807 F.Supp.2d 1045 (D.N.M. 2011), 10-cr-03104 BB, United States v. Beebe

Docket Nº:10-cr-03104 BB.
Citation:807 F.Supp.2d 1045
Opinion Judge:BRUCE D. BLACK, District Judge.
Party Name:UNITED STATES of America, Plaintiff, v. Paul BEEBE, et al., Defendants.
Attorney:Fara Gold, Gerard V. Hogan, U.S. Department of Justice, Washington, DC, Roberto D. Ortega, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Plaintiff. Michael V. Davis, Michael V. Davis, Attorney & Counselor at Law, P.C., Corrales, NM, Richard A. Winterbottom, Federal Public D...
Case Date:August 04, 2011
Court:United States District Courts, 10th Circuit, District of New Mexico
 
FREE EXCERPT

Page 1045

807 F.Supp.2d 1045 (D.N.M. 2011)

UNITED STATES of America, Plaintiff,

v.

Paul BEEBE, et al., Defendants.

No. 10-cr-03104 BB.

United States District Court, D. New Mexico.

August 4, 2011

Page 1046

Fara Gold, Gerard V. Hogan, U.S. Department of Justice, Washington, DC, Roberto D. Ortega, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Plaintiff.

Page 1047

Michael V. Davis, Michael V. Davis, Attorney & Counselor at Law, P.C., Corrales, NM, Richard A. Winterbottom, Federal Public Defender Office, Robert R. Cooper, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION

BRUCE D. BLACK, District Judge.

On November 10, 2010, a federal grand jury issued an indictment charging Paul Beebe, William Hatch, and Jesse Sanford with conspiring to violate and substantively violating 18 U.S.C. § 249 (2009) by willfully causing bodily injury to V.K. because of his actual and perceived race, color, and national origin. Section 249(a)(1) provides that " [w]hoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person" may be subject to criminal punishment. Defendants have moved to dismiss the indictment, urging that section 249(a)(1), which was passed pursuant to the Thirteenth Amendment, exceeds the constitutional power of Congress. For the reasons explained below, the Court concludes that the Thirteenth Amendment, Section Two, provided Congress with ample authority to pass section 249(a)(1). Consequently, Defendants' motion to dismiss the indictment (Doc. 59) is DENIED.

Factual Background

According to the indictment, Defendants Paul Beebe, William Hatch, and Jesse Sanford together harassed and assaulted V.K., a cognitively disabled young adult Navajo man. Paul Beebe is allegedly a self-proclaimed white supremacist. His apartment is adorned with Nazi memorabilia and other belongings representing " white pride," including a large swastika flag, a woven symbol with a swastika hanging above his bed, and a baseball bat bearing a swastika. William Hatch and Jesse Sanford work with Paul Beebe.

During the night of April 29 and the early morning of April 30, 2010, Paul Beebe was working at McDonald's in Farmington, New Mexico. V.K., a mentally disabled Navajo man, came into the restaurant at some point and Paul took V.K. back to Paul's apartment. William Hatch and Jesse Sanford then met up with Paul and V.K. at Paul's apartment. Over the course of the next five hours, Mr. Beebe, Mr. Hatch, and Mr. Sanford assaulted V.K. in various ways. Allegedly they shaved a swastika into the hair on the back of V.K.'s head and then wrote the words " White Power" and " KKK" in the lines of the shaved swastika.

Following this assault, Defendants told V.K. that they would brand him. They then made a video recording of V.K. in which he asked to be branded. After recording this video, Defendants heated a wire hanger on the stove and twice pressed it into V.K's skin, searing a swastika into his right bicep. The branding caused pain and scarring. Then Defendants recorded another cell phone video in which V.K. displayed his brand.

Further, Defendants told V.K. that they would draw " feathers" and " native pride" on his back. Instead, Defendants drew testicles, an ejaculating penis, and a pentagram labeled " 666" on his back, and also wrote the words " I love cock ... mmm" on his back. Defendants then recorded a cell phone video of the drawings and while taping, Mr. Beebe asked V.K. if he liked his " feather" and " native pride." The government makes additional allegations in its brief, but because these facts are not in the indictment, the Court disregards them for purposes of this motion.

Page 1048

Discussion

Pursuant to Rule 12(b)(2), a defendant " may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Pure issues of law fall within the scope of this rule. United States v. Flores, 404 F.3d 320, 325-26 (5th Cir.2005). However, a court should use caution before dismissing an indictment, since dismissing an indictment " directly encroaches upon the fundamental role of the grand jury." Whitehouse v. United States Dist. Court, 53 F.3d 1349, 1359 (1st Cir.1995). Further, " [a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Todd, 446 F.3d 1062, 1067 (10th Cir.2006) (citing United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994)).

I. Validity of Section 249(a)(1) under the Thirteenth Amendment

Section One of the Thirteenth Amendment provides that " [n]either slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. Const. amend. XIII, § 1. Section Two of the amendment then provides that " Congress shall have power to enforce this article by appropriate legislation." Id. § 2.

Defendants first argue that the indictment is invalid because Congress exceeded its authority under Section Two of the Thirteenth Amendment in passing 18 U.S.C. § 249(a)(1). Defendants make three basic arguments in support of their claim. First, they argue that the Court should apply the congruence and proportionality standard of City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), rather than a rational relationship standard, to legislation enacted under Section Two of the Thirteenth Amendment. Second, they argue that the history of slavery and of the Thirteenth Amendment do not support a construction of the phrase " badges and incidents of slavery" that includes racially motivated violence. Finally, they raise federalism concerns and thus implicitly argue that any construction of the Thirteenth Amendment that upholds this legislation would violate the federalism principles enshrined in the Tenth Amendment. Thus, the Court must determine the proper Thirteenth Amendment standard and then the constitutionality of section 249(a)(1) under that standard.

A. Standard Applicable to Laws Enacted Under Section Two of the Thirteenth Amendment

1. City of Boerne's Applicability to the Thirteenth Amendment

In Jones v. Alfred H. Mayer Company, 392 U.S. 409, 440, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Supreme Court held that " Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery...." Under this rationality standard, the Court held that Congress had not exceeded its authority under Section Two of the Thirteenth Amendment because legislation banning racial discrimination in property conveyances was a rational way to enforce the ban on slavery. Id. at 440-41, 88 S.Ct. 2186. The Government urges that Jones set forth the proper standard under which courts should analyze the constitutionality of legislation enacted pursuant to Section Two of the Thirteenth Amendment: review for rationality.

Defendants concede as much, but then argue that City of Boerne v. Flores, a more recent Supreme Court case, departed from the rationale in Jones. Defendants argue that the Supreme Court implicitly

Page 1049

overruled Jones in City of Boerne by declaring that under Section Five of the Fourteenth Amendment, Congress may not define the substance of a constitutional provision, but rather may only enforce that provision. 521 U.S. at 519, 117 S.Ct. 2157. To that end, the Court declared that pursuant to the Fourteenth Amendment's enforcement clause, " [t]here must be a congruence and proportionality between the [constitutional] injury to be prevented or remedied and the means adopted to that end." Id. at 520, 117 S.Ct. 2157.

Since City of Boerne on its face only discusses the Fourteenth Amendment, Defendants' argument hangs on the inference that the enforcement clause of the Thirteenth Amendment contains language very similar to that in the Fourteenth Amendment.1 Therefore, under Defendants' logic, since the congruence and proportionality test was applied to the enforcement clause of the Fourteenth Amendment, the Court implicitly indicated that this standard should govern every enforcement clause in the Constitution that relies on similar language, including the Thirteenth Amendment. Following this argument to its logical limits, it would also apply to the Fifteenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth Amendments, which also employ similar language to that of Section Five of the Fourteenth Amendment.

Thus, to adopt Defendants' position, this Court would have to read City of Boerne as creating the sole standard applicable to virtually every enforcement clause in the Constitution. The Court finds nothing in the language of City of Boerne that indicates that it silently intended to do something as sweeping as displacing the centuries-old standard of McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819), and overruling at least two long-standing precedents: Jones v. Alfred H. Mayer Company, 392 U.S. 409, 440, 443-44, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (applying a rationality standard to the enforcement clause of the Thirteenth Amendment and citing to McCulloch v. Maryland's plainly adapted means, legitimate ends test) and South Carolina v. Katzenbach, 383 U.S. 301, 324, 326-27, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (same with respect to the enforcement clause of the Fifteenth Amendment). The Supreme Court did...

To continue reading

FREE SIGN UP