United States v. Diggins ( 2022 )

United States Court of Appeals
For the First Circuit
Nos. 20-2078, 20-2079
UNITED STATES OF AMERICA,
Appellee,
v.
MAURICE DIGGINS,
Defendant-Appellant.
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.
Darcie N. McElwee, United States Attorney; Benjamin Block,
Assistant United States Attorney; Kristen Clarke, Assistant
Attorney General; Pamela S. Karlan, Principal Deputy Assistant
Attorney General; and Thomas Chandler and Brant S. Levine,
Attorneys, Appellate Section, Department of Justice, on brief for
appellee.
June 8, 2022
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"), 18 U.S.C. §§ 249(a)(1), 371.1 On appeal, Diggins challenges
Congress's ability under § 2 of the Thirteenth Amendment to pass
§ 249(a)(1), contending that the Supreme Court's expansive
articulation of § 2 authority in Jones v. Alfred H. Mayer Co., 392
U.S. 409 (1968), has been curtailed or overruled by the Court's
subsequent decisions in City of Boerne v. Flores, 521 U.S. 507(1997), and Shelby County v. Holder, 570 U.S. 529 (2013). He
further asserts that the government failed to satisfy the
procedural requirements of 18 U.S.C. § 249(b)(1). Lastly, Diggins
contests the admission into evidence of his white-supremacist
tattoos and expert testimony relating to the same. We affirm the
judgment of the district court, holding that Diggins's first two
arguments are unavailing and the third argument has been waived.
1 In pertinent part, 18 U.S.C. § 249(a)(1) makes it a crime
to "willfully cause[] bodily injury to any person . . . because of
the actual or perceived race, color, religion, or national origin
of any person." 18 U.S.C. § 371, in turn, proscribes "two or more
persons conspir[ing] . . . to commit any offense against the
United States" where "one or more of such persons do any act to
effect the object of the conspiracy."
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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
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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 foot, yelling, "[N]igger, who you
eyeballing?" Diggins proceeded to exit his vehicle and
aggressively approach D.M., distracting him while Diggins's nephew
came from behind the vehicle and punched D.M. in the face. The
force of the punch broke D.M.'s jaw and knocked him to the ground.
D.M. testified that after he fell, Diggins punched him in the back
of his head. Suffering "unexplainable" pain and fearing for his
life, D.M. fled. As Diggins or his nephew laughed, Diggins's
nephew pursued him on foot, yelling, "un, nigger." Subsequently,
Diggins and his nephew re-entered their vehicle and drove in D.M.'s
direction, shouting, "We're going to find you, nigger."
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 18 U.S.C. § 249(a)(1) and one count of
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conspiring to commit a hate crime in violation of 18 U.S.C.
§§ 249(a)(1)(A), 371.2 Along with the indictment, the Assistant
Attorney General for the Civil Rights Division filed a certificate
pursuant to 18 U.S.C. § 249(b)(1) averring that prosecuting
Diggins and his nephew for violating § 249 would be "in the public
interest and necessary to secure substantial justice."3 Diggins
moved to dismiss the superseding indictment, challenging the
constitutionality of 18 U.S.C. § 249(a)(1) and separately
contending that the certification did not satisfy the requirements
of 18 U.S.C. § 249(b)(1).4 The district court rejected both
arguments. United States v. Diggins, 435 F. Supp. 3d 268 (D. Me.
2019). Diggins also filed a pretrial motion in limine to exclude
evidence and expert testimony relating to certain of his tattoos
associated with white-supremacist ideology, including four
swastikas, two lightning bolts associated with the Nazi SS, the
letters "WPWW" (referring to "White Pride World Wide"), and an
image of an Absolut Vodka bottle containing the phrases "white
2 Diggins was initially charged in state court for conspiracy
to commit aggravated assault in violation of Maine law, but said
criminal action was later dismissed following Diggins's federal
indictment.
3 That statement, subparagraph (D) of § 249(b)(1), is one of
four grounds the Assistant Attorney General may offer as reason to
invoke the federal prosecutorial power. We discuss the Assistant
Attorney General's certification infra Section I.D and Part II.
4 Diggins's nephew subsequently pleaded guilty. Hence, this
appeal pertains only to Diggins.
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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, and
violence" both on his direct victims and the "entire minority
community."
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 18
U.S.C. § 249(a)(1) and asserts deficiencies in the certification
process pursuant to 18 U.S.C. § 249(b)(1). Diggins also appears
to challenge the denial of his motion to suppress evidence and
5 The record evidences that Diggins did not object at trial
to the jury instructions pertaining to whether his actions
satisfied the elements of § 249(a)(1), or to the verdict form used.
On appeal, he makes no claims as to these matters, nor does he
challenge his sentence.
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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 18 U.S.C. § 249(a)(1), a
provision of the Shepard-Byrd Act, under which Diggins was
convicted. The government contends said provision is
constitutional under the rational-determination test the Supreme
Court articulated in Jones v. Alfred H. Mayer Co., 392 U.S. 409(1968), to evaluate legislation enacted under § 2 of the Thirteenth
Amendment. Diggins disagrees and contends that § 249(a)(1) fails
the Jones test. He further contends that the constitutional
landscape established by Jones has been eroded by the Supreme
Court's subsequent decisions in City of Boerne v. Flores, 521 U.S.
507 (1997), and Shelby County v. Holder, 570 U.S. 529 (2013), which
dealt with the Fourteenth and Fifteenth Amendments, respectively.
He avers that the same federalism concerns driving those cases are
presented here, and we should therefore apply the tests articulated
there -- as opposed to that in Jones -- to evaluate the
constitutionality of § 249(a)(1). We reject Diggins's arguments
here, as well as his two others, for the reasons discussed
seriatim.
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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." U.S. Const. amend. XIII, § 1.
Section Two provides that "Congress shall have power to enforce
this article by appropriate legislation." Id. § 2.6 Uniquely
among the Reconstruction Amendments, the Thirteenth Amendment's
Enforcement Clause lacks a state-action provision, instead
empowering Congress to directly regulate private conduct. See The
Civil Rights Cases, 109 U.S. 3, 20 (1883) (noting that § 2
The wording of Section Two alludes to the Supreme Court's
6
language in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421
(1819) ("Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are
constitutional." (emphasis added)). See Jack M. Balkin, The
Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1810 & n.34 (2010).
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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
Beginning with the 1888 Civil Rights Cases, the Court
7
affirmed that § 2, in theory, "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. at 20. In practice, however, the Court
consistently invalidated legislation enacted under the Thirteenth
Amendment, adopting a highly restrictive interpretation of the
"badges and incidents of slavery." See id. at 20, 22 (holding
that § 2 did not authorize passage of the Civil Rights Act of
1875); Plessy v. Ferguson, 163 U.S. 537, 542 (1896) (determining
that segregation "cannot be justly regarded as imposing any badge
of slavery"), overruled by Brown v. Bd. of Educ., 347 U.S. 485(1954); Hodges v. United States, 203 U.S. 1, 8 (1906) (holding
that § 2 only empowers Congress to outlaw private conduct so
extreme as to impose "the state of entire subjection of one person
to the will of another"), overruled in part by Jones, 392 U.S.
409.
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dissents in those cases,8 Jones reassessed the 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 42 U.S.C. § 1982,
originally passed as a provision of the Civil Rights Act of 1866,
which forbids racial discrimination in the lease and sale of
private property. As described by Senator Lyman Trumbull, who
authored the Thirteenth Amendment and first introduced the Civil
8 In a series of vociferous dissents, Justice Harlan
excoriated the Court's restrictive reading of § 2. See The Civil
Rights Cases, 109 U.S. at 26 (Harlan, J., dissenting) ("The opinion
in these cases proceeds, as it seems to me, upon grounds entirely
too narrow and artificial. The substance and spirit of the recent
amendments of the Constitution have been sacrificed by a subtle
and ingenious verbal criticism."); Plessy, 163 U.S. at 562 (Harlan,
J., dissenting) ("The arbitrary separation of citizens, on the
basis of race, while they are on a public highway, is a badge of
servitude wholly inconsistent with the civil freedom and the
equality before the law established by the constitution.");
Hodges, 203 U.S. at 37-38 (Harlan, J., dissenting) ("The
interpretation now placed on the 13th Amendment is . . . entirely
too narrow, and is hostile to the freedom established by the
Supreme Law of the land."); see also United States v. Nelson, 277
F.3d 164, 181-83 (2d Cir. 2002) (summarizing the evolution in
caselaw from the Civil Rights Cases to Jones and concluding that
"Justice Harlan's reading of the Thirteenth Amendment's
enforcement clause, including, critically, his account of the
scope of congressional discretion under that clause, has in
principal part prevailed"). For a historical account of Justice
Harlan's dissents in the Court's post-Reconstruction caselaw, see
generally Peter S. Canellos, The Great Dissenter: The Story of
John Marshall Harlan, America's Judicial Hero 256-70, 329-51
(2021).
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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"
(quotation 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
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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 interpretation, 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
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standard" for challenges to legislation enacted thereunder.
United States v. Roof, 10 F.4th 314, 392 (4th Cir. 2021), petition
for cert. filed, 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
(1988) (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 § 249(a)(1) is a constitutional exercise of
Congress's power under the Thirteenth Amendment. In so holding,
we are joined by every other circuit to have considered the
question. See Roof, 10 F.4th at 392; United States v. Metcalf,
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881 F.3d 641, 645 (8th Cir. 2018); United States v. Cannon, 750
F.3d 492, 502 (5th Cir.), cert. denied, 574 U.S. 1029 (2014);
United States v. Hatch, 722 F.3d 1193, 1204-05 (10th Cir. 2013),
cert. denied, 572 U.S. 1018 (2014); United States v. Maybee, 687
F.3d 1026, 1031 (8th Cir.), cert. denied, 568 U.S. 991 (2012).
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 18 U.S.C § 249(a)(1), which in relevant part makes it illegal
to "willfully cause[] bodily injury to any person . . . because of
the actual or perceived race, color, religion, or national origin
of any person." Congress expressly relied on its authority under
§ 2 in enacting § 249(a)(1), determining in its legislative
findings of fact that "eliminating racially motivated violence is
an important means of eliminating, to the extent possible, the
badges, incidents, and relics of slavery and involuntary
servitude." 34 U.S.C. § 30501(7). Congress thus passed
§ 249(a)(1) in recognition of the intrinsic and inconvertible
connections between racial violence and slavery:
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.
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Id.
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 features" and
collecting sources); State v. Mann, 13 N.C. (2 Dev.) 263, 266-67
(1829) (characterizing "uncontrolled authority over the body" as
"inherent in the relation of master and slave"). Indeed, the
violence in the record before us -- attacks against two Black men
born of white-supremacist ideology -- constitutes the paradigmatic
"badge and incident" or "relic of slavery" that the Thirteenth
Amendment exists to eliminate. Jones, 392 U.S. at 441, 443. As
such, we join every other circuit to have evaluated the provision
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to conclude that § 249(a)(1) constitutes "appropriate legislation"
under § 2.
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 § 249(a)(1), either
as an exercise in irrational policymaking, or "as applied" to his
conduct.9
We are wholly unpersuaded. As the Tenth Circuit
explained in Hatch, regardless of the facial breadth of Jones,
§ 249(a)(1) adopts "a limited approach to badges-and-incidents"
that "focuses on three connected considerations: (1) the salient
Diggins does not allege that the government failed to prove
9
the elements of § 249(a)(1) beyond a reasonable doubt, so the
nature of his "as applied" challenge -- by which he purports to
distinguish cases such as Roof -- is unclear. To the extent
Diggins argues here that the government erred in choosing to
prosecute him under § 249(a)(1), his claim merely restates his
separate challenge to the certification process of § 249(b)(1),
which we consider and reject infra Part II.
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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." Id. at 1205-06. Accordingly, Congress
drafted § 249(a)(1) to extend "only to persons who embody a trait
that equates to 'race' as that term was understood in the 1860."
Id. at 1206.10 Section 249(a)(1) further requires a clear nexus
between the protected characteristic and the prohibited conduct,
covering only violence that occurs "because of" the victim's
"actual or perceived race, color, religion, or national origin."
18 U.S.C. § 249(a)(1). Finally, this provision only targets
conduct -- "willfully cause[d] bodily injury" -- whose connection
to slavery is, as we just detailed, beyond contestation. Id.; see
Roof, 10 F.4th at 392; Nelson, 277 F.3d at 189-90.
10 While § 249(a)(1) covers "religion" and "national origin"
in addition to "race" and "color," Congress was careful to note in
its legislative findings that "at the time when the 13th, 14th,
and 15th amendments to the Constitution of the United States were
adopted, and continuing to date, members of certain religious and
national origin groups were and are perceived to be distinct
'races.'" 34 U.S.C. § 30501(8). Thus, "at least to the extent
such religions or national origins were regarded as races at the
time of the adoption of the 13th, 14th, and 15th amendments to the
Constitution," Congress concluded that "prohibit[ing] assaults on
the basis of real or perceived religions or national origins"
similarly served to eliminate the "badges, incidents, and relics
of slavery." Id.; see Shaare Tefila Congregation v. Cobb, 481
U.S. 615, 617 (1987) (noting that 19th-century "definitions of
race . . . were not the same as they are today," frequently
encompassing characteristics better understood today as matters of
religion or national origin); Saint Francis Coll. v. Al-Khazraji,
481 U.S. 604, 610-13 (1987).
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In sum, § 249(a)(1) employs a conservative framework,
solicitous of the "limiting principles to congressional authority"
under Jones, for evaluating whether conduct perpetuates a badge or
incident of slavery. Hatch, 722 F.3d at 1205. To be clear, the
Tenth Circuit expressly disclaimed holding that this tripartite
approach is required by Jones, id. at 1206, and likewise we do not
hold so here. It suffices that § 249(a)(1) exists well within the
parameters of the test articulated in Jones. As such, Diggins's
attempts to invoke the specter of unbridled § 2 authority fail,
because the phantasm of overzealous enforcement does not haunt the
provision at issue. By any measure, Congress's judgment that
racially motivated violence constitutes one of the badges and
incidents of slavery easily satisfies Jones's rational-
determination test.
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
11 In support of this argument, Diggins points to cautionary
language about Jones in Judge Elrod's special concurrence in Cannon
and highlights dicta to similar effect in Hatch. See Cannon, 750
F.3d at 514 (Elrod, J., specially concurring) (asserting that cases
such as City of Boerne and Shelby County expose "tensions between
several lines of the Supreme Court's constitutional
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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. Pub. L. 103-141,
107 Stat. 1488 (1993) (codified at 42 U.S.C §§ 2000bb to bb-4).
Congress expressly crafted RFRA "to restore the compelling
jurisprudence"); Hatch, 722 F.3d at 1204-05 (speculating that
"broad use of Section 2 power . . . would arguably raise the sort
of federalism concerns articulated in City of Boerne"). For the
reasons stated below, we flatly reject any notion that City of
Boerne and Shelby County cast doubt on Jones's reasoning.
12 In practice, application of the Sherbert test was more
nuanced. See generally Eugene Volokh, A Common-Law Model for
Religious Exemptions, 46 UCLA L. Rev. 1465, 1494-1501 (1999).
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interest test as set forth in Sherbert . . . and Wisconsin v.
Yoder, 406 U.S. 205 (1972)" and to abrogate Smith, see 42 U.S.C
§ 2000bb(a)(4)-(5), (b)(1), and thus supplied a rule of decision
for constitutional free exercise claims. RFRA prohibited both the
federal government and state governments from "substantially
burden[ing] a person's exercise of religion even if the burden
results from a rule of general applicability, except" when the
government could show that the burden was the "the least
restrictive means of furthering [a] compelling governmental
interest." See id. § 2000bb-1(a), (b).
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 527-29. The Court grounded this holding
in its extensive recounting of the ratification history of the
- 20 -
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
- 21 -
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 authority and upset the "federal balance," id.
at 536. This holding, however, was limited to the states as RFRA
continues to govern the federal government. See Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 695 (2014); Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 n.1
(2006).
Our discussion and analysis of City of Boerne clearly
suggests why Congress's enactment of § 249(a)(1) under the
Thirteenth Amendment was nothing like its enactment of RFRA under
the Fourteenth Amendment. First, we note that nowhere does City
of Boerne mention either Jones or the Thirteenth Amendment.
Rather, the cases concern two different amendments, each with its
- 22 -
own unique history, structure, and caselaw. Diggins furnishes no
reason to believe that City of Boerne's examination of the
Fourteenth Amendment's Enforcement Clause displaces Jones's
separate analysis of the of the Thirteenth Amendment. In fact,
the Court in Jones and City of Boerne conducted similar inquiries
into each amendment, employing parallel methodologies and modes of
reasoning. Compare, e.g., Jones, 392 U.S. at 437-43 (reviewing
the ratification history of the Thirteenth Amendment and
concurrent congressional debates concerning the 1866 Civil Rights
Act), with City of Boerne, 521 U.S. at 517-27 (examining the
history of the Fourteenth Amendment). The fact that the two cases'
shared reasoning may have led to different conclusions reflects
that the underlying amendments, and therefore their applications,
may vary correspondingly.
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 U.S. Const.
amend. XIV, § 5, and "there is a long, well-established,
doctrinally rich, and highly sophisticated tradition of judicial
interpretation of the substantive protections established by
Section One of the Fourteenth Amendment," Nelson, 277 F.3d at 185
- 23 -
n.20. Yet the same does not hold true for Section One of the
Thirteenth Amendment, the meaning of which "has almost never been
addressed directly by the courts, in the absence of specific
congressional legislation enacted." Id. Read together, then,
City of Boerne and Jones do not expose a tension in the caselaw,
but rather reveal a key structural, textual, and historical
dissimilarity between the Reconstruction Amendments.13
Comparing § 249(a)(1) with RFRA reveals other crucial
dissimilarities. Most importantly, unlike RFRA, § 249(a)(1) does
not involve congressional interpretation of the scope of
substantive rights protected by the Constitution. The Supreme
Court, not Congress, determined that the Thirteenth Amendment bans
not just slavery but "substitutes for the slave system." See
Jones, 392 U.S. at 442. The Supreme Court, not Congress,
13Indeed, it has been long recognized -- in caselaw relied
on in both City of Boerne and Jones -- that the enforcement clauses
of the Thirteenth and Fourteenth Amendments differ at least insofar
as the latter imposes a state-action requirement absent in the
former. Compare The Civil Rights Cases, 109 U.S. at 20 (noting
that § 2 of the Thirteenth Amendment empowers "Congress to adopt
direct and primary, as distinguished from corrective,
legislation"); with id. at 19 (Congress had exceeded its
legislative authority under the Fourteenth Amendment in enacting
the Civil Rights Act of 1875 because the latter was "not corrective
legislation" but rather "primary and direct" in character); see
also City of Boerne, 521 U.S. at 525 (noting that the Fourteenth
Amendment's Enforcement Clause "did not authorize Congress to pass
'general legislation upon the rights of the citizen, but corrective
legislation . . . for counteracting such laws as the States may
adopt or enforce'" (quoting The Civil Rights Cases, 109 U.S. at
13-14)).
- 24 -
determined that review of Congressional determinations of what
constitute the "badges and incidents of slavery" are reviewed under
the rational-determination standard. Id. at 440. The Supreme
Court, not Congress, determined that Congress rationally
determined that racially motivated violence is a relic of slavery,
and thus its prohibition fell within Congress's Thirteenth
Amendment enforcement power to obliterate the relics of slavery.
See Griffin, 403 U.S. at 105. Thus, in enacting § 249(a)(1),
Congress did not usurp the judiciary's role in interpreting the
Constitution and in defining the balance of power between the
federal government and the state governments. Congress enacted
§ 249(a)(1) within the scheme announced by the Supreme Court, and
did not purport to pronounce the scheme the Supreme Court ought to
apply. Additionally, unlike RFRA, § 249(a)(1) does not operate on
state governments. The statute does not diminish the states'
police power in any way.
Moreover, even if we were to accept Diggins's invitation
to apply City of Boerne here, § 249(a)(1) would still be
constitutional. Unlike with RFRA, Congress made extensive
findings about the need for federal assistance to combat the
pervasive problem of racially motivated violence. Congress
enacted § 249(a)(1) as part of the Shepard-Byrd Act to address
racially motivated violence as a badge or incidence of slavery.
The scope and gravity of that harm, Congress determined, is
- 25 -
considerable and widespread. In passing the law, Congress
expressly found that "[t]he incidence of violence motivated by the
actual or perceived race[] [or] color[] . . . of the victim poses
a serious national problem." Pub. L. 111-84 § 4702(1), 123 Stat.
at 2835 (codified at 34 U.S.C. § 12361(1)). It further 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.
Pub. L. 111-84 § 4702(7), 123 Stat. at 2836 (codified at 34 U.S.C.
§ 12361(2)). Congress thus concluded that "eliminating racially
motivated violence is an important means of eliminating, to the
extent possible, the badges, incidents, and relics of slavery and
involuntary servitude." Id. To support those findings and
conclusions, Congress made extensive findings on a pervasive
national pattern of racially motivated hate crimes.14 The Supreme
14 See H.R. Rep. 111-86 at 5 (2009) (reporting that "[s]ince
1991, the FBI has identified over 118,000 reported violent hate
crimes," of which, for the most recent year, "[r]acially-motivated
bias accounted for approximately half (50.8%) of all incidents");
id. at 6-9 (describing the inadequacies of prior federal statues);
id. at 7 (articulating state and local needs for "the Federal
Government's resources, forensic expertise, and experience in the
identification and proof of bias-motivated violence and criminal
networks").
- 26 -
Court has similarly recognized the unique harms of racially
motivated acts of violence, see Wisconsin v. Mitchell, 508 U.S.
476, 488 (1993), reinforcing Congress's finding.
Further, unlike RFRA, § 249(a)(1) does not prohibit
facially constitutional conduct. See United States v. Georgia,
546 U.S. 151, 158–59 (2006). Section 249(a)(1) prohibits persons
from actually violating the Thirteenth Amendment by perpetuating
a badge or incident of slavery, to wit, racially motivated
violence. As we have explained, Congress targeted a narrow
category of conduct. It sought to "obliterate," Civil Rights
Cases, 109 U.S. at 21, violence designed to communicate and enforce
ideas of racial superiority and inferiority, see Hatch, 722 F.3d
at 1206. It does not target "facially constitutional conduct[] in
order to prevent and deter unconstitutional conduct." Nev. Dept.
Hum. Res. v. Hibbs, 538 U.S. 721, 727-28 (2003).
And unlike RFRA, § 249(a)(1) is congruent and
proportional to the harm Congress sought to address. The remedy
Congress chose is narrow. To address the long and pervasive
history of violence targeted at racial minorities, Congress
crafted a narrow criminal prohibition, which addresses only actual
acts of willful racially motivated violence. Prosecutions may be
brought federally only in limited circumstances, each of which
Congress connected to an important federal interest or to the lack
of a state interest. 18 U.S.C. § 249(b)(1). Given those
- 27 -
circumstances, § 249(a)(1) "cannot be said to be '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.'" Tennessee v. Lane, 541 U.S. 509, 533
(2004) (quoting City of Boerne, 521 U.S. at 532).
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, 52 U.S.C. §§ 10303(b), 10304, which Congress
enacted using authority under the Fourteenth and Fifteenth
Amendments. Those provisions prohibited jurisdictions with a
history of racially discriminatory voting restrictions from
changing any of their voting rules without prior approval of the
Department of Justice. See 52 U.S.C. § 10304. The Court agreed
with Shelby County, enjoining enforcement of those provisions of
the Voting Rights Act. The Court held that "[t]he Voting Rights
Act sharply departs from [several] basic principles" of the
American constitutional order: that the federal government may not
veto state laws, that "[s]tates retain broad autonomy in
structuring their governments and pursuing legislative
objectives," and that states enjoy "equal sovereignty" and must be
treated alike. Shelby Cnty., 570 U.S. at 542-544. While those
extraordinary measures had once been justified, the Court held
- 28 -
that they were no longer constitutionally sanctioned. Id. at 545-
47. Instead, pointing to improvements in racial disparities in
voter turnout since 1965, the Court held that "Congress –– if it
is to divide the States -- must identify those jurisdictions to be
singled out on a basis that makes sense in light of current
conditions. It cannot rely simply on the past." See id. at 553.
This, the Court determined, Congress failed to do. See id. at
554.
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
and Fifteenth Amendments, much less announce a test applicable to
the Thirteenth Amendment's Enforcement Clause. Further, even if
Shelby County can be read to impose a general obligation on
Congress to update civil rights laws to account for current
conditions, we see no issue with § 249(a)(1). Congress adopted
the law after looking at conditions in 2009, which it found were
broadly consistent with historical data. H.R. Rep. 111-86 at 5
(2009). Although Diggins insinuates that hate crimes are no longer
matters of national significance, he has given us absolutely no
reason to think that conditions have shifted enough to deprive
Congress of the ability to legislate against racially motivated
violence. To the contrary, in May 2021, Congress found a "dramatic
- 29 -
increase in hate crimes and violence against Asian-Americans and
Pacific Islanders," and allocated additional resources to federal
programs combatting hate crimes. See COVID-19 Hate Crimes Act,
Pub. L. 117-13, 135 Stat. 265.
Diggins contends that § 249(a)(1) displaces state
authority, implicating the same federalism concerns as §§ 4 and 5
of the Voting Rights Act. Not so. Unlike the provisions at issue
in Shelby County, § 249(a)(1) does not represent an "extraordinary
departure from the traditional course of relations between the
States and the Federal Government." Shelby Cnty., 570 U.S. at 557
(quoting Presley v. Etowah Cnty. Comm'n, 502 U.S. 491, 500–01
(1992)). Rather, § 249(a)(1) is a cornerstone of a scheme of
cooperative federalism, representing an ordinary example of one of
many parallel state and federal penal laws. See Gamble v. United
States, 139 S. Ct. 1960, 1965-67 (2019). Indeed, Congress asserted
federal jurisdiction to allow the Department of Justice to "work
together as partners" with state and local law enforcement. 34
U.S.C. § 30501(9). Section 249(a)(1) does not allow the federal
government to veto state laws or restructure state governance; it
says nothing on the subject. Nor does § 249(a)(1) discriminate
between states; it applies uniformly nationwide.
Aware of federalism concerns, see H.R. Rep. 111-86 at
14-15, Congress limited federal prosecutions under § 249(b)(1) to
- 30 -
four scenarios, when the Attorney General (or a designee) certifies
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.
18 U.S.C. § 249(b)(1). The first and second grounds cannot
possibly encroach on state authority. When the state lacks
jurisdiction, there is no state authority to usurp. And when the
state asks for a federal prosecution, its consent alleviates any
federalism concerns. The third ground, in turn, allows for federal
jurisdiction only when a state has acted and a federal interest
remains. The federal government does not diminish state authority
when it undertakes a second prosecution after the state has already
taken its case to trial. Finally, the fourth ground, while
allowing for a more robust assertion of federal interests, still
allows the state to undertake any prosecution it wishes to. See
Gamble, 139 S. Ct. at 1965-67. In sum, none of the cases in which
Congress authorized prosecutions under § 249(a)(1) weaken state
authority in any way. Nor can Congress be said to have arrogated
to itself a general police power, see Hatch, 722 F.3d at 1203-04,
- 31 -
when it targets only racially motivated violence through
cooperation with the states.
The cooperative nature of the federalism here is further
evidenced by the statutory context. Congress enacted § 249(a)(1)
as part of the Shepard-Byrd Act. Far from usurping state
authority, the act enhances state power. It authorizes the
Attorney General to "provide technical, forensic, prosecutorial,
or any other form of assistance in the criminal investigation or
prosecution of" violent hate crimes under state law. Pub. L. 111-
84 § 4704(a)(1), 123 Stat. at 2837 (codified at 34 U.S.C. §
30503(a)(1)). It similarly authorizes the Attorney General to
award grants to state and local law enforcement agencies "for
extraordinary expenses associated with the investigation and
prosecution of hate crimes." Pub. L. 111-84 §§ 4704(b)(1), 4705
123 Stat. at 2837 (codified at 34 U.S.C. §§ 30503(b)(1), 30504).15
That is why twenty-eight state attorneys general lobbied Congress
to enact the law, expressing a belief that "federal assistance is
critical in fighting the invidious effects of hate crimes." Local
Law Enforcement Hate Crimes Prevention Act of 2007: Hearing on
H.R. 1589 Before the Subcomm. on Crime, Terrorism & Homeland Sec.,
Amendments to the Shepard-Byrd Act, enacted in May 2021,
15
provide for even more resources to help states investigate and
prosecute hate crimes. Khalid Jabara and Heather Heyer National
Opposition to Hate, Assault, and Threats to Equality Act of 2021,
Pub. L. 117-13 § 5, 135 Stat. 265, 266-72 (codified at 34 U.S.C.
§ 30507).
- 32 -
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 § 249(a)(1) poses federalism concerns.
The mere fact that the Reconstruction Amendments possess similarly
worded enforcement clauses and "disclose[] a unity of purpose" at
a broad level, see The Slaughter–House Cases, 83 U.S. 36, 67
(1872), does not obviate the obvious. The Thirteenth, Fourteenth,
and Fifteenth Amendments are independent and distinct
constitutional provisions, each with its unique scope, enforcement
clause, and ratification history, and each spawning its own unique
jurisprudence. Accordingly, we cannot simply graft doctrines
articulated and crafted for entirely separate constitutional
provisions onto the Thirteenth Amendment context. Section
249(a)(1) is an attempt to supplement state efforts to address the
continuing problem of racially motivated violence. It supports
rather than offends principles of federalism. Wherever the
boundary on Congress's enforcement power under the Thirteenth
Amendment lies, § 249(a)(1) easily falls within it.
- 33 -
II. Certification under § 249(b)(1)
Diggins next alleges deficiencies in the government's
certification of the prosecution pursuant to 18 U.S.C.
§ 249(b)(1). As described supra Section I.D, prosecutions of
offenses under § 249(a) require the "certification in writing of
the Attorney General[] or a designee" that one of four conditions
exist warranting federal intervention. 18 U.S.C. § 249(b)(1).
Pursuant to this provision, the Assistant Attorney General, acting
as the Attorney General's designee, certified shortly before the
grand jury returned the superseding indictment that the
prosecution of Diggins and his nephew under § 249(a)(1) was "in
the public interest and necessary to secure substantial justice,"
one of the four situations contemplated by § 249(b)(1). See id.
§ 249(b)(1)(D).
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
- 34 -
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 § 249(b), along with all but one of our
sister circuits we have held unreviewable a similar certification
requirement in federal juvenile law, codified at 18 U.S.C. § 5032,
which in relevant part requires the Attorney General to confirm
that "there is a substantial Federal interest in the case." United
States v. Smith, 178 F.3d 22, 25 (1st Cir. 1999); accord United
States v. F.S.J., 265 F.3d 764, 768 (9th Cir. 2001); United States
v. Doe, 226 F.3d 672, 676–78 (6th Cir. 2000); United States v.
Jarrett, 133 F.3d 519, 538–41 (7th Cir. 1998); United States v.
Juv. Male, J.A.J., 134 F.3d 905, 906–09 (8th Cir. 1998); In re
Sealed Case, 131 F.3d 208, 212–15 (D.C. Cir. 1997); United States
v. Juv. No. 1, 118 F.3d 298, 303–07 (5th Cir. 1997); Impounded
(Juv. R.G.), 117 F.3d 730, 733–36 (3d Cir. 1997); United States v.
I.D.P., 102 F.3d 507, 510–13 (11th Cir. 1996).16 Our holding in
16The Fourth Circuit is unique among appellate courts to hold
that certifications of a substantial federal interest under § 5032
- 35 -
Smith that certification under § 5032 is an unreviewable exercise
of prosecutorial discretion was based largely on the fact that the
provision "does not specifically provide for judicial review of a
certification and fails to articulate any standards for
determining the existence of a substantial federal interest."17
Smith, 178 F.3d at 25.
For the same reason, we now hold that certifications
made under § 249(b) are exempt from judicial review, as the
government urges us to determine. See also United States v.
Bowers, 495 F. Supp. 3d 362, 374 (W.D. Pa. 2020) (finding
certifications under § 249(b) unreviewable); United States v.
Jenkins, 909 F. Supp. 2d 758, 774 (E.D. Ky. 2012) (same). Like
§ 5032, § 249(b) neither expressly provides for judicial review
nor specifies any standards to evaluate the nature of the federal
are subject to judicial review. See United States v. Juv. Male
No. 1, 86 F.3d 1314, 1317–21 (4th Cir. 1996). In Roof, the Fourth
Circuit "assume[d] without deciding" that § 249 certifications are
reviewable, but affirmed the certification on the merits and noted
that its "scope of review [wa]s limited because the Attorney
General's certifications must be afforded substantial deference."
10 F.4th at 396-97.
17Analogously, we have held in the context of capital cases
that "because the exercise of prosecutorial discretion is a 'core
executive constitutional function,'" the guidelines contained in
the United States Attorneys' Manual for determining whether to
seek the death penalty do not confer substantive rights on
defendants. See United States v. Lopez-Matias, 522 F.3d 150, 156
(1st Cir. 2008) (quoting United States v. Armstrong, 517 U.S. 456,
465 (1996)); see also id. (noting that "[w]e are reluctant to
interfere with internal prosecutorial measures" in large part out
of "a respect for the separation of powers").
- 36 -
interest at stake. As such, certifications under § 249(b) are
"unreviewable act[s] of prosecutorial discretion." Smith, 178
F.3d at 26.18 Diggins's challenge to the certification of his
prosecution thus fails.19
18Diggins attempts to distinguish Smith by asserting that the
certification here was "constitutionally defective" rather than a
simple exercise of prosecutorial discretion, but this argument
merely adverts to the same putative concerns about federalism and
the scope of the Thirteenth Amendment that we have already rejected
supra Part I. Cf. Hatch, 722 F.3d at 1207 ("We see no
constitutional significance in the certification requirement.").
19By way of a letter submitted pursuant to Fed. R. Civ. P.
28(j), Diggins also belatedly suggests that the certification
requirement somehow represents an unconstitutional delegation of
legislative power, citing as persuasive authority the Fifth
Circuit's recent decision in Jarkesy v. SEC, 2022 WL 1563613 (5th
Cir. May 18, 2022). In that case, a divided panel applied the
nondelegation doctrine to strike down a provision of the Dodd-
Frank Wall Street Reform and Consumer Protection Act, Pub. L. No.
111-203, § 929P(a), 124 Stat. 1376 (2010) (codified at 15 U.S.C.
§ 78u-2(a)) giving the SEC the authority to choose whether to bring
certain enforcement actions in Article III courts or in
administrative proceedings. See Jarkesy, 2022 WL 1563613, at *8-
11.
This contention fails on multiple grounds. First, because
Diggins did not raise any such argument in his opening brief, it
is waived. See Young v. Wells Fargo Bank, N.A., 717 F.3d 224,
239-40 (1st Cir. 2013) ("[A]rguments not raised in an opening brief
are waived."). Second, Jarkesy is wholly inapposite. Exercises
of prosecutorial discretion are emphatically not administrative
delegations, but are -- as noted above -- quintessentially
executive decisions. See Santos-Soto, 799 F.3d 49 at 62; see also
Jarkesy, 2022 WL 1563613, at *10 (holding that the decision whether
to "assign certain actions to agency adjudication" is a legislative
power, but the mere "deci[sion] whether to bring enforcement
actions in the first place" is indeed "an executive, not
legislative power"). As such, there is no possible nondelegation
issue here. And third, even if nondelegation concerns were somehow
applicable, the direction that prosecutions under § 249(b)(1)(D)
be "in the public interest and necessary to secure substantial
justice" indisputably satisfies the lax "intelligible principle"
- 37 -
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
standard under our precedents and those of the Supreme Court. See
United States v. Parks, 698 F.3d 1, 7 (1st Cir. 2012) (quoting
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409
(1928)); see also id. at 8 (noting that "modern case law tends
regularly to disfavor" nondelegation arguments).
- 38 -
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.
- 39 -