United States v. Maybee

• Decision Date: 05 September 2012
• Docket Number: No. 11–3254.,11–3254.
• Citation: 687 F.3d 1026
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Frankie MAYBEE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

687 F.3d 1026

UNITED STATES of America, Plaintiff–Appellee
v.
Frankie MAYBEE, Defendant–Appellant.

No. 11–3254.

United States Court of Appeals,
Eighth Circuit.

Submitted: June 15, 2012.
Filed: Aug. 6, 2012.
Rehearing and Rehearing En Banc Denied Sept. 5, 2012.

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Byron Cole Rhodes, argued, Hot Springs, AR, for appellant.

Thomas Chandler, DOJ, Civil Rights Division, Appellate Section, argued, Jessica Dunsay Silver, DOJ, Civil Rights Division, Appellate Section, on the brief, Washington, DC, for appellee.

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

GRUENDER, Circuit Judge.

After a jury trial, Frankie Maybee was convicted on six counts related to willfully causing bodily injury to another because of that person's race, color, or national origin in violation of certain provisions of the Shepard–Byrd Hate Crimes Prevention Act. See18 U.S.C. §§ 249(a)(1), 371, 2. The

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district court ¹ sentenced Maybee to 135 months' imprisonment. Maybee appeals his convictions and sentence, and we affirm.

I. BACKGROUND

In the early morning hours of June 20, 2010, Frankie Maybee, Sean Popejoy, and Curtis Simer were loitering around Maybee's blue pick-up truck in the parking lot of a gas station and convenience store in Alpena, Arkansas. At approximately 1:00 a.m., Jeffrey Perez, Francisco Reyes, Brian Vital, Anthony Gomez, and Victor Sanchez arrived at the gas station in a green sedan. Vital and Sanchez fueled the sedan and entered the convenience store. When Vital and Sanchez emerged from the store, Maybee and Popejoy yelled at them, calling them “beaners” and “wetbacks” and stating, “You Mexicans need to go back to Mexico.” Vital and Sanchez ignored the comments, reentered the sedan, and drove away. Popejoy slapped the trunk of the sedan as it left and continued to yell racial epithets. Vital drove the sedan westbound on Highway 412, a two-lane highway.

After the sedan left the gas station, Maybee, Popejoy, and Simer discussed following the sedan to fight with its occupants. Popejoy said, “Let's go get the fuckin' Mexicans.” Maybee indicated that he wanted to “beat the shit out of them” and decided to drive after them. The Government introduced surveillance video showing the three men huddled together in the parking lot for nearly a minute after the sedan left, then driving off together in Maybee's truck with Maybee driving. While they drove, they discussed physically assaulting the men in the sedan, with Maybee stating that once he caught the “fuckin' Spics” he was “going to beat the shit out of them.”

After driving several miles, Maybee caught up with the sedan, approached it with the lights of the truck off, and then flashed its bright lights several times. Maybee then drove into the opposite lane of traffic adjacent to the sedan, and Popejoy leaned out of the window and waved a tire wrench at the occupants of the sedan. Maybee rammed the sedan with his truck approximately three times, causing the rear end of the sedan to rise and buckle. Eventually, Maybee's truck struck the sedan near its left rear wheel in what Simer and Popejoy described as a “pit maneuver.” Simer and Popejoy explained that such a maneuver was designed to cause the driver of the sedan to lose control, which is exactly what happened.

The sedan crossed the opposite lane of the highway, left the road, flipped over into a ravine, crashed through a fence, hit a tree, and burst into flames. During the crash, the three passengers in the backseat, Perez, Reyes, and Gomez, were ejected from the sedan. Vital and Sanchez were wearing seatbelts and remained in the sedan. All five were injured. Perez was removed to a trauma center by helicopter and suffered lacerations to his head, multiple fractures to his ribs and pelvis, punctures to both lungs, and a concussion. Reyes was removed to a trauma center by ambulance and was treated for head injuries, a fractured spine, abrasions, and contusions. Vital suffered a burn on his arm and cuts to his shoulder and head. Sanchez injured his head and knee. Gomez suffered abrasions, lacerations, and bruises.

Popejoy testified that he saw the sedan hit the tree and ignite, but no one in the

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truck stopped, called 911, or otherwise attempted to assist the occupants of the sedan. According to Simer, Maybee stated that he hoped the “fuckin' beaners burn and die” so that he would not get caught. Maybee also threatened Popejoy and Simer that he would kill them if they disclosed his involvement with the crash. Maybee drove the truck for several more miles before turning around to go home. The truck ran out of fuel near the crash scene, and Maybee parked the truck against a fence. Maybee then examined the truck for damage and called a friend to pick them up. The sedan was still on fire when they drove past the crash site in the friend's vehicle. According to Simer, Maybee told everyone in the car to shut up and stay calm.

An officer with the Caroll County Sheriff's Office located Maybee's truck parked against a fence approximately one-tenth of a mile from the crash site. The officer observed fresh damage and a “green paint transfer” on the front of the truck. That same day, Maybee reported his truck missing, explaining where he had left it on Highway 412. During a subsequent interview, Maybee admitted seeing a car full of Hispanic men leave the gas station in front of him on the night in question. Maybee also admitted to inspecting his truck for damage after it ran out of gas. During the interview, an investigator asked Maybee about the crash and showed Maybee a picture of the green paint transfer on the truck. When the investigator indicated that the paint appeared to be fresh, Maybee responded: “Is that all you have? Is that the best you have to prove my truck did this?” The same investigator interviewed Simer, who initially denied involvement with the crash but ultimately informed officers of his involvement after obtaining an immunity agreement. After a grand jury indicted Maybee and Popejoy as co-conspirators and aiders and abetters in violating the Shepard–Byrd Hate Crimes Prevention Act, Popejoy pled guilty pursuant to a plea agreement to one count of conspiracy and one count of violating the Shepard–Byrd Act. Simer and Popejoy both testified at Maybee's trial.

II. DISCUSSION

On appeal, Maybee raises a narrow challenge to the constitutionality of 18 U.S.C. § 249(a)(1) and also challenges the sufficiency of the evidence, the district court's denial of his motion for a new trial, and his sentence. We review de novo questions of law, including the constitutionality of a statute. See United States v. Louper–Morris, 672 F.3d 539, 563 (8th Cir.2012). The Shepard–Byrd Act makes it a crime willfully to cause bodily injury to another because of that person's “actual or perceived race, color, religion, or national origin.” 18 U.S.C. § 249(a)(1). The parties agree that the constitutionality of § 249(a)(1) depends on whether it is a proper exercise of Congress's power under Section Two of the Thirteenth Amendment “rationally to determine what are the badges and incidents of slavery” and to abolish them. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439–40, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). This inquiry is exemplified by our previous examination of the constitutionality of 18 U.S.C. § 245(b)(2)(B) in United States v. Bledsoe, 728 F.2d 1094 (8th Cir.1984), and our sister circuits' analogous cases United States v. Allen, 341 F.3d 870 (9th Cir.2003), and United States v. Nelson, 277 F.3d 164 (2d Cir.2002).²Bledsoe,Allen, and Nelson

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each held that Congress rationally could designate as a badge and incident of slavery the willful infliction of injury on a person because of that person's race and because that person has enjoyed a public...