Hate crime law upheld in Green Forest case

Monday, August 13, 2012

GREEN FOREST -- A federal appeals panel decided last week to uphold the hate crime law that led to last year's conviction of two Green Forest men.

A federal jury convicted Frankie Maybee and Sean Popejoy of conspiracy and federal hate crime charges in May 2011, after they and Curtis Simer ran a car from a Carroll County road and seriously injured the five Hispanic men inside.

Simer agreed to testify early in the investigation in exchange for immunity, and Popejoy took a plea bargain in exchange for more lenient sentencing. Popejoy was convicted in September of one count each of conspiracy and committing a federal hate crime and sentenced to four years in prison.

Both men testified against Maybe, who was sentenced in September to 11 years and three months in prison.

Maybee appealed his case to the Eighth Circuit Court of Appeals, challenging the constitutionality of the hate crimes prevention act, the sufficiency of evidence used to convict him, his sentence, and the district court's refusal to grant him a new trial.

The court ruled against Maybee on every point.

In a 3-0 opinion issued on Aug. 6, Judge Raymond W. Gruender wrote that attacking someone based on their race or national origin is considered among the "badges and incidents of slavery" under the hate crime law. The Thirteenth Amendment gave Congress authority to define and abolish such badges or incidents.

In his appeal, Maybee had argued that Congess overstepped this authority in authorizing the Shepard-Byrd Hate Crimes Prevention Act. He argued that to be constitutional, the law would have to require 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." Because the law only required the former, he argued, it was unconstitutional.

In response, Gruender wrote, "(H)is narrow challenge to the constitutionality of (the law) fails."

The court also rejected Maybee's claim that the evidence used to convict him was insufficient. Maybee had argued that he pursued his victims because Popejoy told him they had made "an obscene gesture" toward him at the convenience, not because they were Hispanic. He had also argued that the evidence did not prove he acted "willfully."

The judges rejected both arguments, based upon the testimony of Maybee's victims and accomplices and upon surveillance footage from the convenience store that showed the three men talking about pursuing the sedan for nearly a minute before doing so.

Maybee had appealed, also, the district court's refusal to grant him a new trial, arguing that testimony of Simer and Popejoy was not credible because both had testified in anticipation of lenient sentencing.

Furthermore, he argued, the Government had "inflamed the jury" by repeatedly showing pictures of the victims' charred vehicle during testimony.

The court ruled against Maybee in this regard also.

Maybee's attorney, Chris Flanagin of Eureka Springs, could not be reached for comment Monday.

Maybee is serving out his sentence at a federal prison near Alexandria, La. He is scheduled to be freed on Jan. 20, 2021. Popejoy is being held in Yazoo, Miss., and is scheduled for release on Oct. 30, 2013.

In the twilight hours of June 20, 2010, Maybee, Popejoy, and Simer were loitering around Maybee's blue F-250 in the parking lot of an Alpena convenience store when five Hispanic men pulled up in a green sedan.

The men were Jeffrey Perez, Brian Vital, Francisco Reyes, Anthony Gomez, and Victor Sanchez. After yelling racial slurs and telling the men to "go back to Mexico," Maybee, Simer, and Popejoy pursued the men west on Highway 412. They rammed them repeatedly with Maybee's truck before driving them off the road.

The sedan flipped into a ravine, crashed through a fence, and hit a tree before bursting into flames. All five men in the car were injured. Two had to be taken to trauma centers with severe injuries.

"The facts of this case shock the conscience," Thomas E. Perez, assistant attorney general for the Civil Rights Division of the U.S. Department of Justice, said last year. "Five men were almost killed for no reason other than the fact that they were Hispanic."

Maybee and Popejoy were the first defendants ever to be prosecuted under the Shepard-Byrd Hate Crimes Prevention Act. The act makes it a crime to willfully injure someone because of their "actual or perceived race, color, religion, or national origin."

Matthew Shepard was a college student in 1998 in Wyoming when he was beaten to death because he was gay. James Byrd, a Black man, was dragged to death behind a pickup truck occupied by three white supremacists in Texas in 1998. The hate crimes act named for the two men was signed into law by President Obama on Oct. 28, 2009.

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