United States v. Diggins
| Decision Date | 08 June 2022 |
| Docket Number | s. 20-2078,20-2079 |
| Citation | 36 F.4th 302 |
| Parties | UNITED STATES of America, Appellee, v. Maurice DIGGINS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
William T. Murphy, on brief for appellant.
Darcie N. McElwee, United States Attorney; Benjamin Block, Assistant United States Attorney; Kristen Clarke, Assistant Attorney General; Pamela S. Karlan, Principal Deputy Assistant Attorney General; and Thomas Chandler and Brant S. Levine, Attorneys, Appellate Section, Department of Justice, on brief for appellee.
Before Lynch, Thompson, and Gelpí, Circuit Judges.
A jury convicted Maurice Diggins ("Diggins") of two counts of committing a hate crime and one count of conspiring to commit a hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (the "Shepard-Byrd Act"), 18 U.S.C. §§ 249(a)(1), 371.1 On appeal, Diggins challenges Congress's ability under § 2 of the Thirteenth Amendment to pass § 249(a)(1), contending that the Supreme Court's expansive articulation of § 2 authority in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), has been curtailed or overruled by the Court's subsequent decisions in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), and Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). He further asserts that the government failed to satisfy the procedural requirements of 18 U.S.C. § 249(b)(1). Lastly, Diggins contests the admission into evidence of his white-supremacist tattoos and expert testimony relating to the same. We affirm the judgment of the district court, holding that Diggins's first two arguments are unavailing and the third argument has been waived.
On the night of April 15, 2018, Diggins and his nephew violently attacked two Black men in separate incidents. In each attack, Diggins and his nephew hurled racial slurs at their target, striking him in the head and shattering his jaw. Both victims suffered serious injuries which required emergency surgery and hospitalization. They continue to suffer lasting physical, emotional, and financial consequences.
In the first attack, Diggins and his nephew approached A.N., a Black man and Sudanese refugee who was quietly smoking on the sidewalk outside a bar in Portland, Maine. Diggins and his nephew are both white men, with Diggins being the taller and larger of the two. Neither man had ever met A.N. before. Without any provocation, and before A.N. was able to react, Diggins punched A.N. in the face. A.N. fled, bloodied and in pain, pursued by the smaller man. As A.N. escaped, he heard someone yell behind him, "[C]ome here, nigger, come here, nigger." A.N. required emergency surgery for his broken
jaw the following day at the Maine Medical Center. The surgeon implanted a metal plate into A.N.'s jaw and wired it shut for several weeks, during which time he was unable to eat, work, or even hold his infant daughter.
Later that evening, Diggins and his nephew drove to a 7-Eleven in Biddeford, Maine, where D.M., a Black man, had gone to buy snacks. D.M. had never encountered Diggins or his nephew prior to that evening. Diggins sped into the parking lot and pulled up toward D.M., who was on foot, yelling, "[N]igger, who you eyeballing?" Diggins proceeded to exit his vehicle and aggressively approach D.M., distracting him while Diggins's nephew came from behind the vehicle and punched D.M. in the face. The force of the punch broke D.M.'s jaw and knocked him to the ground. D.M. testified that after he fell, Diggins punched him in the back of his head. Suffering "unexplainable" pain and fearing for his life, D.M. fled. As Diggins or his nephew laughed, Diggins's nephew pursued him on foot, yelling, "un, nigger." Subsequently, Diggins and his nephew re-entered their vehicle and drove in D.M.'s direction, shouting, "We're going to find you, nigger."
The next day, D.M. underwent emergency surgery at the Maine Medical Center, where his jaw was wired shut. In the weeks following the attack, D.M. lost both of his jobs and incurred substantial medical expenses. As a consequence, he has also faced financial challenges as well as long-lasting physical and psychological harm.
Following an initial federal indictment in August 2018, a grand jury in March 2019 returned a superseding indictment charging Diggins and his nephew with two counts of committing a hate crime in violation of 18 U.S.C. § 249(a)(1) and one count of conspiring to commit a hate crime in violation of 18 U.S.C. §§ 249(a)(1)(A), 371.2 Along with the indictment, the Assistant Attorney General for the Civil Rights Division filed a certificate pursuant to 18 U.S.C. § 249(b)(1) averring that prosecuting Diggins and his nephew for violating § 249 would be "in the public interest and necessary to secure substantial justice."3 Diggins moved to dismiss the superseding indictment, challenging the constitutionality of 18 U.S.C. § 249(a)(1) and separately contending that the certification did not satisfy the requirements of 18 U.S.C. § 249(b)(1).4 The district court rejected both arguments. United States v. Diggins, 435 F. Supp. 3d 268 (D. Me. 2019). Diggins also filed a pretrial motion in limine to exclude evidence and expert testimony relating to certain of his tattoos associated with white-supremacist ideology, including four swastikas, two lightning bolts associated with the Nazi SS, the letters "WPWW" (referring to "White Pride World Wide"), and an image of an Absolut Vodka bottle containing the phrases "white pride" and "We must secure the existence of our people and a future for white children." The district court denied the motion, and at trial the expert witness testified that Diggins's tattoos are extensively associated with extremist and white-supremacist ideologies. A jury subsequently convicted Diggins on all charges, and Diggins was sentenced to 60 months' imprisonment for the conspiracy charge and 120 months' imprisonment for each hate crime charge, to be served concurrently. At sentencing, the court stressed the gravity of Diggins's conduct, noting that his "crimes were among the most serious that [the court] ha[s] ever seen" and highlighting the severe impact of his "bigotry, ignorance, and violence" both on his direct victims and the "entire minority community."
On appeal, Diggins does not dispute that he attacked both A.N. and D.M. because of their race, to wit, the basis of his conviction.5 Rather, he challenges the constitutionality of 18 U.S.C. § 249(a)(1) and asserts deficiencies in the certification process pursuant to 18 U.S.C. § 249(b)(1). Diggins also appears to challenge the denial of his motion to suppress evidence and expert testimony relating to his tattoos, although he does not mention the issue in the Argument section of his opening brief.
Congress exercised its enforcement powers under § 2 of the Thirteenth Amendment to enact 18 U.S.C. § 249(a)(1), a provision of the Shepard-Byrd Act, under which Diggins was convicted. The government contends said provision is constitutional under the rational-determination test the Supreme Court articulated in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), to evaluate legislation enacted under § 2 of the Thirteenth Amendment. Diggins disagrees and contends that § 249(a)(1) fails the Jones test. He further contends that the constitutional landscape established by Jones has been eroded by the Supreme Court's subsequent decisions in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), and Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), which dealt with the Fourteenth and Fifteenth Amendments, respectively. He avers that the same federalism concerns driving those cases are presented here, and we should therefore apply the tests articulated there -- as opposed to that in Jones -- to evaluate the constitutionality of § 249(a)(1). We reject Diggins's arguments here, as well as his two others, for the reasons discussed seriatim.
We review the constitutionality of federal statutes de novo. See United States v. Booker, 644 F.3d 12, 22 (1st Cir. 2011).
Our analysis begins by reviewing the Thirteenth Amendment's enforcement power. Ratified in the wake of the Civil War, the Thirteenth Amendment declares in its first section that "[n]either 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." U.S. Const. amend. XIII, § 1. Section Two provides that "Congress shall have power to enforce this article by appropriate legislation." Id. § 2.6 Uniquely among the Reconstruction Amendments, the Thirteenth Amendment's Enforcement Clause lacks a state-action provision, instead empowering Congress to directly regulate private conduct. See The Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27 L.Ed. 835 (1883) (); Griffin v. Breckenridge, 403 U.S. 88, 105, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) ().
Modern Thirteenth Amendment jurisprudence dates back fifty-four years to Jones, which reconsidered an earlier line of post-Reconstruction caselaw wherein the Supreme Court took a narrower view of Congress's enforcement powers under § 2.7 Adopting in substantial measure Justice John...
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