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United States v. Cannon

April 24, 2014


Appeals from the United States District Court for the Southern District of Texas

The opinion of the court was delivered by: Jennifer Walker Elrod, Circuit Judge

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

A jury convicted Defendants Charles Cannon, Brian Kerstetter, and Michael McLaughlin (collectively "Defendants") of committing a hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 ("Shepard-Byrd Act"), 18 U.S.C. § 249(a)(1), for attacking Yondel Johnson. Congress passed the Shepard-Byrd Act pursuant to its powers under the Thirteenth Amendment, which abolished slavery and involuntary servitude. Defendants appealed, arguing that the Shepard-Byrd Act is unconstitutional. They also argue that the evidence presented at trial was insufficient to prove that they attacked Johnson because of his race. We AFFIRM their convictions because the Supreme Court's Thirteenth Amendment precedent allows Congress to define and regulate the "badges" and "incidents" of slavery so long as their definition is rational, and the Shephard-Byrd Act survives rational basis review, and because there is sufficient evidence in the record from which a reasonable jury could conclude that Defendants caused bodily injury to Johnson because of his race.


The evidence presented at trial demonstrated the following: Joseph Staggs and McLaughlin were homeless and between jobs when they first met at the Salvation Army on August 9, 2011. Over the next few days, both men were hired for various odd jobs, including by an African-American contractor. They frequented several local missions with African-American patrons. On August 13, 2011, the day of the assault, the two men ate a free dinner together at a service known as Church Under the Bridge. Staggs and McLaughlin were the only two white men to attend the service; the other participants were all African-American. When asked at trial whether McLaughlin ever had trouble with any of the individuals at these services, Staggs answered, "Quite the contrary, actually." After dinner Staggs and McLaughlin bought some wine, finished the bottle, and went in search of more alcohol. The two men were walking together on the streets of downtown Houston just before midnight when they met Cannon and Kerstetter for the first time. Cannon and Kerstetter ran towards Staggs and McLaughlin. Staggs heard either Cannon or Kerstetter say, "See, I told you them [sic] are woods."

McLaughlin responded to the comment by lifting up his shirt to show the other men his tattoos, which included a swastika, sig runes, a bald man preparing to stab a head with the Star of David on it, a picture of a klansman standing in flames with a swastika behind him, the motto of a group called the Aryan Circle, and the words "white pride." Staggs noticed Cannon had tattoos on his face. He also noticed "little lightning bolts" tattooed on the back of Kerstetter's fingers.

A gang tattoo expert would later testify that "wood" is a term commonly used by members of white-supremacy organizations to describe themselves or other white people. The term is not affiliated with a particular group or organization but more generally signals "pride in the [w]hite race." The expert also testified that the lightning bolts tattoos on Cannon's body are known as "sig runes" or "SS bolts" and refer to the insignia adopted by the Schutzstaffel, or SS-a political and racial organization in Nazi Germany. Cannon and Kerstetter introduced themselves, and the four men shook hands and exchanged names. The three Defendants and Staggs then set off together to find more alcohol. At no point did the men discuss racial minorities, or make any plans to attack anyone.

Johnson, an African-American, was sitting alone at a bus stop, waiting to go home after spending the day with his daughter to celebrate her birthday. Johnson was an amateur heavyweight boxer and former Golden Glove participant. He stood six feet, four inches tall and weighed over 200 pounds. Johnson had just finished talking to his daughter on the phone when he heard and saw the three Defendants and Staggs "coming around the corner with their shirts off, bald heads, loud and rowdy." Johnson later testified that he had not met any of the four men before that night.

According to Johnson, Cannon asked him, "Yo, bro, do you have the time?" At that point Johnson looked up and noticed that Cannon was covered in tattoos. Johnson recognized some of the small lightning bolt tattoos on Cannon as white-supremacist "Nazi" symbols. Johnson testified that he responded, "No." One of the other men then said to Cannon. "Why did you call that ni--er a 'bro'? You ain't supposed to call no ni--er a 'bro.'"

"What did he say?" Johnson responded, to which Cannon answered, "You heard him, 'ni--er.' He called you a 'ni--er,' 'ni--er.'" Johnson testified that the four men surrounded him. He stood up with his back against the pole and put up his guard. Cannon flashed a smile and swung a punch at Johnson. Johnson weaved, dodged the blow, and swung back, hitting Cannon. According to Johnson, all four men jumped in and started punching Johnson. Someone grabbed Johnson by the ankles, and Johnson fell to the ground. One of the men lay on top of Johnson while the others stomped on his head. At some point, the men stopped battering Johnson and walked away.

Staggs, who testified as a government witness, told a slightly different version of the encounter.*fn1 According to Staggs, he watched from twenty to thirty feet away while McLaughlin and Cannon spoke to Johnson. He could not hear their conversation, and did not hear any of the men use racial slurs. Staggs testified that a few seconds later, Johnson appeared mad, jumped up, and started boxing with Cannon. Johnson was getting the better of Cannon, so McLaughlin grabbed Johnson around the waist to try to pull him off of Cannon. A few moments later Kerstetter, who had been standing with Staggs, ran over and joined the fight. Staggs did not think the fight was very serious and saw no reason to get involved. He testified that "there was only one mad person; and the other guys appeared to be trying to get away." Staggs did not see anyone stomp on Johnson. Instead, he testified that as soon as they succeeded in getting Johnson down on the ground, the three Defendants immediately ran away from him.

Soon after, Johnson pulled himself up. He ran after the four men, and eventually caught up with Staggs. Johnson punched Staggs, and Staggs fell. Johnson turned around, and threw another punch to knock a second member of the group to the ground. The other two men charged at Johnson, and knocked Johnson down for the second time. The two men whom Johnson had punched to the ground got up and joined the other members of the group. At that point, Lorie Garcia-a witness who passed the scene while she was driving in the car with her husband-testified that she saw four white men surrounding a black man, and that two of them were punching him. She immediately called 911.

Meanwhile, Staggs and the three Defendants had walked away for a second time and left Johnson on the ground. Johnson again pulled himself up and picked up a sandbag. He tried to throw it at the four men, but found that it was too heavy. He dropped it and did not pursue the men. Several police cars quickly arrived at the scene. The first few police cars drove past Johnson. As they did so, Johnson pointed to the direction in which the four men had run off. Another police car then stopped by Johnson to control the scene. Johnson's face was swelling and bleeding heavily. His body was bruised, and he staggered as he walked. The police eventually detained Staggs and the three Defendants. The jury heard live and video deposition testimony from officers that Cannon and McLaughlin were agitated upon being detained and used racial slurs when they were arrested-including the word "ni--er" to refer to responding officers who were African-American.

Defendants were initially charged in Harris County, Texas, with misdemeanor assault. These state law misdemeanor charges were dropped after the prosecution brought federal hate crime charges against Defendants. A federal grand jury in the Southern District of Texas returned a one-count indictment charging Defendants with a violation of § 249(a)(1) of the Shepard-Byrd Act. Specifically, the federal indictment alleged that "while aiding and abetting each other," Defendants "willfully caused bodily injury to [Johnson], who is African-American, because of his actual or perceived race, color, and national origin." McLaughlin and Cannon filed pre-trial motions to dismiss the indictment, arguing that § 249(a)(1) is an invalid exercise of congressional power under the Thirteenth Amendment. The government filed a response in opposition, and the district court denied Defendants' motions.

Defendants moved for judgments of acquittal at the end of the government's evidence, and again at the close of all evidence. The district court denied both motions. The jury returned a guilty verdict against all three Defendants. Defendants then filed motions for a judgment of acquittal or a new trial, again arguing that § 249(a)(1) was invalid under the Thirteenth Amendment and that the prosecution had not met its burden in proving that they caused bodily injury to Johnson because of his actual or perceived race. The district court denied the motions and entered a final judgment. The district court then sentenced Cannon to thirty-seven months of imprisonment, McLaughlin to thirty months of imprisonment, and Kerstetter to seventy-seven months of imprisonment. The district court also sentenced each Defendant to a three-year term of supervised release and a mandatory special assessment of $100. Defendants timely appealed.


Defendants challenge the constitutionality of § 249(a)(1) of the Shepard-Byrd Act, arguing that it is not a valid exercise of Congress's power under § 2 of the Thirteenth Amendment. Because we are bound by the Supreme Court's precedent and our prior precedent in this area, we conclude that § 249(a)(1) is valid.

We review the constitutionality of federal statutes de novo. United States v. Portillo--Munoz, 643 F.3d 437, 439 (5th Cir. 2011). Defendants do not challenge the constitutionality of the entire Shepard-Byrd Act. Instead, they challenge only § 249(a)(1), which applies to hate crimes motivated by religion national origin, race, or color. It provides:

Offenses involving actual or perceived race, color, religion, or national origin.-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 not more than 10 years, fined in accordance with this title, or both. 18 U.S.C. § 249(a)(1)(A).*fn2 Section 249(a)(1) is distinct from the second part of the Shepard-Byrd Act, which applies to other categories of hate crimes, and rests on different constitutional sources of congressional authority.*fn3 Congress passed § 249(a)(2) under § 5 of the Fourteenth Amendment and the Commerce Clause. In contrast, § 249(a)(1) rests solely on Congress's authority under § 2 of the Thirteenth Amendment.*fn4 Section 1 of the Thirteenth Amendment provides: "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." U.S. Const. amend. XIII, § 1. Section 2 states that "Congress shall have power to enforce this article by appropriate legislation." Id. § 2.

In order to determine whether § 249(a)(1) is a valid exercise of congressional power under § 2 of the Thirteenth Amendment, we begin by looking at the Supreme Court's Thirteenth Amendment jurisprudence. The Supreme Court decided the Civil Rights Cases-five consolidated cases implicating the denial of public accommodations to African-Americans-shortly after the adoption of the Thirteenth Amendment. 109 U.S. 3 (1883). There, the Supreme Court held that Congress could not rely on its enforcement power under § 2 of the Thirteenth Amendment to enact public-accommodation provisions of the Civil Rights Act of 1875. Id. Specifically, the Supreme Court reasoned that discrimination in public accommodations had "nothing to do with slavery or involuntary servitude," and therefore fell outside the scope of the Thirteenth Amendment. Id. at 24.

Although the Supreme Court found the connection between the denial of public accommodation and slavery too attenuated for purposes of the Thirteenth Amendment, it also stated in dicta that the scope of the Thirteenth Amendment extended beyond abolishing laws or private acts that perpetuated slavery or involuntary servitude in a literal sense. Specifically, the Supreme Court stated:

It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.

Id. at 16 (emphasis added). The Supreme Court did not clearly delineate the scope of "badges" and "incidents" of slavery. Scholars have observed that the Supreme Court interpreted this phrase far more narrowly in the past than it does today. See, e.g.,Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment, 112 Colum. L. Rev. 1459, 1469 (2012) (noting that the term "'badges or incidents of slavery,' a term taken from the 1883 Civil Rights Cases . . . had construed Congress's [enforcement] powers [under the Thirteenth Amendment] far more narrowly").

Twenty-three years later in Hodges v. Unites States, 203 U.S. 1 (1906), the Supreme Court held that the Thirteenth Amendment did not provide Congress with the power to outlaw private parties' interference with the right to make or enforce a contract based on race. The Supreme Court overturned the convictions of several white men for threatening and harassing African-American workers at a sawmill. In doing so, the Supreme Court explained that "it was not the intent of the [Thirteenth] Amendment to denounce every act done to an individual which was wrong if done to a free man, and yet justified in a condition of slavery, and to give authority to Congress to enforce such denunciation." Id. at 19. Instead, the Supreme Court explained that the meaning of the Thirteen Amendment's grant of authority is "as clear as language can make it. The things denounced are slavery and involuntary servitude, and Congress is given power to enforce that denunciation. All understand by these terms a condition of enforced compulsory service of one to another." Id. at 16. The Supreme Court refused to extend its interpretation of congressional power beyond that point, explaining that prior to the three post bellum amendments to the Constitution the national government had no jurisdiction over a wrong like that charged in this indictment is conceded; that the 14th and 15th Amendments do not justify the legislation is also beyond dispute, for they, as repeatedly held, are restrictions upon state action, and no action on the part of the state is complained of. Unless, therefore, the 13th Amendment vests in the nation the jurisdiction claimed, the remedy must be sought through state action and in state tribunals . . . . Notwithstanding the adoption of these three amendments, the national government still remains one of enumerated powers . . . . True, the 13th Amendment grants certain specified and additional power to Congress, but any congressional legislation directed against individual action which was not warranted before the 13th Amendment must find authority in it.

Id. at 14--16.

This interpretation changed in 1968. In Jones v. Alfred H. Mayer Co., the Supreme Court adopted a broader view of the terms "badges" and "incidents" of slavery under the Thirteenth Amendment. 392 U.S. 409 (1968). All parties agree that Jones is the logical starting point for our constitutional analysis in this case. In Jones, the owners of a suburban St. Louis subdivision refused to sell a home to a potential buyer solely because he was African-American. Id. at 412. Jones filed suit under 42 U.S.C. § 1982, which provides, "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982. The seller argued that § 1982 was unconstitutional to the extent that it applied to purely private conduct, rather than to state action. 392 U.S. at 429--36. The Supreme Court disagreed, concluding that Congress had the authority under § 2 of the Thirteenth Amendment to enact the law. Id. at 413. Specifically, the Supreme Court held that the scope of Congress's Thirteenth Amendment enforcement power was not limited to measures intended to end structures of slavery in a literal or a formal sense. Instead, the Supreme Court held that Congress has the authority to enact legislation necessary to abolish the "badges" and "incidents" of slavery, as well as the power to rationally determine what those "badges" and "incidents" are. Id. at 440--44. The Supreme Court explained that courts should only invalidate legislation enacted under the Thirteenth Amendment if they conclude that Congress made an irrational determination in deciding what constitutes "badges" and "incidents" of slavery in passing legislation to address them. See id. at 439--43.

We applied the Supreme Court's approach in United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir. 1973). In Bob Lawrence Realty, our court concluded that § 3604(e) of the Fair Housing Act fell "within the constitutional authority of Congress to enact legislation to enforce the Thirteenth Amendment." Id. at 117. As we explained,

We think that the mandate of Jones is clear. This Court will give great deference, as indeed it must, to the congressional determination that ยง 3604(e) will effectuate the purpose of the Thirteenth Amendment by aiding in the elimination of the "badges and incidents of slavery in the United States." Jones v. Mayer Co., supra, 392 U.S. at 439 . . . . Appellants have failed to present any argument that impugns the reasonableness of the congressional determination. Indeed, no such argument can be made in light of the role that blockbusting plays in creating and in perpetuating segregated housing patterns and thus in preventing ". . . a dollar in the hands of a Negro . . . [from purchasing] the same thing as a dollar in the hands of a white man." Jones v. Mayer Co., supra, 392 U.S. at 443; see also, Note, ...

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