USA v. DIGGINS, et al.

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
)
UNITED STATES OF AMERICA 	)
)
v. 	)
) 2:18-cr-00122-JDL
MAURICE DIGGINS and 	)
)
DUSTY LEO, 	)
)
Defendants. 	)
ORDER ON DEFENDANTS’ MOTION TO DISMISS THE
SUPERSEDING INDICTMENT
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
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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).
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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 (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
(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 (2014); see also Griffin v. Breckenridge, 403 U.S.
88, 104−05 (1971); United States v. Metcalf, 881 F.3d 641, 644−45 (8th Cir. 2018),
cert. denied, 139 S.Ct. 412 (2018); United States v. Cannon, 750 F.3d 492, 499−500
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(5th Cir. 2014), cert. denied, 574 U.S. 1029 (2014); United States v. Allen, 341 F.3d
870, 884 (9th Cir. 2003), cert. denied, 541 U.S. 975 (2004); United States v. Nelson,
277 F.3d 164, 185 (2d Cir. 2002), cert. denied, 537 U.S. 835 (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.
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. 	Under the expansive view of
“badges and incidents” articulated in Jones and Griffin, Congress’s identification of
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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 (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 (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 (1997), and under the Fifteenth Amendment in Shelby County
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v. Holder, 570 U.S. 529 (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 (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 precedent.1 	Thus, there is no reason to believe that
either decision implicitly overruled Jones. 	Additionally, “[i]f a precedent of [the
Supreme] Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the [lower court] should follow the case which
directly controls, leaving to [the Supreme] Court the prerogative of overruling its own
decisions.” 	Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484
(1989). Therefore, Flores and Shelby County provide no basis for disregarding Jones,
which is binding precedent.
Second, Diggins and Leo argue that Jones, which upheld a civil statute
prohibiting racial discrimination in the sale or rental of property, is limited to the
civil context and thus does not apply to criminal statutes such as § 249(a)(1). 	But
1 At oral argument, counsel for Diggins and Leo noted that Flores and cases construing it, including United
States v. Morrison, 529 U.S. 598 (2000), rely upon the Civil Rights Cases, 109 U.S. 3 (1883), which is Thirteenth
Amendment precedent. However, the Civil Rights Cases analyzed the challenged legislation separately under
both the Thirteenth Amendment and the Fourteenth Amendment. Compare id. at 10−19 (discussing Section 5 of
the Fourteenth Amendment) with id. at 20−25 (discussing Section 2 of the Thirteenth Amendment). The Court
explained that the scope of Congress’s authority differs under each Amendment. See id. at 23−24. Both Flores
and Morrison cite only to portions of the Civil Rights Cases discussing the Fourteenth Amendment, which have
no application here.
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Diggins and Leo do not point to any authority supporting the proposition that civil
and 	criminal 	legislation 	should 	be 	treated 	differently 	under 	the 	Thirteenth
Amendment, and the relevant case law rejects such a distinction. The Supreme Court
has explicitly stated that Congress has the power to make badges and incidents of
slavery “criminally punishable,” 	Griffin, 403 U.S. at 105, and three circuits have
applied the Jones standard to uphold another criminal statute, 18 U.S.C.A. §
245(b)(2)(B). 	See Allen, 341 F.3d at 884; Nelson, 277 F.3d at 190−91; United States
v. Bledsoe, 728 F.2d 1094, 1097 (8th Cir. 1984), cert. denied, 469 U.S. 838 (1984); see
also United States v. Comstock, 560 U.S. 126, 136 (2010) (recognizing that “Congress
routinely exercises its authority to enact criminal laws in furtherance of . . . its
enumerated powers,” including its power “to enforce civil rights” (citing U.S. Const.
amend. XIII)).
Diggins and Leo further assert that extending Jones to uphold the criminal
statute at issue here would violate the Tenth Amendment by transferring the police
power, which is reserved to the states, to the federal government. 	The Tenth
Amendment provides: “The powers not delegated to the United States by the
Constitution, 	nor 	prohibited 	by 	it 	to 	the 	States, 	are 	reserved 	to 	the 	States
respectively, or to the people.” 	U.S. Const. amend. X. 	By its text, the Tenth
Amendment permits the federal government to exercise powers when they are
“delegated to [it] by the Constitution.” 	Because the Thirteenth Amendment grants
Congress 	the 	authority 	to 	pass 	§ 	249(a)(1), 	as 	discussed 	above, 	the 	powers
encompassed in § 249(a)(1) are “delegated” to the federal government by the
Constitution and are thus not reserved to the states under the Tenth Amendment.
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See Hatch, 722 F.3d at 1202 (quoting New York v. United States, 505 U.S. 144, 156
(1992)).
Finally, Diggins and Leo contend that, even if extending Jones to the criminal
context 	does 	not 	violate 	the 	Tenth 	Amendment, 	it 	contravenes 	fundamental
principles of federalism by permitting the federal government to “usurp” police power
from the states. 	ECF No. 89 at 13. 	But § 249(a)(1) does not usurp or otherwise
interfere with the states’ power to prosecute racially motivated violence. 	It merely
makes a federal prosecution available in addition to any state prosecution. 	This
arrangement is “commonplace under the dual-sovereign concept and involve[s] no
infringement per se of states’ sovereignty in the administration of their criminal
laws.” United States v. Bunnell, 106 F. Supp. 2d 60, 66 (D. Me. 2000) (quoting United
States v. Johnson, 114 F.3d 476, 481 (4th Cir. 1997)).
Nor does upholding § 249(a)(1) effectively grant Congress a “plenary police
power that would authorize enactment of every type of legislation,” as Diggins and
Leo suggest. ECF No. 89 at 14−15 (quoting United States v. Lopez, 514 U.S. 549, 566
(1995) and collecting additional authorities). 	Because § 249(a)(1) addresses only
racially motivated violence, its scope is limited and any intrusion on state sovereignty
is minor. See Hatch, 722 F.3d at 1206; see also United States v. Henery, 60 F. Supp.
3d 1126, 1130 (D. Idaho 2014) (discussing Hatch); cf. Nelson, 277 F.3d at 185−86.2
2 Contrary to Diggins and Leo’s argument, § 249(a)(1) is constitutional regardless of whether the certification
requirement contained in § 249(b)(1) effectively limits the exercise of federal prosecutorial power. See Hatch, 722
F.3d at 1207−08. As such, I do not examine the effectiveness of the certification requirement here.
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For these reasons, I apply Jones as binding precedent and find that Congress
properly exercised its authority under Section 2 of the Thirteenth Amendment in
enacting § 249(a)(1).3
B. 	Sufficiency of Certification under 18 U.S.C.A. § 249(b)(1)
Diggins and Leo further argue that, even if § 249(a)(1) is constitutional, the
Superseding Indictment must be dismissed because the Government did not comply
with § 249(b)(1)’s certification requirement. Section 249(b)(1) provides:
No prosecution of any offense described in this subsection may be
undertaken by the United States, except under the certification in
writing of the Attorney General, or a designee, that
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal Government assume
jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left
demonstratively unvindicated the Federal interest in eradicating
bias-motivated violence; or
(D) a prosecution by the United States is in the public interest
and necessary to secure substantial justice.
Here, the Government produced a written certification that Diggins and Leo’s
prosecution was “in the public interest and necessary to secure substantial justice.”
ECF No. 63. 	The certification was signed by Eric S. Dreiband, Assistant Attorney
General for the Civil Rights Division, three days before the Superseding Indictment
was issued. 	The Assistant Attorney General for the Civil Rights Division is the
Attorney General’s designee with respect to § 249 certifications. 	See 28 C.F.R. §
0.50(n). Thus, the certification appears sufficient on its face. Nevertheless, Diggins
3 Accordingly, I do not consider whether § 249(a)(1) is also authorized under the Commerce Clause or the
Fourteenth Amendment.
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and Leo contend that it is insufficient because there is “no evidence beyond a
signature line” that Dreiband is the Assistant Attorney General for the Civil Rights
Division or that Dreiband is the person who signed the certification. ECF No. 111 at
6. 	At oral argument, Diggins and Leo suggested that a § 249(b)(1) certification is
insufficient unless supported by a jurat, a form of oath or affirmation by a signatory
as to the truthfulness of a document’s contents. 	But a jurat is not required by §
249(b)(1), 	and 	absent 	any 	evidence 	suggesting 	that 	this 	certification 	contains
misrepresentations about the signatory, I will not impose procedural requirements
upon the Government not contemplated by the statute. Because the certification on
its face satisfies § 249(b)(1), I conclude that it is procedurally sound. 	See United
States v. Maybee, No. 3:11-cr-30006-002, 2013 WL 3930562, at *2 (W.D. Ark. July 30,
2013) (approving a similar § 249(b)(1) certification).
Diggins and Leo further argue that the certification is deficient because it is
not supported by a record explaining why the Assistant Attorney General deemed
this prosecution “in the public interest and necessary to secure substantial justice.”
Thus, Leo and Diggins seek substantive review of the § 249(b)(1) certification.
Although this is a matter of first impression in this Circuit, the First Circuit
determined in United States v. Smith, 178 F.3d 22 (1st Cir. 1999), that certifications
issued under a similar statute, 18 U.S.C. § 5032, are substantively unreviewable. Id.
at 25−26, 26 n.2. 	In Smith, the Government certified that there was a “substantial
Federal interest” in the defendant’s prosecution under § 5032, and the defendant
sought substantive review of the certification. Id. at 25 (quoting § 5032). The district
court denied review, and the First Circuit affirmed, citing the text, structure, and
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legislative history of § 5032. Id. at 25−26. The First Circuit further explained that
the certification was similar to an ordinary charging decision, which “falls squarely
within the parameters of prosecutorial discretion that is unreviewable.” 	Id. at 26
(alterations omitted) (quoting United States v. I.D.P., 102 F.3d 507, 511 (11th Cir.
1996)).
Though § 249 is not identical to § 5032, it is similar in important respects. Just
as § 5032(3) permits the prosecution of a juvenile for a violent felony upon a
certification 	that 	such 	prosecution 	promotes 	“a 	substantial 	Federal 	interest,”
§ 249(b)(1)(D) permits a hate-crime prosecution upon a certification that it is “in the
public 	interest 	and 	necessary 	to 	secure 	substantial 	justice.” 	Neither 	statute
“articulate[s] any standards for determining” when these conditions are met, and
neither “specifically provide[s] for judicial review of a certification.” Smith, 178 F.3d
at 25. These structural and textual similarities suggest that § 249(b)(1) certifications,
like § 5032 certifications, are “unreviewable act[s] of prosecutorial discretion.” Id. at
26. 	Every court considering this issue to date has similarly found the two statutes
sufficiently alike to apply § 5032 precedent in the context of § 249(b)(1) certifications.
See United States v. Beckham, No. 3:18-cr-00075-1, 2019 WL 2869189, at *2 (M.D.
Tenn. July 3, 2019); United States v. Hill, No. 3:16-cr-00009-JAG, 2018 WL 3872315,
at *3−5, *4 n.5 (E.D. Va. Aug. 15, 2018), rev’d on other grounds, 927 F.3d 188 (4th
Cir. 2019); United States v. Jenkins, 909 F. Supp. 2d 758, 773−74 (E.D. Ky. 2012).
Diggins and Leo do not point to anything in the text, structure, or legislative
history of § 249 to distinguish it from § 5032, nor do they attempt to otherwise
distinguish this case from Smith. 	Instead, they contend that the mere existence of
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the certification requirement compels substantive review because without review,
certification 	does 	not 	meaningfully 	limit 	prosecutorial 	discretion 	as 	Congress
intended. 	However, the First Circuit implicitly rejected this argument in Smith by
finding § 5032 certifications unreviewable. Moreover, this argument speculates as to
Congress’s intent, failing to account for the equally plausible explanation that
Congress 	believed 	the 	certification 	process 	alone 	would 	meaningfully 	check
prosecutorial discretion by subjecting local prosecutors’ judgments to the oversight of
the Assistant Attorney General for the Civil Rights Division. 	I am not persuaded
that denying substantive review contravenes Congress’s intent, especially given that
Congress could have explicitly provided for judicial review and did not do so.
Finally, Diggins and Leo assert that substantive review is available under
Marbury v. Madison, 5 U.S. 137, 177 (1803), and McLaughlin v. Hagel, 767 F.3d 113,
118 (1st Cir. 2014), but both cases are inapposite. 	Though both cases indicate that
substantive review of executive action is sometimes available in civil disputes,
neither 	refutes 	the 	well-settled 	principle 	that 	“the 	decision 	to 	prosecute 	is
particularly ill-suited to judicial review.” 	Smith, 178 F.3d at 26 (quoting Wayte v.
United States, 470 U.S. 598, 607 (1985)). Thus, I conclude that Smith controls, and I
decline to review the reasons underlying the Government’s decision to certify this
prosecution under § 249(b)(1). See Smith, 178 F.3d at 26; see also Maybee, 2013 WL
3930562, at *3; Jenkins, 909 F. Supp. 2d at 774.
III. CONCLUSION
For the foregoing reasons, it is ORDERED that the Defendants’ Motion to
Dismiss the Superseding Indictment (ECF No. 89) is DENIED.
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SO ORDERED.
Dated: December 30, 2019
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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