               United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-4006
                       ___________________________

                           United States of America

                      lllllllllllllllllllll Plaintiff - Appellee

                                         v.

            Randy Joe Metcalf, also known as Randy Joe Weyker

                    lllllllllllllllllllll Defendant - Appellant

                            ------------------------------

 Cato Institute; Reason Foundation; Individual Rights Foundation; Gail Louise
            Heriot; Peter N. Kirsanow; Center for Equal Opportunity

                lllllllllllllllllllllAmici on Behalf of Appellant(s)
                                      ____________

                  Appeal from United States District Court
                 for the Northern District of Iowa - Dubuque
                               ____________

                        Submitted: September 21, 2017
                           Filed: February 2, 2018
                               ____________

Before SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
                             ____________

WOLLMAN, Circuit Judge
       A jury convicted Randy Joe Metcalf of committing a hate crime in violation of
the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18
U.S.C. § 249(a)(1) (the Act).1 The district court2 sentenced Metcalf to the statutory
maximum sentence of 120 months’ imprisonment. Metcalf appeals, arguing that the
Act is unconstitutional because Congress lacked the authority to enact it under the
Thirteenth Amendment. Metcalf also argues that the district court erred in denying
his request for a proposed jury instruction on character evidence and that the evidence
was insufficient to support his conviction. We affirm.

                                    I. Background

       On January 11, 2015, Metcalf and his fiancee Noelle Weyker went to a bar in
Dubuque, Iowa, where Metcalf met a friend, Jeremy Sanders (Jeremy) and Jeremy’s
son, Joseph Sanders (Joseph). As the evening progressed, Metcalf, Weyker, Jeremy,
and Joseph drank alcohol and played pool. As recorded by the bar’s surveillance
cameras, at around 11:00 p.m. Metcalf became involved in an argument with Katie
Flores, Sarah Kiene, and Lamarr Sandridge, an African American man. Although the
confrontation was mostly verbal, Metcalf pushed Sandridge before Becky Burks, the
bartender, and Ted Stackis, the bar’s owner, intervened.

       Following the confrontation, Metcalf spoke with Stackis, bragging about how
he had burned crosses at an African American family’s home in Dubuque. Metcalf
told Stackis, “I hate f---ing n----rs,” and asked if Stackis wanted anyone taken care
of. Metcalf and Stackis then went outside, where Metcalf showed Stackis his
swastika tattoo and repeated how he “hate[d] them f---ers.”

      1
       After trial and before sentencing, Metcalf married his fiancee and legally
changed his surname to “Weyker.” Because the name “Metcalf” was used during trial
and at sentencing, we will refer to the defendant as “Metcalf.”
      2
        The Honorable Linda R. Reade, then Chief Judge, United States District Court
for the Northern District of Iowa.

                                         -2-
       As the night continued, Metcalf, Flores, and Kiene continued to harass each
other, with Metcalf referring to Flores and Kiene as “n----r loving c--ts” and “n----r
lovers.” Metcalf also continued to use the word “n----r.” The women responded by
calling Metcalf a “stupid f---er.” While visiting with Jeremy, Metcalf displayed his
swastika tattoo and said, “That’s what I’m about.”

       Tensions in the bar peaked around 1:20 a.m., when Kiene confronted Metcalf.
Weyker started recording the confrontation on her cell phone and a fight ensued when
Flores slapped Weyker’s phone out of her hands. During the melee, Metcalf charged
at Flores, hit her in the head, slammed her into the bar, and pulled her to the ground
by her hair. Other individuals then piled on top of each other. Trying to stop the
attack, Sandridge struck Metcalf a few times. Jeremy then grabbed Sandridge and
held him in a headlock, while son Joseph punched Sandridge in the face ten to fifteen
times. As people got up from the floor, Metcalf pushed past Jeremy and Flores to get
to Sandridge, who was lying disoriented on the floor. Metcalf then repeatedly kicked
and stomped on Sandridge’s head, saying, “f---ing n----r” and “die n----r” until Burks
pushed him away.

        Metcalf left the bar momentarily, but he soon returned and maneuvered around
the people standing near Sandridge. As Sandridge lay on the ground, dazed from the
initial attacks, Metcalf kicked and stomped on Sandridge’s head a second time,
continuing in his attack until Flores pushed him away. Metcalf responded by
slapping Flores to the ground and walking away. The day following the attack,
Metcalf told Jeremy that “the n----r got what he had coming to him.”

       Metcalf was indicted on one count of violating Section 249(a)(1) of the Act.
The indictment alleged that Metcalf had “willfully caused bodily injury to
[Sandridge], who is African American, because of [Sandridge’s] actual or perceived
race, color, and national origin.” Metcalf challenged the indictment on constitutional
grounds and filed a motion to dismiss, which the district court denied.


                                         -3-
        The parties agreed during trial that Metcalf had attacked Sandridge, leaving for
the jury the question whether Sandridge’s race was the reason for the attack.
Witnesses for the government, including Stackis, Flores, Kiene, Burks, and Jeremy,
testified about Sandridge’s use of the word “n----r,” his swastika tattoo, and his
statements made throughout the night of the attack and the next day. In response,
Metcalf called seven witnesses who had seen him interact with African American
people, all of whom testified that they believed Metcalf was not racist. Based on this
testimony, Metcalf requested the following jury instruction:

      You have heard the testimony of {Witness}, who said that the defendant
      has a reputation and character for a lack of racism. Along with all the
      other evidence you have heard, you may take into consideration what
      you believe about the defendant’s lack of racism when you decide
      whether the government has proved, beyond a reasonable doubt, that the
      defendant committed the crime. Evidence of the defendant’s lack of
      racism alone may create a reasonable doubt whether the government
      proved that the defendant committed the crime.

The court denied the request and instead gave a general instruction, which stated that
“[t]he jurors [were] the sole judges of the weight and credibility of the testimony and
the value to be given to the testimony of each witness who ha[d] testified in this
case.” Metcalf’s attorney argued to the jury that because Metcalf is not a racist, he
could not have committed a hate crime.

                                    II. Discussion

       Metcalf argues that the district court erred in denying his motion to dismiss the
indictment, claiming that the Act is unconstitutional because Congress lacked the
authority to enact it under the Thirteenth Amendment. We review de novo the denial
of Metcalf’s motion to dismiss. United States v. Coppock, 765 F.3d 921, 922 (8th
Cir. 2014).



                                          -4-
       The Act provides that “[w]hoever . . . willfully causes bodily injury to any
person . . . because of the actual or perceived race, color, religion, or national origin
of any person . . . shall be imprisoned not more than 10 years, fined in accordance
with this title, or both[.]” 18 U.S.C. § 249(a)(1). Congress enacted Section 249(a)(1)
through the power conferred upon it by the Thirteenth Amendment, which states:

      Section 1. Neither slavery nor involuntary servitude, except as a
      punishment for crime whereof the party shall have been duly convicted,
      shall exist within the United States, or any place subject to their
      jurisdiction.

      Section 2. Congress shall have power to enforce this article by
      appropriate legislation.

       In Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Supreme Court held
that the Thirteenth Amendment empowered Congress to prohibit racial discrimination
in the public or private sale or rental of real estate. Id. at 437-39. The Court
explained that Section 2 of the Amendment gave Congress not only the authority to
abolish slavery, but also the “power to pass all laws necessary and proper for
abolishing all badges and incidents of slavery in the United States.” Id. at 439 (citing
Civil Rights Cases, 109 U.S. 3, 20 (1883)). Rather than itself defining the “badges
and incidents of slavery,” the Court wrote, “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. at 440. Adopting the Supreme Court’s analysis in Jones, we upheld the
constitutionality of Section 249(a)(1) in United States v. Maybee, 687 F.3d 1026,
1031 (8th Cir. 2012). Although Metcalf raises a constitutional challenge different
from that raised in Maybee, the fundamental premise of Maybee still applies: Section
2 of the Thirteenth Amendment confers upon Congress the authority to “rationally []
determine what are the badges and incidents of slavery.” Id. at 1030 (quoting Jones,
392 U.S. at 439-400); see also United States v. Bledsoe, 728 F.2d 1094 (8th Cir.
1984) (discussing 18 U.S.C. § 245(b)).


                                           -5-
       Metcalf argues, however, that the Supreme Court’s decisions in Shelby County
v. Holder, 133 S. Ct. 2612 (2013), and City of Boerne v. Flores, 521 U.S. 507 (1997),
undermine the legal underpinnings of Jones and Maybee, because in both Shelby
County and Flores the Court ruled that Congress had exceeded its lawmaking
authority under the Reconstruction Amendments. In Shelby County, the Court held
that the coverage formula under Section 5 of the Voting Rights Act of 1965 exceeded
Congress’s authority under the Fifteenth Amendment because the legislation was not
supported by current evidence of racial discrimination in voting. 133 S. Ct. at 2619,
2631. In Flores, the Court held that the Religious Freedom and Restoration Act of
1993 exceeded Congress’s authority under the Fourteenth Amendment because it
lacked a congruence and proportionality with the injury to be prevented. 521 U.S. at
511, 516, 520. Metcalf asks that we apply to Section 249(a)(1) the same limiting
principles outlined in those two cases.

       Whatever force Metcalf’s arguments might have in other contexts, neither
Shelby County nor Flores addressed Congress’s power to legislate under the
Thirteenth Amendment. For the reasons set forth by the Fifth and Tenth Circuit
Courts of Appeals in their discussions of Section 249(a)(1), we conclude that Jones
constitutes binding precedent that we must follow. See United States v. Cannon, 750
F.3d 492, 505 (5th Cir. 2014); United States v. Hatch, 722 F.3d 1193, 1201 (10th Cir.
2013). As did the Tenth Circuit in its most thorough discussion of the history of the
Reconstruction Amendments and its specific analysis of Section 249(a)(1), we too
conclude that Congress rationally determined that racially motivated violence
constitutes a badge and incident of slavery. Id. at 1201, 1206. The district court thus
did not err in denying Metcalf’s motion to dismiss the indictment on constitutional
grounds.

      With respect to the district court’s refusal to give the proposed jury instruction
on character evidence, Metcalf argued at trial that he should be allowed to present
character evidence of specific instances of conduct under Federal Rule of Evidence

                                          -6-
405 because his character for a lack of racism was an essential element of the charge
and his defense. The district court, “out of an abundance of caution,” admitted the
evidence. Assuming that Metcalf’s character for a lack of racism was an element of
the charge and his defense, we conclude that the district court did not abuse its
discretion in refusing to give the requested instruction. See United States v.
Gianakos, 415 F.3d 912, 920 (8th Cir. 2005) (standard of review).

       In United States v. Krapp, 815 F.2d 1183 (8th Cir. 1987), we ruled that a
district court was not required to give a character evidence instruction even though
the defendant’s character evidence went directly to an element of the offense. Id. at
1187. Additionally, we ruled that “[a] district court has wide discretion in
formulating jury instructions, and a defendant is not entitled to a particularly worded
instruction if the instructions as a whole adequately cover the substance of the
requested instruction.” Id. at 1187-88. Here, the district court’s instruction that the
jurors were “the sole judges of . . . the value to be given to the testimony of each
witness” would of necessity have included testimony regarding Metcalf’s character
and thus accurately and sufficiently set forth the law. Metcalf’s reliance on Salinger
v. United States, 23 F.2d 48 (8th Cir. 1927), for the proposition that a defendant is
entitled to a jury instruction on character evidence whenever character evidence is
introduced at trial, is misplaced. Salinger addressed evidence of good character in
general—the defendant’s reputation for honesty and integrity—not character evidence
that was an essential element of the charge or a defense.

      Metcalf argues in the alternative that the district court should have given his
proposed instruction because it explained his legal theory. Again, however, we
conclude that the district court did not abuse its discretion in denying Metcalf’s
request, because “the instructions as a whole, by adequately setting forth the law,
afford[ed] counsel an opportunity to argue the defense theory and reasonably
ensure[d] that the jury appropriately consider[ed] it.” United States v. Christy, 647
F.3d 768, 770 (8th Cir. 2011).


                                         -7-
       Finally, Metcalf argues that insufficient evidence exists to sustain his
conviction. We review this claim de novo, viewing the evidence in the light most
favorable to the verdict. United States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010).
In light of Metcalf’s repeated racially based comments, coupled with the surveillance
cameras’ depiction of the viciousness of his racially based initial attack upon the
defenseless Sandridge, followed by his return to the bar to administer an equally
vicious renewed attack, we need say no more than that the evidence was clearly
sufficient to support the conviction.

      The judgment is affirmed.
                     ______________________________




                                         -8-
