750 F.3d 492 (5th Cir. 2014), 12-20514, United States v. Cannon

Docket Nº:12-20514
Citation:750 F.3d 492
Opinion Judge:JENNIFER WALKER ELROD, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES CANNON; BRIAN KERSTETTER; MICHAEL MCLAUGHLIN, Defendants-Appellants
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Thomas Evans Chandler, Trial Attorney, Jessica Dunsay Silver, U.S. Department of Justice, Civil Rights Div - Appellate Section, Washington, DC; Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Housto...
Judge Panel:Before REAVLEY, ELROD, and GRAVES, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge, specially concurring. JENNIFER WALKER ELROD, Circuit Judge, specially concurring:
Case Date:April 24, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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750 F.3d 492 (5th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CHARLES CANNON; BRIAN KERSTETTER; MICHAEL MCLAUGHLIN, Defendants-Appellants

No. 12-20514

United States Court of Appeals, Fifth Circuit

April 24, 2014

Petition for certiorari filed at, 07/22/2014

Petition for certiorari filed at, 07/23/2014

Page 493

Appeals from the United States District Court for the Southern District of Texas.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Thomas Evans Chandler, Trial Attorney, Jessica Dunsay Silver, U.S. Department of Justice, Civil Rights Div - Appellate Section, Washington, DC; Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For CHARLES CANNON, Defendant - Appellant: Thomas S. Berg, Esq., Houston, TX.

For BRIAN KERSTETTER, Defendant - Appellant: Mervyn M. Mosbacker, Jr., Houston, TX.

For MICHAEL MCLAUGHLIN, Defendant - Appellant: Richard B. Kuniansky, Houston, TX.

For TODD GAZIANO, Amicus Curiae: Alison Elisabeth Schmauch, Counsel, U.S. Commission on Civil Rights, Arlington, VA; Gail Louise Heriot, San Diego, CA.

For PETER KIRSANOW, Amicus Curiae: Alison Elisabeth Schmauch, Counsel, U.S. Commission on Civil Rights, Arlington, VA.

Gail Louise Heriot, Pro se, San Diego, CA.

Before REAVLEY, ELROD, and GRAVES, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge, specially concurring.

OPINION

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JENNIFER WALKER ELROD, Circuit Judge

A jury convicted Defendants Charles Cannon, Brian Kerstetter, and Michael McLaughlin (collectively " Defendants" ) of committing a hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (" Shepard-Byrd Act" ), 18 U.S.C. § 249(a)(1), for attacking Yondel Johnson. Congress passed the Shepard-Byrd Act pursuant to its powers under the Thirteenth Amendment, which abolished slavery and involuntary servitude. Defendants appealed, arguing that the Shepard-Byrd Act is unconstitutional. They also argue that the evidence presented at trial was insufficient to prove that they attacked Johnson because of his race. We AFFIRM their convictions because the Supreme Court's Thirteenth Amendment precedent allows Congress to define and regulate the " badges" and " incidents" of slavery so long as their definition is rational, and the Shephard-Byrd Act survives rational basis review, and because

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there is sufficient evidence in the record from which a reasonable jury could conclude that Defendants caused bodily injury to Johnson because of his race.

I.

The evidence presented at trial demonstrated the following: Joseph Staggs and McLaughlin were homeless and between jobs when they first met at the Salvation Army on August 9, 2011. Over the next few days, both men were hired for various odd jobs, including by an African-American contractor. They frequented several local missions with African-American patrons. On August 13, 2011, the day of the assault, the two men ate a free dinner together at a service known as Church Under the Bridge. Staggs and McLaughlin were the only two white men to attend the service; the other participants were all African-American. When asked at trial whether McLaughlin ever had trouble with any of the individuals at these services, Staggs answered, " Quite the contrary, actually." After dinner Staggs and McLaughlin bought some wine, finished the bottle, and went in search of more alcohol. The two men were walking together on the streets of downtown Houston just before midnight when they met Cannon and Kerstetter for the first time. Cannon and Kerstetter ran towards Staggs and McLaughlin. Staggs heard either Cannon or Kerstetter say, " See, I told you them [ sic ] are woods."

McLaughlin responded to the comment by lifting up his shirt to show the other men his tattoos, which included a swastika, sig runes, a bald man preparing to stab a head with the Star of David on it, a picture of a klansman standing in flames with a swastika behind him, the motto of a group called the Aryan Circle, and the words " white pride." Staggs noticed Cannon had tattoos on his face. He also noticed " little lightning bolts" tattooed on the back of Kerstetter's fingers.

A gang tattoo expert would later testify that " wood" is a term commonly used by members of white-supremacy organizations to describe themselves or other white people. The term is not affiliated with a particular group or organization but more generally signals " pride in the [w]hite race." The expert also testified that the lightning bolts tattoos on Cannon's body are known as " sig runes" or " SS bolts" and refer to the insignia adopted by the Schutzstaffel, or SS-a political and racial organization in Nazi Germany. Cannon and Kerstetter introduced themselves, and the four men shook hands and exchanged names. The three Defendants and Staggs then set off together to find more alcohol. At no point did the men discuss racial minorities, or make any plans to attack anyone.

Johnson, an African-American, was sitting alone at a bus stop, waiting to go home after spending the day with his daughter to celebrate her birthday. Johnson was an amateur heavyweight boxer and former Golden Glove participant. He stood six feet, four inches tall and weighed over 200 pounds. Johnson had just finished talking to his daughter on the phone when he heard and saw the three Defendants and Staggs " coming around the corner with their shirts off, bald heads, loud and rowdy." Johnson later testified that he had not met any of the four men before that night.

According to Johnson, Cannon asked him, " Yo, bro, do you have the time?" At that point Johnson looked up and noticed that Cannon was covered in tattoos. Johnson recognized some of the small lightning bolt tattoos on Cannon as whitesupremacist " Nazi" symbols. Johnson testified that he responded, " No." One of the other men then said to Cannon. " Why did you

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call that ni--er a 'bro'? You ain't supposed to call no ni--er a 'bro.'"

" What did he say?" Johnson responded, to which Cannon answered, " You heard him, 'ni--er.' He called you a 'ni--er,' 'ni--er.'"

Johnson testified that the four men surrounded him. He stood up with his back against the pole and put up his guard. Cannon flashed a smile and swung a punch at Johnson. Johnson weaved, dodged the blow, and swung back, hitting Cannon. According to Johnson, all four men jumped in and started punching Johnson. Someone grabbed Johnson by the ankles, and Johnson fell to the ground. One of the men lay on top of Johnson while the others stomped on his head. At some point, the men stopped battering Johnson and walked away.

Staggs, who testified as a government witness, told a slightly different version of the encounter.1 According to Staggs, he watched from twenty to thirty feet away while McLaughlin and Cannon spoke to Johnson. He could not hear their conversation, and did not hear any of the men use racial slurs. Staggs testified that a few seconds later, Johnson appeared mad, jumped up, and started boxing with Cannon. Johnson was getting the better of Cannon, so McLaughlin grabbed Johnson around the waist to try to pull him off of Cannon. A few moments later Kerstetter, who had been standing with Staggs, ran over and joined the fight. Staggs did not think the fight was very serious and saw no reason to get involved. He testified that " there was only one mad person; and the other guys appeared to be trying to get away." Staggs did not see anyone stomp on Johnson. Instead, he testified that as soon as they succeeded in getting Johnson down on the ground, the three Defendants immediately ran away from him.

Soon after, Johnson pulled himself up. He ran after the four men, and eventually caught up with Staggs. Johnson punched Staggs, and Staggs fell. Johnson turned around, and threw another punch to knock a second member of the group to the ground. The other two men charged at Johnson, and knocked Johnson down for the second time. The two men whom Johnson had punched to the ground got up and joined the other members of the group. At that point, Lorie Garcia--a witness who passed the scene while she was driving in the car with her husband--testified that she saw four white men surrounding a black man, and that two of them were punching him. She immediately called 911.

Meanwhile, Staggs and the three Defendants had walked away for a second time and left Johnson on the ground. Johnson again pulled himself up and picked up a sandbag. He tried to throw it at the four men, but found that it was too heavy. He dropped it and did not pursue the men. Several police cars quickly arrived at the scene. The first few police cars drove past Johnson. As they did so, Johnson pointed to the direction in which the four men had run off. Another police car then stopped by Johnson to control the scene. Johnson's face was swelling and bleeding heavily. His body was bruised, and he staggered as he walked. The police eventually detained Staggs and the three Defendants. The jury heard live and video deposition testimony from officers that Cannon and McLaughlin were agitated upon being detained and used racial slurs when they

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were arrested--including the word " ni--er" to refer to responding officers who were African-American.

Defendants were initially charged in Harris County, Texas, with misdemeanor assault. These state law misdemeanor charges were dropped after the prosecution brought federal hate crime charges against Defendants. A federal grand jury in the Southern District of Texas returned a one-count indictment charging Defendants with a violation of § 249(a)(1) of the Shepard-Byrd Act. Specifically, the federal indictment alleged that " while...

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