sixth Circuit has explicitly rejected an additional “nexus” element. See
United States v. Dakota, 188 F.3d 663, 668 (6th Cir. 1999).

                                          -9-
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, 109 F.3d 1281, 1283 (8th Cir. 1997) (explaining that Congress
need not correctly surmise the source of its authority in order to pass legislation, and
may ground its legislative authority in multiple sources).

       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,
31 F. Supp. 2d 176, 186 n.18 (D. Mass. 1998) (collecting cases); see also Fischer, ___
U.S. ___, 120 S. Ct. at 1793 n.3 (Thomas, J., dissenting). The Spending Clause
provides that

       [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

                                          -10-
grants of money given to state and local governments, see South Dakota v. Dole, 483
U.S. 203, 206-207 (1987), but those strings aren’t laws. See generally David E.
Engdahl, The Spending Power, 44 Duke L.J. 1, 71 (October 1994) (“What makes
[federal funding] conditions obligatory is that essence as contract, wholly apart from
the circumstance that they happen to be spelled out in a statute or an agency rule.
Although articulated in a statute or rule, they have no force as ‘law’; their only force
is contractual. Consequently, they are not among the ‘Laws of the United States . . .
made in Pursuance’ of the Constitution, to which the Supremacy Clause applies.”).

       Indeed, Congress’s Spending Clause power is comprehensible only by analogy
to principles of contract law. See Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. 1, 17 (1981) (“[L]egislation enacted pursuant to the spending power is much in
the nature of a contract: in return for federal funds, the States agree to comply with
federally imposed conditions. The legitimacy of Congress’ power to legislate under the
spending power thus rests on whether the State voluntarily and knowingly accepts the
terms of the ‘contract.’”); cf. Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610-11
(8th Cir. 1999) (“Title IX operates to condition an offer of federal funding on a promise
by the recipient not to discriminate, in what amounts essentially to a contract between
the Government and the recipient of funds. The fact that title IX was enacted pursuant
to Congress’s spending power is evidence that it prohibits discriminatory acts only by
grant recipients. Several circuits have held that because they are not grant recipients,
school officials may not be sued in their individual capacity under Title IX.”) (internal
punctuation and citations omitted).

      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


                                          -11-
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, 44 Duke
L.J. at 92 (“[Section 666] lack[s] any basis in the Constitution. . . . Congress has no
more power to punish theft from the beneficiaries of its largesse than it has to punish
theft from anyone else. Federal dominion over federal property is irrelevant, because
once any particular funds have been given to a recipient, those funds are not federal
property anymore. The Constitution does not contemplate that federal regulatory
power should tag along after federal money like a hungry dog.”) (emphasis added).

        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
intrastate 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 Va. v. Browner, 80 F.3d 869, 881 (4th Cir. 1996). Yet I
find that to be an unavoidable conclusion in this instance.

                                          -12-
       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.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -13-
