USA v. DIGGINS, et al.

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
)
v. 	) No. 2:18-cr-00122-JDL-001
)
MAURICE DIGGINS, 	)
)
Defendant. 	)
ORDER ON DEFENDANT’S MOTION IN LIMINE
Maurice Diggins is charged in a Superseding Indictment (ECF No. 58) with
two counts of committing racially motivated assault in violation of 18 U.S.C.A. §
249(a)(1) (West 2020) and one count of conspiring to commit racially motivated
assault in violation of 18 U.S.C.A. § 371 (West 2020) and § 249(a)(1). Diggins moves
in limine to exclude certain evidence from trial (ECF No. 165). 	For the reasons
explained below, I deny Diggins’ motion.
I. DISCUSSION
Diggins’ motion seeks to preclude the Government from referring to his tattoos
during its opening statement or introducing evidence of the same during its case-in-
chief, arguing that the admission of such evidence violates Fed. R. Evid. 401 and 403,
as well as the Fifth Amendment to the United States Constitution. The motion also
seeks to preclude the Government’s expert witness, Christopher Magyarics, from
opining on the racial meaning of Diggins’ tattoos at trial, citing Fed. R. Evid. 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 	I address each
argument in turn.
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A. 	Tattoo Evidence
The parties’ joint submission of exhibits (ECF No. 176) includes photographs
of several tattoos on Diggins’ body, which the parties agree were taken upon Diggins’
arrest in this case as part of the booking process. 	The photographs indicate that
Diggins has, among other tattoos: (1) tattoos on his forearms of swastikas, symbols
known as “SS bolts,” and the phrase “Dirty White Boy”; (2) a tattoo on his inner bicep
of a bottle, which is labeled “Absolute Pride” and contains the sentence, “We must
secure the existence of our people and a future for white children”; and (3) a tattoo on
his thigh depicting a pitbull with the words “Tuff Love” above and below it.
Diggins asserts that the evidence of the tattoos is irrelevant and therefore
inadmissible because he was not displaying his tattoos during the alleged assaults.
Evidence is relevant if (1) “it has any tendency to make a fact more or less probable
than it would be without the evidence,” and (2) “the fact is of consequence to the
action.” 	Fed. R. Evid. 401. 	Here, the evidence that Diggins has several potentially
racially charged tattoos tends to show that Diggins holds racist beliefs, which is
relevant to determining an essential element of the crime charged—namely, whether
he acted because of racial animus on the night of the alleged assaults. 	Thus, the
tattoo evidence is relevant. 	The fact that Diggins was not displaying his tattoos
during the alleged assaults goes to the meaning and weight the jury should afford the
tattoo evidence, not its relevance.
Diggins further asserts that, even if the tattoo evidence is relevant, it is
inadmissible under Fed. R. Evid. 403, which provides that “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of one
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or more of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.” 	Here,
there is no undue delay or unfair surprise, as Diggins had ample advance notice of
the Government’s knowledge of and intention to introduce the tattoo evidence. And
while the tattoo evidence may be prejudicial to Diggins, the question is whether the
risk of unfair prejudice substantially outweighs the probative value of the evidence.
I conclude that it does not. As I have already explained, the evidence is significantly
probative of Diggins’ motive, intent, or plan in carrying out the alleged assaults, and
it may be considered for those purposes. 	Any risk that the jury might be unduly
inflamed by what the tattoos depict can be ameliorated by a limiting instruction
explaining that the evidence may be considered only to evaluate Diggins’ motive,
intent, or plan.
Finally, Diggins argues that admitting the tattoo evidence would violate his
Fifth 	Amendment 	privilege 	against 	self-incrimination. 	The 	Fifth 	Amendment
provides: “No person shall . . . be compelled in any criminal case to be a witness
against himself.” 	U.S. Const. amend V. 	“To qualify for the Fifth Amendment
privilege, a communication must be testimonial, incriminating, and compelled.”
United States v. Monteiro, 871 F.3d 99, 108 (1st Cir. 2017) (citing Hiibel v. Sixth Jud.
Dist. Ct., 542 U.S. 177, 189 (2004)).
There is no question that the content of Diggins’ tattoos does not qualify for
the Fifth Amendment privilege, because there is no evidence that the Government
compelled Diggins to get the tattoos. 	Diggins asserts, however, that the tattoo
evidence should be excluded because the photographs themselves were compelled. I
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look to the Supreme Court’s guidance in Fisher v. United States, 425 U.S. 391 (1976),
United States v. Doe, 465 U.S. 605 (1984), and United States v. Hubbell, 530 U.S. 27
(2000). Based on these decisions, there is no Fifth Amendment violation in admitting
photographs of a defendant’s tattoos if the Government demonstrates that it had
prior knowledge of the tattoos and could independently prove their existence.
Accordingly, the Government may lay a foundation for the admission of the
tattoo evidence at trial in one of two ways. First, the Government may establish that
some or all of Diggins’ tattoos are openly visible, i.e., that they were in plain view
when Diggins was questioned or arrested or are in plain view when Diggins wears
state-issued clothing in pretrial detention. In the alternative, the Government may
establish that it otherwise discovered Diggins’ tattoos prior to taking the challenged
photographs and would be able to prove the existence of each tattoo without relying
on the same. Based on the Government’s representation in its opposition to Diggins’
motion that it had independent knowledge of Diggins’ tattoos prior to taking the
challenged photographs, I conclude that the tattoo evidence is likely admissible, and
I deny Diggins’ motion in limine as to that evidence.
B. 	Testimony of Tattoo Expert
Diggins also moves to exclude the testimony of the Government’s expert
witness, Christopher Magyarics, who will opine on the racial meaning of Diggins’
tattoos. According to his resume, which is included in the parties’ joint submission of
exhibits, Magyarics is a Senior Investigative Researcher at the Anti-Defamation
League’s Center on Extremism. His resume represents that he has spent over fifteen
years researching white supremacist symbolism, including going undercover as a
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member of several white supremacist organizations. His resume also represents that
he has trained thousands of law enforcement officials on how to identify white
supremacist threats and served as an expert consultant to law enforcement agencies
on interpreting tattoos and numeric symbols. Magyarics’ expert report, which is also
included in the joint submission of exhibits, offers general information about the
history of the words and symbols contained in certain of Diggins’ tattoos, as well as
their contemporary meaning among various white supremacist organizations.
Diggins first challenges this evidence under Fed. R. Evid. 702, arguing that it
is not helpful to the jury and therefore an improper subject of expert testimony.
However, because it is unlikely that the jury would understand the significance of at
least some of Diggins’ tattoos, including the SS bolts and the “Dirty White Boy” tattoo,
I conclude that Magyarics’ testimony is the subject of specialized knowledge and could
be helpful to the jury.
Diggins further asserts that this evidence is not sufficiently scientific and
should be excluded under the standards for reliability set forth in Daubert. However,
the fact that Magyarics’ testimony is not scientific does not make it inadmissible. To
the contrary, “[e]xperts may testify on the basis of experience.” 	Brown v. Wal-
Mart Stores, Inc., 402 F. Supp. 2d 303, 308 (D. Me. 2005). The Government will have
the opportunity to lay a foundation for Magyarics’ expertise when it seeks to qualify
him as an expert at trial. At that time, the Government will also have the opportunity
to lay a foundation for the reliability of Magyarics’ opinion. “[I]f the [expert] witness
is relying solely or primarily on experience, then the witness must explain how that
experience leads to the conclusion reached, why that experience is a sufficient basis
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for 	the 	opinion, 	and 	how 	that 	experience 	is 	reliably 	applied 	to 	the
facts.” Id. (citing Fed. R. Evid. 702 advisory committee’s note). Because I conclude,
based on the Government’s representations, that Magyarics’ expert testimony is
likely admissible, I deny the motion in limine as to this evidence as well.
II. CONCLUSION
For the reasons explained above, it is ORDERED that Diggins’ motion in
limine (ECF No. 165) is DENIED.
SO ORDERED.
Dated: March 5, 2020
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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