United States v. Watson, Dwight W.

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2006 Decided April 13, 2007

No. 04-3082 & 04-3090

UNITED STATES OF AMERICA,

APPELLANT/CROSS-APPELLEE

v.

DWIGHT W. WATSON,

APPELLEE/CROSS-APPELLANT

Appeals from the United States District Court

for the District of Columbia

(No. 03cr00146-01)

Roy W. McLeese, III, Assistant U.S. Attorney, argued the

cause for appellant in 04-3082 and cross-appellee in 04-3090.

With him on the briefs were Jeffrey A. Taylor, U.S. Attorney,

and Jay I. Bratt, Attorney. David B. Goodhand, Assistant U.S.

Attorney, entered an appearance.

A. J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellee in 04-3082 and cross-appellant

in 04-3090.

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Before: GINSBURG, Chief Judge, and RANDOLPH and

ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The principal question in this

appeal is whether the prosecutor’s peremptory challenge of two

visually impaired (“blind”) jurors was lawful under the rule of

Batson v. Kentucky, 476 U.S. 79 (1986). Watson contends that

the rule established in Batson requiring heightened scrutiny of

peremptory challenges on the basis of race should be extended

to the blind in view of the long history of prejudice and

discrimination against the disabled and the Supreme Court’s

suggestion in Tennessee v. Lane, 541 U.S. 509, 524 & n.9, 525

& n.14 (2004), that jury service is a fundamental right. We

conclude, in light of Supreme Court precedent holding that

disabled persons are not a suspect class to which a heightened

degree of scrutiny attaches, that this contention must fail.

Assuming peremptory challenges of blind jurors are subject to

rational basis review, we conclude that the prosecutor’s

explanation was rational. However, because the district court

plainly erred upon resentencing Watson, we vacate the sentence

pursuant to the government’s cross-appeal and remand the case

to the district court for resentencing.

I.

Protesting the treatment of tobacco farmers by the

government, Dwight W. Watson drove his tractor, along with a

jeep and a trailer holding a metal box into the pond at

Constitution Avenue Gardens and remained there for two days

in March 2003. At one point, Watson drove around the

perimeter of the pond, causing a three-and-a-half-foot wave. He

also drove his tractor onto an island in the middle of the pond

and moved the bucket on the tractor up and down, smashing it

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into the island. In response to questioning by Park Service

employees, Watson stated that the metal box on the trailer

contained organophosphates, a type of chemical which he

implied were explosives. Watson repeatedly stated that he was

willing to die for his cause.

Watson was indicted for threatening and conveying false

information concerning the use of an explosive, in violation of

18 U.S.C. § 844(e) (Count One), and destruction of government

property, in violation of 18 U.S.C. § 1361 (Count Two). During

jury selection, one of the potential jurors informed the district

court that he was legally blind and was supposed to have

brought a note from his doctor but that he was willing to serve.

A second potential juror was also blind. The prosecutor

exercised two of the government’s six peremptory challenges to

strike the blind men from the prospective jury. See FED. R.

CRIM. P. 24(b)(2). In response to an objection by defense

counsel, based on an analogy to Batson, the prosecutor indicated

concern about having blind persons on the jury in light of the

visual materials in the government’s case-in-chief. The district

court agreed that there was a substantial amount of visual

evidence in the government’s case and overruled the objection.

The jury convicted Watson on both counts.

The district court sentenced Watson to concurrent sentences

on each count of seventy-two months’ imprisonment and to

three years’ supervised release and ordered him to pay

restitution of $5,168.20 for the damage he had caused and a

special assessment of $200. The following day the Supreme

Court decided Blakely v. Washington, 542 U.S. 296 (2004), and

Watson subsequently moved for reconsideration of his sentence.

After concluding that Watson’s sentence had been

unconstitutionally enhanced by the addition of fourteen points

as a result of factual findings that were not made by the jury, the

district court resentenced Watson to concurrent terms of sixteen

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months’ imprisonment and three years’ supervised release and

ordered him to make restitution and pay a special assessment.

Watson appeals the judgment of conviction, and the

government cross appeals the sentence.

II.

In Batson, the Supreme Court reaffirmed the principle,

enunciated as early as 1880 in Strauder v. West Virginia, 100

U.S. 303 (1880), that the State denies an African-American

defendant’s rights protected by the Equal Protection Clause of

the Fourteenth Amendment “when it puts him on trial before a

jury from which members of his race have been purposefully

excluded.” Batson, 476 U.S. at 85 (citing Strauder, 100 U.S. at

310). Strauder involved a state statute qualifying only white

people for jury duty and thus contravened one of the central

purposes of the Fourteenth Amendment: “exemption from

unfriendly legislation against [African Americans].” Strauder,

100 U.S. at 308; see id. at 305-08. Over the years the Court

addressed various other means by which African Americans had

been excluded from jury service. In Swain v. Alabama, 380 U.S.

202, 223-24 (1965), the Supreme Court held that in the absence

of a statutory bar, evidence of systemic exclusion of African

Americans through peremptory challenges over a period of time

could also demonstrate a violation of the Equal Protection

Clause. In Batson, the Supreme Court overruled Swain to the

extent of holding that a defendant could establish a prima facie

case of purposeful discrimination based solely on evidence of

the prosecutor’s exercise of peremptory challenges in his own

case. Batson, 476 U.S. at 95. The Court also shifted the burden

to the government to present a race-neutral explanation related

to the particular case for the challenges. Id. at 97-98. If the

government offers such an explanation, the trial judge then must

decide whether the defendant has proved purposeful racial

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discrimination. Id. at 98; see Hernandez v. New York, 500 U.S.

352, 358-59 (1991). The Court explained that “the State may

not draw up its jury lists pursuant to neutral procedures but then

resort to discrimination at other stages in the selection process.”

Batson, 476 U.S. at 88 (citations omitted) (internal quotation

marks omitted).

In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128-29

(1994), the Supreme Court extended Batson to the government’s

exercise of peremptory challenges on the basis of gender. The

Court observed that “with respect to jury service, African-

Americans and women share a history of total exclusion,” id. at

136, and recounted the “long and unfortunate history of sex

discrimination,” id. (internal quotation marks omitted) (quoting

Frontiero v. Richardson, 411 U.S. 677, 684 (1973)); see id. at

131-34. Noting that heightened scrutiny applies to all gender-

based classifications because of “the real danger that

government policies that professedly are based on reasonable

considerations in fact may be reflective of ‘archaic and

overbroad’ generalizations about gender,” id. at 135 (quoting

Schlesinger v. Ballard, 419 U.S. 498, 508 (1975)), “or based on

‘outdated misconceptions concerning the role of females in the

home rather than in the marketplace and world of ideas,’” id.

(internal quotation marks omitted) (quoting Craig v. Boren, 429

U.S. 190, 198-99 (1976)), the Supreme Court concluded that

discrimination on the basis of gender in jury selection did not

“substantially further[] the State’s legitimate interest in

achieving a fair and impartial trial,” id. at 136-37; see id. 136-

38. “As with race,” the court reasoned, “the ‘core guarantee of

equal protection, ensuring citizens that their State will not

discriminate . . . , would be meaningless were we to approve the

exclusion of jurors on the basis of . . . assumptions [that] arise

solely from the jurors’ [gender].’” Id. at 146 (first omission in

original) (second alternation in original) (quoting Batson, 476

U.S. at 97-98). A member of a class entitled to heightened

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scrutiny therefore receives protection under the rule established

in Batson.

Disability, by contrast, has been accorded no heightened

scrutiny by the Supreme Court. In City of Cleburne v. Cleburne

Living Ctr., Inc., 473 U.S. 432, 442-46 (1985), the Supreme

Court declined to treat the mentally retarded as a suspect class,

observing that disability may legitimately be taken into account

by the States in a wide range of situations. Although race and

gender distinctions rarely constituted justifiable grounds for

differential treatment, see id. at 440-41, the Court explained:

[T]hose who are mentally retarded have a reduced

ability to cope with and function in the everyday world.

. . . They are thus different, immutably so, in relevant

respects, and the States’ interest in dealing with and

providing for them is plainly a legitimate one. . . .

[L]egislation [] singling out the retarded for special

treatment reflects the real and undeniable differences

between the retarded and others. That a civilized and

decent society expects and approves such legislation

indicates that governmental consideration of those

differences in the vast majority of situations is not only

legitimate but also desirable.

Id. at 442-44. In other words, “the wide variation in the abilities

and needs of the retarded themselves [means] governmental

bodies must have a certain amount of flexibility and freedom

from judicial oversight in shaping and limiting their remedial

efforts.” Id. at 445. Noting that federal and state governments

had recently responded to the needs of the mentally retarded, the

Court concluded that disabled individuals did not constitute a

powerless class, id. at 443-46, and declined to presume that any

classification drawn on the basis of disability was rooted in

unconstitutional discrimination, id. at 446.

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In Board of Trustees of the University of Alabama v.

Garrett, 531 U.S. 356, 366-68 (2001), the Supreme Court

reaffirmed that classifications based on disability are subject

only to rational basis review. Quoting from Cleburne, the Court

explained that “if the large and amorphous class of the mentally

retarded were deemed quasi-suspect . . ., it would be difficult to

find a principled way to distinguish a variety of other groups

who have perhaps immutable disabilities . . . and who can claim

some degree of prejudice from at least part of the public at

large.” Id. at 366 (internal quotation marks omitted) (quoting

Cleburne, 473 U.S. at 445). Reasoning from Cleburne, the

Court concluded that “States are not required by the Fourteenth

Amendment to make special accommodations for the disabled,

so long as their actions towards such individuals are rational.”

Id. at 367. Concluding that Congress’s action was not supported

by a relevant history and pattern of constitutional violations, the

Court sustained the States’ Eleventh Amendment immunity to

suits for damages under Title I of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12111-12117. Garrett,

531 U.S. at 374.

From this precedent, it would follow that peremptory

challenges of blind jurors are not subject to heightened scrutiny.

The Equal Protection Clause affords a prospective juror a right

not to be excluded from a particular jury on the basis of race or

gender, see Powers v. Ohio, 499 U.S. 400, 409 (1991); J.E.B.,

511 U.S. at 128-29, because discrimination on these grounds

strikes at the “core guarantee of equal protection,” J.E.B., 511

U.S. at 146 (internal quotation mark omitted), and is rarely

justifiable, see Cleburne, 473 U.S. at 440-41. By contrast, the

Supreme Court has declined to treat the disabled as a suspect

class in recognition of the reality that the States may have

legitimate reasons for treating differently persons whose

disabilities reduce their ability to perform certain functions. See

Garrett, 531 U.S. at 366-67; Cleburne, 473 U.S. at 442-46.

8

Watson seeks extension of the Batson rule to the blind,

however, on the ground that in Lane the Supreme Court

recognized that States deprived disabled individuals of a

fundamental right by excluding them from jury service. See

Lane, 541 U.S. at 524 & n.9, 525 & n.14. In Lane, the Court

observed that Title II of the ADA was enacted “against a

backdrop of pervasive unequal treatment in the administration

of state services and programs, including systematic

deprivations of fundamental rights.” Id. at 524. The Court

explained that Title II addressed the deprivation of certain “basic

constitutional guarantees, infringements of which are subject to

more searching judicial review,” id. at 522-23, including “the

right of access to the courts at issue in this case,1 [which is]

protected by the Due Process Clause of the Fourteenth

Amendment,” id. at 523. The Court noted, among other

examples, that many States had prohibited disabled persons

from serving as jurors. Id. at 524 & n.9, 525 & n.14. In view of

the significant evidence of discrimination against the disabled,

see id. at 524-27, the Court determined that Title II exhibited “a

congruence and proportionality between the injury to be

prevented or remedied and the means adopted to that end,” id.

at 520 (internal quotation marks omitted) (quoting City of

Boerne v. Flores, 521 U.S. 507, 520 (1997)); see id. at 531, and

therefore concluded that Congress had validly abrogated the

States’ immunity under the Eleventh Amendment, id. at 514-15,

533-34.

Lane is not as helpful to Watson as he suggests. In

addressing the disabled generally, the Supreme Court in Lane

stated that “classifications based on disability violate [the

1

The respondents in Lane, paraplegics who used wheelchairs,

cited the physical barriers they faced in accessing courthouses, such

as the absence of elevators. Id. at 513-14.

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Fourteenth Amendment only] if they lack a rational relationship

to a legitimate governmental purpose.” Lane, 541 U.S. at 522;

see Garrett, 531 U.S. at 365-68. As examples of such violations,

the Court referenced absolute bars to jury service by disabled

individuals and discretionary bars invoked by trial judges. See

Lane, 541 U.S. at 524 & n.9, 525 & n.14 (citing Mich. Comp.

Laws Ann. § 729.204; Tenn. Code Ann. § 22-2-304(c) (1994);

Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1289 (9th

Cir. 1982); Galloway v. Superior Court of District of Columbia,

816 F. Supp. 12, 14 (D.D.C. 1993); DeLong v. Brumbaugh, 703

F. Supp. 399, 405 (W.D. Pa. 1989)). It also noted a state case

that involved a peremptory challenge under the State

constitution’s equal protection guarantee that was decided under

rational basis review. See id. at 525 n.14 (citing People v.

Green, 561 N.Y.S.2d 130, 133 (County Ct. 1990)). The Court’s

reasoning in Lane was thus relevant to demonstrating that

categorical exclusions from jury service possibly implicated the

denial of fundamental rights, but does not support Watson’s

contention that the exercise of peremptory challenges of

individual jurors on the basis of disability related to the

particular case triggers heightened scrutiny or violates Batson.

Even were we to interpret Lane as recognizing that individual

exclusions of prospective jurors on a case-by-case basis because

of their disability implicate fundamental rights, it cannot be that

only the blind have this fundamental right, and Watson fails to

explain why, under his interpretation of Lane, heightened

scrutiny would not extend to all peremptory challenges of

disabled persons or indeed of all persons.

For these reasons, we find no basis for applying heightened

scrutiny to peremptory challenges of blind jurors.

III.

Alternatively Watson contends that the prosecutor’s

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peremptory strikes were not rational because the charges against

him did not rely on visual evidence and to the extent the

government chose to introduce such evidence it was, by reason

of technical defects, virtually useless to the jury. The Supreme

Court suggested, prior to Batson, that “[t]he essential nature of

the peremptory challenge is that it is one exercised without a

reason stated, without inquiry and without being subject to the

court’s control.” Swain, 380 U.S. at 220. The government now

maintains that any peremptory challenge is permissible so long

as it is not exercised on grounds that trigger heightened scrutiny

under the Equal Protection Clause. It relies on Purkett v. Elem,

514 U.S. 765, 768-69 (1995), which noted that a “legitimate

reason” for exercising a challenge need not make sense.

Although suggestive, Purkett is not dispositive. The Court also

noted that the reason given could not deny equal protection and

its analysis focused on whether an irrational justification was

race-neutral for Batson purposes, see id. at 769; it did not

consider whether an irrational justification would itself violate

equal protection.

Watson’s case is in much the same posture as that in United

States v. Harris, 197 F.3d 870 (7th Cir. 1999), where the Seventh

Circuit applied rational basis review, relying on the statement in

Batson that “the State’s privilege to strike individual jurors

through peremptory challenges[] is subject to the commands of

the Equal Protection Clause.” Id. at 873 (alteration in original)

(quoting Batson, 476 U.S. at 89); see Purkett, 514 U.S. at 769.

Watson, like Ms. Harris, contests the rationality of the

prosecutor’s strikes of the excluded jurors. See Harris, 197 F.3d

at 876. The Seventh Circuit reasoned that “[i]f the government

had struck [a disabled juror] because of an irrational animosity

toward or fear of disabled people, this would not be a legitimate

reason for excluding her from the jury.” Id.; see Cleburne, 473

U.S. at 450.

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It is unnecessary to decide whether the Seventh Circuit was

correct to apply rational basis review because we conclude that

the prosecutor’s use of peremptory challenges was rational. The

prosecutor explained: “[T]hese two [blind] jurors can cause the

government a concern because a substantial amount of the

government’s evidence is either photographs or videos, the types

of things, for the juror to understand the full impact, the juror

must see.” Although the two videotapes in Watson’s case were

of poor quality, one was still shown to the jury and there is no

evidence that the quality was so poor that the footage was not

visible. Other visual evidence included multiple photographs of

Constitution Avenue Gardens and the surrounding area,

Watson’s tractor and its location in the Gardens, items found in

the tractor, and the damage caused to the property. Watson

counters that the photographs and videotapes were of minimal

importance to the government’s case, that the threats charge was

based solely upon Watson’s statements — some of which were

recorded on audio tapes — and that the damage to public

property charge was described in detail by several witnesses.

The rationality of the prosecutor’s peremptory challenges

cannot rest on the evaluation of the defense of the evidence

needed by the government to prove its case, much less on tactical

decisions yet to be made by the defense at trial, including

whether to object to any of the government’s evidence. Watson

may consider the prosecutor’s understanding of a blind person’s

capability to observe outdated,2 but it is not necessarily irrational

2

See D. Nolan Kaiser, Juries, Blindness, and the Juror

Function, 60 CHI.-KENT L. REV. 191, 199-200 (1984); D. Nolan

Kaiser, Just Justice: A Reply to Mr. McConnell, 60 CHI.-KENT L. REV.

215, 216-17 (1984); see also Nancy Lawler Dickhute, Jury Duty for

the Blind in the Time of Reasonable Accommodations: The ADA’s

Interface with a Litigant’s Right to a Fair Trial, 32 CREIGHTON L.

REV. 849, 855-56, 880 (1999).

12

to think that a person is likely to acquire a more accurate

understanding of a scene by seeing it rather than merely hearing

about it.3 Defense counsel offered no basis on which the district

court could have found that the prosecutor’s peremptory strikes

were based on a vague, undifferentiated fear that blind persons

were incapable of serving as jurors. Counsel proffered no expert

opinion, even in secondary form, that a blind juror would be able

to fully assess the strengths and weaknesses of the government’s

visual evidence. Nor did counsel suggest a means of

accommodating blind jurors, much less request that the

government provide an accommodation by presenting, for

example, descriptive oral testimony of the scenes and events

depicted in the videotapes. See, e.g., Galloway, 816 F. Supp. at

17-18 & n.11; Dickhute, supra, at 870-72 (citing Galloway, 816

F. Supp. at 17-18 & n.11; People v. Caldwell, 603 N.Y.S.2d 713,

714-16 (N.Y. Crim. Ct. 1993), aff’d, 661 N.Y.S.2d 436 (1997);

AMERICAN BAR ASS’N, INTO THE JURY BOX: A DISABILITY

ACCOMMODATION GUIDE FOR STATE COURTS (1994)).

Therefore, because rational basis review is “highly[]

deferential,” Brown v. City of Michigan City, 462 F.3d 720, 733

(7th Cir. 2006) (quoting Turner v. Glickman, 207 F.3d 419, 426

(7th Cir. 2000)); see also Williams v. Pryor, 240 F.3d 944, 948

(11th Cir. 2001); Steffan v. Perry, 41 F.3d 677, 685, 690 (D.C.

Cir. 1994), we can only conclude that the prosecutor’s

explanation was sufficient to show that the peremptory

challenges were rationally related to ensuring a fair trial for

Watson. See Harris, 197 F.3d at 876. The visual evidence could

add drama and meaning to the events underlying the indictment

and render undeniable the serious disruption and the physical

3

See Lewinson v. Crews, 282 N.Y.S.2d 83, 85-86 (N.Y. App.

Div. 1967), superseded by statute as noted in People v. Guzman, 555

N.E.2d 259, 261-62 (N.Y. 1990); James G. McConnell, Blind Justice

or Just Blindness?, 60 CHI.-KENT L. REV. 209, 212-14 (1984).

13

damage to public property that Watson had caused. The

experienced district court acknowledged that there was

considerable visual evidence in the government’s case and there

is nothing to suggest that it was included for the purpose of

denying blind persons an opportunity to serve as jurors.

IV.

In its cross appeal of Watson’s sentence, the government

contends that the district court committed the same error as

occurred in United States v. Fanfan, 543 U.S. 220, 228-29

(2005), the companion case to United States v. Booker, 543 U.S.

220 (2005), where the district court failed to appreciate its

authority to enhance a sentence based on factual findings other

than those made by the jury. Following Booker’s instruction that

district courts treat the Sentencing Guidelines as advisory, id. at

244-46, this court has instructed, albeit after Watson’s

resentencing, that district courts retain authority to impose a

reasonable sentence within the statutory range based on factual

findings by the jury, or admissions by the defendant, and may

still find facts in determining the applicable Guidelines range,

see United States v. Coles, 403 F.3d 764, 768-69 (D.C. Cir.

2005). Watson’s objection that the government failed to

preserve its Booker objection by presciently arguing in the

district court that the Guidelines should be considered advisory

is of little moment. Even under plain error review, this court has

emphasized the importance that a sentence not have been

affected by the error, see United States v. Saro, 24 F.3d 283, 288

(D.C. Cir. 1994), and that is all the government seeks in its cross-

appeal. The district court plainly erred by failing to appreciate

the sentencing authority that it retained after Booker.

Therefore, we must remand the case for resentencing. The

record suggests that the district court intended to sentence

Watson close to the upper limits of its authority. See United

14

States v. Simpson, 430 F.3d 1177, 1184 (D.C. Cir. 2005). The

district court initially sentenced Watson at the upper end of the

sentencing range, stating that the sentence was intended to deter

others who might be tempted to act as Watson had. Watson does

not dispute that the district court, in resentencing him, imposed

what it believed was the maximum lawful sentence. Although

the sentencing judge has since retired and the original transcripts

of Watson’s character witnesses are unavailable, the case will be

assigned to another district court judge and Watson may seek

leave to present character evidence and to supplement that

evidence in view of the passage of time. At oral argument, the

government conceded that the district court will have authority

to reconsider the enhancement factors and to allow Watson to

present character evidence again. The district court will need as

well to give due consideration to the fact that Watson likely has

completed serving his sixteen months of imprisonment.

Accordingly, we affirm the judgment of conviction and

remand the case to the district court for resentencing.