United States v. Diggins

• Decision Date: 30 December 2019
• Docket Number: 2:18-cr-00122-JDL
• Parties: UNITED STATES of America v. Maurice DIGGINS and Dusty Leo, Defendants.
• Court: U.S. District Court — District of Maine

435 F.Supp.3d 268

UNITED STATES of America

v.Maurice DIGGINS and Dusty Leo, Defendants.

2:18-cr-00122-JDL

United States District Court, D. Maine.

Signed December 30, 2019

Sheila W. Sawyer, U.S. Attorney's Office, Portland, ME, for United States of America.

Randall J. Bates, Bates Law Firm, Yarmouth, ME, for Defendant Maurice Diggins.

Amy L. Fairfield, Fairfield & Associates, P.A., Lyman, ME, for Defendant Dusty Leo.

ORDER ON DEFENDANTS' MOTION TO DISMISS THE SUPERSEDING INDICTMENT

JON D. LEVY, CHIEF U.S. DISTRICT JUDGE

Maurice Diggins and Dusty Leo are charged in a Superseding Indictment (ECF No. 58) with two counts of committing a hate crime in violation of 18 U.S.C.A. § 249(a)(1) (West 2019) and one count of conspiring to commit a hate crime in violation of 18 U.S.C.A. § 371 (West 2019) and § 249(a)(1). Diggins and Leo move to dismiss the Superseding Indictment (ECF Nos. 89, 92) under Fed. R. Crim. P. 12(b), arguing that § 249(a)(1) is unconstitutional and that the Government failed to certify the prosecution as required by 18 U.S.C.A. § 249(b)(1) (West 2019). For the reasons set forth below, I deny the motion.

I. BACKGROUND

On March 1, 2019, a federal grand jury returned a Superseding Indictment against Diggins and Leo, alleging that they "knowingly and willfully combined, conspired, and agreed with each other to commit ... violations of [ 18 U.S.C.A. § 249 ] ..., by willfully causing bodily injury to [two men] because of their actual and perceived race and color" in the District of Maine on or about April 15, 2018. ECF No. 58 at 1. Specifically, the Superseding Indictment alleges that Diggins and Leo approached a Black man on a sidewalk in Portland and struck him in the head, breaking his jaw, while calling him a "nigger." Id. at 1-2. It further alleges that Diggins and Leo approached a second Black man on the same night in a 7-Eleven parking lot in Biddeford and similarly struck him in the head, breaking his jaw, while calling him a "nigger." Id. at 2.

On March 4, 2019, the Government filed a document certifying that the prosecution against Diggins and Leo "is in the public interest and necessary to secure substantial justice" under 18 U.S.C.A. § 249(b). ECF No. 63. The certification was signed by Eric S. Dreiband, Assistant Attorney General for the Civil Rights Division of the United States Department of Justice, on February 26, 2019—three days before the grand jury returned the Superseding Indictment.

II. LEGAL ANALYSIS

Diggins and Leo move to dismiss the Superseding Indictment for two reasons. First, they argue that the federal hate-crime statute they are charged with violating and conspiring to violate, 18 U.S.C.A. § 249(a)(1), is unconstitutional. Second, they argue that even if the statute is constitutional, the Superseding Indictment must be dismissed because the certification filed by the Government does not satisfy 18 U.S.C.A. § 249(b)(1), which is a prerequisite for prosecution under § 249(a)(1). Both arguments present questions of first impression in this circuit. After considering the parties' arguments in their memoranda and at a hearing held on December 5, 2019, I conclude that § 249(a)(1) is constitutional as it applies to Diggins and Leo and that the certification filed by the Government satisfies § 249(b)(1).

A. Constitutionality of 18 U.S.C.A. § 249(a)(1)

As relevant here, § 249(a)(1) makes it a federal crime to "willfully cause[ ] bodily injury to any person ... because of the actual or perceived race, color, religion, or national origin of any person." Congress enacted § 249(a)(1) pursuant to its authority under the Thirteenth Amendment to the Constitution of the United States, which provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

U.S. Const. amend. XIII ; see Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111-84, § 4702(7-8), 123 Stat. 2190, 2836 (2009).

Section 2 of the Thirteenth Amendment "clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery" in the United States. The Civil Rights Cases , 109 U.S. 3, 20, 3 S.Ct. 18, 27 L.Ed. 835 (1883). "Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery...." Jones v. Alfred H. Mayer Co. , 392 U.S. 409, 440, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). Therefore, "if Congress rationally determines that something is a badge or incident of slavery, it may broadly legislate against it through Section 2 of the Thirteenth Amendment." United States v. Hatch , 722 F.3d 1193, 1201 (10th Cir. 2013), cert. denied , 572 U.S. 1018, 134 S.Ct. 1538, 188 L.Ed.2d 561 (2014) ; see also Griffin v. Breckenridge , 403 U.S. 88, 104-05, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) ; United States v. Metcalf , 881 F.3d 641, 644-45 (8th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S.Ct. 412, 202 L.Ed.2d 339 (2018) ; United States v. Cannon , 750 F.3d 492, 499-500 (5th Cir. 2014), cert. denied , 574 U.S. 1029, 135 S.Ct. 709, 190 L.Ed.2d 445 (2014) ; United States v. Allen , 341 F.3d 870, 884 (9th Cir. 2003), cert. denied , 541 U.S. 975, 124 S.Ct. 1876, 158 L.Ed.2d 471 (2004); United States v. Nelson , 277 F.3d 164, 185 (2d Cir. 2002), cert. denied , 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002). Thus, in Jones , the Supreme Court upheld 42 U.S.C. § 1982, which "prohibit[s] all racial discrimination, private and public, in the sale and rental of property," finding that Congress had rationally designated such discrimination a badge and incident of slavery. Jones , 392 U.S. at 437-44, 88 S.Ct. 2186.

Here, § 249(a)(1) punishes racially motivated violence, and Congress determined that racially motivated violence is a badge and incident of slavery. When adopting § 249, Congress explained:

For generations, the institutions of slavery and involuntary servitude were defined by the race, color, and ancestry of those held in bondage. Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude.

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act § 4702(7). Diggins and Leo suggest that § 249(a)(1) "exceeds anything related to slavery" and "is not remedial to slavery" because "it addresses bodily injury" motivated by race, not actual enslavement. ECF No. 111 at 4. But the Supreme Court squarely rejected this argument in Griffin , stating that "the varieties of private conduct that [Congress] may make criminally punishable ... extend far beyond the actual imposition of slavery or involuntary servitude." 403 U.S. at 105, 91 S.Ct. 1790. Under the expansive view of "badges and incidents" articulated in Jones and Griffin , Congress's identification of racially motivated violence as a badge and incident of slavery is "not merely rational, but inescapable." United States v. Beebe , 807 F. Supp. 2d 1045, 1052-53 (D.N.M. 2011) (reviewing history and case law related to slavery), aff'd sub nom. United States v. Hatch , 722 F.3d 1193 (10th Cir. 2013), cert. denied , 572 U.S. 1018, 134 S.Ct. 1538, 188 L.Ed.2d 561 (2014) ; see also Cannon , 750 F.3d at 501-02 (quoting Hatch , 722 F.3d at 1206 ) (same).

Diggins and Leo contend that even if Congress rationally determined that racially motivated violence is a badge or incident of slavery, § 249(a)(1) is not rationally related to abolishing such violence because it is overbroad, encompassing religiously motivated violence as well. But the question of overbreadth is not presented here because the Superseding Indictment alleges only racially motivated violence and not religiously motivated violence. Thus, I do not decide this issue. See United States v. Raines , 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). As to racially motivated violence, there is no doubt that § 249(a)(1) is rationally related to eradicating such violence, especially given Congress's explicit findings to that effect. See Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act § 4702(1-5), (7), (9-10). Thus, I conclude that § 249(a)(1), as applied to Diggins and Leo, falls within the scope of Congress's Thirteenth Amendment enforcement authority and is constitutional under Jones.

Diggins and Leo nevertheless contend that § 249(a)(1) is unconstitutional, arguing that Jones should not control this case for several reasons. First, Diggins and Leo argue that the Supreme Court disavowed Jones by adopting a more limited view of Congressional authority under the Fourteenth Amendment in City of Boerne v. Flores , 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), and under the Fifteenth Amendment in Shelby County v. Holder , 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). Because the Thirteenth, Fourteenth, and Fifteenth Amendments share a common origin and are sometimes collectively referred to as the "Civil War Amendments," see, e.g. , Oregon v. Mitchell , 400 U.S. 112, 143, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (Douglas, J., concurring in part and dissenting in part), Diggins and Leo assert that the reasoning of Flores and Shelby County applies equally in the Thirteenth Amendment context, rendering § 249(a)(1) unconstitutional. However, neither decision purported to analyze the legislation at issue under the Thirteenth Amendment. Indeed, neither Flores nor Shelby County even mentioned Jones or any other Thirteenth Amendment preced...