Nos. 20-2078, 20-2079

UNITED STATES OF AMERICA,

Appellee,

v.

MAURICE DIGGINS,

Defendant-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Lynch, Thompson, and Gelpí, Circuit Judges.

William T. Murphy, on brief for appellant. Darcie N. McElwee, United States Attorney; Benjamin Block, Assistant United States Attorney; Kristen Clarke, Assistant Attorney General; Pamela S. Karlan, Principal Deputy Assistant Attorney General; and Thomas Chandler and Brant S. Levine, Attorneys, Appellate Section, Department of Justice, on brief for appellee.

June 8, 2022 GELPÍ, Circuit Judge. A jury convicted Maurice Diggins ("Diggins") of two counts of committing a hate crime and one count of conspiring to commit a hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (the "Shepard-Byrd Act"), 18 U.S.C. §§ 249(a)(1), 371.1 On appeal, Diggins challenges Congress's ability under § 2 of the Thirteenth Amendment to pass § 249(a)(1), contending that the Supreme Court's expansive articulation of § 2 authority in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), has been curtailed or overruled by the Court's subsequent decisions in City of Boerne v. Flores, 521 U.S. 507 (1997), and Shelby County v. Holder, 570 U.S. 529 (2013). He further asserts that the government failed to satisfy the procedural requirements of 18 U.S.C. § 249(b)(1). Lastly, Diggins contests the admission into evidence of his white-supremacist tattoos and expert testimony relating to the same. We affirm the judgment of the district court, holding that Diggins's first two arguments are unavailing and the third argument has been waived.

1 In pertinent part, 18 U.S.C. § 249(a)(1) makes it a crime to "willfully cause[] bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person." 18 U.S.C. § 371, in turn, proscribes "two or more persons conspir[ing] . . . to commit any offense against the United States" where "one or more of such persons do any act to effect the object of the conspiracy."

- 2 - BACKGROUND I. The Attacks

On the night of April 15, 2018, Diggins and his nephew violently attacked two Black men in separate incidents. In each attack, Diggins and his nephew hurled racial slurs at their target, striking him in the head and shattering his jaw. Both victims suffered serious injuries which required emergency surgery and hospitalization. They continue to suffer lasting physical, emotional, and financial consequences.

In the first attack, Diggins and his nephew approached A.N., a Black man and Sudanese refugee who was quietly smoking on the sidewalk outside a bar in Portland, Maine. Diggins and his nephew are both white men, with Diggins being the taller and larger of the two. Neither man had ever met A.N. before. Without any provocation, and before A.N. was able to react, Diggins punched A.N. in the face. A.N. fled, bloodied and in pain, pursued by the smaller man. As A.N. escaped, he heard someone yell behind him, "[C]ome here, nigger, come here, nigger." A.N. required emergency surgery for his broken jaw the following day at the Maine Medical Center. The surgeon implanted a metal plate into A.N.'s jaw and wired it shut for several weeks, during which time he was unable to eat, work, or even hold his infant daughter.

Later that evening, Diggins and his nephew drove to a 7- Eleven i