Robert Allen Waucaush v. United States

SCHWARZER, Senior District Judge,

dissenting.

I respectfully dissent. While I agree that Waucaush can overcome the proce *264 dural bar to his claim, I am unable to agree with the majority’s conclusion that his plea was constitutionally unintelligent. Waucaush, his counsel and the district court were aware of United States v. Lopez, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995), which established the basic Commerce Clause jurisprudence under which this court has continuously operated. Waucaush thus pled guilty under a jurisprudential regime that remains unchanged today, and he cannot be found to have misunderstood the essential elements of the crime with which he was charged.

As the majority opinion correctly points out, “a plea is constitutionally unintelligent if ‘... neither [Waucaush], nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged.’ ” Maj. op. at 258 (citing Bousley v. United States, 523 U.S. 614, 618-19 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (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 required for conviction.”). 1 Thus, the critical question in determining whether Waucaush’s plea was unintelligent is whether he “correctly understood the essential elements” of the RICO charge.

The majority asserts that “Waucaush believed, and in fact was told by the district court, that a purely intrastate act of violence that had only minimal, indirect effects on interstate commerce could nonetheless satisfy — as a matter of law — the ‘affect[ed] interstate commerce’ element of RICO.” Maj. op. at 258. There is no support in the record for this assertion. To the contrary, prior to entering his plea, Waucaush joined in his codefendant Rodriguez’s motion to dismiss the indictment. J.A. at 141. The motion argued, citing Lopez , that the government was required to prove that the activities of the alleged RICO enterprise “substantially affected” interstate commerce, but that “[e]ven accepting the government’s other allegations as true, it cannot possibly establish that the activities of the alleged enterprise, even aggregated, affected interstate commerce in even the smallest way.” J.A. at 132-34. And the district court advised Waucaush at the plea colloquy that at trial “[t]he government would ... have to prove that the Cash Flow Posse was engaged in and its activities affected interstate commerce.”

*265 Thus, when Waucaush pled guilty he understood that to convict him the government would be required to prove that the Cash Flow Posse’s activities substantially affected interstate commerce. He also knew that the Lopez Court had announced the principle that Congressional regulation of non-economic activity cannot be upheld on the theory that the activity, “viewed in the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561 , 115 S.Ct. 1624 . Lopez therefore informed him that, because the RICO charge involved non-economic activity by the Cash Flow Posse, the government would not be permitted to employ the aggregation theory to prove a substantial effect.

Cases decided after Waucaush’s plea did nothing to undermine or add to these requirements. The Supreme Court’s decisions in United States v. Morrison, 529 U.S. 598 , 120 S.Ct. 1740 , 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848 , 120 S.Ct. 1904 , 146 L.Ed.2d 902 (2000), on which the majority rests its argument, simply applied and elaborated the principle of Lopez . In Morrison , the Court struck down 42 U.S.C. § 13981 as being beyond Congress’s Commerce Clause power. It found the case to be “controlled by [the] decision[ ] in Lopez,” 529 U.S. at 602, 120 S.Ct. 1740 , stating: “Since Lopez most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation [relating to those activities that substantially affect interstate commerce], it provides the proper framework for conducting the required analysis of § 13981.” Id. at 609, 115 S.Ct. 1624 . The Court observed that — as with the statute at issue in Lo pez— § 13981 regulated noneconomic criminal conduct and contained no express jurisdictional statement. Id. at 613, 115 S.Ct. 1624 . The Court relied on Lopez in rejecting the argument that a substantial effect on interstate commerce may be shown by tallying the aggregate effects of noneconomic activities. Id. at 615-17 , 115 S.Ct. 1624 . Thus, in Morrison the Court merely applied the Commerce Clause analysis it had already set forth in Lopez .

The Jones Court similarly rested its analysis on Lopez . The Court rejected a construction of a federal arson statute that would allow prosecution of arsonists who burn privately-owned buildings that have no direct connection to interstate commerce, holding that, “[g]iven the concerns brought to the fore in Lopez , it is appropriate to avoid the constitutional question.” 529 U.S. at 857-58, 120 S.Ct. 1904 . The Court found that a broad construction of the statute would run afoul of Lopez’s holding because it would allow untrammeled Congressional regulation of noneconomic criminal conduct. Id. at 858, 120 S.Ct. 1904 .

Thus, at the time of Waucaush’s plea, the law was established — and known to him — that to be subject to regulation, an activity must “substantially affect[ ]” interstate commerce. Lopez, 514 U.S. at 559 , 115 S.Ct. 1624 . Nothing in Morrison or Jones changed that standard.

The majority’s reliance on Hanserd, maj. op. at 259-60, 260-61, is symptomatic of the error that underlies its analysis. There, the defendant had pled guilty to a charge of using a firearm in a drug trafficking offense in violation of 18 U.S.C. § 924 (c). 123 F.3d at 924 . After Hanserd’s plea, the Supreme Court decided Bailey v. United States, 516 U.S. 137 , 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995), holding that “[t]o sustain a conviction under the ‘use’ prong of § 924(c)(1), the Government must prove that the defendant actively employed the firearm during and in relation to the predicate crime.” Id. at 150, 116 S.Ct. 501 . Hanserd had not been charged with any substantive drug offense. This court found that, as a consequence of the intervening decision in Bailey , Han- *266 serd “lack[ed] knowledge of one of the elements required for conviction” at the time of his plea, and because his “plea was not made with an adequate understanding of the law, it was not voluntary.” Hanserd, 123 F.3d at 926-27 .

The obvious distinction between Hanserd and the instant case is that in Hanserd, a post-plea decision determined for the first time that the government would have to provide additional proof (that the defendant used the gun “during and in relation” to the drug offense) to obtain a conviction, a fact not known to Hanserd when he pled. In this case, by contrast, Waucaush knew all of the elements of the crime, and no subsequent case changed the proofs necessary for conviction. Thus, the record does not show that Waucaush was “misinformed as to the true nature of the charge against him.” Bousley, 523 U.S. at 619 , 118 S.Ct. 1604 . 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. Maj. op. at 263. Nor is it a case of a subsequent change of the law rendering the prior conviction one “for conduct that was not illegal.” Hanserd, 123 F.3d at 924 . I would therefore affirm the judgment.

. In Bousley , the Supreme Court elaborated the parameters governing a collateral attack on the intelligence of a guilty plea:

[Petitioner contends] that neither he, nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged. Were this contention proven, petitioner's plea would be ... constitutionally invalid.

Our decisions in Brady v. United States, McMann v. Richardson and Parker v. North Carolina ... are not to the contrary. Each of those cases involved a criminal defendant who pleaded guilty after being correctly informed as to the essential nature of the charge against him. Those defendants later attempted to challenge their guilty pleas when it became evident that they had misjudged the strength of the Government's case .... For example, Brady, who pleaded guilty to kidnapping, maintained that his plea was neither voluntary nor intelligent because it was induced by a death penally provision later held unconstitutional. We rejected Brady's volun-tariness argument, explaining that a "plea of guilty entered by one fully aware of the direct consequences” of the plea is voluntary in a constitutional sense .... We further held that Brady's plea was intelligent because, although later judicial decisions indicated that at the time of his plea he "did not correctly assess every relevant factor entering into his decision,” ... he was advised by competent counsel, was in control of his mental faculties, and "was made aware of the nature of the charge against him.”

523 U.S. at 618-19 , 118 S.Ct. 1604 (citations omitted).

. The majority confuses the issue when it argues that the court had a duty to ensure that the plea was both voluntary and supported by a sufficient factual basis. Maj. op. at 259-60. A voluntary plea of guilty does not become vulnerable because later developments indicate that the plea rested on an insufficient factual basis. Brady v. United States, 397 U.S. 742, 757 , 90 S.Ct. 1463 , 25 L.Ed.2d 747 (1970) ("We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed 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 thought.”); see also United States v. Turner, 272 F.3d 380, 389-90 (6th Cir.2001) (stating that a guilty plea waives all rionjurisdictional defenses to an indictment, 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.