United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION TO DISMISS THE
LEVY CHIEF U.S. DISTRICT JUDGE.
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.
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 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.
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.
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
Constitutionality of 18 U.S.C.A. § 249(a)(1)
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
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.
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).
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 (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.
§ 249(a)(1) punishes racially motivated violence, and
Congress determined that racially motivated violence is a
badge and incident of ...