Case 3:11-cr-30006-JLH Document 41 Filed 07/15/11 Page 1 of 15

Case 3:11-cr-30006-JLH Document 41 Filed 07/15/11 Page 1 of 15 PageID #: 129

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

UNITED STATES OF AMERICA PLAINTIFF

v. No. 11-30006

FRANKIE MAYBEE DEFENDANT

O R D E R

NOW on this 15th day of July 2011, comes on for consideration

defendant’s Motion for Judgment of Acquittal Under FRCrP Rule 29,

or in the Alternative For a New Trial Under FRCrP Rule 33, and

Motion for Arrest of Judgment Under FRCrP Rule 34 (Doc. 39) and the

government’s response thereto (Doc. 40). The Court, being well and

sufficiently advised, finds and orders as follows:

Background

On April 6, 2011, defendant was charged in a six count

indictment alleging one count of conspiring to commit a federal

hate crime in violation of 18 U.S.C. § 371, and five counts of

committing a federal hate crime in violation of 18 U.S.C. § 249(a).

A jury trial commenced on May 17, 2011. At the close of the

government’s case, defendant moved for a judgment of acquittal

under Rule 29 of the Federal Rules of Criminal Procedure, arguing

(1) that there had been insufficient evidence presented to the jury

to sustain a conviction on any of the prosecuted counts; and (2)

that 18 U.S.C. § 249(a) is unconstitutional -- and, thus, the Court

was without jurisdiction to proceed with the trial.

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The Court denied the motion to the extent it was properly

advanced under Rule 29 of the Federal Rules of Criminal Procedure,

concluding that there was ample evidence presented to the jury at

that point from which reasonable jurors could properly conclude

that guilt had been proven beyond a reasonable doubt on the

prosecuted counts.

The Court then noted its belief that a challenge to the

constitutionality of the statute under which the prosecutions had

been brought is not properly advanced under Rule 29 of the Federal

Rules of Criminal Procedure but, rather, is the type of motion

which should have been made in advance of trial since its

resolution would in no way depend upon the nature or quantum of

proof which might be presented at trial. Moreover, the Court then

expressed its doubt that the assertion of the constitutional

challenge would be sufficient to deprive the Court of jurisdiction.

Finally, noting that the trial had commenced with no pretrial

notice of the constitutional challenge; that the jury was in the

box and awaiting further proceedings; that the government had not

had any time at all to address or respond to the challenge; and

that the Court, itself, had not had time to properly consider the

same, the Court denied the motion to the extent it was based on

constitutional grounds -- without prejudice to it being renewed at

a later time.

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The defendant did not offer any evidence at trial and the

trial proceeded. On May 18, 2011, the jury found defendant guilty

on all six counts. (See Jury Verdict) (Doc. 37).

On June 2, 2011, defendant filed the present motion. The

government filed its response on June 15, 2011, and the matter is

now ripe for decision.

1. Motion for Judgment of Acquittal -- With respect to the

motion for judgment of acquittal, defendant faces a heavy burden.

The issue is whether the evidence at trial was “sufficient to

support a conviction.” United States v. Peneaux, 432 F.3d 882, 889

(8th Cir. 2005) (internal quotation marks and citation omitted).

The Court must view the evidence in the light most favorable to the

government and give the government the benefit of all reasonable

inferences. See id. The Court can only reverse the jury’s verdict

if it finds that no reasonable jury could have found defendant

guilty. See id.

(a) The Court will not attempt to make a full recitation of

all of the government's evidence presented to the jury. In short,

the Court believes that the government presented substantial

evidence from which a jury could (and did) conclude that, on June

20, 2010, defendant and Sean Popejoy conspired to cause bodily

On May 16, 2011, Sean Popejoy pled guilty to two counts in

the indictment, and the government dismissed the remaining counts

as to him. As part of his plea agreement, Mr. Popejoy testified

at defendant’s trial.

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injury to five young Hispanic men because of their actual or

perceived race, color, or national origin. There was evidence to

show that, in carrying out their plan, defendant chased the

Hispanic males in his truck on the highway; that he then

deliberately used his truck to repeatedly strike the car occupied

by the five Hispanic males; that his repeated actions caused the

car to crash and burst into flames; and that the Hispanic males in

the car were injured as a direct result of defendant's actions.

Mr. Popejoy -- and another young man who was present during

the incident in question -- both testified that the actions of

defendant and Mr. Popejoy were motivated by the race of the

Hispanic males. In addition, the five Hispanic males involved

testified about defendant’s conduct on the day in question, as well

the serious injuries they suffered as a result of defendant’s

actions.

(b) Viewing the evidence in the light most favorable to the

verdict and affording all reasonable inferences flowing therefrom

to the government, the Court cannot find that no reasonable jury

could have found defendant guilty on the charges prosecuted. The

Court believes that the evidence on all six counts was sufficient

to sustain the jury’s verdict and, therefore, will deny the motion

for a judgment of acquittal.

2. Motion for a New Trial -- With respect to the motion for

new trial, Federal Rule of Criminal Procedure 33(a) provides that,

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"[u]pon the defendant's motion, the court may vacate any judgment

and grant a new trial if justice so requires." A district court is

granted broad discretion in considering a motion for a new trial.

See United States v. Campos, 306 F.3d 577, 580 (8th Cir. 2002). A

district court may "weigh the evidence, disbelieve witnesses, and

grant a new trial even where there is substantial evidence to

sustain the verdict." Id. (internal quotation marks and citation

omitted). There are limits, however, to this authority. “Motions

for new trials based on the weight of the evidence are generally

disfavored," and “[u]nless the district court ultimately determines

that a miscarriage of justice will occur, the jury’s verdict must

be allowed to stand.” Id.

The undersigned presided over the trial in this case and,

thus, is well aware of the nature and content of the evidence

presented by the government in the trial. While, as mentioned, the

Court may weigh the evidence and disbelieve witnesses when

evaluating a motion for new trial, the Court perceived no patent

areas of sharp dispute with respect to material facts which would

warrant it in doing so here. That said, however, if the Court

were to find it necessary to weigh evidence and evaluate

credibility of witnesses, it would conclude that the findings were

not against the weight of evidence nor was the jury's apparent

belief of testimony supporting the charges unreasonable, suspect or

otherwise improper. It follows from the foregoing that the Court

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does not believe the evidence in the case was against the verdict

at all, and certainly not heavily so as to constitute a miscarriage

of justice. To the contrary, it is the Court's view that the

weight of the evidence is clearly in favor of the jury’s verdict.

The Court, therefore, will deny the motion for a new trial.

3. Motion for Arrest of Judgment –- Defendant asserts that

the Court must arrest judgment under Rule 34 of the Federal Rules

of Criminal Procedure because the statute involved, 18 U.S.C. §

249(a)(1), is unconstitutional, thus divesting this Court of

jurisdiction to hear this case.

(a) Although not addressed by either party in the briefs, the

Court has considered the question of whether it has the authority

to address this issue at this stage in the case given that the

defendant did not raise the constitutionality of 18 U.S.C. §

249(a)(1) in any pretrial motion. Rather, defendant raised this

issue for the first time during the trial after the government

rested its case.

Under Rule 12(b)(3)of the Federal Rules of Criminal Procedure,

a motion alleging “a defect in the indictment or information” must

be raised before trial. Under Rule 12(e), unless good cause for

the delay is shown, Rule 12(b)(3) defenses are waived if not raised

before trial or by the deadline set by the Court. The government

has not argued waiver in this case.

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Rule 12(b)(3)(B) provides, however, that “at any time while

the case is pending, the court may hear a claim that the indictment

or information fails to invoke the court’s jurisdiction or to state

an offense.” Defendant argues that the Court lacks jurisdiction

because the indictment charges an unconstitutional offense.

Further, Rule 34(a) of the Federal Rules of Criminal Procedure

provides that the Court must arrest judgment if “the indictment or

information does not charge an offense” or “the court does not have

jurisdiction of the charged offense.”

A defendant must file his

motion to arrest judgment within 14 days after the court accepts a

verdict or finding of guilty. See Fed. R. Cr. P. 34(b).

Courts have held that a claim that the indictment fails to

“charge an offense” includes a claim that the statute creating the

offense is unconstitutional, and such a defense can be raised “at

any time while the case is pending” (Rule 12(b)(3)(B)) or “within

14 days after the court accepts a verdict or finding of guilty”

(Rule 34(b)). See United States v. Thomas, 534 F. Supp.2d 912, 915

(N.D. Iowa 2000) (citing United States v. Seuss, 474 F.2d 385, 387

n.2 (1st Cir. 1973) and 24 Moore’s Federal Practice § 612.04, at

612-13 (3d ed. 2002) (“The defense of failure to charge an offense

may be based on . . . the unconstitutionality of the statute relied

“Motions to arrest judgment are rarely granted.” Charles

Alan Wright and Sarah N. Welling, Federal Practice and Procedure,

§ 601 (2011). Indeed, this Court has found no case in the Eighth

Circuit where a court has granted a motion to arrest judgment.

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upon.”)); see also United States v. Milder, 459 F.2d 801, 803 (8th

Cir. 1972) (noting that a constitutional challenge to a statute

“should be raised prior to, or at least during trial.”) (internal

citations omitted).

Thus, the Court determines that, under Rule 12(b)(3)(B) and

Rule 34, it does have the authority to consider the issue of the

constitutionality 18 U.S.C. § 249(a)(1) at this stage in the case.

The Court now turns to that issue.

(b) In support of his motion to arrest judgment, defendant

relies on the Eighth Circuit’s opinion in United States v. Bledsoe,

728 F.2d 1094 (8th Cir. 1984). In that case, the defendant was

charged with violating 18 U.S.C. 245(b)(2)(B), which makes it a

crime to injure someone who is “participating in or enjoying any

benefit, service, privilege, program, facility or activity provided

or administered by any State or subdivision thereof” because of

that person’s race.

The evidence in Bledsoe was that the defendant had beaten a

black man to death in a state park because of the man’s race. The

jury found the defendant guilty. On appeal, the defendant argued

that 18 U.S.C. § 245(b)(2)(B) was unconstitutional because the

statute applied to private action and Congress cannot reach purely

private action under the Fourteenth Amendment.

The Eighth Circuit -- referencing its previous decision in

Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) which in

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turn relied on United States v. Guest, 383 U.S. 745, 86 S. Ct.

1170, 16 L. Ed.2d 239 (1966) -- rejected the argument and held that

Congress could reach purely private action under the Fourteenth

Amendment.

However, the panel in Bledsoe went further and also concluded

that the statute was constitutional under the Thirteenth Amendment,

holding that “[i]t is abundantly clear that under this amendment

Congress can reach purely private action.” Bledsoe, 728 F.3d at

1097 (citing Jones v. Mayer Co., 392 U.S. 409, 438-39, 88 S. Ct.

2186, 2202-03, 20 L.Ed.2d 1189 (1968)). “Nor can there be doubt

that interfering with a person's use of a public park because he is

black is a badge of slavery.” Id.

To put this latter conclusion into proper context, it is

useful to note that the Thirteenth Amendment to the United States

Constitution contains two sections which read, in pertinent parts,

as follows:

Section 1 of the Thirteenth amendment provides that

“[n]either slavery nor servitude, except as 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 provides that “Congress shall have the power to

enforce this article by appropriate legislation.”

As mentioned in the excerpt quoted above, the Eighth Circuit

panel held in Bledsoe that 18 U.S.C. § 245(b)(2)(B) was

constitutional because “interfering with a person’s use of a public

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park because he is black is a badge of slavery.” Bledsoe, 728 F.2d

at 1097.

Defendant argues that 18 U.S.C. § 249(a)(1) is

unconstitutional under Bledsoe’s rationale because the statute

punishes purely private conduct that does not involve the use of

public facilities, etc., or affect interstate commerce.

However,

defendant does not deign to address the Bledsoe court's Thirteenth

Amendment holding.

the constitutionality of 18 U.S.C. § 249(a)(1) on Fourteenth

Amendment grounds but, rather, asserts that it is constitutional

under the Thirteenth Amendment because Congress has extensive

The hate crimes act, 18 U.S.C. § 249(a)(1) provides that:

Whoever, whether or not acting under color of law,

willfully causes bodily injury to any person or,

through the use of fire, a firearm, a dangerous weapon,

or an explosive or incendiary device, attempts to cause

bodily injury to any person, because of the actual or

perceived race, color, religion, or national origin of

any person–

(A) shall be imprisoned nor more than 10 years,

fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or

for life, fined in accordance with this title, or both,

if--

(i) death results from the offense; or

(ii) the offense includes kidnapping or an

attempt to kidnap, aggravated sexual abuse or an

attempt to commit aggravated sexual abuse, or an

attempt to kill.

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authority under that Amendment to prohibit racially-motivated

violence -- even if such conduct does not involve the use of public

facilities, etc. In support of this argument based upon the

Thirteenth Amendment, the government cites cases which have "upheld

the constitutionality of another federal hate crime statute, 18

U.S.C. § 245(b)(2)(B), as valid Thirteenth Amendment legislation."

(Government’s Response, at 8) (citing Bledsoe, supra; United States

v. Sandstrom, 594 F3d 634, 660 (8th Cir. 2010); United States v.

Nelson, 277 F.3d 164, 175-191 (2d Cir. 2002), cert. denied, 537

U.S. 835 (2002); and United States v. Allen, 341 F.3d 870, 884 (9th

Cir. 2003)).

The government did properly note that, in this line of cases

(aptly demonstrated by Nelson, supra), the courts were dealing

with 18 U.S.C. § 245(b)(2)(B) which, unlike the statute here under

consideration [18 U.S.C. § 249(a)(1)], contains -- in addition to

the one common condition (for prosecution) they share: that the

conduct occurred because of race, color, religion or national

origin -- an additional condition (for prosecution): that the

conduct occurred because the person toward whom it was directed is

or has been participating in or enjoying any [public] benefit,

service, privilege, program, facility or activity.

The Nelson case thoroughly reviewed and discussed the history

of the Supreme Court's evolving views concerning the enforcement

power granted Congress by Section Two of the Thirteenth Amendment

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-- noting that initially, in the Civil Rights Cases, United States

v. Stanley, 109 U.S. 3, 20, 3 S. Ct. 18, 27 L. Ed. 835 (1883), the

Court had interpreted the section as authorizing Congress to "pass

all laws necessary and proper for abolishing all badges and

incidents of slavery" while at the same time suggesting that the

concepts "badges and incidents of slavery" might have very narrow

constructions. Id., 277 F.3d at 181. The Nelson court noted that,

thereafter in Hodges v. United States, 203 U.S. 1, 51 L.Ed. 65, 27

S. Ct. 6 (1906), the Supreme Court essentially narrowed the

interpretation of Section Two "quite generally" concluding in

effect that the Thirteenth Amendment authorizes Congress to

proscribe only private acts that actually enslave a person -- that

is, that create "a state of entire subjection of one person to the

will of another." Id. at 182 (internal citations omitted).

The Nelson court further noted that, almost 60 years after

Hodges was decided, the Supreme court expressly overruled the

narrow construction of congressional power under Section Two (of

the Thirteenth Amendment) epitomized by Hodges. Nelson, 277 F.3d

at 182 (citing Jones, 392 U.S. at 441 n. 78).

Toward the end of its discussion of the Thirteenth Amendment

line of cases, the Nelson court said it believed those cases

served to underscore the extent to which Congress's powers under

Section Two of the Thirteenth Amendment extend beyond the

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prohibition on actual slavery and servitude expressed in Section

One. Nelson, 277 F.3d at 184. This Court concurs in that belief.

Finally, the Nelson court held that 18 U.S.C. § 249(b)(2)(B)

required proof of both the defining features therein and noted that

the presence of both features in that statute made its

constitutional ruling "easier.” Nelson, 277 F.3d at 191 n.25.

However, it went on to say that it was "not holding that both (and

in particular the second) of the conditions are necessary to the

statute's constitutionality." Id. The latter observation was --

obviously -- dicta, but serves to frame the issue now before this

Court: whether, absent the second "condition" (or feature as this

Court has characterized it), the challenge to the statute under the

Thirteenth Amendment should succeed.

This Court has found no precedential authority to support the

proposition that, in order to be constitutional under the

Thirteenth Amendment, a statute must include not only a requirement

that the conduct sought to be prohibited be such as to constitute

a "badge or incident of slavery", but also a requirement that the

conduct must also involve the use of a public facility, etc.

Congress, in enacting the Matthew Shepard and James Byrd Hate

Crimes Prevention Act (codified as 18 U.S.C. § 249), made findings

that "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

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violence directed at persons because of their race, color, or

ancestry, or perceived race, color, or ancestry" and further stated

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." Act Oct. 28,

2009, P.L. 111-84, Div. E, § 4702, 123 Stat. 2835.

In U.S. v. Morrison, 529 U.S. 598, 607, 120 S. Ct. 1740, 1748,

146 L. Ed.2d 658, 669 (2000), the Supreme Court stated that "[d]ue

respect for the decisions of a coordinate branch of Government

demands that we invalidate a congressional enactment only upon a

plain showing that Congress has exceeded its constitutional

bounds." (citations omitted). In Jones, supra, the Supreme Court

stated that "[s]urely 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." 392 U.S. at 440.

The United States Supreme Court has further held that “the

varieties of private conduct that [Congress] may make criminally

punishable or civilly remediable extend far beyond the actual

imposition of slavery or involuntary servitude.” Griffin v.

Breckenridge, 403 U.S. 88, 105. 91 S. Ct. 1790, 1800, 29 L. Ed.2d

338, 350 (1971).

In light of the foregoing authorities and observations -- and

in the absence of any precedential authority which would plainly

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require or counsel this Court to hold that Congress exceeded its

expansive authority under the Thirteenth Amendment when it enacted

18 U.S.C. § 249(a)(1) -- this Court is unwilling to so hold.

Accordingly, under this expansive view of the Thirteenth Amendment,

the Court finds that 18 U.S.C. § 249(a)(1) is constitutional and,

therefore, defendant’s motion to arrest judgment will be denied.

(d) In light of the foregoing holding that 18 U.S.C. §

249(a)(1) is constitutional as applied under the Thirteenth

Amendment, this Court finds its unnecessary to reach the question

of whether the statute is constitutional under the Fourteenth

Amendment.

IT IS THEREFORE ORDERED that the Motion for Judgment of

Acquittal Under FRCrP Rule 29, or in the Alternative For a New

Trial Under FRCrP Rule 33, and Motion for Arrest of Judgment Under

FRCrP Rule 34 (Doc. 39) is hereby DENIED.

IT IS SO ORDERED.

/s/ Jimm Larry Hendren

HON. JIMM LARRY HENDREN

UNITED STATES DISTRICT JUDGE