United States of America v. Randy Metcalf

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). The district cou 1 rt2 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.”

1After 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.”

2The Honorable Linda R. Reade, then Chief Judge, United States District Court

for the Northern District of Iowa.

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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.

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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).

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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)).

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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

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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).

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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.