Waucaush v. U.S.

Citation380 F.3d 251
Decision Date26 August 2004
Docket NumberNo. 03-1072.,03-1072.
PartiesRobert Allen WAUCAUSH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Eastern District of Michigan, Nancy G. Edmunds, J.

COPYRIGHT MATERIAL OMITTED

John A. Shea (argued and briefed), Ann Arbor, MI, for Petitioner-Appellant.

William J. Sauget (argued and briefed), Assistant United States Attorney, Detroit, MI, for Respondent-Appellee.

Before COLE and GILMAN, Circuit Judges; SCHWARZER, Senior District Judge.*

COLE, J., delivered the opinion of the court, in which GILMAN, J., joined. SCHWARZER, District Judge, (pp. 263-66), delivered a separate dissenting opinion.

OPINION

COLE, 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 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, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (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, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Following 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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, 118 S.Ct. 1604. 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, 118 S.Ct. 1604.

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 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, 118 S.Ct. 1604. 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, 115 S.Ct. 1732, 131 L.Ed.2d 714 (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, 120 S.Ct. 1904 (interpreting commerce element of federal arson statute 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...

To continue reading

Request your trial
59 cases
  • Young v. United States
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • August 30, 2013
    ...v. Gibbs, 655 F.3d 473, 477-78 (6th Cir. 2011); VanWinkle v. United States, 645 F.3d 365, 369 (6th Cir. 2011); Waucaush v. United States, 380 F.3d 251, 254 (6th Cir. 2004); Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001). The Court finds that Young has not met his burden of show......
  • Roberge v. United States
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • August 12, 2013
    ...18 U.S.C. § 922(g)(3). Bousley, 523 U.S. at 621; VanWinkle v. United States, 645 F.3d 365, 369 (6th Cir. 2011); Waucaush v. United States, 380 F.3d 251, 254 (6th Cir. 2004); Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001). The Court finds that Roberge has not met his burden of s......
  • United States v. Mills
    • United States
    • U.S. District Court — Eastern District of Michigan
    • April 30, 2019
    ...the murder and the enterprise, and because the enterprise sufficiently affected interstate commerce. Id. ; cf. Waucaush v. United States, 380 F.3d 251, 255-256 (6th Cir. 2004) (unlike in Riddle, where a minimal connection to interstate commerce was sufficient because the enterprise engaged ......
  • United States v. Nicholson, 15-1963
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 17, 2017
    ...does not engage in economic activity, then it must have a more significant effect on interstate commerce. See Waucaush v. United States, 380 F.3d 251, 255-56 (6th Cir. 2004). At trial, the jury heard extensive testimony regarding PMC's interstate economic activities, such as paying money to......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT