UNITED STATES OF AMERICA, Aрpellee, v. MAURICE DIGGINS, Defendant-Appellant.
Nos. 20-2078, 20-2079
United States Court of Appeals For the First Circuit
June 8, 2022
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Nancy Torresen, U.S. District Judge]
Before Lynch, Thompson, and Gelpí, Circuit Judges.
William T. Murphy, on brief for appellant.
GELPÍ, Circuit Judge. 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“),
BACKGROUND
I. The Attacks
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
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.
II. Procedural History
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
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,
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
expert testimony relating to his tattoos, although he does not mention the issue in the Argument section of his opening brief.
DISCUSSION
Congress exercised its enforcement powers under § 2 of the Thirteenth Amendment to enact
I. Constitutionality of 18 U.S.C. § 249(a)(1)
A. Standard of Review
We review the constitutionality of federal statutes de novo. See United States v. Booker, 644 F.3d 12, 22 (1st Cir. 2011).
B. The Thirteenth Amendment Enforcement Power Under Jones
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.”
authorizes legislation that is “primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States“); Griffin v. Breckenridge, 403 U.S. 88, 105 (1971) (“[T]here has never been any doubt of the power of Congress to impose liability on private persons under § 2 of th[e Thirteenth] [A]mendment . . . .“).
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 Marshall Harlan‘s
dissents in those cases,8 Jones reassessed thе scope of Congress‘s ability to legislate against the “badges and incidents of slavery,” affirming that § 2 “empower[s] Congress to do much more” than merely effect the abolition of slavery announced in § 1. Jones, 392 U.S. at 439.
Jones concerned a challenge to
Rights Act of 1866 on the Senate floor, the Act was “intended to give effect” to the Thirteenth Amendment‘s guarantee of liberty, “secur[ing] to all persons within the United States practical freedom.” Jones, 392 U.S. at 431 (quoting Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Trumbull)); see also Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 714-22 (1989) (recounting the passage of the Act and extensively quoting Senator Trumbull); Springer v. Seaman, 821 F.2d 871, 881 (1st Cir. 1987) (noting that the “unequivocal language” and “legislative history” of the Civil Rights Act of 1866 “manifests Congress’ purpose to enact sweeping legislation implementing the [T]hirteenth [A]mendment to abolish all the remaining badges and vestiges of the slavery system” (quotatiоn omitted)), abrogated on other grounds by Jett, 491 U.S. 701.
In reconstructing the meaning and scope of § 2 of the Thirteenth Amendment, the Jones Court closely examined the legislative history of the Civil Rights Act, quoting at length Senator Trumbull‘s description of the “fair meaning of the amendment“:
I have no doubt that under this provision . . . we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article
prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States; and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.
Jones, 392 U.S. at 440 (alteration in original) (quoting Cong. Globe, 39th Cong., 1st Sess. 322 (statement of Sen. Trumbull)). Endorsing Senator Trumbull‘s intеrpretation, the Court announced a very broad standard to evaluate legislation passed under Congress‘s § 2 authority: “Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.” Id. Applying this rational-determination framework, the Court held that racial discrimination in sales and leases of property constituted “a relic of slavery.” Id. at 440-43. Accordingly, the Court held that Congress acted rationally -- and thus, constitutionally -- in exercising its § 2 authority to proscribe such discrimination. Under Jones, so long as Congress rationally determines that conduct is a “badge” or “incident” of slavery, statutes passed in reliance on Congress‘s § 2 authority pass constitutional muster. Jones, 392 U.S. at 440.
The Fourth Circuit recently held that ”Jones remains the seminal Supreme Court case on Congress‘s enforcement power under § 2 of the Thirteenth Amendment,” providing the “governing
standard” for challenges to legislation enacted thereunder. United States v. Roof, 10 F.4th 314, 392 (4th Cir. 2021), petition for cert. filеd, No. 21-7234 (U.S. Feb. 24, 2022). Indeed, subsequent Supreme Court caselaw has repeatedly reaffirmed that § 2 vests Congress with authority to legislate against racial discrimination and violence in a variety of contexts, and that courts are to review such legislation under Jones‘s rational-determination standard. See, e.g., Tillman v. Wheaton-Haven Recreation Ass‘n, 410 U.S. 431, 435 (1973) (Jones extends to the racially discriminatory membership policy of a local swimming club); Runyon v. McCrary, 427 U.S. 160, 168, 179 (1976) (§ 2 enables legislation prohibiting racial discrimination in private contracts); Breckenridge, 403 U.S. at 104-05 (§ 2 authorizes creation of a private right of action for victims of conspiracies to be deprived of privileges and immunities or equal protection of the laws); Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989) (reaffirming Runyon).
C. 18 U.S.C. § 249(a)(1) Is Constitutional Under Jones
Applying Jones‘s rational-determination standard, which Diggins concedes is “controlling” of and “binding” on his case, we conclude that
In 2009, Congress passed the Shepard-Byrd Act to combat hate crimes motivated by race and other protected characteristics. Diggins was convicted of violating a provision of the Act codified at
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.
As “over a century of sad history” demonstrates, “concluding there is a relationship between slavery and racial violence ‘is not merely rational, but inescapable.‘” Roof, 10 F.4th at 392 (quoting United States v. Beebe, 807 F. Supp. 2d 1045, 1052 (D.N.M. 2011), aff‘d sub nom. Hatch, 722 F.3d 1193); see also United States v. Nelson, 277 F.3d 164, 189-90 (2d Cir. 2002) (summarizing a wealth of scholarship on the “indubitable connections . . . between American slavery and private violence” and concluding that proscribing “private violence motivated by the victim‘s race . . . falls comfortably within Congress‘s” § 2 authority). Racial subjugation through physical violence was indispensable to maintaining slavery. See Hatch, 722 F.3d at 1206 (noting that antebellum courts recognized “unrestrained master-on-slave violence as one of slavery‘s most necessary
Despite overwhelming judicial consensus, Diggins urges that we forge a separate path and adopt a more restricted interpretation of Jones, arguing that a straightforward application of the rational-determination standard might countenance all manner of purported legislative overreaching. To this end, Diggins cites the Tenth Circuit‘s dicta in Hatch stating that a wide range of conduct could hypothetically “be analogized to slavery” and be “thereby labeled a badge or incident of slavery under Jones‘s rational determination test,” if the latter were taken at face value. Hatch, 722 F.3d at 1204. Diggins appears to insist on reading Jones narrowly to invalidate
We are wholly unpersuaded. As the Tenth Circuit explained in Hatch, regardless of the facial breadth of Jones,
characteristic of the victim, (2) the state of mind of the person subjecting the victim to some prohibited conduct, and (3) the prohibited conduct itself.” Hatch, 722 F.3d at 1205-06. Accordingly, Congress drafted
In sum,
D. Section 249(a)(1) Does Not Implicate Federalism Concerns
Perhaps recognizing his fate under Jones, Diggins also contends that the analyses in the Supreme Court‘s decisions in City of Boerne v. Flores, 521 U.S. 507 (1997), and Shelby County v. Holder, 570 U.S. 529 (2013), effectively render Jones a dead letter.11 We are in no position to overrule binding Supreme Court
precedent. See United States v. McIvery, 806 F.3d 645, 653 (1st Cir. 2015) (“Unless and until the Supreme Court overrules [its precedent], we must continue to adhere to it.” (citing Rodríguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989))). Regardless, we absolutely disagree with Diggins‘s postulation.
We start our analysis with City of Boerne, whose backdrop begins with Sherbert v. Verner, 374 U.S. 398, 402-03 (1963), in which the Supreme Court held that governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest, i.e., strict scrutiny.12 Then, in Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court limited the applicability of the Sherbert test and held that free exercise challenges to neutral, generally applicable laws are subject only to rational basis review. See Smith, 494 U.S. at 888-90 (1990). Responding to Smith, Congress enacted the Religious Freedom Restoration Act, commonly known as RFRA.
interest test as set forth in Sherbert . . . and Wisconsin v. Yoder, 406 U.S. 205 (1972)” and to abrogate Smith, see
City of Boerne held RFRA unconstitutional as applied to states. The analysis turned on two separation of powers issues, one horizontal and one vertical. See 521 U.S. at 517-520. The horizontal issue was whether Congress could define the substance of the rights protected by the Fourteenth Amendment. See id. Examining the amendment‘s structure, ratification history, and subsequent caselaw, the Court held that Congress could not do so. See id. at 520-25. Section 5 of the Fourteenth Amendment, the Court explained, affords Congress an “enforcement power” of “remedial and preventive nature,” id. at 524 (citing The Civil Rights Cases), not the power to define the substantive scope of the rights defined by § 1 of that Amendment and enforce the same against the states, id. at 527-28. The Court grounded this holding in its extensive recounting of the ratification history of the
amendment, finding that “[t]he Fourteenth Amendment‘s history confirms the remedial, rather than substantive, nature of the Enforcement Clause.” Id. at 520. Equally, the Court emphasized that the limited “nature of Congress’ enforcement power . . . w[as] confirmed in our earliest cases on the Fourteenth Amendment.” Id. at 524. “If Congress could define its own powers by altering the Fourteenth Amendment‘s meaning, no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.‘” Id. at 529 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Not only would a substantive, rather than remedial, interpretation of § 5 upset the judiciary‘s authority to interpret the Constitution, it would also allow Congress to trample on the states. See id. at 527 (citing Oregon v. Mitchell, 400 U.S. 112 (1970)).
The Court then turned to the vertical question: whether Congress could constitutionally impose RFRA on the states under its authority to remedy violations of the Fourteenth Amendment. This question, too, it answered in the negative. The Court held that Congress may sometimes enact legislation to prevent future harms, but only when there is “a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented.” Id. at 530. RFRA, said the Court, failed that congruence and proportionality test, because it was “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id. at 532. RFRA‘s “[s]weeping coverage” impermissibly “ensure[d] its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter.” Id. Congress imposed that sweeping coverage on states despite no examples in the legislative record of state laws of general applicability “passed because of religious bigotry.” Id. at 530. The Court thus held that the “considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens,” id. at 534, fell outside Congress‘s limited legislative
Our discussion and analysis of City of Boerne clearly suggests why Congress‘s enactment of
Nor was Jones‘s rational-determination standard -- which Diggins contends “strips all checks on Congress‘[s] power” -- undermined by City of Boerne. This distinction, too, is driven by the varied histories of the Thirteenth and Fourteenth Amendments. The Fourteenth Amendment permits Congress to enforce only those rights discussed in that amendment, see
Comparing
Moreover, even if we were to accept Diggins‘s invitation to apply City of Boerne here,
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.
Pub. L. 111-84 § 4702(7), 123 Stat. at 2836 (codified at
Further, unlike RFRA,
And unlike RFRA,
Diggins also relies on Shelby County as another case supposedly undermining Jones, but that case offers him even less support than City of Boerne. In Shelby County, the county challenged the constitutionality of §§ 4(b) and 5 of the Voting Rights Act of 1965,
We reiterate that, like City of Boerne, Shelby County neither expressly nor impliedly overrules Jones. The Supreme Court did not pronounce on how or whether this standard might apply to different exercises of legislative authority under the Fourteenth
Diggins contends that
Aware of federalism concerns, see H.R. Rep. 111-86 at 14-15, Congress limited federal prosecutions under
(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.
The cooperative nature of the federalism here is further evidenced by the statutory context. Congress enacted
H. Comm. on the Judiciary 18 (2007) (letter from twenty-seven state attorneys general); accord id. at 23 (letter from Florida attorney general).
* * *
Contrary to Diggins‘s arguments, then, the Court‘s decisions in City of Boerne and Shelby County neither undermine Jones nor indicate that
II. Certification under § 249(b)(1)
Diggins next alleges deficiencies in the government‘s certification of the prosecution pursuant to
Diggins argues that this statement was deficient, suggesting that the Assistant Attorney General‘s certification must also explain why he made his decision. But Diggins explicitly disclaims arguing that the certification is judicially reviewable, contending that although “[t]he certification can be reviewed, . . . the reviewers are not courts,” but rather “the voters.” Given this concession, it is unclear what remains of Diggins‘s contention. Assuming he has not waived his challenge to the certification, he points to no basis in the Constitution or the statute for imposing an additional procedural hurdle on the Attorney General‘s exercise of prosecutorial discretion. We find none, either. Rather, it is well established that the decision to prosecute is vested exclusively in the executive branch and is generally not subject to judicial review. See United States v. Santos-Soto, 799 F.3d 49, 62 (1st Cir. 2015) (noting that indictment decisions are “a matter within the sole discretion of the prosecution“).
While we have not previously ruled on the reviewability of certifications under
For the same reason, we now hold that certifications made under
III. The District Court‘s Evidentiary Rulings
Diggins lastly attempts to challenge the district court‘s evidentiary rulings concerning the admission into evidence of his white-supremacist tattoos and expert testimony relating to the same. But Diggins fails to develop this argument in his brief, mentioning it only in his statement of the issues and then (obliquely) in his summary of the argument and articulation of the standard of review. He does not again discuss the matter in his argument. This perfunctory treatment is insufficient. We have repeatedly made clear that a party waives an argument when it “neither develops the argument nor accompanies it with even a shred of authority.” United States v. González, 981 F.3d 11, 23 (1st Cir. 2020), cert. denied, 141 S. Ct. 1710 (2021). “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel‘s work . . . .” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1985). Rather, “a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.” Id. (quoting Rivera-Gómez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)) (internal quotation marks omitted). Because Diggins‘s opening brief did not develop his contention that the district court abused its discretion in its evidentiary rulings, he has waived the argument.
CONCLUSION
The judgment below is affirmed.