Petition for Writ of Certiorari — Morgan v. United States
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
: Supreme Court, U.S.
1) FILED
"001884 JUN 18 200r
No. OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
MARK A. MORGAN,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
R. STAN MORTENSON
JOHN P. ELWOoD
Counsel of Record
BAKER BoTTs L.L.P.
1299 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2400
(202) 639-7700
Counsel for Petitioner
ee ee ee ee ee nT
ODO ern
OREN EY PREY
i eV cae ee
PIV AMEE IR soem ROE
2 welyrns
QUESTIONS PRESENTED
1. Whether to establish a claim of “actual innocence”
sufficient to overcome a procedural default, a habeas
petitioner’s claim that his conduct was beyond the power of
the federal government to proscribe must, at the time of his
petition, be clearly established by controlling precedent.
2. Whether petitioner’s guilty plea to violating 18 U.S.C.
§ 666 forecloses his as-applied challenge to the
constitutionality of that statute. :
(i)
TABLE OF CONTENTS
Page
SEI iblnididctisdesiitknccrsireiicuapeeuienddiinaumbiieek aes l
ici iild scinireininasennainnihebeeidiniiidblseitibned naeiie ca 2
ET Om S SaR a OE NT aT 2
Reasons for Granting the Petition ..0.0..........cccccccecececseseceseee. 9
I. The Eighth Circuit’s Erroneous Conclusion
That A Petitioner Is “Actually Innocent” Only
If A Controlling Court Has Squarely
Established His Entitlement To Relief
Conflicts With This Court’s Precedent And
Decisions Of Other Courts Of Appeals ..................... 11
A. The Eighth Circuit's Decision Is Clearly
a, RETRO SR CNS AE 13
B. The Eighth Circuit's Judgment Conflicts
With Decisions Of This Court And Other
Federal Courts Of Appeals ............c.cccccccccececesseseee. 14
II. The Panel’s Erroneous Decision That As-
Applied Challenges To The Constitutionality
Of A Statute Are Insufficient To Challenge A
Guilty Plea Is Inconsistent With This Court’s
Precedent And Rulings Of Other Courts Of
ITIIITTE ihnisehhcbstninbosetsiiesiihinsiiihaminiibaicasalnsi Gute leaee. 16
Ill. The Issues Presented Are Important and
SRS ER eee ee aa ae 19
SESE NER 2a a 21
iv
TABLE OF AUTHORITIES
Page
Cases:
Bousley v. United States,
he Ce ectsinsttcinsnnesinstihniciessio 11, 12, 13
Cleveland v. United States,
Fae a Se I cetittaiacenaisnnndeeesasiiniletaasicciaaditaie 19
Commonwealth of Va. v. Browner,
80 F.3d 869 (4th Cir. 1996) ...............sccceccssscsess 12
Davis v. United States,
GF ie Be Ce iincvtitinnneiiininsseis 3, 12, 14, 15
Fischer v. United States, f
ee Ee ED eicikititenintibionntbionetad 9, 19, 20
Gardner v. Baltimore Mayor
DGD FAG G3 CG Cae, 19D) oevccccccnccccaccsncnstsnnceses 11
Gutknecht v. United States,
ee ee i iiictitiicnstadsiensnnindunnialeiiinn 14, 15
Haynes v. United States,
es Te CD isi cntnitiitaiidasitindntas 3, 16, 17, 21
Herrera v. Collins,
FR Sats SN iaiicctepphninhiesinseitcieniite 11, 13,21
Howard v. United States,
135 F.3d 506 (7th Cir.),
cert. denied, 525 U.S. 832 (1998)........... 3, 12, 16
Jones v. United States,
SF A ils: sisiistinniniicelidobabeddcidauici 19, 20
Marchetti v. United States,
hee AR ee aiicketinicininddiatuetbiodindabatabeliees 18
Menna v. New York,
ED aes WEE Ce FAR casks schernntitnbesnhdcictstblestabdithetiins 18
Montana v. Johnson,
738 F.2d 1074 (9th Cir. 1984)... eceeee 15
Pennhurst State Sch. & Hosp. v. Halderman,
BE AE Ei. SRR P Mt E RAP Lae FONE! ON OE 8
Salinas v. United States,
er GE RES |, REDD 2, 7, 8,9, 12
Sodders v. Parratt,
693 F.2d 811 (8th Cir. 1982)... eee 17
Solid Waste Authority v. Army Corps of Engineers,
Se es Gir OD cicascsichinstnichctsslatilaccostubasicas 20
Teague v. Lane,
Fe NOD i erstsecsininsinteiatininicsbiicsciasibniashdle 13
Woodruff v. United States,
131 F.3d 1238 (7th Cir. 1997),
cert. denied, 524 U.S. 956 (1998) .........:ccsc0000 12
United States v. Benboe,
FF cn Fe Cr iiasdtnssbielanicaetrgreccee 16
United States v. Bluso,
519 F.2d 473 (4th Cir. 1975)... eee 3,18
United States v. Butler,
PT Cats © Ci cieesasnttighitiniatittiensniaiaias 12
United States v. Dakota,
188 F.3d 663 (6th Cir. 1999)... cece eens 10
United States v. Fox,
454 F.2d 593 (9th Cir. 1971)..............cccccsseeeeeees 14
United States v. Frega,
933 F. Supp. 1536 (S.D. Cal. 1996)..........0....... 10
United States v. Jones,
231 F.3d 508 (9th Cir. 2000)..................0.... 20, 21
United States v. Lopez,
FAS UD, Fa Ce ceviitisvitiahiaibahiieateniininaiis 19
United States v. Malone,
222 F.3d 1286 (10th Cir. 2000)......................0- 21
United States v. McCormack,
31 F. Supp. 2d 176
Ds FI Dee iiiinisiniascientininiscincnisninlsbeiladmaienecall 10
United States v. Morrison,
SED ls SEO ee ivrsnenitnniniiaiaianin 20
United States v. Phillips,
Goh & Rf, Noreen: 2, 8, 9, 10
United States v. Sams,
$21 F.2d 421 (3d Cir. 1975)................ 3, 4, 17, 19
United States v. Sanders
157 F.3d 302 (1998) ocsesconcccccsccnsccosecenacssossene 16
vii
United States v. Sandsness,
988 F.2d 970 (9th Cir. 1993)... eee eee 3,17
United States v. Santopietro,
166 F.3d 88 (2d Cir. 1999)... 2, 9, 10
United States v. Ury,
ok yp fe os Re 17
United States v. Wesela,
223 F.3d 656 (7th Cir. 2000)................ccccceeeseees 20
United States v. Zwick,
mw gk 2,9
Statutes:
Oe ls eB ccneitiniininieteinniall 20
Oe i Oe cieericicttiniietithacesdathithensstititaneniaietnaiciaiialh 20
Ri ies: ir Ura iaesiilctithnseciisnhbieesnseniiihlinaindelttelananita 19
ee eens SI icenanchapencnesuenhtinntsdenenidinnitanateteiind passim
Fe as Me nnisnrisisiercissiistaincnetensiniciiaeianiaaicitunasimeanidatiine 5
fk a | Ee iecvclemmtelsasiiaimienmtaieias 5
Be ie Oe Cs CID ccertictnsnccnnscsesninsneniecnennnenemns 5
a ee Se ee A i e eccecntninnicstnceneticernnnttnniiinns 20
ae eis Oe I wihiitaciicttasceacaacticanninainiaigel 17
eset I wcliibinsitaiteicnsiaincititinscictiaiatnntiiespiliiniddeanicael 2
yt Tee 7, 12, 14, 16
Other Authorities:
oe Be 8S Rr ee 5
Charles F.C. Ruff, Federal Prosecution
of Local Corruption: A Case Study
in the Making of Law Enforcement Policy,
| eee 10
Vili
Cristian M. Stevens, Revolutionary or
Aberrational?: The Status of the
Supreme Court’s Recent Federalism
Cases in the Eighth Circuit,
44 St. Louis L.J. 529 (2000)... eeeeeeeeeeeees 12
IN THE
SUPREME COURT OF THE UNITED STATES
No. 00-_
MARK A. MORGAN,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondents.
On Petition for a Wnit of Certiorari to the United States
Court of Appeals for the Eighth Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner Mark A. Morgan respectfully requests that this
Court issue a writ of certiorari to review the judgment of the
United States Court of Appeals for the Eighth Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App. la-14a) is
reported at 230 F.3d 1067. The order of the en banc court of
appeals denying petitioner’s petition for rehearing (App. 15a-
16a) is reported at 244 F.3d 674. The order of the district
court (App. 17a-26a) denying petitioner’s motion to vacate
and set aside sentence is not reported.
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
October 24, 2000. A timely petition for rehearing was denied
on March 19, 2001. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATEMENT
This case presents questions about the proper scope of the
“actual innocence” gateway that permits collateral review of
procedurally defaulted claims, and about the types of
constitutional challenges that survive a guilty piea. Mark
Morgan, a Kansas City developer, pleaded guilty to violating
18 U.S.C. § 666 for conspiring to bribe a local official to
make zoning changes on non-federally funded projects. As
even the Eighth Circuit conceded below, an intervening
decision of this Court “suggest[s]” (App. 5a) that the federal
government lacks constitutional authority to punish Mr.
Morgan’s purely local acts of bribery, see Salinas v. United
States, 522 U.S. 52, 61 (1997), and numerous intervening
court of appeals decisions unequivocally confirm that Section
666 “does not reach misconduct of local officials whose
actions do not threaten the integrity of federal funds or
programs.” App. 3a (describing holding of United States v.
Phillips, 219 F.3d 404, 412-14 (5th Cir. 2000)).' Indeed, one
judge below explicitly concluded that “Congress lacked the
power to enact” the only crime of which Mr. Morgan stands
convicted. App. 13a (Bye, J., specially concurring); id. at
l6a (Bye., J., dissenting). Nonetheless, the Eighth Circuit
wrongly concluded that Mr. Morgan’s as-applied challenge to
' See also App. 2a-3a (“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
(3rd Cir. 1999) (§ 666 requires government to prove federal interest is
implicated by defendant’s offense conduct)”).
3
Section 666 was not a claim of “actual innocence” that would
entitle him to relief when raised for the first time on habeas.
That clearly mistaken ruling implicates two distinct
circuit splits. First, the Eighth Circuit’s conclusion that a
person may raise a claim of actual innocence only if an
“intervening controlling precedent . . . has clearly established
[the defendant’s] actions do not constitute a crime” (App. 4a-
5a), squarely conflicts with Davis v. United States, 417 U.S.
333, 346 (1974), and a ruling of the Seventh Circuit. See
Howard v. United States, 135 F.3d 506, 508 (7th Cir.), cert.
denied, 525 U.S. 832 (1998). Second, the Eighth Circuit’s
ruling that a guilty plea waives as-applied challenges to a
statute (App. 6a) squarely conflicts with this Court’s
precedent, see Haynes v. United States, 390 U.S. 85, 87 n.2,
99 (1968), and opens up a nft with the Third, Fourth, and
Ninth Circuits, all of which have held that such claims
survive guilty pleas. See United States v. Sandsness, 988
F.2d 970, 971 (9th Cir. 1993); United States v. Sams, 521
F.2d 421, 426 (3d Cir. 1975); United States v. Bluso, 519
F.2d 473, 474 (4th Cir. 1975) (same).
These issues are of increasing importance to the lower
federal courts and warrant this Court’s review. Recent
precedents have called into question the validity of a
tremendous number of criminal convictions and the federal
courts are faced with the question whether habeas petitioners
may raise challenges analogous to those already recognized
by this Court or are limited to claims “clearly established” by
existing “controlling precedent.” App. 4a. This case also
implicates fundamental questions of justice. As the Third
Circuit noted, in finding relief appropriate under
circumstances identical to Mr. Morgan’s, when a statute can
not constitutionally be applied to the defendant, “there is no
longer any governmental interest in continuing to punish
[him] . . . . [U]pholding the conviction will not vindicate any
legitimate societal goal.” Sams, 521 F.2d at 426 (emphasis
added). Further review is warranted.
4
A. Background and Prior Proceedings
Mark A. Morgan is a real-estate developer in Kansas
City. In successive indictments, Mr. Morgan and two co-
defendants were charged with conspiring to donate money to
charities designated by Michael B. Hernandez, a Kansas City
councilman, in order to influence his votes on two local
ordinances. The first conspiracy concerned a local ordinance
rezoning land to facilitate the construction of single-family
housing. The second concerned the city’s purchase of a plot
of land owned by Mr. Morgan and his co-defendants.
Councilman Hernandez later converted the donations to his
own use.
In July 1995, a federal grand jury indicted Mr. Morgan
and two co-defendants, charging them with conspiring to
bribe a public official, federal-program bribery in violation of
Section 666, and money laundering. Mr. Morgan moved to
dismiss the indictment, arguing in relevant part that both the
United States Constitution and Section 666 itself require the
government to demonstrate a connection between the alleged
bribes and federal-program funds received by Kansas City.
In November 1995, Judge Joseph E. Stevens, Jr. dismissed
the six money-laundering counts, but declined to dismiss the
bribery and conspiracy counts, holding that “there-is no
constitutional requirement that the government show a nexus
between the federal funds and the alleged incidents of
bribery.” C.A. App. 51. Almost two years later, in July
1997, the grand jury returned a nine-count superseding
indictment against Mr. Morgan and his co-defendants, again
charging them with conspiracy and federal-program bribery
under Section 666. C.A. App. 53.
As relevant here, Section 666 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 $5,000 or more (18 U.S.C. §
666(a)) if the government “receives, in any one year period,
5
benefits in excess of $10,000 under a Federal program... .”
§ 666(b). The statute also applies to non-governmental
“organization[s]” that receive $10,000 in federal benefits. Jd.
Unlike many federal criminal laws, which were enacted
pursuant to Congress’ commerce or postal power, Section
666 was enacted under Congress’ Article I spending power.
See U.S. Const. Art. I, §8, cl. 1 (“Congress shall have Power .
. . to pay the Debts and provide for the common Defense and
general Welfare of the United States”). The superseding
indictment alleged that Councilman Hernandez was an
“agent” of the City of Kansas City, that the City of Kansas
City was a “local government,” and—most importantly—that
“(t]he City of Kansas City, Missouri, received federal
benefits of over $10,000 under Federal programs involving
grants, contracts, subsidies, loans, guarantees, insurance or
other forms of assistance” during the relevant period. C.A.
App. 54. See generally 18 U.S.C. § 666(b), (d)(1), (d)(3).
The superseding indictment contained no other allegations
about federal funding or programs. See C.A. App. 53-68.
Mr. Morgan again moved to dismiss the Section 666
charges as unconstitutional because the government had
failed to allege that the bribes had in any way threatened the
integrity of federal-program funds. Magistrate Judge Robert
E. Larsen concluded that “the enactment of § 666 was a
proper exercise of Congress’ power under the Spending
Power” (C.A. App. 75) and recommending that the motion be
denied. Mr. Morgan filed a timely objection to Magistrate
Judge Larsen’s recommendation. C.A. App. 23. Because the
case was resolved before trial, Judge Stevens never addressed
Mr. Morgan’s motion to dismiss the superseding indictment.
On the eve of trial, Mr. Morgan agreed to plead guilty to
the superseding indictment’s two conspiracy counts in
exchange for the government’s dismissal of the seven
substantive program-bribery charges. During the change-of-
plea hearing, Judge Stevens asked the government to specify
what it would have proven had the case gone to trial. The
6
government described the alleged conspiracy and then turned
to the jurisdictional requirements of Section 666 (C.A. App.
95-96) (emphasis added):
[THE GOVERNMENT]: ... The government
would also be able to prove [that] the project that was
being affected, the transaction that was being affected
by this bribe was worth more than five thousand
dollars to the City of Kansas City, Missouri, and that
in that fiscal year and the year after, the City of
Kansas City, Missouri received more than ten
thousand dollars in federal funds.
* * *
THE COURT: More than ten thousand in federal
funds for this project?
[THE GOVERNMENT]: No, the statute requires,
and I believe the court has ruled in this case, that
there is no need for the direct flow of funds to be
traced [to this project], relying on the Congressional
history of that statute.
During the remainder of the plea hearing and factual
proffer, the government never asserted that any of the
federal-program funds received by the City of Kansas City
were in any way affected or threatened by either of the
bribery conspiracies at issue. Instead, the government relied
solely on the fact that Kansas City—like thousands of other
cities and towns—teceived substantial federal funding.
On April 21, 1998, Judge Stevens entered judgment and
sentenced Mr. Morgan to eighteen months in prison followed
by two years of supervised release, and ordered him to pay a
fine and costs of confinement. C.A. App. 106-10. As an
explicit condition of the plea agreement, Mr. Morgan was
required to waive “his right to appeal any aspect of his
conviction.” C.A. App. 78. Accordingly, Mr. Morgan did
not appeal.
7
B. Section 2255 Motion and District Court’s Ruling
On April 12, 1999, Mr. Morgan timely filed a motion to
vacate his conviction and sentence under 28 U.S.C. § 2255.
Mr. Morgan argued that Section 666 was unconstitutionally
applied to his conduct, 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.”
Memorandum In Support of Motion of Mark A. Morgan to
Vacate and Set Aside Sentence Pursuant to 28 U.S.C. § 2255,
at 1. The government did not contest that Mr. Morgan’s
conduct posed no threat to the integrity of federal funds or
programs, and asserted that the requisite federal nexus was
provided by Kansas City’s receipt of at least $10,000 in
federal benefits. C.A. App. 113.
Without holding a hearing, on June 14, 1999 Judge Gary
A. Fenner denied the motion on two grounds. First, Judge
Fenner concluded that the claim was procedurally barred
because Mr. Morgan had not appealed the issue. Judge
Fenner concluded that Mr. Morgan did not qualify for the
“actual innocence” exception to that procedural bar because
his challenge to the application of Section 666 was a “claim
of legal error, rather than factual error.” C.A. App. 121.
Second, Judge Fenner rejected the motion on the merits,
finding that the necessary “federal ‘nexus’ [wa]s supplied by
[Section 666’s] requirement that the government or agency
received at least $10,000 in a year... .” C.A. App. 123.
C. Eighth Circuit Affirmance
The Eight Circuit affirmed. The court conceded that this
Court’s opinion in Salinas “suggested” (App. 5a) that Section
666 could not constitutionally be used to prosecute local acts
of bribery, and acknowledged the mass of “later circuit
cases” (id. at 4a) holding that “§ 666 does not reach
misconduct of local officials whose actions do not threaten
8
the integrity of federal funds.” /d. at 3a (describing Phillips,
219 F.3d at 412-14). However, the court concluded that Mr.
Morgan’s as-applied challenge to the statute was “not an
actual innocence claim he may raise for the first time on
collateral review” (id. at 4a) because the favorable opinions
from other circuits were not binding on the Eighth Circuit.
Id. at 4a-Sa (“there is no intervening controlling precedent
that has clearly established Morgan’s actions do not
constitute a crime... .”). Second, the court of appeals held
that even if Mr. Morgan had shown a “gateway” claim of
actual innocence, his claim that he could not constitutionally
be prosecuted for local acts of bribery was insufficient to
challenge a knowing and counseled guilty plea. Rather, the
court held, a counseled guilty plea could be challenged only
by a facial challenge to the constitutionality of the statute.
Id. at Sa-6a.
Judge Bye concurred specially. He agreed with Mr.
Morgan that “Congress exceeded its proper authority in
enacting § 666” and thus “the law is unconstitutional, void ab
initio.” App. 10a. Because Congress’ Spending Clause
power is “comprehensible only by analogy to principles of
contract law,” (id. at lla (citing Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 17 (1981)), Congress may
indirectly regulate state conduct by attending conditions to
grants of money, but it is powerless “to proscribe the conduct
of third persons who aren’t parties to the funding contract.”
Id. at 12a-13a. Because the administrative panel of the
Eighth Circuit had not included Mr. Morgan’s facial
challenge to the statute in the certificate of appealability,
C.A. App. 126, Judge Bye concurred in the affirmance. Jd. at
14a.
Mr. Morgan sought rehearing and rehearing en banc,
arguing that the panel decision was in error and arguing that
the court should have revised the scope of the certificate of
appealability to include Mr. Morgan’s facial challenge in
light of Judge Bye’s conclusion that the statute was facially
9
unconstitutional. Nearly four months later on March 19,
2001, the en banc Eighth Circuit denied the petition. The en
banc court clarified that its precedent did not foreclose the
ability of “an Eighth Circuit hearing panel to exercise its
discretion to consider sua sponte issues beyond those
specified in a certificate of appealability.” App. 15a. Judge
Bye concurred in that decision, but dissented from the court’s
failure to rehear Mr. Morgan’s facial challenge to the statute
en banc, noting that the constitutional challenge “has merit”
and “bears careful consideration by our court.” Jd. at 16a.
REASONS FOR GRANTING THE PETITION
This Court’s decision in Salinas v. United States, 522
U.S. 52 (1997), “may be read to indicate that the ‘threat to
the integrity and proper operation of [a] federal program’
created by the corrupt activity is necessary to assure that [§
666] is not unconstitutionally applied.” United States v.
Santopietro, 166 F.3d 88, 93 (2d Cir. 1999) (quoting Salinas,
522 U.S. at 61) (first alteration in original; emphasis added);
accord United States v. Phillips, 219 F.3d 404, 423 (Sth Cir.
2000) (Emilio M. Garza. J., concurring in part and
dissenting in part). Just last Term in Fischer v. United
States, 529 U.S. 667 (2000), this Court concluded that a
broad reading of Section 666 would “upse[t] the proper
federal balance.” Jd. at 681; accord id. at 689 n.3 (Thomas,
J., dissenting) (“[w]ithout a jurisdictional provision that
would ensure that in each case the exercise of federal power
is related to the federal interest in a federal program, § 666
would criminalize routine acts of fraud or bribery, which, as
the Court admits, would ‘upse[t] the proper federal
balance””’).
Numerous other federal courts have held that the
constitution prohibits prosecution under Section 666 unless
the conduct has threatened the integrity of federal funds.
United States v. Zwick, 199 F.3d 672, 687 (3d Cir. 1999)
(“Applying § 666 to offense conduct, absent evidence of any
10
federal interest, would appear to be an unconstitutional
exercise of power under the Spending Clause.”); United
States v. McCormack, 31 F. Supp. 2d 176, 186 (D. Mass.
1998) (same). Still other courts have interpreted Section 666
to require a showing of a threat to federal funds in part to
avoid the constitutional concerns of a statute that had no
such requirement. Phillips, 219 F.3d at 412-14 and n.13 (to
support conviction under § 666, “the fraud must have the
potential to affect the identified federal funds or program”);
Santopietro, 166 F.3d at 93 (caselaw “requires at least some
connection between the bribe and a risk to the integrity of the
federally funded program”); United States v. Frega, 933 F.
Supp. 1536, 1543 (S.D. Cal. 1996) (to satisfy statute must
show federal funds “were corruptly administered, [or] were
in danger of being corruptly administered”); but see United
States v. Dakota, 188 F.3d 663, 668 (6th Cir. 1999) (no
statutory requirement of threat to federal funds). See
Generally Charles F.C. Ruff, Federal Prosecution of Local
Corruption: A Case Study in the Making of Law Enforcement
Policy, 65 Geo. L.J. 1171, 1172, 1215 (1977) (emphasis
added) (then-Director of Watergate Special Prosecution
Force observes that federal prosecution of local corruption is
“perhaps the most sensitive area of potential federal-state
conflict” and that “there is no legitimate federal interest to
be protected [by federal prosecution]” if local corruption
does not undermine federal law enforcement).
The government did not allege that Mr. Morgan’s
conduct in any way threatened the integrity of federal funds,
and the record is barren of any proof to support such a claim.
Thus, Mr. Morgan has raised a substantial claim that he
cannot lawfully be punished by the federal government for
his conduct bribing a local official regarding zoning and
property ordinances, which are “matter[s] of paramount local
concern.” Gardner v. Baltimore Mayor, 969 F.2d 63, 69 (4th
Cir. 1992). The Eighth Circuit’s decision below barring Mr.
Morgan from proceeding with his claim is clearly wrong,
11
conflicts with this Court’s precedent, and implicates two
distinct circuit splits involving important issues of federal
law. Further review is warranted.
I. THE EIGHTH CIRCUIT’S ERRONEOUS
CONCLUSION THAT A _ PETITIONER IS
“ACTUALLY INNOCENT” ONLY IF A
CONTROLLING COURT HAS SQUARELY
ESTABLISHED HIS ENTITLEMENT TO
RELIEF CONFLICTS WITH THIS COURT’S
PRECEDENT AND DECISIONS OF OTHER
COURTS OF APPEALS
Federal courts will entertain the procedurally defaulted
claim of a habeas petitioner who pleaded guilty if he can
demonstrate that he is “probably” actually innocent of the
offense. Bousley v. United States, 523 U.S. 614, 623 (1998).
The purpose of the “actual innocence” gateway is to limit the
federal courts’ equitable discretion to consider procedurally
defaulted claims to the small group of petitioners most
deserving of relief: Those whose conduct is not punishable,
for whom punishment would be a “fundamental miscarriage
of justice.” Herrera v. Collins, 506 U.S. 390, 404 (1993).
There is no serious question that Mr. Morgan’s as-applied
constitutional challenge to the application of Section 666 to
local acts of bribery not threatening federal funds is the type
of contention that will support a claim of “actual innocence.”
A claim that the federal government lacks constitutional
authority to prosecute a crime is a paradigmatic example of
an actual innocence claim. As this Court noted in Bousley, a
determination that conduct is “beyond the power of the
criminal law-making authority to proscribe, necessarily
carr[ies] a significant risk that a defendant stands convicted
of an act that the law does not make criminal,” Bousley, 523
U.S. at 620 (internal quotations and citations omitted;
emphasis added), which “‘inherently results in a complete
miscarriage of justice’ and ‘present[s] exceptional
12
circumstances’ that justify collateral relief under § 2255.”
Davis v. United States, 417 U.S. 333, 346-47 (1974). Thus,
even after a defendant has “pleaded guilty . . . § 2255 is
available for a case in which the defendant argues that the
conduct for which he was convicted never rose to the level of
a federal offense.” Howard v. United States, 135 F.3d 506,
508 (7th Cir.), cert. denied, 525 U.S. 832 (1998); see also
Woodruff v. United States, 131 F.3d 1238, 1243 (7th Cir.
1997) (habeas relief is available “where someone has actually
pleaded guilty to conduct not made unlawful”), cert. denied,
524 U.S. 956 (1998).
Although not disputing that as-applied challenges to
federal prosecution are the sorts of claims that will support a
finding of actual innocence (see App. 4a-5a), the Eighth
Circuit concluded that Mr. Morgan’s claim fell short because
“{t]here is no intervening controlling precedent that has
clearly established Morgan’s actions do not constitute a
crime.”” Jd. at 4a-Sa (emphasis added). Essentially, the court
held that Mr. Morgan could not proceed because neither this
Court nor the Eighth Circuit had already squarely held
Section 666 unconstitutional when applied to local conduct.
? The Eighth Circuit did not seem to contest that Salinas was an
“intervening” decision (App. 5a), and in any event, the requirement of an
intervening change of law is amply satisfied in this case by Salinas and
its progeny. Prior to those holdings, Mr. Morgan’s spending-clause
challenge would have been considered borderline frivolous given the
extreme rarity of successful challenges to Spending Clause enactments.
See, e.g., United States v. Butler, 297 U.S. 1, 68 (1936). As Judge Bye
noted below, “‘[nJo 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).” App. 13a. Significantly,
between the time of indictment and conviction in this case, the Eighth
tain "tue te Gada i tee
criminal statutes. See Cristian M. Stevens, Revolutionary or
Aberrational?: The Status of the Supreme Court's Recent Federalism
Cases in the Eighth Circuit, 44 St. Louis LJ. 529, 624 (2000) (discussing
cases and concluding that effect of this Court’s federalism precedents in
the Eighth Circuit “has been surprisingly minimal”).
13
A. The Eighth Circuit’s Decision Is Clearly Wrong
There is no basis in logic or law for such a restriction.
The narrowing function of the “actual innocence” gateway is
served simply by limiting its availability to persons who can
establish their factual innocence, or whose legal claims, if
well taken, would place their admitted conduct “beyond the
power of the criminal law-making authority to proscribe ....”
Bousley, 523 U.S. at 620. Because a petitioner must also
prevail on the merits of his underlying claim before he can
obtain relief, Herrera, 506 U.S. at 404, there is no basis for
erecting such an obstacle around the threshold claim to
further restrict an already narrow category. Indeed, the
Eighth Circuit gave no reason why such a restriction would
be warranted.
The Eighth Circuit’s decision engrafts an entirely alien
requirement onto the standard for actual innocence. Even
when establishing procedural bar rules for habeas challenges
by state prisoners—which, because they involve decisions of
coordinate state courts, present comity concerns not
implicated here—this Court’s procedural rules permit habeas
petitioners to raise novel constitutional claims so long as, if
those claims are found to be valid, they will “place certain
kinds of primary . . . conduct beyond the power of the law-
making authority to proscribe.” Teague v. Lane, 489 U.S.
288, 307 (1989). It would be anomalous to require more
exacting standards for claims raised by federal prisoners in
cases that do not implicate comity. Furthermore, this
requirement is inconsistent with the detailed standards
established by Congress in the stringent Antiterrorism and
Effective Death Penalty Act. For habeas petitions filed more
than one year after a conviction becomes final, Congress
explicitly limited legal claims to those involving rights that -
“ha[ve] been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.”
28 U.S.C. § 2255 (emphasis added). The AEDPA places no
such limitation on petitions (like this one) filed within a year
i4
of when the conviction became final. See id. There is no
basis for the Eight Circuit’s decision to create such a
procedural hurdle as a matter of common law.
B. The Eight Circuit’s Judgment Conflicts With
Decisions Of This Court And Other Federal
Courts of Appeals
The Eighth Circuit’s standard squarely conflicts with
decisions of this Court and other courts of appeals, which
have not required that actual innocence claims be limited to
those already recognized by a controlling court. In Davis v.
United States, 417 U.S. 333 (1974), this Court concluded the
petitioner had established a gateway claim of actual
innocence although this Court had not already established his
claim to be a valid one. Rather, this Court held a legal claim
was sufficient to proceed if the petitioner would be actually
innocent “if /hjis contention is well taken.” Id. at 346
(emphasis added). Far from requiring a showing that Davis’
entitlement to relief was “clearly established” at the time, the
Court explicitly disclaimed any views on the merit of his
claim that his induction notice was invalid. Jd. at 347.
In Davis, a federal prisoner on habeas challenged his
conviction for disregarding his draft notice, arguing that his
induction order was invalid and thus could not be the basis
for a valid conviction. Davis relied on Gutknecht v. United
States, 396 U.S. 295 (1970), decided after his conviction, in
which this Court had invalidated a conviction because the
induction notice was unlawful. On direct appeal, both the
district court and the Ninth Circuit squarely had held that
Gutknecht did not affect Davis’ conviction and affirmed. 417
U.S. at 339. The Ninth Circuit then decided United States v.
Fox, 454 F.2d 593 (9th Cir. 1971), involving facts
comparable to Davis’ case, in which it granted relief based on
Gutknecht. Davis argued that he was entitled to relief based
on Fox. On habeas review, both the district court and the
Ninth Circuit held that Davis was not entitled to relief under
15
Fox. The Ninth Circuit’s Fox decision obviously was not
“controlling” on this Court, nor was it even controlling on the
Ninth Circuit, which already had squarely held in Davis’ own
case that Gutknecht did not entitle him to relief.’
This Court could not have been clearer that the assertion
of a claim that conduct could not legally be punished was
itself sufficient to justify proceeding to the merits:
In this case, the petitioner’s contention is that the
decision in Gutknecht v. United States, as interpreted
and applied by the Court of Appeals for the Ninth
circuit in the Fox case after his conviction was
affirmed, establishes that his induction order was
invalid under the Selective Service Act and that he
could not be lawfully convicted for failure to comply
with that order. Jf this contention is well taken, then
Davis’ conviction and punishment are for an act that
the law does not make criminal. There can be no
room for doubt that such a circumstance “inherently
results in a complete miscarriage of justice” and
“present([s] exceptional circumstances” that justify
collateral relief under § 2255. Therefore, although
we express no view on the merits of [Davis’] claim,
we hold that the issue he raises is cognizable in a §
2255 proceeding.
417 US. at 346-47.
Similarly, the Seventh Circuit has held that the allegation
alone is enough. In Howard v. United States, 135 F.3d 506
(1998), that court held that Ҥ 2255 is available for a case in
which the defendant argues that the conduct for which he
> To the extent there were inconsistencies between the Ninth
Circuit’s decision in Davis and its later decision in Fox, under bedrock
tules of appellate practice, the earlier decision in Davis controlled. E.g.,
Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir. 1984)) (“We are
bound by the decisions of prior panels.”).
16
was convicted never rose to the level of a federal offense.”
Id. at 508 (emphasis added). And unlike the Eighth Circuit
below, that court did not require that controlling precedent
have “clearly established” petitioner’s right to relief before
his claim would even be considered. Indeed, in the end, the
Seventh Circuit found the claim invalid and denied relief. Jd.
at 510.
II. THE PANEL’S ERRONEOUS DECISION THAT
AS-APPLIED CHALLENGES TO THE
CONSTITUTIONALITY OF A STATUTE ARE
INSUFFICIENT TO CHALLENGE A GUILTY
PLEA IS INCONSISTENT WITH THIS
COURT’S PRECEDENT AND RULINGS OF
OTHER COURTS OF APPEALS
The Eight Circuit also held that, even if Mr. Morgan
could show a “gateway” claim of actual innocence, his as-
applied challenge to the constitutionality of Section 666 was
insufficient to overcome his guilty plea.* App. 5a. The court
held that although a knowing and voluntary guilty plea
legitimately may be challenged through a facial challenge to
the constitutionality of a statute (id. at 6a), as-applied
constitutional challenges of the sort raised by Mr. Morgan are
insufficient. Jd. That holding is mistaken and sharply
conflicts with decisions of this Court and of other circuits.
The Eighth Circuit’s conclusion is plainly foreclosed by
Haynes v. United States, 390 U.S. 85 (1968). Petitioner
* To the extent the Eighth Circuit decision suggests that actual
innocence is insufficient to challenge a guilty plea, there is no basis for
such a claim. It is well established that actual innocence is itself a
sufficient basis for raising a defaulted challenge to a guilty plea on
habeas. See, e.g., United States v. Benboe, 157 F.3d 1181, 1184 (9th Cir.
1998) (review of guilty plea on habeas not procedurally barred although
the petitioner “d[id] not specifically contend that his plea was involuntary
or unintelligent,” because he “d[id], however, argue that he is innocent”);
accord United States v. Sanders, 157 F.3d 302, 305 (Sth Cir. 1998);
Howard, 135 F.3d at 508.
17
Miles Haynes pleaded guilty to knowingly possessing a
particular type of firearm (a sawed-off shotgun or machine-
gun) that had not been registered with the Secretary of the
Treasury, in violation of 26 U.S.C. §§ 5841 and 585].
Haynes claimed that he could not validly be convicted of
failing to register under these statutes because, as possession
of such weapons was ordinarily criminal, registering would
have violated his right against self-incrimination. The Court
agreed, taking care to note that it was not finding the
provisions unconstitutional “on their face” because “there are
a number of apparently uncommon circumstances in which
registration is required of one who has not violated the
[law].” 390 U.S. at 99. The Court emphatically held that
“[p]etitioner’s plea of guilty did not, of course, waive” his
right to raise this claim by pleading guilty. Jd. at 87 n2
(emphasis added) (citing United States v. Ury, 106 F.2d 28,
28 (2d Cir. 1939) (guilty plea did not foreclose claim statute
exceeded congressional commerce power)).
Unsurprisingly, numerous courts of appeals have adhered
to Haynes and held that as-applied challenges to a statute is a
“Jurisdictional” claim not waived by entering a plea of guilty.
In United States v. Sandsness, 988 F.2d 970 (1993), the Ninth
Circuit held that petitioner’s claim that the statute he had
pleaded guilty to violating “is vague as applied” (id. at 971)
survived his guilty plea.’ And in United States v. Sams, 521
F.2d 421, 426 (3d Cir. 1975), and United States v. Bluso, 519
F.2d 473, 474 (4th Cir. 1975), the Third and Fourth Circuits
held that prisoners on collateral review could challenge guilty
pleas to violating wagering tax statutes that the Supreme
* Although the Eighth Circuit claimed below (App. 6a) that Sodders
v. Parratt, 693 F.2d 811 (8th Cir. 1982) (per curiam) involved a facial
claim of vagueness, that opinion explicitly noted that the matter at issue
was whether “the statute is constitutional as applied to Sodders.” Id. at
813 (emphasis added).
18
Court had found to be unconstitutional as applied because of
the Fifth Amendment Right against self-incrimination.°
The Eighth Circuit’s contrary conclusion is
fundamentally misguided. As this Court explained in Menna
v. New York, 423 U.S. 61 (1975) (per curiam), “[a] guilty
plea . . . simply renders irrelevant those constitutional
violations not logically inconsistent with the valid
establishment of factual guilt... .” Jd. at 62 n.2. However,
that Court was quite explicit that petitioners could
nonetheless bring claims that the crime of conviction “is one
which the [sovereign] may not constitutionally prosecute.”
Id. (emphasis added). That, of course, is exactly the type of
claim that Mr. Morgan has brought: A claim that the federal
government may not constitutionally prosecute him for local
acts of bribery that did not threaten the integrity of federal
funds.
There is no logical reason to distinguish, as the Eighth
Circuit did, between as-applied and facial challenges.
Whether a petitioner attacks a law as beyond the power of
Congress to enact (making it facially invalid), or whether he
argues the government lacked constitutional authority to
apply that statute to his conduct (making it unconstitutional
, as applied), both circumstances implicate the ‘same
underlying principle underlying the “jurisdictional” exception
to the rule that a guilty plea waves constitutional claims:
Society has no interest in incarcerating persons whose
admitted conduct cannot lawfully be punished. As the Third
Circuit wrote in reversing a guilty plea on collateral review,
if a statute cannot be constitutionally applied to petitioner,
“there is no longer any governmental interest in continuing to
® See generally Marchetti v. United States, 390 U.S. 42, 61 (1968)
(noting that statutes were not facially unconstitutional and could be
enforced whenever “a taxpayer is not confronted by substantial hazards
of self-incrimination,” such as if he lived in a jurisdiction that permitted
gaming).
19
punish [him] . . . . [U]pholding the conviction will not
vindicate any legitimate societal goal.” Sams, 521 F.2d at
426. “Surely it offends our system of ordered liberty to
permit a prisoner to remain incarcerated” (App. 7a) (Bye, J.,
specially concurring) when his conduct cannot
constitutionally be punished, whether application of the
Statute is unconstitutional in all instances (id.) or only in his
own case. In either event, the admitted conduct is “not a
crime” and the conviction is not merely erroneous, but
“illegal and void, and cannot be a legal cause of
imprisonment.” Ex Parte Siebold, 100 U.S. 371, 376-77
(1880).
Ill. THE ISSUES PRESENTED ARE IMPORTANT
AND RECURRING
This case raises vitally important issues of federal law.
The conflict over the meaning of “actual innocence” is of
great practical and doctrinal significance. In recent years,
this Court has taken a more active role in circumscribing
Congress’ efforts to encroach on the states’ prerogative to
define criminal conduct.’ Each of this Court’s cases narrowly
” E.g., Jones v. United States, 529 U.S. 848, 858 (2000) (burning of
an owner-occupied private residence not used for any commercial
purpose does not qualify as property “used in” commerce or commerce-
affecting activity subject to prosecution under 18 U.S.C. §844(i), in part
because reading statute to “encompas{s] the arson of an owner-occupied
private home would effect . . . a change [in the federal-state balance], for
arson is a paradigmatic common-law state crime”); United States v.
Lopez, 514 U.S. 549 (1995) (Gun Free School Zones Act exceeded
Congress’ Commerce Clause authority); Cleveland v. United States, 121
S. Ct. 365, 373 (2000) (“Equating issuance of licenses or permits with
deprivation of property would subject to federal mail fraud prosecution a
wide range of conduct traditionally regulated by state and local
authorities,” which Court refused to do in the absence of clear instruction
from Congress); Fischer, 529 U.S. at 681 (cautioning that reading § 666
to encompass “[a}ny receipt of federal funds” resulting “in coverage of
all recipient fraud” would “upse[t] the proper federal balance”); see also
id. at 689 n.3 (Thomas, J., dissenting); see also United States v.
Morrison, 529 U.S. 598 (2000) (striking down civil suit provisions of
20
defining federal crimes to avoid constitutional concerns or
striking them down when they exceeded congressional
authority has potentially broad-reaching implications, calling
into question the validity of convictions for similar offenses.*
This Court’s resolution of this issue will determine whether
petitioners will be permitted to raise claims analogous to ones
already recognized by this Court, or whether prisoners with
valid claims of actual innocence must remain imprisoned
awaiting a “controlling precedent . . . [that] clearly
establishe[s] [their] actions do not constitute a crime.” App.
4a. Defendants have already begun seeking to extend the
reasoning of this Court’s precedents to new offenses, e.g.,
United States v. Jones, 231 F.3d 508, 514 (9th Cir. 2000)
(Jones challenge to 18 U.S.C. § 922(g)); United States v.
Wesela, 223 F.3d 656, 659 (7th Cir. 2000) (same); United
States v. Malone, 222 F.3d 1286, 1295 (10th Cir. 2000)
(Jones challenge to Hobbs Act), and these issues will arise
with increasing frequency in the future. A decision in this
case would provide critical guidance to the lower courts at a
Violence Against Women Act as exceeding Congress’ Commerce Clause
power); Solid Waste Authority v. Army Corps of Engineers, 121 S. Ct.
675 (2001) (invoking doctrine of constitutional doubt to construe Clean
Water Act not to permit Migratory Bird Rule).
® For example, last Term’s Jones decision holding that owner-
occupied residences were not “used in interstate or foreign commerce”
potentially has implications for convictions under federal firearm statutes
for possessing firearms or ammunition “in or affecting commerce” (18
U.S.C. § 922(g)(1), (8), (9)), under the Hobbs Act for robberies or
extortion that “obstruc[t], dela[y], or affec[t] commerce” (18 U.S.C. §
1951(a)), for money laundering if the transaction “affects interstate or
foreign commerce” (18 U.S.C. § 1956), and for many other offenses.
See, e.g., 15 U.S.C. § 1173(a)(1) (requiring registration of “any person
engaged in the business of manufacturing gambling devices, if the
activities of such business in any way affect interstate or foreign
commerce”); 15 U.S.C. § 1245(a) (banning possession, manufacture,
sale, or importation “in or affecting interstate commerce” of ballistic
knife). There are dozens of other statutes like these.
21
time when the number of federalism-based challenges to
statutes is multiplying.
Equally significant is the related issue of whether as-
applied constitutional claims are sufficient to challenge a
knowing and voluntary guilty plea. The Eighth Circuit
decision is far more restrictive than the rule adopted by this
Court in Haynes and followed in the Third, Fourth, and Ninth
Circuits. The proper standard to be applied thus has
tremendous practical importance for the scope of proper
challenges to otherwise valid guilty pleas. Given the central
importance of guilty pleas—which resolve the vast majority
of criminal cases in our criminal justice system—the
importance of this question is impossible to exaggerate.
Resolving these issues that have divided the courts of appeals
would give the Court the opportunity to provide uniformity in
the proper application of “the equitable discretion of habeas
courts to see that the federal constitutional errors do not result
in the incarceration of innocent persons ... .” Herrera, 506
U.S. at 404.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
R. STAN MORTENSON
JOHN P. ELWoopD
BAKER BOTTs L.L.P.
The Warner Building
1299 Pennsylvania Ave. N.W.
Washington, D.C. 20004-2400
(202) 639-7700 -
Counsel for Petitioner
June 2001
APPENDIX
ee
»
la
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 99-2798
United States of America, *
+
Appellee, * Appeal from the United
* States Court for the
V. * Western District of
* Missouri
Mark A. Morgan, .
oe
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
2a
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 (3rd Cir.
1999) (§ 666 requires government to prove federal interest is
3
4
3a
implicated by defendant’s offense conduct); United States v.
Phillips, 219 F.3d 404, 412-14 (Sth Cir. 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 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.’” Jd. at
623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).
Morgan argues he is actually innocent because his
4a
conduct was beyond the power of the federal government to
proscribe. Relying on Salinas and later circuit cases, Morgan
contends § 666 cannot be constitutionally applied unless the
Government proves a federal interest is implicated by his
offense conduct, and the record does not support a finding of
that federal connection in his case. Given the constitutional
constraints on the statute’s reach, Morgan says, a violation of
§ 666, as that statute is properly construed, never occurred.
Pointing to Bousley, Morgan asserts his is a classic claim of
factual innocence.
We conclude Morgan’s is not an actual innocence claim
he may raise for the first time on collateral review. In
Bousley, a defendant who pleaded guilty to using a firearm in
connection with a drug trafficking crime before the Supreme
Court clarified the use requirement in Bailey v. United States,
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. Herschberger, 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
heads Bae ain te 2
— Se
Sa
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 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,
[aJs 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,
6a
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 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
7a
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).'
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
svstem 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
' 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 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).
8a
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. ”
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, 529 U.S. 667 (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
2DeRoo 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.
9a
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.
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.* 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
* 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.
* The Sixth Circuit has explicitly rejected an additional “nexus”
element. See United States v. Dakota, 188 F.3d 663, 668 (6th Cir. 1999).
10a
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 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
ee
lla
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, 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
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 Jaws. 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,
12a
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 [X.”) (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 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.
l3a
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 intra state
bribery. Most intrastate bribery falls outside the ambit of
Congress’s Commerce Clause power. Thus Congress could
not have grounded § 666 on its Commerce Clause power.
Article I contains numerous explicit grants of power to
Congress. But none of these powers remotely concerns
federal criminal penalties for bribery. I am forced to
conclude—albeit with some reluctance—that Congress
lacked the power to enact § 666 as a federal crime. My
reluctance stems largely from the fact that “[n]o court ... has
ever struck down a federal statute on grounds that it exceeded
the Spending Power.” Commonwealth of Va. v. Browner, 80
F.3d 869, 881 (4th Cir. 1996). Yet I find that to be an
unavoidable conclusion in this instance.
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
l4a
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
15a
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 99-2798
United States of America, *
a
Appellee, * Appeal from the United
* States Court for the
v. * Western District of
* Missouri
Mark A. Morgan, ”
* [PUBLISHED]
Appellant. *
BEFORE: Wollman, Chief Judge, McMillian, Richard S.
Amold, Bowman, Beam,' Loken, Hansen, Morris. Sheppard
Amold, Murphy, and Bye, Circuit Judges, En Banc.
The petition for rehearing by the panel is denied. The
petition for rehearing en banc is also denied. The court notes
in denying rehearing en banc that the panel decisions in this
case and in DeRoo v. United States, 223 F.3d 919, 923 (8th
Cir. 2000), should not be read as foreclosing the right of an
Eighth Circuit hearing panel to exercise its discretion to
consider sua sponte issues beyond those specified in a
certificate of appealability, whether the certificate was issued
by a district court or by an administrative panel of this court.
BYE, Circuit Judge, concurring in part and dissenting in
part.
After the district court denied Mark Morgan’s 28 U.S.C.
§ 2255 motion, an administrative panel of this court certified
'The Honorable C. Arlan Beam assumed senior status on February 1,
2001.
l6a
two issues for review by a hearing panel. The administrative
panel declined to certify a third issue that Morgan raised—
whether 18 U.S.C. § 666 is facially unconstitutional.
Because our prior cases explained that a hearing panel may
not review uncertified issues, see, e.g., DeRoo v. United
States, 223 F.3d 919, 923 (8th Cir. 2000) (“Appellate review
is limited to the issues specified in the certificate of
appealability.”), the hearing panel properly refused to
consider Morgan’s facial constitutional challenge. United
States v. Morgan, 230 F.3d 1067, 1069 (8th Cir. 2000)
(quoting DeRoo, supra ). I joined in the panel opinion
because of DeRoo’s binding effect.
Today’s order explains that DeRoo and its predecessors
do not prevent a hearing panel from exercising its discretion
to consider uncertified issues sua sponte. I agree fully with
this approach, and I join in so much of the order as explains
this principle.
At this juncture, then, we may finally consider Morgan’s
facial constitutional challenge without procedural
impediment. Because that challenge has merit, see Morgan,
230 F.3d at 1072-75 (Bye, J., specially concurring), and
bears careful consideration by our court, I dissent from the
decision to deny rehearing en banc.
March 19, 2001
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit
17a
[FILED Jun 14 1999 1:45 pm]
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, )
) Case No. 99-03895-
v. ) CV-W-4
)
MARK A. MORGAN, ) Crim. No. 95-00125-
Defendant. )01-CR-W-4
)
ORDER DENYING MOTION OF MARK A.
MORGAN TO VACATE AND SET ASIDE SENTENCE
PURSUANT TO 28 U.S.C. § 2255
Mark A. Morgan, along with two co-defendants, was
indicted on July 25, 1995, and charged with two counts of
conspiracy (18 U.S.C. § 371), two counts of federal-program
bribery (18 U.S.C. § 666), and six counts of money
laundering (18 U.S.C. §§ 1956 & 1957). Mr. Morgan
pleaded not guilty, and moved to dismiss the indictment. He
contended, among other things, that both the United States
Constitution and Section 666 itself required the government
to demonstrate a connection between the alleged bribes and
federal-program funds received by the City of Kansas City.
On November 15, 1995, the District Court (Stevens, J.)
dismissed the six money-laundering counts, but not the four
program-bribery and conspiracy counts. The Court held that:
“The enactment of 18 U.S.C. § 666 was a proper exercise of
Congress’ manifest spending power. Moreover, there is no
constitutional requirement that the government show a nexus
between the federal funds and the alleged incidents of
18a
bribery. See e.g., United States v. Coyne, 4 F.3d 100, 109 (2d
Cir. 1993).”
Almost two years later, on July 17, 1997, the grand jury
returned a nine-count superseding indictment against Mr.
Morgan and his co-defendants. Although the underlying
factual allegations were the same as those set out in the initial
indictment, the superseding indictment charged seven counts
of federal-program bribery (18 U.S.C. § 666) and two counts
of conspiring to violate Section 666 (18 U.S.C. § 371).
Mr. Morgan again moved to dismiss the Section 666
charges as unconstitutional because the government failed to
allege any relation between the alleged bribes and federal-
program funds. On October 17, 1997, a magistrate judge
found that, “This Court previously held that the enactment of
§ 666 was a proper exercise of Congress’ power under the
Spending Power of the General Welfare Clause and the
Necessary and Proper Clause and the government is not
required to charge or prove that the alleged bribes
substantially threatened the integrity of identifiable federal
funds.”
On October 20, 1997, the defendant filed his objections to
the Magistrate’s Report and Recommendation and on
October 22, 1997, the government filed its response. On
October 23, 1997, Mr. Morgan pled guilty to the two
conspiracy counts in the indictment pursuant to a plea
agreement.
The plea agreement called for the defendant to plead
guilty to the two conspiracy counts in the indictment in
exchange for the government moving to dismiss the
remaining counts of the indictment. The plea agreement
stated that, “The defendant admits that he knowingly
committed these offenses and is in fact guilty of these
crimes.” In the plea agreement, the defendant also waived
his right to appeal. The Agreement stated that, “In exchange
for the concessions made by the government in this
19a
Agreement, the defendant voluntarily and knowingly waives
the following rights:
(a) His right to appeal any aspect of his conviction,
including any pretrial suppression or other pretrial
disposition of motions and issues.
In his change of plea hearing, Mr. Morgan acknowledged
that the had committed the crimes charged. After being
advised of his rights by the Court, the following colloquy
took place:
THE COURT: Now having discussed these rights, your
having acknowledged them, do you still want to plead
guilty to these two counts?
THE DEFENDANT: Yes, sir.
THE COURT: Have you received a copy of the
indictment?
THE DEFENDANT: Yes, sir.
THE COURT: Have you gone over it with Mr.
Mortenson?
THE DEFENDANT: Yes, sir. A
THE COURT: Has he explained what it is the
government would have to prove in order for you to be
found guilty of these charges?
THE DEFENDANT: Yes, sir.
THE COURT: Are you convinced in your own mind the
government would be able to make that proof?
THE DEFENDANTS: Yes.
After explaining the conspiracy counts to the defendant,
the Court asked: “Did you do those things?” The defendant
responded, “Yes, sir.”
20a
At the change of plea hearing, the government discussed
the jurisdictional basis for the bribery charges. Following
these statements by the government, the defendant and his
attorney acknowledged that the evidence would be sufficient
to meet all the elements of the bribery offense. The
following colloquy took place:
THE COURT: Have you familiarized yourself with the
available pages (discovery), Mr. Mortenson?
MR. MORTENSON: Yes, we have reviewed all the
material that have [sic] been produced.
THE COURT: Are you satisfied in your own
professional judgment the United States would be able to
prove what it alleges about these two offenses beyond a
reasonable doubt?
MR. MORTENSON: I believe the government would be
able to prove the elements of the charges beyond a
reasonable doubt. The specific factual points might be in
disagreement but the overall evidence that the
government would need to prove each element of the
violation. there is evidence to support that.
THE COURT: And is it your judgment then a finding by
a jury of guilty to both offenses would be justified. by the
evidence?
MR. MORTENSON: Yes.
THE COURT: Would you agree with that, Mr. Morgan?
THE DEFENDANT: Yes, Your Honor.
Thereafter, defense counsel interrogated his client in
order to establish a record that defendant Morgan was in fact
guilty of the offenses to which he was pleading guilty.
Counsel for the defendant reviewed each of the charges and
Morgan acknowledged that he was guilty of these offenses.
The following questions and answers occurred during this
portion of the change of plea.
2la
MR. MORTENSON: Nonetheless, did you at the time
agree to do so in order to reward Mr. Hernandez through
a contribution to the charity for the vote he had given on
Line Creek Parkway?
THE DEFENDANT: Yes, that I did.
MR. MORTENSON: Did you do so intentionally? -
THE DEFENDANT: Yes, sir.
MR. MORTENSON: And you understand that rewarding
a public official for an official act is unlawful.
THE DEFENDANT: Yes.
MR. MORTENSON: And therefore you agree you have
violated the statute with which you are charged.
THE DEFENDANT: Yes.
ak ca 3
MR. MORTENSON: And did you make the payment
knowing full well that its purpose was to influence Mr.
Hernandez in assisting with the Barry Special
transaction?
THE DEFENDANT: Yes, that is what I did.
MR. MORTENSON: And do you understand that having -
that intention, that this is a violation of federal law?
THE DEFENDANT: Yes, I do.
MR. MORTENSON: And therefore do you agree you are
guilty of the charges of Count Seven concerning Barry
Special?
THE DEFENDANT: Yes, I am guilty.
MR. MORTENSON: Thank you.
“It is well-settled that a voluntary and intelligent plea of
guilty made by an accused person, who has been advised by
22a
competent counsel, may not be collaterally attacked.” Mabry
v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 2546 (1984).
In Bousley v. United States, _§-; US. __—_—s«s,: 118 S.. C2.
1604 (1998), the Court considered a § 2255 petition in the
context of a claim arising from the decision in Bailey v.
United States, 516 U.S. 137, 116 S. Ct. 501 (1995). The
Bailey decision had given rise to numerous § 2255 petitions
from those defendants who had earlier pled guilty to using or
carrying a firearm during a crime of violence or drug
trafficking offense because the Supreme Court greatly
narrowed the scope of 18 U.S.C. § 924(c).
In Bousley, the Court reviewed the law relating to a §
2255 petition after a defendant had pled guilty. The thrust of
the defendant’s argument in Bousley was that no one, neither
the defendant, his counsel, or the Court had understood that
“active use” was an element of § 924(c). The Court held that
because of the change in the scope of the law announced in
Bailey, Bousley would be able to claim that his guilty plea
was constitutionally invalid and was not procedurally barred.
The Court then restated long-held positions that “a plea of
guilty is constitutionally valid only to the extent it is
‘voluntary’ and ‘intelligent.’” Jd. at 1609, quoting Brad v.
United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469
(1970). The Court stated that “the voluntariness and
intelligence of a guilty plea can be attacked on collateral
review only if first challenged on direct review. Habeas
review is an extraordinary remedy and ‘will not be allowed to
do service for an appeal.’” Jd. at 1610, quoting Reed v.
Forley, 512 U.S. 339, 354, 114 S. Ct. 2291, 2300 (1994).
The Court stated that the limitation on collateral attack “has
special force with respect to convictions based on guilty
pleas.” Bousley, [sic] at 1610.
Just as in Bousley, petitioner Morgan did not challenge
the validity of his plea on direct appeal. In Bousley, the
Court held that “where a defendant has procedurally
23a
defaulted a claim by failing to raise it on direct review, the
claim may be raised in habeas only if the defendant can first
demonstrate either “cause” and actual “prejudice”, . . . [sic]
or that he is actually “innocent”. . . [sic] Jd. at 1611. Mr.
Morgan now claims in his § 2255 motion that he is “actually
innocent.”
It must therefore be determined what “actual innocence”
means in the context of habeas petition. In Embrey v.
Hershberger, 131 F.3d 739 (8th Cir. 1997) (en banc), the
Court of Appeals considered whether the petitioner qualified
for the “actual innocence” exception to the bar to successive
habeas petitions. The Court determined that the prisoner’s
claim of legal error, rather than factual error, does not qualify
as a claim of “actual innocence.”
The Embrey case involved a defendant who had been
convicted of bank robbery and kidnapping. Embrey claimed
tat Congress intended the bank robbery statutes to cover the
entire scope of his conduct and thus he was not eligible for a
sentence under the Federal Kidnapping Act. Embrey argued
that because he was not eligible for sentence under the
Federal Kidnapping Act, he was “actually innocent” of it and
therefore he qualified for that exception to the bar on
successive petitions.
In Embrey, the Court of Appeals concluded that:
Mr. Embrey’s claim . . . is simply a legal not a factual
one, and the Supreme Court has ‘emphasized that the
miscarriage of justice exception is concerned with
actual as compared with legal innocence.’ Sawyer,
505 U.S. at 339, 112 S. Ct. at 2518. A legal claim
that a substantive criminal statute has been wrongly
applied to facts can, by resort [sic] always be
converted into a complaint that the relevant facts did
not support a conviction and that therefor: the
defendant was “actually innocent.” But that proves
too much, for then any such claim can be said to be
24a
one of actual innocence, effectively undermining the
barrier to post-conviction relief that the principle of
actual innocence was meant to erect.
Embrey, 131 F.3d at 741.
Here, Mr. Morgan renews his legal claim that the
Constitution requires that there be an effect on specific
federal funds or programs from the bribes in order for there
to be federal jurisdiction. This is a legal claim no different
than petitioner Embrey’s claim that the bank robbery laws
precluded his conviction for kidnapping. Mr. Morgan is not
actually innocent and his claim of an unconstitutional
conviction is barred.
Nonetheless, even if Mr. Morgan’s claim was not
procedurally barred, his claim that the government neither
alleged nor proved that the conduct for which he was
indicted, convicted and sentenced had no connection with the
expenditure of federal funds or posed any threat to the
integrity and proper operation of a federal program is without
merit.
In Salinas v. United States, 118 S. Ct. 469 (1997), as in
the case at bar, the defendant claimed that the government
was required to prove that the bribe in some way affected
federal funds. The Supreme Court rejected this contention.
The Court stated:
The enactment’s expansive, unqualified language,
both as to the bribes forbidden and the entities
covered, does not support the interpretation that
federal funds must be affected to violate §
666(a)(1)(B). Subject to the five thousand dollar
threshold for the business or transaction in question,
the statute forbids acceptance of a bribe by a covered
official who intends “to be influenced or rewarded in
connection with any business, transaction, or series of
transaction of (the defined) organization, government
25a
or agency.” § 666(a)(1)(B). The prohibition is not
confined to a business or transaction which affects
federal funds. The word “any,” which prefaces the
business or transaction clause, undercuts the attempt
to impose this narrowing construction.
Id. at 473.
The Court further stated that “the broad definition of
these ‘circumstances’ to which the statute applies provides no
textual basis for limiting the reach of the bribery prohibition.
The statute applies to all cases in which an organization,
government or agency receives a statutory amount of benefits
under a federal program.” Id.
After reviewing various rules of statutory construction
and the legislative history of the statue, the Court concluded
that “the text of §666(a)(1)(B) is unambiguous on the point
under consideration here, and it does not require the
Government to prove federal funds were involved in the
bribery transaction.” Jd. at 475.
The sole case from this Circuit dealing with § 666 found
that the statute should be “broadly construed” and could
therefore be applied to funds that were never owned by the
federal government. United States v. Perry, 977 F.2d 1230,
1232 (8th Cir. 1992).
The federal “nexus” is supplied by the requirement that
the government or agency received at least $10,000 in a year
and involved a matter of value of $5,000 or more. This
defines a substantial federal interest which Congress has
determined is necessary and proper to the disbursement of -
federal funds. As explained by the court in United States v.
Westmoreland, 841 F.2d 572, 578 (Sth Cir. 1988):
Moreover, the statute does not encompass every local
bribery as Westmoreland suggests. Although the
extent of the federal government’s assistance
programs will bring many organizations and agencies
26a
within the statute’s scope, the statute limits its reach
to entities that receive a substantial amount of federal
funds and to agents who have the authority to effect
significant transactions.
Thus, the “nexus” of federal interest, the dollar values of
federal funding and the subject matter of the bribe, is
integrated with the language of the statute. The United States
pled and was prepared to prove the existence of this federal
interest. Furthermore, in this case, Mr. Morgan was involved
with the bribery of a Kansas City Councilman who had
authority over the policy, practice and legislation of the City
as it effected all city programs and expenditures. Thus, Mr.
Morgan’s efforts toward corruption of Mr. Hernandez
threatened the expenditure of federal funds and posed a threat
to the integrity and proper operation of programs supported
by federal funds by virtue of Mr. Hernandez’s ability to
influence those funds and programs. Certainly the federal
government has an interest in federal funds and programs
supported by the federal government being administered by
honest officials.
WHEREFORE, for the reasons stated herein, Mr.
Morgan’s motion to vacate and set aside is sentence (Doc.#1)
is DENIED.
/s/
GARY A. FENNER, JUDGE
United States District Court
DATED: 6-14-99
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.