Robert Allen Waucaush v. United States of America

*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 under the Commerce Clause, 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

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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
establish actual innocence, [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

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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

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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

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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

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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 cautionary statements’ 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

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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

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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 distinguish Bousley 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

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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 Flower-
Loving 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
contrary holding 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

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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 Jones would 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 judgment is therefore REVERSED, and
the case is REMANDED to the district court for entry of an
order granting Waucaush’s petition.

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No. 03-1072 Waucaush v. United States 21
1In Bousley, the Supreme Co urt 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. We re this contention proven,
petitioner’s plea would be . . . constitutionally invalid.
Our decisions in Brady v. Un ited States, McM ann v.
Richardson and Parker v. North Carolina . . . are not to the
contrary. Each of those cases involved a criminal defendant who
plead ed guilty after being correctly informed as to the essential
______________
DISSENT
______________
WILLIAM W SCHWARZER, Senior United States District
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 constitutionally unintelligent. 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 the ir 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
unco nstitutional. We rejected Brad y’s voluntariness argum ent,
explaining that a “plea of guilty entered by one fully aware of
the direct conseq uences” of the plea is voluntary in a
constitutional sense . . . . W e 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

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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 non-
economic activity cannot be upheld on the theory that the
activity, “viewed in the aggregate, substantially affects
interstate commerce.” Lopez, 514 U.S. at 561. 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 privately-
owned buildings that have no direct connection to interstate
commerce, holding that, “[g]iven the concerns brought to the
fore in Lopez, it is appropriate to avoid the constitutional
question.” 529 U.S. at 857-58. 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

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No. 03-1072 Waucaush v. United States 25
2The majority confuses the issue when it argues that the court had a
duty to ensure that the plea was both voluntary and supported by a
sufficient factual basis. Slip op. at 12-14. A voluntary plea of guilty does
not beco me vulnerable beca use later developments indicate that the plea
rested on an insufficient factual basis. Brady v. United States, 397 U.S .
742, 757 (197 0) (“W e find no requirement in the Constitution that a
defendant must be permitted to disown his solemn admissions in open
court that he 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. 200 1) (stating that a guilty plea waives all
nonjurisdictional defenses to an ind ictment, and holding that “the failure
of the government to prove a nexus between the crime and interstate
commerce is not jurisdictional in a sense that it deprives the district court
of subject matter jurisdiction”). Thus, even if the facts proffered by the
government in support of the plea were insufficient to sustain a verdict,
that does not render the plea subject to collateral attack.
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.

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