435 F.Supp.3d 268
D. Me.2019Background
- Superseding Indictment charging Maurice Diggins and Dusty Leo with two counts under 18 U.S.C. § 249(a)(1) (hate-crime causing bodily injury) and one count of conspiracy under 18 U.S.C. § 371, based on two separate April 15, 2018 assaults on Black men in Maine (alleged broken jaws and racial epithets).
- The Department of Justice filed a § 249(b)(1) written certification signed by Assistant Attorney General Eric S. Dreiband on February 26, 2019, stating federal prosecution was "in the public interest and necessary to secure substantial justice." The grand jury returned the Superseding Indictment three days later.
- Defendants moved to dismiss, arguing (1) § 249(a)(1) is unconstitutional (exceeds Thirteenth Amendment authority; federalism/Tenth Amendment concerns; too broad) and (2) the § 249(b)(1) certification is defective (procedurally—no jurat/signature proof—and substantively—should be judicially reviewable).
- The court considered precedent on the Thirteenth Amendment's "badges and incidents of slavery" doctrine and analogous certification statutes, held a hearing, and resolved the motions by opinion dated December 30, 2019.
- Ruling: the court denied the motion to dismiss, holding § 249(a)(1) constitutional as applied and the § 249(b)(1) certification both procedurally sufficient and not subject to substantive judicial review.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Diggins & Leo) | Held |
|---|---|---|---|
| Constitutionality of § 249(a)(1) under the Thirteenth Amendment | Congress validly enacted § 249(a)(1) under Section 2 to punish "badges and incidents" of slavery, including racially motivated violence | § 249(a)(1) exceeds Thirteenth Amendment authority, improperly criminalizes conduct beyond slavery relics, and raises federalism/Tenth Amendment concerns | § 249(a)(1) is constitutional as applied; Jones and Griffin govern and permit Congress to criminalize racially motivated violence as a badge/incident of slavery |
| § 249(b)(1) procedural sufficiency (signature/jurat) | The written certification by the Assistant Attorney General on its face satisfies the statute; no jurat is required | Certification is procedurally deficient because it lacks a jurat or proof the signatory is the Assistant Attorney General | Certification is procedurally sufficient on its face; no extra-statutory jurat requirement imposed |
| Reviewability/substantive adequacy of the § 249(b)(1) certification | Certification is an exercise of prosecutorial discretion and, like § 5032 precedent, is not subject to substantive judicial review | Certification should be substantively reviewable; otherwise the requirement is an empty formality | Certification is not subject to substantive judicial review; Smith controls and certifications are unreviewable prosecutorial decisions |
Key Cases Cited
- Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (Thirteenth Amendment empowers Congress to eliminate "badges and incidents" of slavery)
- Griffin v. Breckenridge, 403 U.S. 88 (1971) (Congress may criminalize private conduct that constitutes badges and incidents of slavery)
- The Civil Rights Cases, 109 U.S. 3 (1883) (discussed the scope of Congress's authority under post–Civil War amendments)
- United States v. Hatch, 722 F.3d 1193 (10th Cir. 2013) (applying Jones to uphold similar federal hate-crime enforcement under the Thirteenth Amendment)
- United States v. Smith, 178 F.3d 22 (1st Cir. 1999) (certification under a similar statute is an unreviewable prosecutorial decision)
- City of Boerne v. Flores, 521 U.S. 507 (1997) (limits on Congressional enforcement power under the Fourteenth Amendment cited by defendants)
- Shelby County v. Holder, 570 U.S. 529 (2013) (further limits on Congressional authority under the Fifteenth Amendment referenced by defendants)