United States v. Alfonso Angel

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 United States v. Angel Nos. 02-3320/3321

ELECTRONIC CITATION: 2004 FED App. 0011P (6th Cir.)

File Name: 04a0011p.06 Ardsley, New York, for Appellee. ON BRIEF: Joseph R.

Wilson, ASSISTANT UNITED STATES ATTORNEY,

Toledo, Ohio, Monica S. Abrams, UNITED STATES

UNITED STATES COURT OF APPEALS DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,

Washington, D.C., for Appellant. Susan M. Damplo,

FOR THE SIXTH CIRCUIT Ardsley, New York, for Appellee.

_________________

GILMAN, J., delivered the opinion of the court, in which

UNITED STATES OF AMERICA , X DAUGHTREY, J., joined. KEITH, J. (pp. 27-38), delivered

Plaintiff-Appellant/ - a separate opinion concurring in part and dissenting in part.

Cross-Appellee, - _________________

- Nos. 02-3320/3321

-

v. > OPINION

, _________________

-

ALFONSO G. ANGEL, - RONALD LEE GILMAN, Circuit Judge. A jury convicted

Defendant-Appellee/ - Alfonso Angel of conspiring to both possess and distribute

Cross-Appellant. - cocaine and marijuana, all in violation of 21 U.S.C.

N §§ 841(a)(1) and 846. The district court sentenced Angel to

360 months in prison, followed by 10 years of supervised

release. On this direct appeal, Angel’s appellate counsel

Appeal from the United States District Court contends that (1) Angel’s trial counsel and the district court

for the Northern District of Ohio at Toledo. allowed a biased member of the jury pool to sit on the jury,

No. 00-00727—James G. Carr, District Judge. and (2) Angel’s trial counsel engaged in unconstitutional

discrimination by purposefully allowing this person, a

Argued: October 22, 2003 member of a racial minority, to remain on the jury.

Moreover, Angel has raised six additional issues in his pro se

Decided and Filed: January 9, 2004 brief concerning his sentence and allegations of prosecutorial

misconduct. The United States has cross-appealed,

Before: KEITH, DAUGHTREY, and GILMAN, Circuit contending that the district court committed clear error by

Judges. reducing Angel’s offense level by two points for acceptance

of responsibility pursuant to United States Sentencing

_________________ Guidelines § 3E1.1, despite the fact that Angel went to trial to

COUNSEL challenge the essential factual elements of guilt, attempted to

have a government witness killed, and expressed no remorse

ARGUED: Jeffrey P. Singdahlsen, UNITED STATES until the district court suggested it as a way to avoid a life

DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, sentence. For the reasons set forth below, we AFFIRM

Washington, D.C., for Appellant. Susan M. Damplo, Angel’s conviction, REVERSE the district court’s two-level

1

Nos. 02-3320/3321 United States v. Angel 3 4 United States v. Angel Nos. 02-3320/3321

reduction for acceptance of responsibility, and REMAND for THE COURT: All right. You’ve indicated that you

resentencing. don’t want to serve, but do you recognize and agree that

it is an important service that we are all required to

I. BACKGROUND perform from time to time?

A. Jury selection issues raised by Angel’s counsel CHANDLER: I recognize that if I have to do it, I’ll do

it. That’s all I recognize.

Angel’s first two arguments on appeal involve one

particular juror, Delores Chandler, who served as the THE COURT: All right. Could you tell us if it is not

foreperson of the jury that convicted Angel. The parties have such a great invasion of your privacy as to why you’re so

stipulated that Chandler is African-American. During jury reluctant to serve?

selection, the following exchange occurred between Chandler

and the magistrate judge: CHANDLER: I just I don’t want to stay here in Toledo.

I live an hour and a half away. I don’t want to be here

THE COURT: And in looking at your questionnaire, one four to six weeks. That’s the main reason.

of the very important questions is whether or not you

would be able to serve on the jury if the trial were to last THE COURT: All right. Do you understand that under

from three to six weeks. And your response was that you our system of law every person is equal and every person

are not able to sit on the jury. Have you had an is entitled to equal protection of the laws, and it’s

opportunity to think about that response recognizing that important to have jurors from various areas representing

it’s an important obligation of citizenship to serve on a various backgrounds?

jury when called, and it certainly is inconvenient for

everyone? Are you willing to serve if you are selected? CHANDLER: Yes. I understand that. I just don’t want

to do it. But I perfectly understand that.

CHANDLER: I don’t want to. If I have to, I will. But

I don’t want to. THE COURT: And even though you don’t want to do it,

you will agree to do it?

THE COURT: Well, if you were selected would you

then hold it against either of the parties? Would you hold CHANDLER: Yes.

it against the government or the defendants if you were

selected to serve? THE COURT: And if you were selected to serve as a

juror, could you come into court and serve with an open

CHANDLER: No, I would not. I would not hold that mind?

against the parties or the government.

CHANDLER: Yes.

THE COURT: Or against the Court?

THE COURT: And listen to the evidence that’s

CHANDLER: Or against the Court. presented here in court and the instructions of the judge

as to the law to be applied in this case, and would you

follow those instructions?

Nos. 02-3320/3321 United States v. Angel 5 6 United States v. Angel Nos. 02-3320/3321

CHANDLER: Yes, I would. CHANDLER: No, I wouldn’t.

Angel’s lawyer, Sheldon Wittenberg, then had a chance to WITTENBERG: I believe you wouldn’t.

question Chandler:

After Wittenberg finished his questions, the lawyer for one

WITTENBERG: My only concern, and I detect maybe of Angel’s codefendants, in an apparent attempt to avoid

– I don’t know you, but it seems like there’s a little level Chandler being challenged by the government, asked her if

of anger okay, and it’s at the situation rather than – you she would “be fair to the United States government in hearing

wouldn’t hold it against my client, Mr. Angel, or any of their evidence.” “Yes, I would,” Chandler replied.

the defendants?

Another defense lawyer then asked Chandler to “elaborate

CHANDLER: No. No, I wouldn’t. I might sound like a little bit on what your views of the drug laws are,” based

that. It’s because I don’t want to be here. That’s the upon one of her responses to the juror questionnaire form

only – indicating that the drug laws should be more strict. Chandler

replied:

[. . .]

Well, I don’t know too much about them, but from what

WITTENBERG: [. . .] You’ve seen the panel, correct? I hear is, like, the first time you get off, you pay a fine or

something, and then the next time something else, and

CHANDLER: Yes. then finally you get around to being punished. So I think

if you took care of it the first time, there probably

WITTENBERG: So it’s important if we can get some wouldn’t be a second and third.

minority representation on the panel if you’re chosen as

a juror. You do understand the way we feel? The defense lawyer followed up by asking her what the

punishment should be “the first time someone gets caught

CHANDLER: Yes. with drugs . . . .” Chandler responded: “Whatever the

punishment is.”

WITTENBERG: So I could be assured that if you were

chosen that given the other problems that are associated B. Pro se issues

with the distance and the length of time, it could take as

little as three or four weeks and as long as six; it may not The six issues raised by Angel in his pro se brief all relate

take six, but given it would be at least a few weeks, you to either his sentence or to the alleged misconduct of the

could give my client a fair and impartial hearing? prosecutor. Rather than set forth the factual background for

these issues here, the relevant facts are discussed as part of the

CHANDLER: Yes. analysis in Part II.C. below.

WITTENBERG: And if you were firmly convinced of

your opinion, you would keep that and not just change to

make the other ten or 11 happy?

Nos. 02-3320/3321 United States v. Angel 7 8 United States v. Angel Nos. 02-3320/3321

C. The government’s cross-appeal ANGEL: Well, there are some I don’t approve of, but at

this position, I have to admit to all of them.

At the second of three appearances in connection with

Angel’s sentencing, the district court raised the possibility of Angel then admitted that he was involved in the acquisition

Angel receiving a sentence reduction by accepting and distribution of “substantial” quantities of cocaine and

responsibility pursuant to United States Sentencing marijuana and said that he “had a double life” as a restaurant

Guidelines § 3E1.1. “I don’t think the defendant’s deserving owner and a drug distributor. He gave a detailed description

of a life sentence,” the court stated. “A 30-year sentence of his drug-distribution network. Although Angel denied any

maybe also is severe.” The court then suggested that “to the direct involvement in one particular transaction involving 55

extent I’m able to do so, to give him credit for truly accepting kilograms of cocaine, he said he understood that he was

responsibility . . . . I will consider that. The fact that he put legally responsible for the transaction. Angel also admitted

the government to its proof and that it was a long and that he was involved in drug transactions beyond those

protracted trial doesn’t matter to me.” After making this charged in the present case. The court concluded that Angel

suggestion, the court postponed the sentencing hearing to give had admitted the conduct “attributed to him in the indictment”

Angel a chance to discuss the issue with his lawyer. and had also admitted that “the allegations against him

brought by the government did not encompass all of his

When the sentencing hearing resumed, Angel made the activities.”

following statement to the court:

After Angel at least partially admitted his involvement in

I understand the consequences that I face and that I owe the charged drug transactions, the court asked about Angel’s

a responsibility for the actions which I have, which I attempt to murder a government witness. According to the

have done. I accept responsibility. Well, I’ll get to that government’s evidence, while Angel was in custody after he

in a minute. was indicted, he offered a fellow inmate, William Wainscott,

$50,000 to kill one of the government’s witnesses against

I’m sorry for being here on the judgment of this Angel. Wainscott informed the FBI of the incident, and

honorable court and regret doing so. I see the mistake I subsequent investigation confirmed some of the details of

have made and the great cost to everybody involved. I Wainscott’s story.

broke the law of my country, and for that I shall be

punished and separated from my family and loved ones. Based on this attempted murder, the district court enhanced

Angel’s sentence by two points for obstruction of justice,

After this general admission of responsibility, the following pursuant to U.S. Sentencing Guidelines § 3C1.1. When the

dialogue occurred between Angel and the court: court asked Angel to admit responsibility for this conduct,

however, Angel denied asking Wainscott to murder the

ANGEL: I would like to admit my guilt of the elements government witness. Despite Angel’s denial, as well as his

of the indictment, sir. reluctance to disclose his involvement with the cocaine-

trafficking established at trial, the district court found that

THE COURT: Each and every count of which you were Angel qualified for a two-point sentence reduction for

found guilty? acceptance of responsibility. Both Angel and the government

have filed timely notices of appeal.

Nos. 02-3320/3321 United States v. Angel 9 10 United States v. Angel Nos. 02-3320/3321

II. ANALYSIS review where claims were based on facts outside the record or

where the evidence in the record was not adequate to establish

A. Juror bias ineffective assistance as a matter of law).

Angel contends that juror Chandler was biased against him, In the present case, the record is adequate to allow us to

and that both his trial counsel and the district court erred by address Angel’s claims. The facts underlying both claims are

allowing Chandler to remain on the jury. To demonstrate undisputed and contained entirely within the record. Angel

ineffective assistance of counsel, a defendant must show that does not suggest that he will be able to develop any further

his attorney’s conduct “fell below an objective standard of evidence on collateral review. His claim of unconstitutional

reasonableness,” and that “there is a reasonable probability discrimination, moreover, presents the following pure

that, but for counsel’s unprofessional errors, the result of the question of law: Does the Equal Protection Clause prohibit a

proceeding would have been different.” Strickland v. defense attorney from purposefully allowing a person to

Washington, 466 U.S. 668, 688, 694 (1984). This court has remain on the jury because of that person’s race? No

also stated that additional facts are necessary for the panel to resolve that

question.

[c]ounsel is also accorded particular deference when

conducting voir dire. An attorney's actions during voir Because Angel’s claim of error by the district court is being

dire are considered to be matters of trial strategy. A raised for the first time on appeal, we will apply the “plain

strategic decision cannot be the basis for a claim of error” standard of review. Johnson v. United States, 520 U.S.

ineffective assistance unless counsel's decision is shown 461, 466-67 (1997); United States v. Page, 232 F.3d 536, 543

to be so ill-chosen that it permeates the entire trial with (6th Cir. 2000); Fed. R. Crim. P. 52(b). Under plain-error

obvious unfairness. review, the appellant must show (1) that there was an error,

(2) that is clear and obvious, and (3) that affects substantial

Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). legal rights. Johnson, 520 U.S. at 467. If the appellant makes

that showing, the court has discretion to consider the error if

We will generally “not address on direct appeal claims of it “seriously affects the fairness, integrity, or public reputation

ineffective assistance unless the record has been sufficiently of judicial proceedings.” Id. (citations and quotation marks

developed to provide meaningful factual review.” United omitted). This court has recognized that district courts have

States v. Brown, 276 F.3d 211, 217 (6th Cir. 2002), cert. “broad discretion” in conducting voir dire. Hughes, 258 F.3d

denied, Scruggs v. United States, 535 U.S. 1079. Direct at 457.

appeal is the appropriate forum, however, for ineffective-

assistance claims that either depend entirely upon facts within Angel must demonstrate that Chandler was actually biased

the record or that present purely legal questions. See United in order to prove either that he was prejudiced by the alleged

States v. Wunder, 919 F.2d 34, 37-38 (6th Cir. 1990) ineffective assistance of his trial counsel or that the district

(considering ineffective-assistance claims on direct review court committed reversible error. See id. at 457-58. Chandler

where the claims were based entirely on facts within the told the district court that she was hesitant to serve as a juror

record and/or could be resolved as a matter of law); cf. United because “I just I don’t want to stay here in Toledo. I live an

States v. Neuhausser, 241 F.3d 460, 474 (6th Cir. 2001) hour and a half away. I don’t want to be here four to six

(refusing to consider ineffective-assistance claims on direct weeks. That’s the main reason.” Contrary to Angel’s

Nos. 02-3320/3321 United States v. Angel 11 12 United States v. Angel Nos. 02-3320/3321

argument, this comment demonstrated nothing more than therefore failed to demonstrate either that his trial counsel’s

Chandler’s general unwillingness to serve on the jury. The failure to challenge Chandler “permeate[d] the entire trial

comment does not demonstrate that Chandler was actually with obvious unfairness,” Hughes, 258 F.3d at 457, or that the

biased against Angel. district court committed plain error by allowing Chandler to

serve on the jury.

Chandler also stated during voir dire that she believed that

the drug laws should be more strict. Angel contends that this B. Discrimination in jury selection

statement demonstrates that Chandler was actually biased

against him. The Supreme Court, however, has held that a Angel next contends that his trial counsel engaged in

juror is impartial “if the juror can lay aside his impression or unconstitutional discrimination by purposefully including

opinion and render a verdict based on the evidence presented Chandler on the jury because of her race. This alleged

in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961). In the discrimination, Angel argues, supports his claims of

present case, Chandler said that, if selected, she “would not ineffective assistance of counsel and error by the district

hold [it] against the [defendants] or the government,” could court. Although the “plain error” standard of review

come into court with an open mind, and could listen to the generally applies to claims raised for the first time on appeal,

evidence and follow the judge’s instructions. She told the Johnson, 520 U.S. at 466-67; Page, 232 F.3d at 543; Fed. R.

various defense attorneys that she would give Angel a fair and Crim. P. 52(b), any racial discrimination in jury selection

impartial hearing and would also be fair to the government in constitutes structural error that requires automatic reversal.

hearing its evidence. Chandler, in other words, assured the See Avery v. Georgia, 345 U.S. 559, 561 (1953) (holding that

lawyers and the court that she could “lay aside [her] . . . jury selection based on race warrants reversal of a conviction

opinion [about the drug laws] and render a verdict based on regardless of the strength of the evidence presented); Vasquez

the evidence presented in court.” v. Hillery, 474 U.S. 254, 263-64 (1986) (holding that racial

discrimination in the selection of grand jurors is structural

Both the Supreme Court and this court, moreover, have error that requires automatic reversal).

found no actual bias where the evidence of bias was much

stronger than Chandler’s general opinion about the drug laws. Engaging in racial discrimination during the exercise of

See Patton v. Yount, 467 U.S. 1025, 1029-30 (1984) (holding peremptory challenges violates the equal protection rights of

that the trial court did not commit manifest error by finding both the defendant and the challenged juror. In Batson v.

the jurors to be impartial, even though eight jurors admitted Kentucky, 476 U.S. 79, 89 (1986), the Supreme Court held

that, due to pretrial publicity, “at some time [prior to trial] that “the Equal Protection Clause forbids the prosecutor to

they had formed an opinion as to [defendant’s guilt]”); see challenge potential jurors solely on account of their race.”

also United States v. Pennell, 737 F.2d 521, 529-30 (6th Cir. Although Batson based its holding on the Equal Protection

1984) (holding that there was inadequate evidence of actual Clause of the Fourteenth Amendment, which does not apply

bias where five jurors received threatening, late-night phone to actions of the federal government, Batson applies to federal

calls telling them to find the defendant guilty, and one juror court proceedings through the equal protection component of

stated that the phone calls might influence her judgment in the the Fifth Amendment’s Due Process Clause. See Buckley v.

case). If the evidence in Patton and Pennell was not adequate Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in

to establish actual bias, then Chandler’s general comments the Fifth Amendment area is the same as that under the

about the drug laws were certainly not sufficient. Angel has Fourteenth Amendment.”)

Nos. 02-3320/3321 United States v. Angel 13 14 United States v. Angel Nos. 02-3320/3321

Defense attorneys, like prosecutors, may not challenge that the Constitution prohibits a criminal defendant from

potential jurors because of their race. Georgia v. McCollum, engaging in purposeful discrimination on the ground of race

505 U.S. 42, 59 (1992). Angel contends that his equal in the exercise of peremptory challenges.”).

protection rights were violated when his counsel rejected an

unspecified “otherwise qualified, white juror to make room Regarding the requirement of a discriminatory act, there

for [Chandler] as a minority juror” and purposefully included was no such conduct in the present case. Angel’s trial

Chandler on the jury because of her race. counsel simply decided not to challenge Chandler. We find

no support for the proposition that a defense attorney’s failure

Angel’s argument that his trial counsel rejected an to challenge a juror, even if motivated by race, implicates the

“otherwise qualified, white juror” fits within the Batson- equal protection rights of either the juror or the defendant.

McCollum framework, which prohibits defense attorneys

from excluding jurors on account of their race. But this We note that the dissent cites Batson for the general

argument lacks support in the record. Angel does not contend proposition that “the defendant [has] the right to be tried by

that his trial counsel exercised peremptory challenges to a jury whose members are selected pursuant to

excuse any juror who was placed in the jury box prior to nondiscriminatory criteria.” Dis. Op. at 28 (quoting 476 U.S.

Chandler, much less Angel’s hypothetical “otherwise at 85). Although that is a correct statement of the law, the

qualified, white juror.” This argument is therefore problem with applying Batson—or any other equal protection

unpersuasive. precedent—to the present case is that Angel’s trial counsel

did not select any juror. Angel’s counsel, in fact, engaged in

Angel’s alternative argument—that equal protection no affirmative act to control who sat on the jury.

prohibits a defense attorney from using race as a reason to

leave a minority on the jury—is questionable as a matter of All prior cases, including those cited by the dissent, have

law. He cites no case that directly supports his contention. found equal protection violations only where some

Instead, Angel argues that Batson, McCollum, and the affirmative, discriminatory act was involved. Batson and

Supreme Court’s other jury-discrimination cases stand for the McCollum, for example, do not prohibit prosecutors or

general proposition that the Constitution prohibits any racial defense attorneys from having racially based thoughts. Those

discrimination in the selection of jurors. The government, on cases instead prohibit the act of exercising a peremptory

the other hand, contends that no precedent supports Angel’s challenge where that act is motivated solely by the

argument, and that “[t]he thrust of [the Supreme Court’s cases prospective juror’s race.

dealing with discrimination in jury selection] is to ensure

minority representation on juries.” In City of Richmond v. J.A. Croson, 488 U.S. 469 (1989),

for example, the Supreme Court struck down the City of

We agree that Batson and McCollum do not apply to the Richmond’s plan that “required prime contractors to whom

facts of the present case. Those Supreme Court cases prohibit the city awarded construction contracts to subcontract at least

the act of exercising peremptory challenges where that act is 30% of the dollar amount of the contract to one or more

accompanied by the intent to discriminate on the basis of race. Minority Business Enterprises (MBE’s).” Id. at 477. Like

See Batson, 476 U.S. at 89 (“[T]he Equal Protection Clause the lawyers whose conduct was at issue in Batson and

forbids the prosecutor to challenge potential jurors solely on McCollum, the City of Richmond engaged in an affirmative,

account of their race.”); McCollum, 505 U.S. at 59 (“We hold

Nos. 02-3320/3321 United States v. Angel 15 16 United States v. Angel Nos. 02-3320/3321

discriminatory act—specifically, imposing the set-aside See id. at 742 (“This Court acknowledges the recently

requirement upon prime contractors. enunciated position that a Board of Education has no

affirmative duty to eliminate segregation when it has done

Similary, in United States v. Nelson, 277 F.3d 164 (2d Cir. nothing to create it, but this Court finds that the Pontiac

2002), the Second Circuit concluded that the district court had Board of Education did a great deal to create the patterns

acted improperly by making an affirmative attempt to alter the presently existing within that school district and is now

racial composition of the jury. For example, “when an responsible to take action so as to eliminate the very situation

African-American empaneled juror was excused, the district which it caused.”). Davis therefore supports our conclusion

court did not simply replace this juror with the first alternate, that there can be no equal protection violation without some

who was white, but instead, sua sponte, removed a second affirmative, discriminatory act.

(white) juror from the panel and filled the two spaces this

created with an African-American juror and with [a] Jewish Batson, McCollum, Croson, Nelson, and Davis all prohibit

[j]uror.” Id. at 172. Nelson clearly did not involve a district harmful affirmative acts undertaken with a racially

court’s failure to act. To the contrary, the alleged equal discriminatory intent. They do not, however, stand for the

protection violation was the affirmative (and overzealous) act proposition that the Constitution’s equal protection guarantee

of the district court. prohibits racially based thoughts without a corresponding act.

Lawyers do not select jurors, after all; they only remove

The dissent also points to the following language from prospective jurors. Chandler, for example, was seated on the

Davis v. School District of City of Pontiac, 309 F. Supp. 734, jury not because of Angel’s lawyer, but as a result of the jury-

741-42 (E.D. Mich. 1970): “When the power to act is selection procedures used in the Northern District of Ohio.

available, the failure to take the necessary steps so as to Assuming that those procedures are constitutional, Batson’s

negate or alleviate a situation which is harmful is as wrong as requirement was satisfied because Chandler was in fact “tried

is the taking of affirmative steps to advance that situation. by a jury whose members [were] selected pursuant to

Sins of omission can be as serious as sins of commission.” nondiscriminatory criteria.” Batson, 476 U.S. at 85.

Dis. Op. at 29. Although this language, considered in Regardless of Wittenberg’s state of mind, the lack of any

isolation, appears to support the dissent’s argument that the affirmative, discriminatory act means that there was no equal

failure to act can violate equal protection principles, a review protection violation in this case.

of the facts of Davis demonstrates that the quoted language

actually supports our conclusion in the present case. In addition to the legal weakness of Angel’s position, his

argument is questionable as a matter of policy. All of the

In Davis, members of the school board had “intentionally Supreme Court’s jury-discrimination cases to date prohibit

utilized the power at their disposal to locate new schools and both the government and the defense from excluding potential

arrange boundaries in such a way as to perpetuate the pattern jurors because of their race. If we were to go beyond these

of segregation within the City and thereby, deliberately, in rulings by holding that the Fifth Amendment can be violated

contradiction of their announced policies of achieving a racial whenever a lawyer decides to leave a member of a racial

mixture in the schools, prevented integration.” Id. at 741. minority on the jury because of that person’s race, we would

The equal protection violation in Davis, therefore, was not be flying in the face of the general policy behind the Supreme

simply the school board’s failure to act, but its failure to Court’s decisions, which is to allow members of racial

remedy the effects of its prior affirmative, discriminatory acts. minorities to serve on juries.

Nos. 02-3320/3321 United States v. Angel 17 18 United States v. Angel Nos. 02-3320/3321

Adopting Angel’s argument would also undermine a C. Claims raised in Angel’s pro se brief

defendant’s Sixth Amendment right to the effective assistance

of counsel. In a case like the present one, where the defense Angel raised the following six additional arguments in his

attorney in good faith believes that the benefit of having a pro se brief: (1) the district court erred in calculating the

particular minority juror decide the client’s case outweighs quantity of drugs attributed to him for sentencing purposes,

any negative aspects of that juror, the defense attorney would (2) the evidence does not support a sentence enhancement for

nevertheless be required to remove the juror with a being an organizer or leader, (3) the district court erred in

peremptory challenge. The defense attorney, in other words, attributing to Angel 55 kilograms of cocaine discovered in a

would be required to act contrary to what he or she perceives Jeep Cherokee, (4) prosecutorial misconduct deprived him of

to be the best interests of the client. We thus disagree with the due process, (5) the evidence does not support a sentence

dissent’s contention that “a reasonable defense attorney with enhancement for obstruction of justice, and (6) he was

a client, like Angel, who has a prior drug conviction, would deprived of his Sixth Amendment right to a jury trial because

most likely excuse Chandler for cause or, if a for cause the district court, rather than the jury, determined the drug

objection was not granted, exercise a peremptory challenge quantities for which Angel was held responsible.

. . . .” Dis. Op. at 36-37. To the contrary, we find nothing

unreasonable in defense counsel’s presumed belief that The first two arguments are easily disposed of because the

having at least one racial minority on the jury would outweigh district court’s findings are supported by overwhelming

the potential negative impact of that juror’s generalized evidence. Witnesses testified that Angel was responsible for

opinion of the drug laws. We would also note that any delivering approximately 359 kilograms of cocaine, far in

attempt to challenge Chandler for cause would have been excess of the 150 kilograms necessary for a base offense level

futile. See Part II.A. above for a discussion of the relevant of 38 pursuant to U.S. Sentencing Guidelines Manual

cases. § 2D1.1. Angel contends that the witnesses who testified

about these drug quantities were not credible, but this court

Finally, Angel’s argument conflicts with the fundamental “defers to the district court on credibility determinations

principle that the law does not prohibit wrongful intent unless they are without foundation,” United States v. Pruitt,

without an accompanying act. The criminal law, for example, 156 F.3d 638, 647 (6th Cir. 1998) (quotation marks omitted),

has long recognized that “[t]he mere harboring of an evil and the record does not demonstrate that the testimony was

thought, such as the intent to engage in criminal conduct, does “without foundation.” Regarding the enhancement for being

not constitute a crime; a crime is committed only if the evil a leader or organizer, the district court heard abundant

thinker becomes an evil doer.” 1 Wharton’s Criminal Law testimony that Angel was the leader or organizer of many

§ 25 (15th ed. 2003). Here, Angel urges us to hold that the people as part of a large drug distribution ring in Ohio. We

Constitution’s equal protection guarantee requires the reversal again have no reason to question the credibility determination

of a conviction simply because trial counsel allegedly of the district court.

harbored the “evil thought” of leaving Chandler on the jury

because she is African American. Neither precedent nor Angel’s third argument, regarding the district court’s

policy supports Angel’s position, and we reject it. decision to attribute the 55-kilogram seizure to Angel, is also

based upon an evaluation of witness credibility. Witnesses

testified that Angel owned the Jeep Cherokee in which the

drugs were found and that the cocaine was going to be

Nos. 02-3320/3321 United States v. Angel 19 20 United States v. Angel Nos. 02-3320/3321

delivered to him. In his pro se brief, Angel points to nothing Angel’s fifth contention is that the evidence was

that demonstrates that the district court’s determination insufficient to support an obstruction-of-justice enhancement.

regarding the credibility of these witnesses was “without A district court’s decision to impose an obstruction

foundation.” See id. enhancement must be sustained unless clearly erroneous.

United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th

Angel’s fourth claim, that he was deprived of due process Cir. 2002). An obstruction enhancement is appropriate where

because of prosecutorial misconduct, lack support in the a defendant directly or indirectly threatens, intimidates, or

record. One of his contentions is that the government otherwise unlawfully influences a codefendant, witness, or

knowingly presented perjured testimony both to the grand juror, or attempts to do so. U.S. Sentencing Guidelines

jury and at trial. “[A] conviction obtained through the § 3C1.1, cmt. n.4(a).

knowing use of perjured testimony is fundamentally unfair,

and must be set aside if there is any reasonable likelihood that In the present case, the district court based its enhancement

the false testimony could have affected the jury.” United on the facts set forth in the Presentence Report, which states

States v. Agurs, 427 U.S. 97, 103 (1976). But the allegedly that Angel offered Wainscott $50,000 to kill a government

perjured testimony presented to the grand jury was not offered witness. Angel allegedly told Wainscott to use one of the

at trial, and therefore could not have affected the jury’s rifles that Angel had stored at his residence. After Angel

verdict. As to the testimony presented at trial, Angel made the offer, Wainscott tore out a page of a phone book

contends that the testimony of one of the government’s that listed the witness’s name and phone number and sent the

witnesses was inaccurate and internally inconsistent. Even page to his mother, presumably as proof of Angel’s offer.

assuming for the sake of argument that Angel is correct, there Government agents corroborated Wainscott’s story by

is no evidence in the record to demonstrate that the (1) recovering the torn page from Wainscott’s mother,

government had any knowledge that the witness’s testimony (2) discovering that a phone book in the jail where Angel and

was false. Wainscott were in custody was missing the page with the

witness’s number on it, and (3) finding several rifles, pursuant

Angel also contends that the prosecution withheld to a search warrant, in the area indicated by Wainscott. In

exculpatory information from the grand jury. The light of this corroboration, the district court did not clearly err

government, however, has no judicially enforceable duty to by adopting the facts from the Presentence Report.

provide a grand jury with exculpatory evidence. United

States v. Williams, 504 U.S. 36, 47 (1992). The facts accepted by the district court, moreover, were

sufficient to support an obstruction-of-justice enhancement.

Angel’s final allegation of prosecutorial misconduct is This court has upheld obstruction enhancements based upon

based upon his argument that the prosecution failed to conduct far less serious than Angel’s. See, e.g., United States

disclose exculpatory evidence to him, in violation of Brady v. v. Bingham, 81 F.3d 617, 632 (6th Cir. 1996) (upholding an

Maryland, 373 U.S. 83 (1963). But the prosecutors in this obstruction enhancement where the defendant wrote letters to

case had an open file policy, allowing the defense to view all his girlfriend attempting to persuade her to testify falsely);

relevant materials in the government’s possession. The United States v. Moss, 9 F.3d 553-54 (6th Cir. 1993)

government also credibly contends that the evidence (upholding an obstruction enhancement where the defendant

discussed by Angel either was in fact provided to him or does solicited a codefendant to bribe a witness). This precedent

not exist. persuades us that the district court did not clearly err by

Nos. 02-3320/3321 United States v. Angel 21 22 United States v. Angel Nos. 02-3320/3321

imposing an obstruction enhancement based upon Angel’s sentence of 360 months therefore renders Apprendi

attempt to murder a government witness. inapplicable. We also note that Angel now faces a potential

sentence of greater than 360 months because we are reversing

Angel’s sixth and final contention is that he was deprived the two-point reduction for acceptance of responsibility. So

of his Sixth Amendment right to a jury trial when the judge long as the new sentence imposed by the district court does

determined the relevant drug quantities at sentencing. The not exceed life imprisonment, however, the sentence will be

Supreme Court has held that “[o]ther than the fact of a prior within the range authorized by the jury’s verdict.

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted D. Downward departure for acceptance of responsibility

to a jury, and proved beyond a reasonable doubt.” Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000). In the present case, The district court granted Angel a two-point sentence

the jury returned a supplemental verdict finding that Angel reduction for acceptance of responsibility pursuant to U.S.

had conspired to distribute, and conspired to possess with the Sentencing Guidelines § 3E1.1(a), which provides: “If the

intent to distribute, at least 5 kilograms of cocaine and 1000 defendant clearly demonstrates acceptance of responsibility

kilograms of marijuana. The jury’s finding mandated a for his offense, decrease the offense level by 2 levels.”

sentence of between 10 years and life in prison. See 21 (Emphasis in original.) “To qualify for this reduction, the

U.S.C. § 841(b)(1)(A). defendant bears the burden of showing by a preponderance of

the evidence that he or she has accepted responsibility for the

Angel was sentenced to 360 months in prison, which is crime committed.” United States v. Williams, 940 F.2d 176,

within the range mandated by the jury’s verdict. Both the 181 (6th Cir. 1991). “The sentencing judge is in a unique

United States Supreme Court and this court have held that position to evaluate a defendant’s acceptance of

Apprendi applies only where a judge imposes a sentence responsibility. For this reason, the determination of the

exceeding the range authorized by the jury’s verdict. See sentencing judge is entitled to great deference on review.”

Ring v. Arizona, 536 U.S. 584, 588-89 (2002) (stating that U.S. Sentencing Guidelines § 3E1.1, cmt. n.5. The district

Apprendi “held that the Sixth Amendment does not permit a court’s determination regarding acceptance of responsibility

defendant to be expose[d] . . . to a penalty exceeding the must be sustained unless clearly erroneous. United States v.

maximum he would receive if punished according to the facts Webb, 335 F.3d 534, 537-39 (6th Cir. 2003).

reflected in the jury verdict alone”) (emphasis in original)

(quotation marks omitted); United States v. Corrado, 227 The government contends in its cross-appeal that the

F.3d 528, 542 (6th Cir. 2000) (holding that Apprendi does not acceptance-of-responsibility reduction is not available to

apply where the court sentenced the defendants to prison Angel because he went to trial to challenge the factual

terms that were no greater than the 20-year term authorized by elements of the government’s case. An application note to

the jury’s verdict); United States v. Chapman, 305 F.3d 530, § 3E1.1 states that “[t]his adjustment is not intended to apply

535 (6th Cir. 2000) (“Apprendi has never been held to apply to a defendant who puts the government to its burden of proof

to every fact that increases the defendant's sentence within the at trial by denying the essential factual elements of guilt, is

rubric of the guidelines.”). convicted, and only then admits guilt and expresses remorse.”

§ 3E1.1, cmt. n.2. The note recognizes there might be an

In the present case, the jury’s verdict authorized a exception to this rule in “rare situations,” such as “where a

maximum punishment of life imprisonment. Angel’s defendant goes to trial to assert and preserve issues that do not

Nos. 02-3320/3321 United States v. Angel 23 24 United States v. Angel Nos. 02-3320/3321

relate to factual guilt (e.g., to make a constitutional challenge defendant has the burden of proving the extraordinary nature

to a statute or a challenge to the applicability of a statute to of his or her case. United States v. Mahaffey, 53 F.3d 128,

his conduct).” Id. But the note cautions that even in these 135 (6th Cir. 1995). We review de novo a district court’s

rare situations, “a determination that a defendant has accepted determination that a case is extraordinary. United States v.

responsibility will be based primarily upon pre-trial Gregory, 315 F.3d 637, 640 (6th Cir. 2003), cert. denied,

statements and conduct.” Id. Lockhart v. United States, 72 U.S.L.W. 3239 (U.S. Oct. 6,

2003) (No. 02-11164).

This court emphasized the significance of pretrial

statements and conduct that express remorse in United States This court’s decision in Gregory provides an instructive

v. Williams, 940 F.2d 176 (6th Cir. 1991), where the example of circumstances where an acceptance-of-

defendant had sent a letter expressing remorse to the district responsibility reduction is appropriate despite an obstruction-

judge only after conviction. The district court in Williams of-justice enhancement. According to the court in Gregory,

granted the sentence reduction, but this court reversed on the “[a]ppropriate considerations for determining whether a

ground that the defendant’s expression of remorse came too reduction is warranted include the defendant’s truthful

late, stating: “A letter sent prior to sentencing but after admission of the offense conduct, the defendant’s voluntary

conviction does not reflect the type of timely acceptance of assistance to authorities in resolving the offense, and the

responsibility envisioned in the Sentencing Guidelines.” Id. timeliness of defendant’s conduct in affirmatively accepting

at 182. This court also emphasized that “where, as here, the responsibility for his actions.” 315 F.3d at 640. The court

defense consists of a denial of criminal conduct, the reduction concluded that a reduction was warranted because Gregory

is not appropriate.” Id. at 182. Like the defendant in confessed a week after committing the crime, agreed to

Williams, Angel went to trial to deny all criminal conduct and cooperate with federal authorities, urged his sister—who was

admitted responsibility for his crimes only after he was also involved in the crime—to cooperate as well, and pled

convicted. Moreover, Angel’s remorse was not spontaneous, guilty. Id. Although Gregory had initially obstructed justice

but came at the suggestion of the district judge. Comparing by attempting to persuade his sister not to talk to federal

the facts of Williams to the facts of the present case leads us officials, “he effectively undid that conduct” by calling her

to conclude that the district court clearly erred by granting the next day and “urging her to cooperate.” Id. The court

Angel a reduction for acceptance of responsibility. emphasized that “[a]ll of his obstructive conduct predated his

indictment, and he has never denied his own responsibility

The government next contends that the district court clearly and guilt.” Id. at 641.

erred by granting the reduction because Angel also received

a sentence enhancement for obstruction of justice pursuant to In contrast to Gregory, several decisions of this court

U.S. Sentencing Guidelines § 3C1.1. An application note to illustrate circumstances where an acceptance-of-responsibility

§ 3E1.1 (Acceptance of Responsibility) states that “[c]onduct reduction is not appropriate. One is United States v. Rapanos,

resulting in an enhancement under § 3C1.1 (Obstructing or 235 F.3d 256 (6th Cir. 2000), vacated on other grounds by

Impeding the Administration of Justice) ordinarily indicates 533 U.S. 913 (2001), where the defendant went to trial to

that the defendant has not accepted responsibility for his challenge the applicability of a statute to his conduct rather

criminal conduct. There may, however, be extraordinary than to challenge the factual elements of his guilt. This court

cases in which adjustments under both §§ 3C1.1 and 3E1.1 reversed the district court’s grant of the reduction, noting that

may apply.” § 3E1.1, cmt. n.4 (emphasis added). The the defendant’s pretrial conduct—ignoring cease-and-desist

Nos. 02-3320/3321 United States v. Angel 25 26 United States v. Angel Nos. 02-3320/3321

orders from government agencies, refusing to fill out required In sum, we conclude that the government is correct in

paperwork, and refusing to provide requested financial asserting that the sentence reduction was inappropriate.

information to a probation officer—did not clearly Angel is precisely the type of defendant mentioned in the

demonstrate acceptance of responsibility. Id. at 260-61. notes to § 3E1.1 “who puts the government to its burden of

Similarly, in United States v. Wilson, 197 F.3d 782 (6th Cir. proof at trial by denying the essential factual elements of

1999), the defendant received an obstruction enhancement for guilt, is convicted, and only then admits guilt and expresses

lying about his legal name to the probation office and remorse.” U.S. Sentencing Guidelines § 3E1.1, cmt. n.2. As

magistrate judge in the course of a plea agreement. This court in Williams, Angel’s expression of remorse came too late.

affirmed the district court’s decision to deny an acceptance- Angel’s case, moreover, does not present the kind of

of-responsibility reduction. Despite the fact that the extraordinary circumstances where both allowing an

defendant had pled guilty, this court emphasized that he “had acceptance-of-responsibility reduction and imposing an

no right to mislead the court and the probation office about obstruction enhancement is appropriate. See U.S. Sentencing

his birth name and criminal history.” Id. at 787. Finally, in Guidelines § 3E1.1, cmt. n.4. Although the district court’s

United States v. Mahaffey, 53 F.3d 128, 135 (6th Cir. 1995), desire to grant the reduction in order to allow Angel to avoid

this court upheld the district court’s decision to deny an a life sentence is perhaps understandable, the decision cannot

acceptance-of-responsibility reduction because the defendant be sustained under the Guidelines.

also received an obstruction enhancement for “making false

statements during his grand jury testimony.” III. CONCLUSION

Like the defendants in Rapanos, Wilson and Mahaffey, For the reasons set forth above, we AFFIRM Angel’s

Angel obstructed justice and made no effort to repudiate that conviction, REVERSE the district court’s two-level

obstruction. Angel would not even admit to the district court reduction for acceptance of responsibility, and REMAND for

that he had offered Wainscott $50,000 to kill the government resentencing.

witness, despite the court’s finding that this event occurred

and that it constituted a basis for the obstruction-of-justice

enhancement. Attempting to have a witness killed, moreover,

is far more serious than ignoring government orders

(Rapanos), lying about a legal name and criminal history

(Wilson), or making false statements to the grand jury

(Mahaffey). Even more significant is the fact that, unlike the

defendant in Gregory, Angel’s obstructive conduct happened

after he was indicted. Angel never attempted to undo that

conduct, he offered no assistance to the authorities, and he

went to trial to challenge the essential factual elements of

guilt. Comparing the above cases to the one now before us

demonstrates that the district court clearly erred by granting

Angel the acceptance-of-responsibility reduction.

Nos. 02-3320/3321 United States v. Angel 27 28 United States v. Angel Nos. 02-3320/3321

______________________________________________ the prohibition against the use of race in the jury selection

process applies exclusively to peremptory challenges. To the

CONCURRING IN PART, DISSENTING IN PART contrary, the Court in Batson stated, “the defendant [has] the

______________________________________________ right to be tried by a jury whose members are selected

pursuant to nondiscriminatory criteria.” Batson, 476 U.S. at

DAMON J. KEITH, Circuit Judge, concurring in part, 85-86 (citing Martin v. Texas, 200 U.S. 316, 321 (1906)).

dissenting in part. I join the court’s opinion in Parts II.A., The Court went on to explain, “[c]ompetence to serve as a

II.C., and II.D. I write separately to express my disagreement juror ultimately depends on an assessment of individual

with the court’s resolution of Angel’s discrimination in jury qualifications and ability impartially to consider evidence

selection claim in Part II.B. I would hold that defense presented at a trial. A person’s race simply is unrelated to his

counsel’s use of race as the criterion for choosing Chandler fitness as a juror.” Id. at 87 (internal quotations and citations

violated the Equal Protection Clause of the Fourteenth omitted). Finally, in summarizing its previous holdings, the

Amendment, as incorporated into the Fifth Amendment, of Court stated that it “has made clear that the Constitution

the United States Constitution. As an error in jury selection prohibits all forms of purposeful racial discrimination in

is a structural error that requires automatic reversal, I would selection of jurors.” Id. at 88 (emphasis added). Thus, I can

grant Angel a new trial. Accordingly, I respectfully dissent. not hold, as does the majority, that Batson and its progeny are

limited to the context of peremptory challenges on the basis

The issue before the court is one of first impression - of race, and cannot accept the majority’s further implication

whether the inclusion of a juror, who expressed views that the concept of use within the context of peremptory

contrary to the defendant’s interest, violated the Equal challenges is so narrow as to exclude its correlative, misuse.

Protection Clause when that inclusion was based on race.

Rather than seriously considering the merits of the claim, the The majority fixates on the need for a discriminatory act

majority simply agrees with the government that there is no and finds that the “failure to challenge a juror, even if

precedent. In finding that there is no precedent, the majority motivated by race” does not implicate the equal protection

opinion interprets Batson v. Kentucky, 476 U.S. 79 (1986), rights of either the juror or the defendant because the failure

too narrowly. It states that Batson prohibits “the act of to challenge is not an act. It is at this point that the majority’s

exercising peremptory challenges where that act is reasoning squeezes the concept of use into the word “act,”

accompanied by the intent to discriminate on the basis of and in so doing strips the word use of its intended power.

race.” Op. at 13 (emphasis in original). Thus, according to Yet, even the word act itself is inclusive enough to cover the

the majority, because defense counsel did not exercise a conduct at issue is this case. According to Black’s Law

peremptory challenge or otherwise challenge Chandler, the Dictionary: “In its most general sense, [act] signifies

Equal Protection Clause is not violated even if defense something done voluntarily by a person; the exercise of an

counsel’s inclusion of Chandler was based on her race. individual’s power; an effect produced in the external world

by an exercise of the power of a person objectively, prompted

While it is true that the court in Batson prohibited the by intention, and proximately caused by a motion of the will.”

discriminatory use of peremptory challenges, there is no BLACK’S LAW DICTIONARY 24 (6th ed. 1991). Specifically,

suggestion that its holding was so narrow as to exclude the the majority looks to the criminal law in an attempt to

discriminatory misuse of an otherwise valid and intelligent circumscribe the conduct at issue. Op. at 17 (“The criminal

peremptory challenge. Moreover, there is no indication that law, for example, has long recognized that ‘[t]he mere

Nos. 02-3320/3321 United States v. Angel 29 30 United States v. Angel Nos. 02-3320/3321

harboring of an evil thought, such as the intent to engage in of a peremptory challenge, properly considered, occurs when

criminal conduct, does not constitute a crime; a crime is there is an abuse of the principles of equal protection that

committed only if the evil thinker becomes an evil doer.”) “prohibit[] all forms of purposeful racial discrimination in

(citation omitted). In its attempt, however, the majority selection of jurors,” whether it comes in the form of an

circuitously concludes that the conduct of defense counsel omission or commission.

was not an affirmative act, and therefore must have been

limited to a thought. Acts have both a positive and negative Here, defense counsel’s misuse, or act, was his choice to

face. The definition of a “criminal act” states that: “There include Chandler based on her race.2 Once this

can be no crime without some act, affirmative or negative. constitutionally offensive deed was done, the harm could not

An omission or failure to act may constitute an act for be left to lie; the Equal Protection Clause is not self-

purposes of criminal law.” Id. (emphasis added). correcting. Defense counsel was not going to object to his

own race-based action. The prosecutor was not going to

As I stated many years ago in Davis v. School District of object because it is in the government’s interest to have a

City of Pontiac, Inc.,“[w]hen the power to act is available, juror who thinks the sentencing laws should be stricter. The

failure to take the necessary steps so as to negate or alleviate district court had “the power to act” to correct defense

a situation which is harmful is as wrong as is the taking of counsel’s improper jury selection methods, and its “failure to

affirmative steps to advance that situation. Sins of omission take the necessary steps so as to negate or alleviate” the

can be as serious as sins of commission.” Davis, 309 F. Supp. harmful situation was fatal. Davis, 309 F. Supp. at 741-42.

734, 741-42 (E.D. Mich. 1970), aff’d, 443 F.2d 573 (6th Cir. Thus, the failure to protect Angel’s rights was complete.

1971), cert. denied, 404 U.S. 913 (1971).1 Thus, the misuse

Ultimately, the district court is responsible for ensuring that

there is a constitutionally composed jury. The Supreme Court

1 explained this in Powers v. Ohio, when it stated that “the

The majo rity counters that Da vis lends support to its conclusion. It

states that the “eq ual pro tection violation in Da vis, therefore, was not

courts are under an affirmative duty to enforce the strong

simply the school board’s failure to act, but its failure to remedy the statutory and constitutional policies embodied in” the

effects of its prior affirmative, discriminatory acts.” O p. at 15 . Yet, statutory prohibition on discrimination in the selection of

Da vis cond emns both affirmative and negative discriminatory acts. The jurors, 18 U.S.C. § 243, enacted pursuant to the Fourteenth

wrongfulness of a negative discriminatory act is dependent on whether the Amendment’s Enabling Clause. 499 U.S. 400, 416 (1991).

“power to act is available,” not on the necessary cre ation o f the harm . We

are presented with an analogous situation here. Defense counsel

Once the jury selection process was tainted by defense

“intentionally utilized the pow er at [his] d isposal to” accep t or reje ct a counsel’s use of race to include Chandler, the acceptable

juror “in such a way as to perpetuate” racial stereotypes by including remedy was for the district court to “discharge the venire and

Chandler on the jury because of her race. We know this because he stated select a new jury from a panel not previously associated with

to Chandler that it was important to get some “minority representation”

on the jury. The process, properly considered, had both a cause - the

volition of defense counsel - and an effect - the inclusion of Chandler,

and, whether termed affirmative or negative discrimination, offended the

principles of equal protection. Moreover, the district court was aware of

defense counsel’s race-based action, and, like the school board in Da vis, 2

its constitutional violation was its failure to act to remed y defense The majority conceptualizes Chandler’s inclusion on the jury as a

counsel’s actions. In this way, b oth the defense counsel and the district starting point, or as a given. Yet, because inclusion is only possible after

court acted in a way tha t was offensive to the constitution. a process (voir dire) has occurred, it cannot be the default position.

Nos. 02-3320/3321 United States v. Angel 31 32 United States v. Angel Nos. 02-3320/3321

the case.” Batson, 476 U.S. at 99 n. 24.3 Rather than replace the juror with the first alternate, who was white, and

washing the jury of its racial taint, the district court allowed instead removed a second white juror from the panel and

the racially composed jury to stand. filled the two spaces with an African American juror and the

previously mentioned Jewish juror. Id. The district court

Nor do I find the majority’s distinction between inclusion took these steps to obtain an empaneled jury that contained

and exclusion convincing.4 The majority appears to agree both African Americans and Jews in a racial and religious

with the government’s argument that the policy behind balance so that “nobody could complain whatever the result”

Batson and its progeny is to “ensure minority representation of the trial. Id. (quoting Tr. 866). The defendants consented

on juries.” Op. at 12. How far then are parties and judges to the proposal on the record. Id.

allowed to go in order to ensure such minority representation?

In United States v. Nelson, 277 F.3d 164 (2d Cir. 2002), a In finding that the district court’s actions were improper,

case involving a hate crime committed by an African the Second Circuit stated, “the error is made plain by the

American man against a Jewish man, the Second Circuit reasoning behind” Batson and Georgia v. McCollum, 505

found that the district court had gone too far in trying to U.S. 42 (1992), “in which the Supreme Court held that neither

ensure a racially and religiously balanced jury. At trial, the prosecutors nor defendants could, without violating the Equal

district court “expressed its desire to empanel a jury (and not Protection Clause, exercise peremptory strikes on the basis of

merely begin from a venire) that represents this community.” race.” Nelson, 277 F.3d at 207. The court went on to explain

Nelson, 277 F.3d at 172 (internal quotations and citations that “it is beyond peradventure that the racial and religious

omitted) (emphasis in original). To that end, the district court reconstruction of the jury . . . could not have been achieved at

denied a Batson challenge to the fact that the government the instigation of the parties.” Id. “And what the district

used 55% of its peremptory challenges to strike African court could not allow the parties to do, it also could not do of

American candidates from the jury. Id. Next, the district its own motion even with the consent of the parties.” Id. The

court denied a for-cause challenge of a Jewish juror who had court specifically discounted the argument that inclusion is

“expressed grave doubts about his ability to be objective different from exclusion when it stated, “although the motives

about the case.” Id. Finally, when an African American behind the district court’s race- and religion-based jury

empaneled juror was excused, the district court failed to selection procedures were undoubtedly meant to be tolerant

and inclusive rather than bigoted and exclusionary, that fact

cannot justify the district court’s race-conscious actions.” Id.

3

at 207 (emphasis added).5 Further, the court stated that if

The other potential remedy mentioned in Batson is to “disallow the

discriminatory challenges and resume selection with the improperly

challenged jurors reinstated on the venire.” Batson, 476 U.S. at 99 n.24.

If reinstatement is a remedy for improper exclusion, then the 5

The majo rity attempts to distinguish Nelson by stating that “Nelson

corresponding remedy for impro per inc lusion m ight appear to be to strike clearly did not involve a district court’s failure to act . . . the alleged equal

the racially tainted juro r. Because the first Batson reme dy is sufficient to protection violation was the affirmative (and overzealous) act of the

remedy the harm in this case, however, the appropriateness of the district court” Op . at 15. N owhere in m y discussion of Nelson do I

alternative remedy need not be addressed. downplay the district court’s acts. To the contrary, my discussion of

4

Nelson highlights all of the conduct that the district court engaged in for

In an effort to lessen the affirmative nature of the act at issue in this the purp ose o f ensuring a racially and religiously balanced jury. Nelson

case, the majority seeks to characterize the inclusion as “using race as a is used to show that, in the jury selection process, both inclusion and

reaso n to leave a m inority on the jury.” Op . at 12. exclus ion based on race violates the Equal Protection Clause. T he

Nos. 02-3320/3321 United States v. Angel 33 34 United States v. Angel Nos. 02-3320/3321

parties and the court were allowed to agree to empanel a jury as should have been done, and as would have been done had

that was “precisely of the racial and religious mix they it not been for Chandler’s and the other potential jurors’ race,

wished,” then “the Supreme Court’s language about ‘race an otherwise qualified white juror was necessarily excluded

neutrality in jury selection’ as a ‘measure of the judicial because of race. Thus, this inclusion carries with it an

system’s commitment to the commands of the Constitution,’ exclusion.

. . . would be a dead letter.” Id. at 208 (quoting Powers v.

Ohio, 499 U.S. 400, 416 (1991)). Even if an inclusion did not carry with it a corresponding

exclusion, the fact that the inclusion was based on race

Like Nelson, the defense attorney in this case wanted to renders it just as harmful as an exclusion based on race. In

include Chandler, or to use the majority’s language, wanted Powers v. Ohio, the Supreme Court rejected the idea that

“to leave” Chandler on the jury because of the need for racial classifications in jury selection may survive equal

“minority representation.” To that end, the attorney kept protection scrutiny simply because white jurors are subject to

Chandler, who had expressed her views that the sentencing the same risk of discrimination as are all other jurors. The

laws need to be stricter, rather than strike her and risk Court stated, “[i]t is axiomatic that racial classifications do

empaneling another white juror. In other words, the defense not become legitimate on the assumption that all persons

attorney “selected or reaffirmed a particular course of action suffer them in equal degree.” Powers, 499 U.S. at 410 (citing

[approving of Chandler as a juror] at least in part ‘because of,’ Loving v. Virginia, 388 U.S. 1 (1967)). Further, as we have

not merely ‘in spite of,’” Chandler’s race. Personnel Adm’r learned from the affirmative action context, both exclusionary

of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) and inclusionary discrimination can offend equal protection

(explaining the showing needed for a finding of principles. See City of Richmond v. J.A. Croson Co., 488

discriminatory purpose).6 And by failing to strike Chandler U.S. 469 (1989) (holding that governmentally conferred

majo rity cites Nelson for the p roposition that a district court acts

imprope rly when it “mak[e s] an affirm ative attem pt to alter the racial

composition of the jury.” Op. at 14. The act cited by the majority as

offensive in Nelson, however, was when the district “removed a second

(white) juror from the pan el and filled the two spaces created with an

African American and with [a] Jewish juror.” Op. at 14. Thus, the procedures used in the Northern District of Ohio.” Op. at 15 (emp hasis

majo rity characterizes the filling in of the two spaces in Nelson, that is the in original). Thus, according to the majo rity, “Chandler was in fact ‘tried

inclusion of the two jurors based on their race, as an affirmative act. Yet, by a jury whose mem bers [were] selected by nond iscrimina tory criteria.’”

the majority refuses to recognize that the inclusion of Chandler in this Op. at 16 (citation omitted). The majority’s explanation of jury selection

case based on her race was an act. The harm in Nelson and this case is the is over ly simplistic. The majority’s logic supports only the conclusion

use of race to determine the co mpo sition of the jury. As the Second that the venire was “selected by nondiscriminatory criteria.” In jury

Circuit found, and as I would now find, both the exclusive and inclusive selection there is a venire and following voir dire, the attorney must make

action involved in composing such a jury are ind ividually and collective ly a choice abo ut each potential juro r. The attorney may accept a juror (by

offensive to the princip les of eq ual pro tection. failing to challenge the juror) or reject a juror (through the use of a for

6

cause or peremptory challenge). The failure to strike a juror signifies the

The majority states that “[l]awyers do not select jurors, after all; they attorne y’s approval of a particular juror. If that approval was based solely

only remove prospective jurors. Chandler, for example, was seated on the on race, then the jury was not “selected by nondiscriminatory criteria” and

jury not because of Ange l’s lawyer, but as a result of the jury-selection the attorney acted improperly.

Nos. 02-3320/3321 United States v. Angel 35 36 United States v. Angel Nos. 02-3320/3321

benefits based on race, just like detriments, can be offensive minority on the jury would outweigh the potential negative

to the Equal Protection Clause).7 impact of that juror’s generalized opinion of the drug laws.”

Op. at 16-17. The majority’s “presumed belief,” however, is

The majority next argues that “[a]dopting Angel’s nothing more than a euphemism for stereotyping. As the

argument would also undermine a defendant’s Sixth Supreme Court has stated, “potential jurors, as well as

Amendment right to the effective assistance of counsel.” Op. litigants, have an equal protection right to jury selection

at 16. The Sixth Amendment right to counsel, to the extent procedures that are free from state- sponsored group

that it protects counsel's freedom to make strategic decisions stereotypes rooted in, and reflective of, historical prejudice.”

concerning the composition of the jury, has been held to give J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 128 (1994).

way to the Fourteenth Amendment's guarantee of equal Defense counsel’s “presumed belief” that the race of Chandler

protection under the law. Batson, in fact, stands for the outweighs the fact that she expressed her unwillingness to

proposition that a strategic decision concerning a juror, based serve and stated that it takes until the third time a defendant

on the race of the juror, is offensive to the Fourteenth is convicted before he gets punished is the exact type of racial

Amendment, and must, therefore, yield to the equal protection stereotyping expressly rejected in Batson. 476 U.S. at 98

guarantees contained in the Fourteenth Amendment. Batson, (finding that the Equal Protection Clause forbids the State to

476 U.S. at 98-99. Likewise, to the extent that the strategic strike Black veniremen on the assumption that they will be

decision of counsel in this case offends the guarantee of equal partial to the defendant because of their shared race).

protection, it must give way. Neither the majority nor the

government has cited anything in our jurisprudence that The majority offers “virtually no support for the conclusion

allows counsel to cloak one constitutional violation in the that [race] alone is an accurate predictor of juror's attitudes;”

garb of another constitutional protection. yet it holds that “the same stereotypes that justified the

wholesale exclusion of [racial minorities] from juries” may be

The majority finds “nothing unreasonable in defense used to outweigh the negative aspects of choosing a particular

counsel’s presumed belief that having at least one racial juror. J.E.B., 511 U.S. at 139. I can not hold, as does the

majority, that a juror’s race may outweigh the other potential

negative aspects of that juror. Such a finding feeds into the

7 very stereotypes that Batson and its progeny try to combat.

The majority’s attempt to distinguish City of Richmond v. J.A.

Croson further highlights the disagreement that is at issue in this case. I

cited the Croson case to further bolster the Second Circuit’s conclusion

Furthermore, there is no support for the proposition that

in Nelson that, in the context of jury selection, both inclusion and race may be used as a factor in jury selection. Batson, 476

exclusion can violate the Equal Protection Clause. Thus, I cited Croson U.S. at 87 (“A person’s race simply is unrelated to his fitness

to explain that in co ntexts other than jury selection, benefits and as a juror.”) (citation omitted). The record does not reveal

detrim ents based on race are examined under the E qual Pro tection Clause any “neutral explanation,” unrelated to race, that justifies the

under the same standard. The majority seeks to distinguish Croson by

stating that there was an affirmative discriminatory act in that case,

choice of Chandler. Batson, 476 U.S. at 98 (explaining that

imposing the set-aside requirement upon prime contractors, and that such once the defendant has made a prima facie case, the State

an affirmative discriminatory act does not exist in this case. Op. at 14. must come forth with a neutral explanation for striking a

The dispute in this case is whether there wa s a discriminatory act. Thus, particular venireman). Moreover, because a reasonable

the majority’s recitation of the facts in Croson does nothing to undermine defense attorney with a client, like Angel, who has a prior

the notion that inclusion and exclusion are treated the same under the

Equal Protection Clause.

drug conviction, would most likely excuse Chandler for cause

Nos. 02-3320/3321 United States v. Angel 37 38 United States v. Angel Nos. 02-3320/3321

or, if a for cause objection was not granted, exercise a The words out of defense counsel’s own mouth

peremptory challenge, the only reasonable conclusion based demonstrate that his actions were motivated by race. When

on this record is that race was not only a factor, but the coupled with the surrounding circumstances, there can be no

moving force behind the decision to include Chandler. doubt that the principle of race neutrality in jury selection,

embodied in the Equal Protection Clause, was violated. The

Finally, the majority argues that the fact that defense majority’s slight-of-hand, however well-intentioned, is

counsel “allegedly harbored the ‘evil thought’ of leaving incapable of reducing constitutionally-offensive

Chandler on the jury because she is African American” is not discriminatory acts into constitutionally-acceptable “evil

enough to require reversal of Angel’s conviction. Op. at 17. thoughts.”

The majority is correct in stating that the law does not

prohibit the harboring of an “evil thought.” “Neither Therefore, I respectfully dissent.

precedent nor policy” has recognized a way to discern an evil

thought without a corresponding action. When the “evil

thought” is, as in this case, transformed into words and

actions, however, “[n]either precedent nor policy supports”

turning a blind eye to the unconstitutional conduct.

It is the dialogue between an attorney and a potential juror

that leads an attorney to accept or reject a juror. An

examination of that dialogue may also “support or refute an

inference of discriminatory purpose” on the part of the

attorney. Batson, 476 U.S. at 97. In this case, defense

counsel stated, “you’ve seen the panel, correct?” After

Chandler responded, “yes,” defense counsel stated, “so it’s

important if we can get some minority representation on the

panel if you’re chosen as a juror. You do understand the way

we feel?” J.A. at 518. The exchange between defense

counsel and Chandler reveals defense counsel’s “evil

thoughts.” When defense counsel included Chandler, by

failing to challenge her despite her views on the drug

sentencing laws and her unwillingness to serve, he pursued a

specific course of action in furtherance of his “evil thought,”

and thus became an “evil doer.” The majority’s focus on the

affirmative act of exercising a peremptory challenge to the

exclusion of the affirmative act of speaking and the negative

act of deciding not to challenge a juror, when those acts

reveal unconstitutional conduct, is unacceptable.