*

The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0282P (6th Cir.)

File Name: 04a0282p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ROBERT ALLEN WAUCAUSH,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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No. 03-1072

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-73671—Nancy G. Edmunds, District Judge.

Argued: March 19, 2004

Decided and Filed: August 26, 2004 

Before: COLE and GILMAN, Circuit Judges;

SCHWARZER, Senior District Judge.*

_________________

COUNSEL

ARGUED: John A. Shea, Ann Arbor, Michigan, for

Appellant. William J. Sauget, ASSISTANT UNITED

2 Waucaush v. United States No. 03-1072

STATES ATTORNEY, Detroit, Michigan, for Appellee.

ON BRIEF: John A. Shea, Ann Arbor, Michigan, for

Appellant. William J. Sauget, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

COLE, J., delivered the opinion of the court, in which

GILMAN, J., joined. SCHWARZER, D. J. (pp. 21-25),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. This case reminds us

that names can be deceiving. We must determine whether,

under the Racketeer Influenced Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962, the activities of a Detroit-area

street gang known as the Cash Flow Posse (“CFP”) had a

substantial effect on the nation’s cash flow. Petitioner Robert

Waucaush challenges, via 28 U.S.C. § 2255, his conviction

and sentence resulting from his pleading guilty to conspiring

to violate RICO. He argues that in light of Congress’s limited

authority undertheCommerceClause, the conduct underlying

his convictions fell short of RICO’s requirement that the

regulated enterprise “affect interstate or foreign commerce.”

The district court disagreed and denied his petition; we

REVERSE.

I. BACKGROUND

On July 16, 1997, federal prosecutors unveiled an

indictment against seven members of the CFP, including

Waucaush, charging in relevant part that they violated and

conspired to violate RICO. Said statute prohibits “any person

employed by or associated with any enterprise engaged in, or

activities of which affect, interstate or foreign commerce, to

conduct or participate, directly or indirectly, in the conduct of

such enterprise’s affairs through a pattern of racketeering
No. 03-1072 Waucaush v. United States 3

activity[.]” The indictment alleged that, to protect their turf,

Waucaush and his colleagues murdered, conspired to murder,

and (during less successful outings) assaulted, with intent to

murder, members of two rival gangs that sought to expand

their operations in Detroit. On April 16, 1998, Waucaush

moved to dismiss the indictment. He argued that, within the

meaning of the statute and the Constitution, those acts did not

affect interstate commerce. The district court denied the

motion five days later, and, on May 7, 1998, Waucaush pled

guilty to RICO conspiracy. Waucaush later had second

thoughts. On June 9, 1998, acting as his own lawyer, he

moved to withdraw his plea, claiming that it was unknowing

and involuntary. Disagreeing, the district court denied his

motion, and on March 9, 1999, sentenced Waucaush to prison

for life. With new counsel, Waucaush appealed, and in an

unpublished opinion, see United States v. Waucaush, 2000

WL 1478361 (6th Cir. Sept. 27, 2000), we affirmed. 

In May 2000, the Supreme Court decided two cases (further

discussed below) that articulated additional restrictions on the

scope of the Commerce Clause. See United States v.

Morrison, 529 U.S. 598 (2000); Jones v. United States, 529

U.S. 848 (2000). Following these decisions, charges against

one of Waucaush’s co-defendants, whom the district court

had yet to sentence, were dismissed. But Waucaush—who on

September 27, 2001, pursuant to 28 U.S.C. § 2255,

collaterally challenged his conviction, relying on the same

commerce arguments as did his co-defendant—did not fare as

well. On December 9, 2002, the district court denied his

petition. Receiving a certificate of appealability from the

district court on all of his claims, Waucaush timely appealed.

II. ANALYSIS

Waucaush argues that his plea was unintelligent, and thus

void, due to his and the district court’s misunderstanding of

the reach of RICO’s commerce element. At the time of his

plea, the scope of Congress’s commerce power was controlled

by United States v. Lopez, 514 U.S. 549 (1995). Following

4 Waucaush v. United States No. 03-1072

his plea, the Supreme Court, in Morrison and Jones, further

restricted the reach of the Commerce Clause. And in Bousley

v. United States, 523 U.S. 614, 620 (1998), the Court held

that a constitutional challenge to a guilty plea may invoke

subsequent “decisions of [the Supreme Court] holding that a

substantive federal criminal statute does not reach certain

conduct.” 

A. Procedural Default

Waucaush, however, did not challenge the intelligence of

his plea on direct appeal, and the Court held in Bousley that

“even the voluntariness and intelligence of a guilty plea can

be attacked on collateral review only if first challenged on

direct review.” Id. at 621. Although Waucaush would

normally have lost his chance to challenge the plea, Bousley

detailed two circumstances that would excuse a defendant’s

failure to raise such a claim on direct appeal: (1) there was

both “cause” for the default and “prejudice” that would result

from failing to consider the challenge; or (2) the defendant

was “actually innocent” of the crime to which he pled. Id. at

622.

We first consider the exception for actual innocence. “To

establishactualinnocence,[Waucaush] must demonstrate that

in light of all the evidence, it is more likely than not that no

reasonable juror would have convicted him.” Id. (internal

quotations omitted). In other words, we must look at all the

evidence in the record, and determine whether—as a matter

of law—the Government could establish that Waucaush

violated the RICO statute. 

Actual innocence does not mean that Waucaush must be

innocent of all bad deeds. The question before us is whether

Waucaush is actually innocent of violating RICO. Put

another way, the inquiry is whether the record contains

evidence that the CFP, the enterprise in question, affected

commerce within the meaning of RICO. In rebutting the

claim of actual innocence, “the Government [is] permitted to
No. 03-1072 Waucaush v. United States 5

present any admissible evidence of [Waucaush’s] guilt even

if that evidence was not presented during [Waucaush’s] plea

colloquy and would not normally have been offered before

[the Supreme Court’s decisions in Morrison and Jones.]” Id.

at 624. We look not just at the facts to which Waucaush

admitted when he pled guilty, but also at any other evidence

of his guilt that the Government has marshaled. Waucaush is

actually innocent, and therefore entitled to bring the otherwise

defaulted challenge to his plea, only if the entire record before

us fails to demonstrate that he violated RICO. 

Contrary to the positions of the Government and the district

court, Waucaush may be actually innocent even though he

admitted as part of his plea that his activities “affected

interstate commerce.” To illustrate: imagine that Waucaush

had admitted to stealing apples from the Post Office, was

advised by his counsel and the court that apples were

vegetables, and pled guilty to “stealing vegetables from a

federal building.” If the Supreme Court later held that, as a

matter of law, apples were not vegetables, Waucaush would

be actually innocent of “stealing vegetables.” Just as

Waucaush’s misinformed admission of a legal conclusion

would not have turned apples into vegetables, his guilty plea

in today’s case could not have created an effect on commerce

that the law did not otherwise recognize. 

At the core, Waucaush argues that he is actually innocent

of violating RICO because the statute reaches only enterprises

“engaged in, or the activities of which affect, interstate or

foreign commerce.” 18 U.S.C. § 1962(c). The Government

does not contend that the CFP was itself “engaged in”

interstate commerce. See United States v. Robertson, 514

U.S. 669 (1995) (per curiam). It argues only that the CFP’s

activities “affect[ed]” interstate commerce. Because we

should avoid interpreting a statute to prohibit conduct which

Congress may not constitutionally regulate, RICO’s meaning

of “affect[ing] interstate or foreign commerce” cannot exceed

the bounds of the Commerce Clause. See Jones 529 U.S. at

852 (interpreting commerce element of federal arson statute

6 Waucaush v. United States No. 03-1072

to be coextensive with Commerce Clause). This means that

we may draw on cases that interpret (in light of the

Commerce Clause) the commerce element of statutes other

than RICO, as well as cases that interpret the Commerce

Clause directly. 

RICO regulates enterprises, not people. Although RICO

“does not require the violent acts themselves to have any

connection to interstate commerce other than that they were

committed for the purpose of establishing or maintaining a

position within the enterprise,” United States v. Crenshaw,

359 F.3d 977, 984 (8th Cir. 2004), the predicate acts must still

further the goals of an enterprise that itself affects commerce.

The indictment in our case defines the enterprise as Waucaush

and his colleagues, who banded together to form a street gang

in Detroit. Accordingly, when we determine whether the

enterprise affected interstate commerce, we look to the

activities of the CFP.

The parties disagree whether the CFP’s effect on commerce

must be substantial, or whether a minimal effect will suffice.

The Government contends that it need show only that the

CFP’s activities had a minimal effect on commerce. It relies

on United States v. Riddle, 249 F.3d 529 (6th Cir. 2001),

which stated that “a de minimis connection suffices for a

RICO enterprise that ‘affects interstate commerce.’” Id. at

537. But a minimal connection sufficed in Riddle only

because the enterprise itself had engaged in economic

activity—it operated an illegal gambling business, extorted

money, and fenced stolen merchandise. Id. at 537. See also,

e.g., Crenshaw, 359 F.3d at 986 (upholding RICO conviction

when intrastate acts of violence furthered economic

enterprise); United States v. Espinoza, 2002 WL 31769470,

at*3 (7th Cir. Dec. 5, 2002) (same); United States v.

Feliciano, 223 F.3d 102, 118 (2d Cir. 2000) (same); United

States v. Miller, 116 F.3d 641, 674 (2d Cir. 1997) (same). As

the Ninth Circuit put it, in upholding a RICO conviction

predicated on only a de minimis effect on commerce, “the

heart of [the defendant’s] crimes, drug trafficking and
No. 03-1072 Waucaush v. United States 7

extortion, are quintessential illegal economic activities.”

United States v. Shryock, 342 F.3d 948, 984 n.6 (9th Cir.

2003). 

The problem with the Government’s reliance on Riddle and

its cousins is that unlike those cases, there is no evidence in

our case that the CFP was involved in any sort of economic

enterprise. The Supreme Court in Morrison “reject[ed] the

argument that Congress may regulate noneconomic, violent

criminal conduct based solely on that conduct’s aggregate

effect on interstate commerce.” Morrison, 529 U.S. at 617-

18. Although one CFP member had previously been arrested

for trafficking drugs, an activity that is economic, United

States v. Tucker, 90 F.3d 1135, 1140 (6th Cir. 1996), the

Government admits that these drug charges were unrelated to

the activities of the CFP. Nor has the Government produced

evidence indicating that CFP did anything like peddle

cigarettes, see United States v. Abdullah, 162 F.3d 897, 901

(6th Cir. 1998) (upholding federal authority to prohibit

intrastate trafficking of untaxed cigarettes); instigate credit

fraud, see United States v. Valenzeno, 123 F.3d 365, 367-68

(6th Cir. 1997) (same for fraudulently obtaining consumer

credit); organize gambling, see United States v. Wall, 92 F.3d

1444, 1447-52 (6th Cir. 1996) (same for operating gambling

business), or anything else economic. All that is left is

violence qua violence—which the Supreme Court in

Morrison, 529 U.S. at 613, plainly classified as conduct of the

noneconomic strain.

Consequently, in our case, where the enterprise itself did

not engage in economic activity, a minimal effect on

commerce will not do. More significant interstate

commercial ripples might have arisen, for instance, had the

CFP attacked individuals or organizations who were

conducting or assisting interstate business. See United States

v. Laton, 352 F.3d 286, 301-02 (6th Cir. 2003) (upholding

federal authority to prohibit arson of fire station that both puts

out fires besetting businesses and affects local insurance

rates); United States v. Dupree, 323 F.3d 480, 485 (6th Cir.

8 Waucaush v. United States No. 03-1072

2003) (upholding federal authority to prohibit robbery of an

“armored car messenger, engaged in the performance of his

duties, inside a department store on his regular route .... [who]

had just taken possession of $130,014.03 in cash and

checks”); Norton v. Ashcroft, 298 F.3d 547, 557 (6th Cir.

2002) (upholding federal authority to prohibit physical

obstruction and destruction of a business); United States v.

Smith, 182 F.3d 452, 456 (6th Cir. 1999) (upholding federal

authority to prohibit robbery of stores that sold substantial

amounts of products shipped from out-of-state). Along these

lines, the Government argues that the CFP’s intrastate acts of

violence substantially affected commerce because the murder

of rival gang members prevented them from selling drugs.

Cf. United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir.

2004) (upholding federal authority under the Hobbs Act to

punish “defendants who agreed to rob cocaine from the stash

house of narcotics traffickers”).

But as evidence that the victims sold narcotics, the

Government offers only a decision from an intermediate

appellate court in Illinois. See People v. Jamesson, 768

N.E.2d. 817 (Ill.App. 2001). Bousley, however, stressed that

the Government’s evidence refuting actual innocence must be

admissible. Bousley, 523 U.S. at 624. An opinion’s “Facts”

section plainly is not. In any event, the opinion which the

Government classifies as “evidence” tells us only that the

Illinois chapter of one of the CFP’s targeted gangs “ha[s]

been [involved] in numerous violent incidents involving

narcotics, batteries, aggravated batteries, assaults, and

numerous other criminal activities.” Jamesson, 768 N.E.2d

at 821. That the Detroit-area victims belonged to a gang

whose affiliates in Illinois sold an unknown quantity of drugs

with an unknown frequency at an unknown point in time tells

us nothing about whether and to what extent drugs were sold

by the Detroit gang members targeted by the CFP. 

This is a problem, given the Government’s obligation to

show that the CFP’s effect on commerce was substantial. In

Jones, the Supreme Court held that, in light of the Commerce
No. 03-1072 Waucaush v. United States 9

Clause, the incineration of a private residence did not affect

interstate commerce within the meaning of the federal arson

statute. Jones, 529 U.S. at 850. Presumably, the owners of

the torched home held jobs and bought interstate goods as

part of their day-to-day lives, but the Court deemed these

attenuated effects on commerce insufficient. Likewise, in

Wang, we found that no substantial effect on interstate

commerce resulted when the defendant “robbed private

citizens in a private residence of approximately $4,200, a

mere $1,200 of which belonged to a restaurant doing business

in interstate commerce.” Wang, 222 F.3d at 240. See also

United States v. Corp, 236 F.3d 325, 332 (6th Cir. 2001)

(federal government may not regulate mere possession of

homemade child pornography). Even if we assume that some

of the people that the CFP killed were drug-dealers, we have

no evidence that they were dealing drugs or carrying drug

money when they were killed, or that their deaths

significantly disrupted the interstate market for drugs. It is

certainly conceivable that the CFP’s rivals sold sizable

quantities of drugs, or that their deaths affected the drug trade.

But on this question, the record is silent.

The Government’s final argument is that, as the district

court found, the CFP “eventually became associated with a

national gang.” Neither the Government nor the district court

fleshed out the interstate commerce implications of this fact,

but the argument presumably would be that by associating

with these national gangs, the CFP would have affected

interstate commerce through correspondence, travel and the

like. As with its bedfellows, this line of reasoning—as

applied to this particular case, at least—fails to unearth effects

on interstate commerce that are more than minimal. The only

evidence of any interstate activity by the CFP is that in 1996,

some of its members talked over gang business while in

Mexico City. Matched up alongside the ten-year period

covered by the indictment, this lone instance of crossing state

lines is a needle in a haystack. 

10 Waucaush v. United States No. 03-1072

Indeed, most individuals and organizations cannot help but

buy products that traveled in interstate commerce, or

occasionally talk to colleagues in, or travel to, other states for

some reason or another. If we were to label these occasional

acts of interstate commerce as “substantial,” federal authority

under the Commerce Clause would be virtually limitless.

“Allowing the government to meet the interstate commerce

requirement [in a federal criminal prosecution] through only

a nominal showing of a connection to interstate commerce

would do as much to ‘completely obliterate’ the distinction

between national and local authority as if no jurisdictional

requirement existed at all.” United States v. Odom, 252 F.3d

1289, 1296 (11th Cir. 2001).

At the end of the day, we are left with an enterprise whose

activity was intrastate, noneconomic, and without substantial

effects on interstate commerce. The CFP’s violent enterprise

surely affected interstate commerce in some way—a corpse

cannot shop, after all. But we may not “follow the but-for

causal chain from the initial occurrence of violent crime (the

suppression of which has always been the prime object of the

States’ police power) to every attenuated effect upon

interstate commerce.” Morrison, 529 U.S. at 615. Because

a reasonable jury could not conclude that Waucaush’s

enterprise, the CFP, affected interstate commerce, Waucaush

is actually innocent of violating RICO. His actual innocence

excuses his failure to challenge his plea on direct appeal, such

that we may consider the challenge now. 

B. Intelligence of the Plea

We are asked to consider the intelligence of Waucaush’s

admission during the plea colloquy that his activities

“affected interstate commerce.” According to Bousley, a plea

is constitutionally unintelligent if “the record reveals that

neither [Waucaush], nor his counsel, nor the court correctly

understood the essential elements of the crime with which he

was charged.” Id. at 618-19. Waucaush contends that

although he admitted that his conduct “affected interstate
No. 03-1072 Waucaush v. United States 11

commerce,” he, along with his lawyer, the prosecutor, and the

district court, was mistaken about the legal significance of

that element.

When he pled guilty, 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. But as we

explained above, Lopez suggested, and Morrison and Jones

later confirmed, that this understanding of the statute was

legally erroneous: the effect on commerce caused by the

CFP’s acts of violence were, as a matter of law, insufficiently

“substantial” to establish a violation of RICO. And because

he had an incorrect understanding of the reach of RICO’s

requirement that the enterprise “affect interstate commerce,”

Waucaush pled guilty to conduct which was simply not a

federal crime. This type of misunderstanding—a

misconception about the statute’s legal scope that results in

the defendant pleading guilty to conduct which was not a

crime—typifies an unintelligent guilty plea.

The dissent argues that 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.” (Dissent at 23)

Yet the requirement that a guilty plea be intelligent would

evaporate if intelligence is defined only as the ability to

articulate the governing legal rule—however deprived of

context that rule may be. For this reason, the Supreme Court

has admonished that a guilty plea “cannot be truly voluntary

unless the defendant possesses an understanding of the law in

relation to the facts.” Boykin v. Alabama, 395 U.S. 238, 243

n.5 (1969) (citations omitted) (emphasis added). In the

similar context of qualified immunity, the Supreme Court has

explained that when measuring whether an actor understands

the legal landscape, the formal ability to recite the governing

standard is no substitute for a meaningful understanding of

the substance of that standard. For instance, “the right to due

12 Waucaush v. United States No. 03-1072

process of law is quite clearly established by the Due Process

Clause, and thus there is a sense in which any action that

violates that Clause (no matter how unclear it may be that the

particular action is a violation) violates a clearly established

right. Much the same could be said of any other

constitutional or statutory violation.” Anderson v. Creighton,

483 U.S. 635, 639 (1987). See also Asher v. Baxter Int’l Inc.,

— F.3d — (7th Cir. July 29, 2004) (Easterbrook, J.) (“The

fundamental problem is that the statutory requirement of

‘meaningful cautionarystatements’is not itself meaningful.”).

That Waucaush knew generally that RICO required a

“substantial effect on interstate commerce” sheds little light

on whether he meaningfully understood the governing law.

If there is any doubt that Waucaush’s plea was

unintelligent, we need look no further than the history of this

very case—in which the district court affirmatively ruled that

the conduct alleged (and to which Waucaush later admitted)

satisfied RICO’s “affecting commerce” element. Although

the dissent contends that there is no support in the record that

the district court misinformed Waucaush about the scope of

RICO’s “affecting commerce” element, the dissent’s

conclusion is at odds with much of the case’s procedural

history. Waucaush and his co-defendants initially relied on

Lopez in moving to dismiss their indictments on the grounds

that Congress lacked the authority to regulate their conduct

under the Commerce Clause. The district court rejected their

motions, holding that Congress could indeed regulate their

conduct because [the facts to which Waucaush would later

admit] “suffice to demonstrate an interstate commerce nexus

sufficient to support the indictment.” In essence, Waucaush

asked the district court “Does the conduct to which I am

admitting satisfy RICO’s ‘affect[ing] commerce’ element?”

and the district court answered “Yes!” 

Having already once told Waucaush that the conduct to

which he would be admitting would satisfy RICO’s “affecting

commerce” element, the district court then accepted

Waucaush’s plea of guilty. In so doing, the district court was
No. 03-1072 Waucaush v. United States 13

again required to determine that the conduct to which

Waucaush was admitting had satisfied each and every

element of RICO, for “[w]hen the district court accepted [the

defendant’s] plea, it had a duty . . . to ensure that the plea was

both voluntary . . . and supported by a sufficient factual

basis.” In re Hanserd, 123 F.3d 922, 927 (6th Cir. 1997)

(emphasis added). See also FED. R. CRIM. P. 11(f)

(“Notwithstanding the acceptance of a plea of guilty, the court

should not enter a judgment upon such plea without making

such inquiry as shall satisfy it that there is a factual basis for

the plea.”). Of course, there cannot be a sufficient factual

basis for the plea unless the facts to which the defendant is

admitting satisfy each and every element of the

statute—including, in this case, the statute’s requirement that

the enterprise “affect[ed] interstate commerce.” We now

know—and even the dissent agrees—that the facts did not

satisfy this element, and that the district court was simply

mistaken. In concluding that Waucaush’s plea of guilty was

intelligent, the dissent assumes that Waucaush had insight

into the law that exceeded even the very district court that had

convicted him.

Nor does the dissent adequately answer the obvious

question raised by its position: If it was so clear to Waucaush

that the facts to which he was admitting did not constitute a

federal crime, why did he plead guilty? Relying on Brady v.

United States, 397 U.S. 742, 757 (1970), the dissent suggests

that Waucaush merely misjudged the strength of the

Government’s case, and that “[a] voluntary plea of guilty does

not become vulnerable because later developments indicate

that the plea rested on an insufficient factual basis.” (Dissent

at 25 n.2) Yet Brady says no such thing. There, the

defendant pled guilty to avoid facing the death penalty, which

subsequent decisions made clear would have been unavailable

even if the defendant had gone to trial. The Court held that

his plea was intelligent, however, because although he had

misjudged the potential sentence he could have received if he

was convicted at trial, he did not misunderstand the

substantive law underlying his offense. See Brady, 397 U.S.

14 Waucaush v. United States No. 03-1072

at 756-58. Unlike the defendant in Brady, who misjudged

only the collateral consequences of his plea, Waucaush

mistakenly believed that the conduct to which he was

admitting satisfied each element of the statute under which he

was charged.

Nor does Brady’s language require a different result. The

dissent quotes from a passage in Brady, 397 U.S. at 757, in

which the Supreme Court explained that “[w]e 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 thought.” Thus, if Waucaush

had admitted in open court that the CFP ran a commercial

gambling enterprise, he would not be able to rescind this

admission if it later turned out that the Government did not

have any evidence of this. Cf. Parker v. North Carolina, 397

U.S. 790, 796-98 (1970) (rejecting a challenge to a guilty plea

based because defendant’s misjudgment about the

admissibility of his confession to a burglary went only to the

strength of the factual evidence that the government could

produce). What would be key in this situation—the type of

situation identified by Brady—is that the facts to which

Waucaush admitted at the time would have satisfied RICO’s

“affecting commerce element.”

The situation in our case is exactly the opposite, and has

nothing to do with the rule articulated in Brady. Our

determination that Waucuash’s plea was unintelligent turns

neither on newly discovered evidence nor from a conclusion

that the existing evidence is no longer credible. The facts to

which Waucaush admits now are the same facts to which he

admitted when he pled guilty. As even the dissent

acknowledges, those facts alone—the only facts to which

Waucaush has ever admitted—make him actually innocent of

violating RICO. The only change in Waucaush’s

understanding has come from the legal significance of those

facts: his admission that his conduct violated RICO, and the
No. 03-1072 Waucaush v. United States 15

district court’s acceptance of his plea based on that conduct,

was simply incorrect as a matter of law.

Thus, our case mirrors Hanserd. There, the defendant pled

guilty to using a firearm in furtherance of a drug-trafficking

offense. Following the Supreme Court’s decision in Bailey v.

United States, 516 U.S. 137 (1995), a decision that limited the

type of conduct that constitutes “use,” it became clear that the

factual conduct to which the defendant admitted did not

constitute a crime within the meaning of the statute. We held

that the defendant’s plea was involuntary because the

subsequent decision in Bailey “ma[de] it clear that the court,

counsel, and accused were all operating under what we now

know was a too-inclusive view of § 924(c)’s reach.”

Hanserd, 123 F.3d at 927. The same mistake infected

Waucaush’s plea: judge, counsel, and accused were all

operating under a too-inclusive view of RICO’s reach. Like

in our case, the facts to which the defendant admitted had not

changed, but the defendant’s understanding of the legal

significance of those facts had.

Attempting to distinguishBousley and Hanserd, the dissent

argues 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.” (Dissent at 24-25) The

dissent’s distinction is misplaced along two dimensions.

First, a plea can be unintelligent even if the law was clear at

the time: the question is not whether the law was clear, but

whether the defendant was aware of the law (clear or

otherwise). If a defendant who stole a pencil from Wal-Mart

pled guilty to murder solely on that basis, surely the dissent

would not argue that the defendant simply misjudged the

strength of the Government’s case. See id. (“The overly

broad interpretation of the scope of § 924(c) was as wrong

before Bailey as it is now. Bailey did not change the statute’s

meaning; it clarified what § 924(c) has always meant since its

enactment.” (emphasis added)). Indeed, Hanserd itself rested

16 Waucaush v. United States No. 03-1072

its holding on the fact that “[o]n the record before us, . . . the

carry prong cannot support either of the [defendant’s]

convictions.” Id. According to Hanserd, “[t]hat Bailey had

yet to be decided when Hanserd entered his plea serve[d] only

to strengthen this conclusion.” Id. (emphasis added) The

court in Hanserd thus made explicit that its holding would

have been the same even if Bailey had been decided at the

time of the defendant’s plea; that Bailey came later was mere

gravy.

Second, even if we did not mean what we held in Hanserd,

and the dissent’s old/new dichotomy were dispositive, the

dissent is incorrect that Morrison and Jones broke no new

ground. Lopez certainly sparked a new era in Commerce

Clause jurisprudence, explicitly holding for the first time that

the Commerce Clause extends to purely intrastate activity

only when that activity “substantially affects” interstate

commerce. The Government had argued that the statute at

issue, the Gun Free School Zone Act, which prohibited the

possession of a firearm within 1,000 yards of a school,

substantially affected interstate commerce because guns

carried the risk of violence, which might interfere with

students’ education, which would render them less equipped

for the workforce. See Lopez, 514 U.S. at 564. In rejecting

that argument, the Court refused to “pile inference upon

inference in a manner that would bid fair to convert

congressional authority under the Commerce Clause to a

general police power of the sort retained by the States.” Id. at

567. Yet the holding of Lopez was, at the time, constrained

to its facts: it established no categorical prohibition on the

federal regulation of the aggregate commercial effects of

noncommercial activity, such as violence.

Contemporaneous scholarship confirmed this limited

understanding of Lopez. Writing after Lopez but before

Morrison, Professor Tribe questioned whether “future

applications of Lopez will turn entirely, or even

predominately, on deciding whether a regulated activity is

sufficiently ‘commercial’ to qualify for the ‘substantial
No. 03-1072 Waucaush v. United States 17

effects’ test and the aggregation principle. The Lopez Court

did not expressly hold that only economic or commercial

activities could be regulated by Congress whenever they meet

these impact tests.” 1 LAURENCE H. TRIBE, AMERICAN

CONSTITUTIONAL LAW 823 (3d ed. 2000) (emphasis added).

After concluding that the holding of Lopez did not itself

compel what we now know to be the holding of

Morrison—and the basis for our invalidation of Waucaush’s

conviction—Professor Tribe noted that “Lopez’s larger

significance must therefore remain, at least for now, a matter

of speculation.” Id. at 832. See also, e.g., John Copeland

Nagle, The Commerce Clause Meets the Delhi Sands FlowerLoving Fly, 97 MICH. L. REV. 174, 176 (1998) (“Whether

Lopez marks a dramatic shift in Commerce Clause

jurisprudence or is instead destined to be a ‘but see’ citation

remains to be seen.”).

What is important, of course, is not so much that Jones and

Morrison broke new ground, but that the new ground they

broke is the basis upon which we hold that the CFP’s conduct

did not substantially affect interstate commerce. Lopez did

not hold that all noneconomic intrastate activity was beyond

the pale of the Commerce Clause, nor did it hold categorically

that purely intrastate violence was off-limits to regulation by

the federal government. Rather, the statute invalidated by

Lopez was unsustainable because it regulated the possession

of a device that might lead to violence, in a setting where that

violence might interfere with learning, with the result that

diminished learning might—at some point well into the

future—inhibit interstate commerce. Before Jones and

Morrison, such a speculative chain of causation was easily

distinguishable from the facts in our case, in which the

defendants were alleged actually to have murdered several

individuals on the city streets (and thereby preventing the

victims from working, shopping, or doing anything else

commercial).

It was Jones and Morrison that definitively prevented

Congress from regulating the CFP’s conduct. In Jones, 529

18 Waucaush v. United States No. 03-1072

U.S. at 857, the Supreme Court held that in light of the

Commerce Clause, the federal arson statute could not be

construed to encompass the arson of a private, noncommercial

dwelling. Because losing one’s house has obvious

commercial effects, the refusal to distinguish Lopez on that

basis indicated that Lopez would be read broadly. Prior to

Jones, this was by no means assured, as evidenced by the

contraryholding of the unanimous lower court decision which

Jones reversed. See United States v. Jones, 178 F.3d 479, 480

(7th Cir. 1999) (Easterbrook, J.) (“Lopez says that the power

of Congress is limited to activities that substantially affect

commerce, while proof of a small effect will satisfy the

statute.” (internal citation omitted)). And in Morrison, the

Court held that Congress lacked authority to provide a federal

cause of action to victims of gender-motivated violence. The

evidence in Morrison indicated that the economic impact of

actual gender-motivated violence was far more direct and

apparent than that of mere possession of a weapon near a

school. That the former did not “substantially affect interstate

commerce” revealed again that Lopez could not be

constrained to its facts.

Most importantly, Morrison debuted the categorical rule

that directly controls the case before us: “We accordingly

reject the argument that Congress may regulate noneconomic,

violent, criminal conduct based solely on that conduct’s

aggregate effect on interstate commerce.” Morrison, 529

U.S. at 617. See also id. at 656 (Breyer, J., dissenting) (“The

majority holds that the federal commerce power does not

extend to such noneconomic activities as noneconomic,

violent criminal conduct that significantly affects interstate

commerce only if we aggregate the interstate effect[s] of

individual instances.” (internal quotations omitted)); Julie

Goldscheid, United States v. Morrison and the Civil Rights

Remedy of the Violence Against Women Act: A Civil Rights

Law Struck Down in the Name of Federalism, 86 CORNELL L.

REV. 109, 111 (2000) (“[Morrison] established that Congress

cannot enact laws under the Commerce Clause that regulate

noneconomic, violent criminal conduct based only on the
No. 03-1072 Waucaush v. United States 19

conduct’s aggregate effect on interstate commerce.”).

Morrison built on Lopez, but also expanded it.

For this reason, the dissent’s observation that Morrison

“relied on” Lopez, (dissent at 23) is irrelevant to whether

Waucaush meaningfully understood the substance of the

charges against him. As commentators recognized following

its release, “[Lopez] did not say absolutely that only

commercial activities can be reached by the ‘affects’ branch

of Congress’s ‘commerce authority’ . . . . It only indicated

that it would be harder to so reach it. But how much harder?

What more would be necessary before the Court will allow

Congress to reach an activity, not itself commercial, but

which affects interstate commerce?” Lawrence Lessig,

Translating Federalism: United States v. Lopez, 1995 SUP.

CT. REV. 125, 203 (1995). See also, e.g., Larry Kramer, The

Supreme Court, 2000 Term—Forward: We the Court, 115

HARV. L. REV. 4, 141 (2001) (“[In Lopez, t]he Justices had

not yet clarified how they planned to determine substantiality,

other than to suggest what looked like a principle of

proximate causation[.]”); Charles Fried, The Supreme Court,

1995 Term—Forward: Revolutions?, 109 HARV. L. REV. 13,

41 (1995) (“The projective power of the precedent will

depend on how Lopez's conclusion that the statute's relation

to commerce was not substantial will be understood and

applied.”). Morrison addressed these questions—which went

to the heart of the charges against Waucaush—for the first

time.

Accordingly, and most importantly, the district court’s own

conduct in this case confirms that Morrison and Jones added

to the understanding of the Commerce Clause that Lopez

initially set forth. Prior to Morrison and Jones, the district

court refused to dismiss the charges against Waucaush and his

co-defendants on the basis of Lopez alone. After Morrison

and Jones were decided, the district court granted a rehearing

to one of Waucaush’s codefendants who had not yet been

sentenced. The district court then ruled that “the recent

Supreme Court authority [(Morrison and Jones)] relied upon

20 Waucaush v. United States No. 03-1072

by [Garcia] compels the conclusion that this Court lacks

jurisdiction to decide the RICO charges brought by the

Government in this case” and further noted that those cases

“place[d] limitations on the reach of federal jurisdiction over

non-economic crimes.” 

Finally, to prohibit Waucaush from taking advantage of

Morrison and Joneswould ignore the reason that the Supreme

Court has applied retroactively decisions that narrow the

substantive scope of criminal statutes: to do otherwise would

“produce a class of persons convicted of conduct the law does

not make criminal.” Schriro v. Summerlin, 124 S.Ct. 2519,

2523 (2004). Because Waucaush’s misunderstanding of the

law led him to plead guilty to conduct which the law had not

made a crime, his plea was unintelligent and his conviction

cannot stand.

III. CONCLUSION

The district court’s judgmentisthereforeREVERSED, and

the case is REMANDED to the district court for entry of an

order granting Waucaush’s petition.
No. 03-1072 Waucaush v. United States 21

1

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

______________

DISSENT

______________

WILLIAM W SCHWARZER, SeniorUnitedStatesDistrict

Judge, dissenting. I respectfully dissent. While I agree that

Waucaush can overcome the procedural bar to his claim, I am

unable to agree with the majority’s conclusion that his plea

was constitutionallyunintelligent. Waucaush, his counsel and

the district court were aware of United States v. Lopez, 514

U.S. 549 (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.’” Slip op.

at 10 (citing Bousley v. United States, 523 U.S. 614, 618-19

(1998)) (emphasis added); see also In re Hanserd, 123 F.3d

922, 926 (6th Cir. 1997) (“[A] guilty plea is involuntary

where the defendant lacks knowledge of one of the elements

required for conviction.”).1 Thus, the critical question in

22 Waucaush v. United States No. 03-1072

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 kidnaping,

maintained that his plea was neither voluntary nor intelligent

because it was induced by a death penalty provision later held

unconstitutional. We rejected Brady’s voluntariness 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 (citations omitted).

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.” Slip op.

at 11. 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
No. 03-1072 Waucaush v. United States 23

would . . . have to prove that the Cash Flow Posse was

engaged in and its activities affected interstate commerce.”

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 noneconomic activity cannot be upheld on the theory that the

activity, “viewed in the aggregate, substantially affects

interstate commerce.” Lopez, 514 U.S. at 561. 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

(2000), and Jones v. United States, 529 U.S. 848 (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, 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. The Court

observed that—as with the statute at issue in Lopez—§ 13981

regulated noneconomic criminal conduct and contained no

express jurisdictional statement. Id. at 613. 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. Thus, in

Morrison the Court merely applied the Commerce Clause

analysis it had already set forth in Lopez.

24 Waucaush v. United States No. 03-1072

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 privatelyowned 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. 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.

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. Nothing in Morrison or

Jones changed that standard.

The majority’s reliance on Hanserd, slip op. at 13, 15-16,

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 (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. Hanserd had not been charged

with any substantive drug offense. This court found that, as

a consequence of the intervening decision in Bailey, Hanserd

“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
No. 03-1072 Waucaush v. United States 25

2

The majority confuses the issue when it argues that the court had a

duty to ensure that the plea was both voluntary and supported by a

sufficient factual basis. Slip op. at 12-14. A voluntary plea of guilty does

not become vulnerable because later developments indicate that the plea

rested on an insufficient factual basis. Brady v. United States, 397 U.S.

742, 757 (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

nonjurisdictional 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.

not known to Hanserd when he pled. In this case, by contrast,

Waucaush knew all of the elements of the crime, and no

subsequent case changed the proofs necessary for conviction.

Thus, the record does not show that Waucaush was

“misinformed as to the true nature of the charge against him.”

Bousley, 523 U.S. at 619.2

In sum, this is simply not a case of a defendant’s

“misunderstanding of the law” as it stood at the time of the

plea. Slip op. at 19. Nor is it a case of a subsequent change

of the law rendering the prior conviction one “for conduct that

was not illegal.” Hanserd, 123 F.3d at 924. I would therefore

affirm the judgment.