UNITED STATES of America, Appellee, v. Mark A. MORGAN, Appellant, 230 F.3d 1067

FAGG, Circuit Judge. Mark A. Morgan, a real estate developer, and two codefendants were charged with participating in two schemes to bribe a Kansas City, Missouri councilman to influence the councilman’s votes on two local ordinances.

In a superseding indictment, the Government charged Morgan with two counts of conspiracy to violate 18 U.S.C. § 666, which prohibits the solicitation or payment of bribes to agents of state or local governments in connection with any government “business, transaction, or series of transactions” valued at $5000 or more if the government “receives, in any one year period, benefits in excess of $10,000 under a Federal program.” The indictment also contained seven substantive counts of bribery in violation of § 666.

The Government alleged the councilman was an agent of the City of Kansas City, the City was a local government, and the City “received federal benefits of over $10,000 under Federal programs.” Morgan filed a motion to dismiss the indictment because it did not allege his conduct had any connection with the expenditure of federal funds or posed any threat to the integrity and proper operation of a federal program. The district court denied the motion, and Morgan pleaded guilty to two counts of conspiracy to violate § 666. In the plea agreement, Morgan agreed not to appeal.

In exchange, the Government dropped the seven bribery counts. After Morgan’s plea, the Supreme Court confirmed the language of § 666(a)(1)(

B) does not require the Government to prove the bribe affected federal funds. See Salinas v. United States, 522 U.S. 52, 61, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). The Court also held the statute’s application to the defendant did not extend federal power beyond its proper bounds. See id. at 60-61, 118 S.Ct. 469. Because the bribe threatened the integrity and proper operation of the federal program, the statute was constitutional as applied to the facts of the case. See id. at 61, 118 S.Ct. 469.

Morgan later filed this 28 U.S.C. § 2255 motion to vacate his conviction and sentence asserting § 666 was unconstitutional as applied in his case because “[t]he government neither alleged nor proved that the conduct for which [he] was indicted, convicted, and sentenced had any connection with the expenditure of federal funds or posed any threat to the integrity and proper operation of a federal program.” See Salinas, 522 U.S. at 60-61, 118 S.Ct. 469; United, States v.

Santopietro, 166 F.3d 88, 93 (2d Cir.1999) (Salinas may be read as requiring a threat to a federal program’s integrity and proper operation to assure § 666 is not unconstitutionally applied); United States v. Zwick, 199 F.3d 672, 687 (3d Cir.1999) (§ 666 requires government to prove federal interest is implicated by defendant’s offense conduct); United States v. Phillips, 219 F.3d 404, 412-14 (5th Cir.2000) (§ 666 does not reach misconduct of local officials whose actions do not threaten the integrity of federal funds or programs); but see United States v. Dakota, 188 F.3d 663, 668 (6th Cir.1999).

The Government responded that Kansas City’s receipt of at least $10,000 in federal benefits provided the necessary federal connection. The district court denied Morgan’s motion without holding a hearing. In the district court’s view, Morgan’s claim was proeedurally barred because he did not raise it on appeal, and he did not qualify for the actual innocence exception to procedural bar because his claim was one of legal, rather than factual, error.

The district court also rejected Morgan’s motion on the merits, holding the necessary federal connection was supplied by the city’s receipt of at least $10,000 in one year.

Morgan appealed, and we certified two questions for our review: (1) whether 18 U.S.C. § 666 can be constitutionally applied to punish acts of local bribery that did not threaten the integrity of federal benefits received by the City or the City’s administration of any federal program, and (2) whether Morgan’s claim that his conduct was beyond the power of the federal government to proscribe is a claim of “actual innocence” he is entitled to raise for the first time on collateral review. “Appellate review is limited to the issues specified in the certificate of appealability.” DeRoo v.

United States, 223 F.3d 919, 923 (8th Cir.2000). Because Morgan has procedurally defaulted his claim by failing to raise it on direct review, he can raise the claim in collateral proceedings only if he first shows either cause and actual prejudice or actual innocence. See Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). To establish actual innocence, Morgan must show “ ‘it is more likely than not that no reasonable juror would have convicted him.’ ” Id. at 623, 118 S.Ct. 1604 (quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).

Morgan argues he is actually innocent because his conduct was beyond the power of the federal government to proscribe. Relying on Salinas and later circuit cases, Morgan contends § 666 cannot be constitutionally applied unless the Government proves a federal interest is implicated by his offense conduct, and the record does not support a finding of that federal connection in his case. Given the constitutional constraints on the statute’s reach, Morgan says, a violation of § 666, as that statute is properly construed, never occurred. Pointing to Bousley, Morgan asserts his is a classic claim of factual innocence.

We conclude Morgan’s is not an actual innocence claim he may raise for the first time on collateral review. In Bousley, a defendant who pleaded guilty to using a firearm in connection with a drug trafficking crime before the Supreme Court clarified the use requirement in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), sought to attack his guilty plea on collateral review.

Although the petitioner had made no direct appeal claiming his guilty plea was unintelligent because the district court misinformed him about the elements of the offense, the Supreme Court allowed the petitioner a chance to show his actual innocence and thus excuse the default by establishing he had not used the firearm within the meaning of Bailey.

Thus, in Bousley and other cases, courts have permitted petitioners collaterally to attack guilty pleas on the basis of intervening decisions modifying the substantive criminal law defining the offense, despite procedural default, if the petitioner makes a showing of actual innocence — that the petitioner did not commit the offense as modified. Cf. Embrey v. Hershberger, 131 F.3d 739, 741 (8th Cir.1997) (en banc) (pre-Bousley case). Unlike the situation faced in Bousley after Bailey clarified the meaning of use in § 924(c), there is no definitive announcement in Salinas clarifying the elements of § 666.

There is no intervening controlling precedent between the time of Morgan’s guilty plea and collateral proceedings that has clearly established Morgan’s actions do not constitute a crime and thus that he is actually innocent of the charged offense. Because the Supreme Court in Salinas no more than suggested the requirement Morgan asserts is absent in his case, Morgan cannot show “ ‘it is more likely than not that no reasonable juror would have convicted him.’ ” Bousley, 523 U.S. at 623, 118 S.Ct. 1604. Morgan’s actual innocence claim fails, and he cannot overcome the procedural bar.

Even if Morgan could show a “gateway” factual innocence claim, his underlying constitutional claim does not challenge his guilty plea. See id. at 624, 118 S.Ct. 1604 (if Bousley shows on remand he did not use a firearm as defined in Bailey, he will be entitled to consideration of defaulted unintelligent plea claim considered on merits); Hohn v. United States, 193 F.3d 921, 922 (8th Cir.1999). Once the judgment of conviction on a guilty plea becomes final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.

See United States v. Broce, 488 U.S. 563, 574-75, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); see also Dejan v. United States, 208 F.3d 682, 685 (8th Cir.2000) (defendant who pleaded guilty was required to show guilty plea was constitutionally infirm to obtain habeas relief). To be voluntary, the plea must be knowingly and intelligently made. A plea is not “intelligent” unless the defendant first receives “real notice of the true nature of the charge against him,” and the defendant, his attorney, and the court correctly understood the essential elements of the crime. See Bousley, 523 U.S. at 618, 118 S.Ct. 1604.

But Morgan does not assert his guilty plea was unintelligent, or constitutionally infirm in any other way. Moreover, [a]s a general rule, “[a] defendant’s knowing and intelligent guilty plea forecloses ‘independent claims relating to the deprivation of constitutional rights that occurred before the entry of the guilty plea.’ ” United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir. 1994) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)).

There are exceptions to this rule, however; a person may, despite a valid guilty plea, pursue a certain type of claim that has been variously defined as a claim that attacks “the State’s power to bring any indictment at all,” United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), that protects a defendant’s “right not to be haled into court,” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and that “the charge is one which the State may not constitutionally prosecute,” Menna v.

New York, 423 U.S. 61, 62-63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam). We have often interpreted these Supreme Court cases to foreclose claims that raise “nonjurisdictional” issues and to permit only claims that question the trial court’s “jurisdiction.” Weisberg v. State of Minnesota, 29 F.3d 1271, 1279-80 (8th Cir.1994). A claim that a statute is facially unconstitutional falls within the exception. See Sodders v.

Parratt, 693 F.2d 811, 812 (8th Cir.1982) (holding guilty plea does not foreclose attack on constitutionality of criminal statute under which defendant was charged — defendant claimed statute was vague on its face); United States v. Johnston, 199 F.3d 1015, 1019 n. 3 (9th Cir.1999). No court has applied the exception to a claim, like Morgan’s, that a statute is unconstitutional as applied. See Johnston, 199 F.3d at 1019 n. 3. Nor does Morgan contend his case falls within the exception. We conclude the district court properly rejected Morgan’s § 2255 motion as procedurally barred.