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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                                April 24, 2014

                                No. 12-20514                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
v.

CHARLES CANNON; BRIAN KERSTETTER; MICHAEL MCLAUGHLIN,

                                          Defendants-Appellants.



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


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      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
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                                  No. 12-20514

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.
                                        I.
      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

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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.’”

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       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.1 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

       1
        The government agreed to dismiss the charges against Staggs in exchange for his
testimony at trial.

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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

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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.
                                         II.
         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

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           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).2 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.3 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.4 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


       2
         Section 249(a)(1)(B) provides separate penalties if the offense results in death, or
involves an attempt to kidnap, kill, or commit aggravated sexual abuse.
       3
        See 18 U.S.C. § 249(a)(2) (covering perceived religion, national origin, gender, sexual
orientation, gender identity, or disability).
       4
        Even though Johnson was waiting at a bus station at the time the altercation began
neither party argues that this case implicates interstate commerce.

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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

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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


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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 § 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.,


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      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, Discriminatory Housing Markets, Racial
      Unconscionability, and Section 1988: The ‘Contract Buyers League’
      Case, 80 Yale L. J. 516 (1971). We find that the Thirteenth
      Amendment empowers Congress to enact § 3604(e).
Id. at 120–21.
      In enacting the Shepard-Byrd Act, Congress set forth ten findings to
provide a basis for the Act in its entirety, including an explicit finding 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.” Matthew Shepard and James Byrd, Jr. Hate Crimes
Prevention Act, Pub. L. No. 111-84, 123 Stat. 2190 (2009), div. E., § 4702
(codified as amended at 18 U.S.C. § 249) (emphasis added).5 Congress also

      5
          The other relevant Congressional Findings include the following:
      (1) The incidence of violence motivated by the actual or perceived race, color
      . . . of the victim poses a serious national problem.
      ...
      (7) 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. Accordingly, eliminating racially
      motivated violence is an important means of eliminating, to the extent possible,
      the badges, incidents, and relics of slavery and involuntary servitude.
      (8) Both 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”. Thus, in order to eliminate, to the extent possible, the
      badges, incidents, and relics of slavery, it is necessary to prohibit assaults on
      the basis of real or perceived religions or national origins, at least to the extent

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                                      No. 12-20514

compiled statistics regarding the prevalence of hate crimes in American society
and the need for expanded federal jurisdiction over the problem. See H.R. Rep.
No. 111-86, Pt. 1, at 5–6 (2009). Both the Supreme Court and our own precedent
afford Congress ample deference in defining what private actions qualify as
“badges” and “incidents” of slavery. See Jones, 392 U.S. at 440; Bob Lawrence
Realty, Inc., 474 F.2d at 120. Under our Thirteenth Amendment jurisprudence,
we must respect Congress’s determination unless it lacks a rational basis.
       In order to determine whether racially motivated violence is rationally
considered one of the “badges” or “incidents” of slavery, we must first examine
what those terms mean. The words “badges” and “incidents” were originally
terms of art with specific meanings tied to their historical context.
       An incident of slavery, as that term was used, was any legal right
       or restriction that necessarily accompanied the institution of
       slavery. Most often, “incident” was used to refer to the aspects of
       property law that applied to the ownership and transfer of slaves.
       It also was used to refer to the civil disabilities imposed on slaves by
       virtue of their status as property. In all, the term has clear, finite,
       historically determined meaning. It refers to a closed set of public
       laws that applied in the antebellum slaveholding states. Identifying
       an “incident of slavery,” then, is an exercise in historical inquiry.
Jennifer Mason McAward, Defining the Badges and Incidents of Slavery, 14 U.
Pa. J. Const. L. 561, 575 (2012).
       While the definition of badge has broadened over time, “in its most general
sense, the term ‘badge of slavery’ . . . refers to indicators, physical or otherwise,
of African-Americans’ slave or subordinate status.” Id. at 575. Before the Civil
War, the term referred to skin color. After the War, it came to mean the kinds



       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 of the
       United States.
Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111-84, 123
Stat. 2190 (2009), div. E., § 4702 (codified as amended at 18 U.S.C. § 249) (emphasis added).

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of legal restrictions, such as the Black Codes, that were imposed on African-
Americans to try to enforce inferior status on them. After the end of Black
Codes, it came to mean “less formal but equally virulent means—including
widespread violence and discrimination, disparate enforcement of racially
neutral laws, and eventually, Jim Crow laws—to keep the freed slaves in an
inferior status.” Id. at 581–82.6
       As the Tenth Circuit explained in its opinion holding that § 249(a)(1) is a
valid exercise of Congress’s power under § 2 of the Thirteenth Amendment:
       Congress could rationally conclude that physically attacking a
       person of a particular race because of animus toward or a desire to
       assert superiority over that race is a badge or incident of slavery.
       The antebellum North Carolina Supreme Court, for example,
       characterized unrestrained master-on-slave violence as one of
       slavery’s most necessary features. State v. Mann, 13 N.C. (2 Dev.)
       263, 1829 WL 252, at *2–3. “[U]ncontrolled authority over the
       body,” it said, is the only thing “which can operate to produce” a
       slave’s necessary obedience. Id. at *2. “The power of the master
       must be absolute, to render the submission of the slave perfect.” Id.;
       see also United States v. Nelson, 277 F.3d 164, 189 (2d Cir. 2002)
       (“slavery in general . . . centrally involved the master’s constant
       power to use private violence against the slave”); Neal v. Farmer, 9

       6
        Although there may be concern with the scope of Congress’s power under § 2 of the
Thirteenth Amendment, none of these definitions suggests that Congress can alter and expand
the meaning of these terms to also cover any racially motivated activities that it wants to
regulate.
       As one commentator explains,
       The concept of the “badges and incidents of slavery” is meant to assist Congress
       in identifying ways in which it can fulfill that promise and, at the same time,
       to mark the outer boundaries of the Section 2 power. Indeed, the terms “badge”
       and “incident” are terms of art that refer to specific aspects of the slave system
       and its legacy. To suggest that Section 2 of the Thirteenth Amendment confers
       on Congress a broad power to legislate against discrimination generally
       overlooks this precise terminology and tends to devalue the immediate
       aftermath of the slave system, in which governments and individuals alike
       sought to achieve the de facto reenslavement of four million African Americans.
McAward, supra, at 566.


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       Ga. 555, 1851 WL 1474, at *8 (stating that being “liable to beating
       . . . and every species of chastisement” were “incidents of slavery”);
       George M. Stroud, A Sketch of the Laws Relating to Slavery 31, 38
       (2d ed. 1856) (listing among the “incidents” of slavery, “[t]he master
       may, at his discretion, inflict any punishment on the person of his
       slave”); Rutherglen, State Action, at 1399 (“the principal feature of
       the law of slavery was the ‘master’s justice’ over his slaves, who had
       virtually no legal protection from the master’s decision to discipline
       and punish”). Just as master-on-slave violence was intended to
       enforce the social and racial superiority of the attacker and the
       relative powerlessness of the victim, Congress could conceive that
       modern racially motivated violence communicates to the victim that
       he or she must remain in a subservient position, unworthy of the
       decency afforded to other races.
United States v. Hatch, 722 F.3d 1193, 1206 (10th Cir. 2013), cert. denied,
13-6765, 2014 WL 1124872 (Mar. 24, 2014).
       In conclusion, racially motivated violence was essential to the enslavement
of African-Americans and was widely employed after the Civil War in an attempt
to return African-Americans to a position of de facto enslavement. In light of
these facts, we cannot say that Congress was irrational in determining that
racially motivated violence is a badge or incident of slavery.
       Defendants argue that subsequent Supreme Court decisions related to the
Fourteenth and Fifteenth Amendments cast doubts on the continued viability
of Jones, or show that Jones should be limited. Defendants assertions are not
frivolous, as our sister circuit noted when addressing many of these same
arguments.      See Hatch, 722 F.3d at 1201–05 (discussing the defendant’s
federalism arguments and noting that “[a]t its core, Hatch’s argument raises
important concerns we share”).7 Defendants argue that Jones gives Congress a

       7
         The only two circuits to address this issue have both determined that § 249(a)(1) is
a valid exercise of congressional authority. See United States v. Maybee, 687 F.3d 1026 (8th
Cir. 2012); Hatch, 722 F.3d at 1209. In Hatch, the Tenth Circuit offers an extensive discussion
of the possibly implications of the Supreme Court’s subsequent decisions on other
constitutional issues. See Hatch, 722 F.3d at 1201–05. In Maybee the Eighth Circuit noted
that

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                                        No. 12-20514

unique ability to define the scope of its own powers under § 2 of the Thirteenth
Amendment. In Jones, the Supreme Court explained that “[s]urely Congress has
the power under the Thirteenth Amendment rationally to determine what are
the badges and the incidents of slavery.” Id. at 440; see also Hatch, 722 F.3d at
1200 (“In sum, after these cases the Thirteenth Amendment can be seen as
treating most forms of racial discrimination as badges and incidents of slavery,
and that Congress not only has the power to enforce the amendment, but also to
a certain extent to define its meaning.”).
       Defendants and Amici8 argue that allowing Congress to define the scope
of its own authority is an extraordinary measure that appears to be at odds with
the Supreme Court’s Fourteenth Amendment precedent. Defendants and Amici
point to the textual similarities between § 2 of the Thirteenth Amendment and
§ 5 of the Fourteenth Amendment, arguing that the Supreme Court would apply
the “congruence and proportionality” test announced in City of Boerne v. Flores,
521 U.S. 507 (1997), and its progeny to the Thirteenth Amendment’s § 2.9 As the


       Maybee raises a single and quite narrow challenge to the constitutionality of
       § 249(a)(1) . . . that the willful infliction of the injury be motivated both by the
       victim’s race and by the victim’s enjoyment of a public benefit—in finding a
       sufficient basis to uphold § 245(b)(2)(B), these cases held that both elements are
       necessary to justify the exercise of Congress’s Thirteenth Amendment
       enforcement power.
687 F.3d at 1031. The Eighth Circuit then explained that “Maybee provides no reason why
a finding of constitutional sufficiency of a statute based on two elements establishes a
precedent that both elements are necessary to avoid constitutional infirmity.” Id. Given this
narrow challenge, the Eight Circuit’s decision in Maybee does not provide as thorough of an
analysis of the possible constitutional issues with § 249(a)(1) as the Tenth Circuit does.
       8
         Todd Gaziano, Gail Heriot, and Peter Kirsanow (“Amici”) are three members of the
eight-member U.S. Commission on Civil Rights, a federal commission charged with the
responsibility of advising the President, Congress, and the American people on issues of civil
rights. Amici filed briefing solely in their capacities as private citizens and not as Commission
representatives.
       9
         The petitioner and Amici raised many of these same arguments in their petitions for
certiorai in Hatch.

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                                  No. 12-20514

Supreme Court explained in Flores:
      Congress does not enforce a constitutional right by changing what
      the right is. It has been given the power “to enforce,” not the power
      to determine what constitutes a constitutional violation. Were it not
      so, what Congress would be enforcing would no longer be, in any
      meaningful sense, the “provisions of [the Fourteenth Amendment].”
521 U.S. at 519. The Supreme Court further warned that
      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.” It
      would be “on a level with ordinary legislative acts, and, like other
      acts, . . . alterable when the legislature shall please to alter it.”
      Under this approach, it is difficult to conceive of a principle that
      would limit congressional power.
Id. at 529 (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)).
      Defendants and Amici argue that under the interpretation of the
Thirteenth Amendment found in Jones, Congress has just such a power to alter
the Thirteenth Amendment’s meaning because it can define “badges” and
“incidents” of slavery. Defendants argue that under the Supreme Court’s
existing Thirteenth Amendment jurisprudence, it has become difficult to
“conceive of a principle that would limit congressional power.” Id. As the Tenth
Circuit explained in Hatch:
      Badges and incidents of slavery, taken at face value, puts emphasis
      solely on the conduct Congress seeks to prohibit, and it seems to
      place few limits on what that conduct might be. Given slaves’
      intensely deplorable treatment and slavery’s lasting effects, nearly
      every hurtful thing one human could do to another and nearly every
      disadvantaged state of being might be analogized to slavery—and
      thereby labeled a badge or incident of slavery under Jones’s rational
      determination test. In effect, this interpretation gives Congress the
      power to define the meaning of the Constitution—a rare power
      indeed.
722 F.3d at 1204. Amici further argue that this judicial deference to Congress’s
interpretation of the scope of its power is at odds with the principle set forth in


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                                     No. 12-20514
McCulloch v. Maryland, 17 U.S. 316, 421 (1819), which requires deference to the
means that Congress uses to achieve a particular end, but not to Congress’s
determination that the end itself is legitimate.10
       Defendants and Amici point to the textual similarities between § 2 of the
Thirteenth Amendment and § 5 of the Fourteenth Amendment, arguing that the
Supreme Court would apply the “congruence and proportionality” test
announced in Flores, and its progeny to the Thirteenth Amendment’s § 2.11 They
argue that § 249(a)(1) cannot pass that test because the law’s “sweeping
coverage” encompasses a number of crimes that have long been the exclusive
domain of the states.
       Defendants and Amici also argue that this expansive reading of
congressional power under the Thirteenth Amendment is no longer appropriate
in light of the Supreme Court’s recent decision in Shelby County. v. Holder, 133
S. Ct. 2612, 2623 (2013).12 In Shelby County the Supreme Court invalidated
§ 4(b) of the Voting Rights Act, which prescribed a formula for identifying the
jurisdictions covered by § 5’s preclearance requirement. See 42 U.S.C. 1973c &
1973b(b). The Supreme Court addressed the scope of Congress’s power under § 2
of the Fifteenth Amendment to pass “appropriate legislation” enforcing that
Amendment’s protections on the right to vote, and explained that Congress must



       10
          Amici also argue that Jones was part of a trio of cases including Katzenbach v.
Morgan, 384 U.S. 641(1966) (discussing the Fourteenth Amendment) and South Carolina v.
Katzenbach, 383 U.S. 301(1966)(discussing the Fifteenth Amendment) that gave considerable
deference to Congress when it exercises its powers under the Reconstruction Amendments.
Amici argue that the Supreme Court has since cut back on the deference given to Congress in
Flores, 521 U.S. 507, and that the approach used in Flores should be applied in this case.
       11
        The Thirteenth, Fourteenth, and Fifteenth Amendments are collectively known as
the Reconstruction Amendments.
       12
         The Tenth Circuit decided Hatch only a few days after the Supreme Court’s decision
in Shelby County; Hatch does not address how Shelby County impacts the proper
interpretation of the scope of § 2 of the Thirteenth Amendment.

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                                     No. 12-20514
justify the Voting Right Act’s “extraordinary measures” based on current, rather
than past, conditions. See Shelby Cnty., 133 S. Ct. at 2625–31. The Supreme
Court then concluded:
      Congress may draft another formula based on current conditions.
      Such a formula is an initial prerequisite to a determination that
      exceptional conditions still exist justifying such an extraordinary
      departure from the traditional course of relations between the
      States and the Federal Government. Our country has changed, and
      while any racial discrimination in voting is too much, Congress
      must ensure that the legislation it passes to remedy that problem
      speaks to current conditions.
Id. at 2631 (internal quotations and citations omitted).
      Even if the legal landscape regarding the Reconstruction Amendments has
changed in light of Shelby County and Flores, absent a clear directive from the
Supreme Court, we are bound by prior precedents. See Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this
Court has direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own
decisions.”).   For this same reason, Defendants and Amici’s arguments based
on McCulloch is also foreclosed. As the Tenth Circuit explained in Hatch, “even
if we assume Hatch’s authorities impliedly undermine Jones’s approach to the
Thirteenth Amendment, we may not blaze a new constitutional trail simply on
that basis.” Hatch, 722 F.3d at 1204. Shelby County never mentioned the
Thirteenth Amendment or Jones—rather, the analysis focused on the Fifteenth
Amendment and the Voting Rights Act. Flores likewise never mentioned the
Thirteenth Amendment or Jones, and did not hold that the “congruence and
proportionality” standard was applicable beyond the Fourteenth Amendment.13


      13
        Amici argue that even under Jones, § 249(a)(1) is still unconstitutional because
Congress never purported to address slavery when enacting it. Accordingly to Amici, under

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                                          No. 12-20514
We therefore continue to follow the Supreme Court’s binding precedent in Jones.
As explained above, § 249(a)(1) is a valid exercise of congressional power because
Congress could rationally determine that racially motivated violence is a badge
or incident of slavery.
                                               III.
       Because we conclude that § 249(a)(1) is constitutional, we now turn to the
question of whether the evidence presented at trial was sufficient to support
Defendants’ convictions. We conclude that it was. Section 249(a)(1) lists the
essential elements of a hate crime motivated by race or color under the Shepard-
Byrd Act. In the context of this case, § 249(a)(1) required Defendants to: (1)
willfully cause or attempt to cause; (2) bodily injury to any person; (3) because
of their actual or perceived race or color.14
       Cannon and McLaughlin only challenge the sufficiency-of-the-evidence as
to the final element, arguing that there was insufficient proof that they were
motivated by Johnson’s race or color when inflicting his injuries. Because
Cannon and McLaughlin properly preserved their challenges to the sufficiency-




Jones, legislation passed under § 2 of the Thirteenth Amendment may be “somewhat
prophylactic in nature,” but its end goal must still be to prevent slavery. In essence, Amici
argue that Congress may outlaw badges and incidents of slavery only insofar as those badges
and incidents are being used to support the institution or reestablishment of slavery, and not
for any other purpose. Amici argue that § 249(a)(1) thus fails under the standard set forth in
Flores, because its ban is not congruent and proportional to the actual problem of slavery. 521
U.S. at 520.
        We do not read Jones as narrowly as Amici suggest. In Jones, the Supreme Court
explained that, pursuant to its powers under the Thirteenth Amendment, Congress can
legislate to address not only practices that support the institution of slavery, but also “vestiges
of slavery” and “the relic[s] of slavery.” 392 U.S. at 441 n.78, 443. Under Jones, Congress
could rationally determine that racially motivated violence is a “badge” or “incident” of slavery.
Section 249(a)(1) is thus a valid exercise of congressional power. In reaching this conclusion,
we are in keeping with our two sister circuits who have addressed the constitutional validity
of § 249(a)(1). See Hatch, 722 F.3d at 1209; Maybee, 687 F.3d at 1031.
       14
            The parties agree that religion and national origin are not at issue in this case.

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                                      No. 12-20514
of-the-evidence, we review their claims de novo.15 United States v. Grant, 683
F.3d 639, 642 (5th Cir. 2012).
       Our review of the sufficiency-of-the-evidence is “highly deferential to the
verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002).
       The standard of review for determining whether there was sufficient
       evidence to convict a defendant is whether the evidence, when
       reviewed in the light most favorable to the government with all
       reasonable inferences and credibility choices made in support of a
       conviction, allows a rational fact finder to find every element of the
       offense beyond a reasonable doubt. The evidence is viewed in the
       light most favorable to the verdict, accepting all credibility choices
       and reasonable inferences made by the trier of fact which tend to
       support the verdict.
United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997) (internal citations
omitted); see also United States v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en
banc). “It is not necessary that the evidence exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except that of guilt.”
United States v. Lage, 183 F.3d 374, 382 (5th Cir. 1999). However, “a verdict
may not rest on mere suspicion, speculation, or conjecture, or on an overly
attenuated piling of inference on inference.” Delgado, 672 F.3d at 362 (citations
and internal quotations omitted). “[A]ny conflicts in the evidence must be
resolved in favor of the verdict.” United States v. Duncan, 919 F.2d 981, 990 (5th
Cir. 1990).
                                            A.
       As a threshold matter, the fact that Johnson, not Cannon, was the first
person to inflict bodily injury on someone else during the fight does not render
the evidence insufficient to support the conviction. By its own terms, § 249(a)(1)

       15
          Kerstetter waived this claim, as he did not raise it on appeal. See Fed. R. App. P.
28(a)(9)(A); see also Sama v. Hannigan, 669 F.3d 585, 589 (5th Cir. 2012) (“It has long been
the rule in this circuit that any issues not briefed on appeal are waived.” (quoting United
States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)); United States v. Herrera, 313 F.3d
882, 885 (5th Cir. 2002) (en banc).

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                                 No. 12-20514
simply requires a defendant to “attempt to cause” or “willfully cause” bodily
injury to another. Cannon does not dispute that he threw the first—albeit
unsuccessful—punch. That punch was an attempt to cause bodily injury to
Johnson, and the jury could rationally conclude that Cannon committed a federal
hate crime when he took that first swing. The fact that Johnson continued the
fight by following Defendants does not render the evidence insufficient. The jury
was free to consider these factors and chose to believe that Defendants had
attempted to willfully cause bodily injury to Johnson.
      When viewed in the light most favorable to the verdict, a rational trier of
fact could have found the essential element of racial motivation beyond a
reasonable doubt based on the evidence presented here. Jackson v. Virginia, 443
U.S. 307, 319 (1979). At trial, Staggs testified that Cannon and Kerstetter met
Staggs and McLaughlin for the first time shortly before the fight. Johnson
testified that he had never met any of the four men before. The men did not
attempt to rob Johnson. There was no evidence of any other communications
between Defendants and Johnson that could have instigated the fight other than
the repeated use of the word “ni--er.” Collectively, these facts could have led a
jury to rule out other non-racially motivated reasons for the brawl. When the
three Defendants and Staggs first met, Staggs heard either Cannon or
Kerstetter say, “See, I told you them [sic] are woods.” At trial, a gang tattoo
expert testified that “wood” is used by members of white-supremacy
organizations to describe themselves or other white people.         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 white-supremacist group called the
Aryan Circle, and the words “white pride.” Cannon also had a number of tattoos



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                                       No. 12-20514
associated with white-supremacist views, including sig runes, a German military
iron cross, a swastika, the word “wood,” and a woodpecker.
       Cannon and McLaughlin argue that the evidence presented at trial cannot
support a conviction under § 249(a)(1) because there is no proof of premeditation
or a plan to attack members of a particular group—in this case, African-
Americans.      Rather, they were on a mutual quest for beer.                  Cannon and
McLaughlin note that a survey of hate crime cases indicates that the defendants
who were found to have a racial animus always have a plan to attack a member
of a minority group.16 See, e.g., United States v. Allen, 341 F.3d 870, 875 (9th
Cir. 2003) (defendants “patroll[ed]” park with weapons and “moved toward the
center of the park looking for racial minorities and Jews”); Nelson, 277 F.3d at
170 (“In response to Price’s exhortations, many people in the crowd began to yell,
‘Get the Jews.’”); United States v. Bledsoe, 728 F.2d 1094, 1095 (8th Cir. 1984)
(explaining that “appellant and his companions regularly went to Liberty Park
to ‘harass homosexuals’”). In contrast, Cannon and McLaughlin note that there
was no evidence presented at trial to indicate that Defendants and Staggs were
looking to attack an African-American, or anyone else, when they set off
together. Instead, Staggs testified that they were looking for beer and never
discussed African-Americans or any other minority groups before their
encounter with Johnson.
       We disagree that § 249(a)(1) requires any such showing of premeditation.
Although Defendants point to cases from other circuits involving premeditation,
none of those courts required premeditation or a plan of attack to sustain federal
hate crime charges. See, e.g., Nelson, 277 F.3d 164; Bledsoe, 728 F.2d 1094;


       16
          These cases deal with another hate crime provision, 18 U.S.C. § 245(b)(2)(B), which
requires that the defendant’s actions be motivated based on “an animus against the victim on
account of her race, religion, etc., that is, her membership in a class or category the statute
protects.” United States v. Nelson, 277 F.3d 164, 194 (2d Cir. 2002). Section 245(b)(2)(B) is
not at issue here.

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                                  No. 12-20514
Allen, 341 F.3d 870. Evidence of such a plan is no doubt helpful to show that a
defendant was racially motivated, but it is not necessary so long as there is other
evidence of the defendant’s motivation. Imposing a plan or premeditation
requirement would conflict with the plain language of § 249(a)(1), which does not
include such an element. So long as the jury heard evidence that indicated
Defendants had the necessary race-based motivation at the time they inflicted
or attempted to inflict bodily injury on Johnson, we cannot say that there was
insufficient evidence for the jury to find them guilty under § 249(a)(1).
      Cannon and McLaughlin also argue that speech-based evidence showing
that Defendants harbored white-supremacist views, such as their tattoos and
use of racial epithets, was insufficient to show that the assault was motivated
by race. Once again, we must disagree. The Supreme Court has made clear that
the First Amendment “does not prohibit the evidentiary use of speech to
establish the elements of a crime or to prove motive or intent.” Wisconsin v.
Mitchell, 508 U.S. 476, 489 (1993). Moreover, our sister circuits who have
considered this issue have all allowed speech-based evidence to support a finding
that a crime was motivated by racial hatred. See, e.g., Allen, 341 F.3d at 885–86
(evidence of racist tattoos and literature, and skinhead paraphernalia such as
combat boots and swastika arm-bands were relevant to proving racial animus);
United States v. Magleby, 241 F.3d 1306, 1318–19 (10th Cir. 2001) (evidence that
the defendant listened to CD with racist lyrics was relevant to establishing that
the defendant targeted the victims because of their race); United States v.
Woodlee, 136 F.3d 1399, 1410–11 (10th Cir. 1998) (“Evidence of past racial
animosity is relevant” to establishing that defendant acted because of race.);
United States v. Dunnaway, 88 F.3d 617, 618–19 (8th Cir. 1996) (evidence of
defendant’s “racist views, behavior, and speech” relevant to establishing element
of the crime requiring “discriminatory purpose and intent”); O’Neal v. Delo, 44
F.3d 655, 661 (8th Cir. 1995) (defendant’s membership in Aryan Brotherhood

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                                  No. 12-20514
relevant to question of whether racial animus was motive for murder); United
States v. Franklin, 704 F.2d 1183, 1187–88 (10th Cir. 1983) (admitting testimony
regarding the defendant’s self-identification as a racist and strong dislike of
African-Americans and Jews and the mixing of black and white races relevant
given that statute requires that the defendant have acted because of race).
      Cannon and McLaughlin argue that as repugnant as their views and
behavior may have been, the evidence is insufficient to show that their actions
were racially motivated because not all Defendants used racial epithets, and
their tattoos do not indicate that they were all members of a particular group
with white-supremacist views. Cannon notes that Staggs did not have any
tattoos at all. Cannon and McLaughlin argue that although the symbols in the
tattoos are all indicative of groups who believe that whites are superior to other
races, the gang expert also testified that not all individuals who have these
tattoos are affiliated with a gang or organization. The expert also testified that
members of these different groups do not necessarily share a common set of
beliefs. There was also evidence that Kerstetter tattooed over one of his tattoos,
and that individuals sometimes seek to cover up tattoos in this way when they
no longer want them on their bodies.
      The jury was able to see the markings on the Defendants’ bodies and to
hear the words that they used in connection with the attack. Johnson testified
that the men called him a “ni--er” multiple times immediately before Cannon
threw the first punch and that Cannon “flashed a smile” at him just before
taking that first swing. Given Defendants’ use of racial epithets in front of
Johnson immediately before the fight, a rational jury could have inferred that
this smile demonstrated Cannon’s desire to fight, and therefore cause bodily
injury to Johnson. Following the fight, police officer Samuel Thomas testified
that he heard Cannon yell the word “ni--er” several times. Viewed in the light



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                                    No. 12-20514
most favorable to the verdict there was sufficient evidence from which the jury
could infer that Cannon and McLaughlin attacked Johnson “because of” race.17
                                          IV.
      For the reasons stated above, we AFFIRM Defendants’ convictions.




      17
         Cannon and McLaughlin also argue that there was no evidence presented that
Johnson was African-American, but the jury was able to see Johnson during his testimony,
and take his appearance into account when reaching their determination.

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                                      No. 12-20514
JENNIFER WALKER ELROD, Circuit Judge, specially concurring:
       Under binding precedent, § 249(a)(1) is constitutionally valid. I write
separately to express my concern that there is a growing tension between the
Supreme Court’s precedent regarding the scope of Congress’s powers under § 2
of the Thirteenth Amendment1 and the Supreme Court’s subsequent decisions
regarding the other Reconstruction Amendments and the Commerce Clause.
Our sister circuit noted similar concerns in United States v. Hatch, 722 F.3d
1193 (10th Cir. 2013), cert. denied, 13-6765, 2014 WL 1124872 (Mar. 24, 2014).
This tension between the case law is even more pronounced in light of the
Supreme Court’s decision in Shelby County v. Holder, 133 S. Ct. 2612 (2013),
which is not discussed in Hatch. In my view, we would benefit from additional
guidance from the Supreme Court on how to harmonize these lines of precedent.
                                             I.
       As noted in the panel opinion, the Thirteenth, Fourteenth, and Fifteenth
Amendments are collectively referred to as the Reconstruction Amendments. All
three Amendments were ratified between 1865 and 1870 in the wake of the Civil
War. Although each Amendment provides unique powers, they also share “a
unity of purpose, when taken in connection with the history of the times, which
cannot fail to have an important bearing on any question of doubt concerning
their true meaning.” Hatch, 722 F.3d at 1202 (citing Slaughter-House Cases, 83
U.S. 36, 67 (1872)). That “unity of purpose” was to confront slavery, and the
atrocious practices associated with it. See George Rutherglen, State Action,


       1
         Section 2 of the Thirteenth Amendment provides Congress with the power to legislate
against “badges” and “incidents” of slavery. Section 1 of the Thirteenth Amendment provides
Congress with a separate power to prohibit involuntary servitude, which is understood as
labor coerced by physical force or restraint. See United States v. Kozminski, 487 U.S. 931,
944–48 (1988); Jennifer Mason McAward, Defining the Badges and Incidents of Slavery, 14 U.
Pa. J. Const. L. 561, 567 (2012). Only Congress’s power under § 2 of the Thirteenth
Amendment is at issue in this case. Neither Defendants nor Amici contest Congress’s ability
to pass legislation to prevent involuntary servitude.

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                                       No. 12-20514
Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1370, 1378
(2008).
       The Thirteenth Amendment provides that “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. The Fourteenth Amendment places
limits on the ability of the states to curtail the rights of citizens. U.S. Const.
amend. XIV. The Fifteenth Amendment states that “[t]he right of citizens of the
United States to vote shall not be denied or abridged by the United States or by
any state on account of race, color, or previous condition of servitude.” U.S.
Const. amend. XV, § 1. Using nearly identical language, each Amendment
provides Congress with the power to enforce its provisions through appropriate
legislation.2
       Defendants and Amici argue that the nearly identical text in § 2 of the
Thirteenth Amendment and § 2 of the Fifteenth Amendment logically indicates
that the Supreme Court’s reasoning in Shelby County regarding the Fifteenth
Amendment should apply in the Thirteenth Amendment context as well. In
Shelby County, the Supreme Court addressed whether § 5 of the Voting Rights
Act—which was passed pursuant to Congress’s Fifteenth Amendment
powers—continued to satisfy constitutional requirements. Shelby Cnty., 133 S.
Ct. at 2619. In overturning § 5’s pre-clearance requirement, the Supreme Court
noted that Congress could not rely on “decades-old data and eradicated
practices” to justify the requirement. Id. at 2627. As the Supreme Court
explained,“the [Voting Rights] Act imposes current burdens and must be


       2
         Both the Thirteenth and Fifteenth Amendment provide that “Congress shall have
power to enforce this article by appropriate legislation.” U.S. Const. amend. XIII, § 2; U.S.
Const. amend. XV, § 2. The Fourteenth Amendment states that “Congress shall have power
to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV,
§ 5.

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                                       No. 12-20514
justified by current needs.” Id. at 2622 (citing Nw. Austin Mun. Util. Dist. No.
One v. Holder, 557 U.S. 193, 203 (2009)).                   This is especially true in
circumstances where the federal statute “authorizes federal intrusion into
sensitive areas of state and local policymaking.” Id. (citing Lopez v. Monterey
Cnty., 525 U.S. 266, 282 (1999)). Given the almost identical language in the
Thirteenth and Fifteenth Amendments, Shelby County’s admonition might be
applied here as well.
       In passing § 249(a)(1), Congress focused on past conditions and did not
make any findings that current state laws, or the individuals charged with
enforcing them, were failing to adequately protect victims from racially-
motivated crimes.3 Specifically, Congress noted that
       [s]lavery and involuntary servitude were enforced, both prior to and
       after the adoption of the 13th amendment to the Constitution of the


       3
         The government pointed out that Congress presented statistics showing that hate
crimes continue to take place in modern society. See H.R. Rep. No. 86, pt. 1, 111th Cong., 1st
Sess. 5–6 (2009). While it is unfortunately true that hate crimes continue to occur, Congress
also noted that such crimes have been in decline during the past ten years. Id. at 43–44. More
importantly, Congress did not make any findings to suggest that the states are not adequately
addressing this problem. Instead, Congress focused on the then-existing limits on federal hate
crimes laws, and mentioned only a few anecdotal instances where state prosecutors did not
bring charges under state hate crimes laws, or juries did not convict defendants. Id. at 6–9.
       Furthermore, as Defendants and Amici note, the Report’s Dissenting Views section
stated that, “[u]nfortunately, in their haste to rush this bill through the Committee, the
majority has not done any fact finding whatsoever.” Id. at 42. The Dissenting Views section
goes on to state that:
       There is zero evidence that states are not fully prosecuting violent crimes
       involving ‘‘hate.’’ Moreover, 45 states and the District of Columbia already have
       laws punishing hate crimes, and Federal law already punishes violence
       motivated by race or religion in many contexts. . . . Of the 5 states with no
       current hate crime legislation (Georgia, Indiana, Arkansas, South Carolina, and
       Wyoming), Georgia and Indiana have passed legislation pertaining to hate
       crimes in recent years, and in both states the legislation has been struck down
       by the courts.
Id. at 44. In Shelby County the Supreme Court cited similar changes in the congressional
findings to explain why Congress had not justified § 5’s “extraordinary measures” based on
current conditions. See Shelby Cnty., 133 S. Ct. at 2624–28.

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                                  No. 12-20514
       United States, through widespread public and private violence
       directed at persons because of their race, color, or ancestry, or
       perceived race, color, or ancestry.

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No.
111-84, 123 Stat. 2190 (2009), div. E., § 4702 (codified as amended at 18
U.S.C. § 249) (emphasis added). Shelby County suggests that this congressional
finding regarding circumstances now more than 100 years old cannot serve as
the justification for a current expansion of Congress’s powers under the
Thirteenth Amendment. See Shelby Cnty., 133 S. Ct. at 2619 (“Congress did not
use the record it compiled to shape a coverage formula grounded in current
conditions. It instead reenacted a formula based on 40–year–old facts having no
logical relation to the present day.”).
       There is no doubt that hate crimes and racial discrimination still exist.
There is also no doubt that such crimes are deplorable acts. But the question,
following Shelby County, is whether § 249(a)(1) satisfies constitutional
requirements in our current society. Because the Shepard-Byrd Act “imposes
current burdens,” perhaps, like the Voting Rights Act, it too “must be justified”
with congressional findings regarding “current needs.” Shelby Cnty., 133 S. Ct.
at 2619 (citing Nw. Austin, 557 U.S. 193).
                                          II.
       As the panel opinion explains, the words “badges” and “incidents” were
originally terms of art with specific meanings tied to their historical context.
“Incidents” referred to public laws that applied in the antebellum slaveholding
states. See McAward, supra at 575. “Badges” generally referred to “indicators,
physical or otherwise, of African-Americans’ slave or subordinate status.” Id. at
575.   The Supreme Court’s earlier case law likewise took a more limited view
of the scope of these terms. See Hodges v. Unites States, 203 U.S. 1, 14–16


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                                 No. 12-20514
(1906). Then, in Jones v. Alfred H. Mayer Co., the Supreme Court reasoned that
“[s]urely Congress has the power under the Thirteenth Amendment rationally
to determine what are the badges and the incidents of slavery.” 392 U.S. 409,
440 (1968).
      Jones’s articulation of congressional power under § 2 of the Thirteenth
Amendment is thus in tension with the Supreme Court’s discussion of
congressional power under the Fourteenth Amendment in City of Boerne v.
Flores, 521 U.S. 507, 529 (1997). As the Supreme Court cautioned in Flores:
      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.” It
      would be “on a level with ordinary legislative acts, and, like other
      acts, . . . alterable when the legislature shall please to alter it.”
      Under this approach, it is difficult to conceive of a principle that
      would limit congressional power.

Id. (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Yet under the
expansive interpretation of the Thirteenth Amendment found in Jones, Congress
has just such a power to define “badges” and “incidents” of slavery. Under our
existing Thirteenth Amendment jurisprudence, it has indeed become difficult to
“conceive of a principle that would limit congressional power.” Id. As the Tenth
Circuit recently explained in Hatch, “this interpretation gives Congress the
power to define the meaning of the Constitution—a rare power indeed.” 722
F.3d at 1204.
      Moreover, the plain language of § 249(a)(1) has the power to implicate vast
swaths of activities that do not relate to removing the “badges” and “incidents”
of slavery as the terms were originally understood. It reaches even racial
violence against white persons when those acts are based on race. Cf. Jones, 392


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                                     No. 12-20514
U.S. at 443; McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18
(1976); Hatch, 722 F.3d at 1208.

       The Supreme Court has cautioned against such expansions of federal law
into areas, like police power, that are the historical prerogative of the states. See
Shelby Cnty., 133 S. Ct. at 2623; United States v. Morrison, 529 U.S. 598, 661 n.8
(2000). As the panel opinion details, the incident began with a racial epithet and
a missed-punch. The views and actions of the three Defendants are unarguably
reprehensible, and punishable under Texas law.4 But whether their distasteful
actions may be constitutionally punished under federal law is by no means a
frivolous question.5 See Hatch, 722 F.3d at 1201.
       As Cannon points out, “[a]s repugnant as ‘hate crimes’ may be, the
Constitution does not vest authority in the federal government to prosecute such
crimes without a federal nexus. We entrust the prosecution of some of the most
heinous crimes, including murders, rapes, arson, and assaults, to our state
criminal justice systems. Indeed, at least forty five (45) states have criminal
statutes that impose harsher penalties for crimes that are motivated by bias
including Texas.” (citing Anti-Defamation League, State Hate Crime Provisions
(April 28, 2009)).
                                           III.
       In Shelby County, the Supreme Court recognized that federal regulations
that implicate areas of traditional state power may have profound impacts on
the balance of federalism:



       4
       The record here shows that Defendants were charged in Harris County, Texas, with
misdemeanor assault under state law, and those charges were dropped only after the
government brought federal hate crime charges against Defendants.
       5
        This in no way diminishes the insult and assault that Johnson was made to suffer at
the hands of Defendants. As counsel for Cannon readily admits, “[D]efendants are obnoxious
people who hold and openly display offensive opinions about racial inequality.”

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                                   No. 12-20514
      [T]he Constitution provides that all powers not specifically granted
      to the Federal Government are reserved to the States or citizens.
      This allocation of powers in our federal system preserves the
      integrity, dignity, and residual sovereignty of the States. But the
      federal balance is not just an end in itself: Rather, federalism
      secures to citizens the liberties that derive from the diffusion of
      sovereign power.

Shelby Cnty., 133 S. Ct. at 2623 (internal citations and quotation marks
omitted). Just as “the Framers of the Constitution intended the States to keep
for themselves, as provided in the Tenth Amendment, the power to regulate
elections” so too did they intend for the general police powers to lie with the
States. See id; see also United States v. Lopez, 514 U.S. 549, 561 n.3 (1995)
(‘‘When Congress criminalizes conduct already denounced as criminal by the
States, it effects a ‘change in the sensitive relation between federal and state
criminal jurisdiction.’’’ (quoting United States v. Emmons, 410 U.S. 396, 411–12
(1973))); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985)
(“Throughout our history the several States have exercised their police powers
to protect the health and safety of their citizens. Because these are primarily,
and historically, . . . matter[s] of local concern, the States traditionally have had
great latitude under their police powers to legislate as to the protection of the
lives, limbs, health, comfort, and quiet of all persons.” (internal quotation marks
and citation omitted)); Morrison, 529 U.S. at 661 n.8 (“The regulation and
punishment of intrastate violence that is not directed at the instrumentalities,
channels, or goods involved in interstate commerce has always been the province
of the States. Indeed, we can think of no better example of the police power,
which the Founders denied the National Government and reposed in the States,
than the suppression of violent crime and vindication of its victims. . . . [T]he


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                                   No. 12-20514
principle that [t]he Constitution created a Federal Government of limited
powers, while reserving a generalized police power to the States, is deeply
ingrained in our constitutional history.” (internal quotation marks and citation
omitted)).
      The Supreme Court has articulated limits to Congress’s power under the
Commerce Clause out of concern for balance within our federal system. Thus,
in both Lopez, 514 U.S. 549, and Morrison, 529 U.S. 598, the Supreme Court
recognized that Congress does not have the authority under the Commerce
Clause to regulate isolated, local activities without a federal nexus. See Lopez,
514 U.S. at 551 (striking down the Gun–Free School Zones Act as an
impermissible attempt to exercise “general federal police power”); Morrison, 529
U.S. at 605 (striking down the Violence Against Women Act which provided a
federal civil remedy to victims of “violence motivated by gender”); see also Hatch,
722 F.3d at 1203–04.        As the Lopez Court explained, “[t]o uphold the
Government’s contentions here, we would have to pile inference upon inference
in a manner that would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort retained by the States.”
Lopez, 514 U.S. at 567. Although the Supreme Court acknowledged that it had
held that Congress’s Commerce Clause powers were broad, it declined to extend
them further, because “[t]o do so would require us to conclude that the
Constitution’s enumeration of powers does not presuppose something not
enumerated, and that there never will be a distinction between what is truly
national and what is truly local.” Id. at 567–68 (citations omitted).
      The breadth of Congress’s power is even more pronounced in this case
because Congress did not pass § 249(a)(1) under the Commerce Clause, as it did
with § 249(a)(2). In contrast to § 249(a)(2), § 249(a)(1) does not contain a specific
requirement that the conduct involve interstate or foreign travel, use a channel,
facility or instrumentality of interstate or foreign commerce, or invoke the

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                                  No. 12-20514
special maritime or territorial jurisdiction of the United States. Compare 18
U.S.C. § 249(a)(2)(B)(i)(I)-(III) with § 249(a)(1). Unlike the Commerce Clause,
the Congress’s power under the Thirteenth Amendment is not limited to
interstate activities. Unlike the Fourteenth Amendment, it is not limited to
state action. Unlike the Fifteenth Amendment, it does not require Congress to
act based on a need grounded in current conditions. Congress’s power under the
Thirteenth Amendment is constrained only by the definition of “badges” or
“incidents” of slavery. See Jones, 392 U.S. at 440; see generally Rutherglen,
supra at 1367. And under Jones, that definition only a self-imposed limit.
Congress’s powers are constrained only by Congress.
                                        IV.

      In conclusion, I do not write this special concurrence to suggest that
racially motivated crimes of hate are anything other than despicable acts. I
write instead to point out the tensions between several lines of the Supreme
Court’s constitutional jurisprudence. There is tension between the divergent
application of nearly identical language in the Reconstruction Amendments.
There is tension between Shelby County’s emphasis on current conditions, and
the congressional findings supporting the Shepard-Byrd Act, which are grounded
in the past. There is tension between the limits that Flores places on Congress’s
ability to define the scope of its powers, and its ability to interpret “badges” and
“incidents” under Jones. There is tension between the limits placed on the
ability of the federal government to intrude into the states’ police powers under
Morrison and Lopez, and its power to do so here.
      In this case, the federal law reaches acts between private actors, within
the heart of the states’ traditional police powers, without any findings that
states currently and consistently fail to adequately address the problem. The
federal law does not profess to rely on Congress’s Commerce Clause authority;


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                                 No. 12-20514
instead, § 249(a)(1) relies on a constitutional provision where Congress has been
given the power to set its own parameters.        While such a law is clearly
permissible under existing Thirteenth Amendment precedent, there is
substantial tension with other lines of recent constitutional jurisprudence. See
Hatch, 722 F.3d at 1201 (“While Hatch’s arguments raise important federalism
questions, in light of Jones it will be up to the Supreme Court to choose whether
to extend its more recent federalism cases to the Thirteenth Amendment.”).




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