United States of America, Plaintiff-Appellant/cross-Appellee v. Alfonso G. Angel, Defendant-Appellee/cross-Appellant

KEITH, Circuit Judge,

concurring in part, dissenting in part.

I join the court’s opinion in Parts H.A., II.C., and II.D. I write separately to express my disagreement with the court’s resolution of Angel’s discrimination in jury selection claim in Part II.B. I would hold that defense counsel’s use of race as the criterion for choosing Chandler violated the Equal Protection Clause of the Fourteenth Amendment, as incorporated into the Fifth Amendment, of the United States Constitution. As an error in jury selection is a structural error that requires automatic reversal, I would grant Angel a new trial. Accordingly, I respectfully dissent.

The issue before the court is one of first impression — whether the inclusion of a juror, who expressed views contrary to the defendant’s interest, violated the Equal Protection Clause when that inclusion was based on race. Rather than seriously considering the merits of the claim, the majority simply agrees with the government that there is no precedent. In finding that there is no precedent, the majority opinion interprets Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), too narrowly. It states that Batson prohibits “the act of exercising peremptory challenges where that act is accompanied by the intent to discriminate on the basis of race.” Op. at 470-471 (emphasis in original). Thus, according to the majority, because defense counsel did not exercise a peremptory challenge or otherwise challenge Chandler, the Equal Protection Clause is not violated even if defense counsel’s inclusion of Chandler was based on her race.

While it is true that the court in Batson prohibited the discriminatory use of peremptory challenges, there is no suggestion that its holding was so narrow as to exclude the. discriminatory misuse of an otherwise valid and intelligent peremptory challenge. Moreover, there is no indication that the prohibition against the use of race in the jury selection process applies exclusively to peremptory challenges. To the 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 85-86 , 106 S.Ct. 1712 (citing Martin v. Texas, 200 U.S. 316, 321 , 26 S.Ct. 338 , 50 L.Ed. 497 (1906)). The Court went on to explain, “[c]ompetence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. A person’s race simply is unrelated to his fitness as a juror.” Id. at 87, 106 S.Ct. 1712 (internal quotations and citations omitted). Finally, in summarizing its previous holdings, the Court stated that it “has made clear that the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors.” Id. at 88 , 106 S.Ct. 1712 (empha *480 sis added). Thus, I can not hold, as does the majority, that Batson and its progeny are limited to the context of peremptory challenges on the basis of race, and cannot accept the majority’s further implication that the concept of use within the context of peremptory challenges is so narrow as to exclude its correlative, misuse.

The majority fixates on the need for a discriminatory act and finds that the “failure to challenge a juror, even if motivated by race” does not implicate the equal protection rights of either the juror or the defendant because the failure to challenge is not an act. It is at this point that the majority’s reasoning squeezes the concept of use into the word “act,” and in so doing strips the word use of its intended power. Yet, even the word act itself is inclusive enough to cover the conduct at issue is this case. According to Black’s Law Dictionary: “In its most general sense, [act] signifies something done voluntarily by a person; the exercise of an individual’s power; an effect produced in the external world by an exercise of the power of a person objectively, prompted by intention, and proximately caused by a motion of the will.” Black’s Law Dictionary 24 (6th ed.1991). Specifically, the majority looks to the criminal law in an attempt to circumscribe the conduct at issue. Op. at 473-474 (“The criminal law, for example, has long recognized that ‘[t]he mere harboring of an evil thought, such as the intent to engage in criminal conduct, does not constitute a crime; a crime is committed only if the evil thinker becomes an evil doer.’ ”) (citation omitted). In its attempt, however, the majority circuitously concludes that the conduct of defense counsel was not an affirmative act, and therefore must have been limited to a thought. Acts have both a positive and negative face. The definition of a “criminal act” states that: “There can be no crime without some act, affirmative or negative. An omission or failure to act may constitute an act for purposes of criminal law.” Id. (emphasis added).

As I stated many years ago in Davis v. School District of City of Pontiac, Inc., “[w]hen the power to act is available, failure to take the necessary steps so as to negate or alleviate a situation which is harmful is as wrong as is the taking of affirmative steps to advance that situation. Sins of omission can be as serious as sins of commission.” Davis, 309 F.Supp. 734, 741-42 (E.D.Mich.1970), aff'd, 443 F.2d 573 (6th Cir.1971), cert. denied, 404 U.S. 913 , 92 S.Ct. 233 , 30 L.Ed.2d 186 . (1971). 1 Thus, the misuse of a peremptory challenge, properly considered, occurs when there is an abuse of the principles of equal protection that “prohibit! ] oil forms of *481 purposeful racial discrimination in selection of jurors,” whether it comes in the form of an omission or commission.

Here, defense counsel’s misuse, or act, was his choice to include Chandler based on her race. 2 Once this constitutionally offensive deed was done, the harm could not be left to he; the Equal Protection Clause is not self-correcting. Defense counsel was not going to object to his own race-based action. The prosecutor was not going to object because it is in the government’s interest to have a juror who thinks the sentencing laws should be stricter. The district court had “the power to act” to correct defense counsel’s improper jury selection methods, and its “failure to take the necessary steps so as to negate or alleviate” the harmful situation was fatal. Davis, 309 F.Supp. at 741-42 . Thus, the failure to protect Angel’s rights was complete.

Ultimately, the district court is responsible for ensuring that there is a constitutionally composed jury. The Supreme Court explained this in Powers v. Ohio, when it stated that “the courts are under an affirmative duty to enforce the strong statutory and constitutional policies embodied in” the statutory prohibition on discrimination in the selection of jurors, 18 U.S.C. § 243 , enacted pursuant to the Fourteenth Amendment’s Enabling Clause. 499 U.S. 400, 416 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991). Once the jury selection process was tainted by defense counsel’s use of race to include Chandler, the acceptable remedy was for the district court to “discharge the venire and select a new jury from a panel not previously associated with the case.” Batson, 476 U.S. at 99 n. 24, 106 S.Ct. 1712 . 3 Rather than washing the jury of its racial taint, the district court allowed the racially composed jury to stand.

Nor do I find the majority’s distinction between inclusion and exclusion convincing. 4 The majority appears to agree with the government’s argument that the policy behind Batson and its progeny is to “ensure minority representation on juries.” Op. at 470-471. How far then are parties and judges allowed to go in order to ensure such minority representation? In United States v. Nelson, 277 F.3d 164 (2d Cir.2002), a case involving a hate crime committed by an African American man against a Jewish man, the Second Circuit found that the district court had gone too far in trying to ensure a racially and religiously balanced jury. At trial, the district court “expressed its desire to empanel a jury (and not merely begin from a venire) that represents this community.” Nelson, 277 F.3d at 172 (internal quotations and citations omitted) (emphasis in original). To that end, the district court denied a Batson challenge to the fact that the government used 55% of its peremptory challenges to strike African American candi *482 dates from the jury. Id. Next, the district court denied a for-cause challenge of a Jewish juror who had “expressed grave doubts about his ability to be objective about the case.” Id. Finally, when an African American empaneled juror was excused, the district court failed to replace the juror with the first alternate, who was white, and instead removed a second white juror from the panel and filled the two spaces with an African American juror and the previously mentioned Jewish juror. Id. The district court took these steps to obtain an empaneled jury that contained both African Americans and Jews in a racial and religious balance so that “nobody could complain whatever the result” of the trial. Id. (quoting Tr. 866). The defendants consented to the proposal on the record. Id.

In finding that the district court’s actions were improper, the Second Circuit stated, “the error is made plain by the reasoning behind” Batson and Georgia v. McCollum, 505 U.S. 42 , 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992), “in which the Supreme Court held that neither prosecutors nor defendants could, without violating the Equal Protection Clause, exercise peremptory strikes on the basis of race.” Nelson, 277 F.3d at 207 . The court went on to explain that “it is beyond peradventure that the racial and religious reconstruction of the jury ... could not have been achieved at the instigation of the parties.” Id. “And what the district court could not allow the parties to do, it also could not do of its own motion even with the consent of the parties.” Id. The court specifically discounted the argument that inclusion is different from exclusion when it stated, “although the motives behind the district court’s race- and religion-based jury 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. at 207 (emphasis added). 5 Further, the court stated that if parties and the court were allowed to agree to empanel a jury that was “precisely of the racial and religious mix they wished,” then “the Supreme Court’s language about ‘race neutrality in jury selection’ as a ‘measure of the judicial system’s commitment to the commands of the Constitution,’ ... would be a dead letter.” Id. at 208 (quoting Powers v. Ohio, 499 U.S. 400, 416 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991)).

Like Nelson , the defense attorney in this case wanted to include Chandler, or to *483 use the majority’s language, wanted “to leave” Chandler on the jury because of the need for “minority representation.” To that end, the attorney kept Chandler, who had expressed her views that the sentencing laws need to be stricter, rather than strike her and risk empaneling another white juror. In other words, the defense attorney “selected or reaffirmed a particular course of action [approving of Chandler as a juror] at least in part ‘because of,’ not merely ‘in spite of,’ ” Chandler’s race. Personnel Adm’r of Massachusetts v. Fee-ney, 442 U.S. 256, 279 , 99 S.Ct. 2282 , 60 L.Ed.2d 870 (1979) (explaining the showing needed for a finding of discriminatory purpose). 6 And by failing to strike Chandler as should have been done, and as would have been done had it not been for Chandler’s and the other potential jurors’ race, an otherwise qualified white juror was necessarily excluded because of race. Thus, this inclusion carries with it an exclusion.

Even if an inclusion did not carry with it a corresponding exclusion, the fact that the inclusion was based on race renders it just as harmful as an exclusion based on race. In Powers v. Ohio, the Supreme Court rejected the idea that racial classifications in jury selection may survive equal protection scrutiny simply because white jurors are subject to the same risk of discrimination as are all other jurors. The Court stated, “[i]t is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree.” Powers, 499 U.S. at 410 , 111 S.Ct. 1364 (citing Loving v. Virginia, 388 U.S. 1 , 87 S.Ct. 1817 , 18 L.Ed.2d 1010 (1967)). Further, as we have learned from the affirmative action context, both exclusionary and inclusionary discrimination can offend equal protection principles. See City of Richmond v. J.A Croson Co., 488 U.S. 469 , 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989) (holding that governmentally conferred benefits based on race, just like detriments, can be offensive to the Equal Protection Clause). 7

*484 The majority next argues that “[adopting Angel’s argument would also undermine a defendant’s Sixth Amendment right to the effective assistance of counsel.” Op. at 473. The Sixth Amendment right to counsel, to the extent that it protects counsel’s freedom to make strategic decisions concerning the composition of the jury, has been held to give way to the Fourteenth Amendment’s guarantee of equal protection under the law. Batson , in fact, stands for the proposition that a strategic decision concerning a juror, based on the race of the juror, is offensive to the Fourteenth Amendment, and must, therefore, yield to the equal protection guarantees contained in the Fourteenth Amendment. Batson, 476 U.S. at 98-99 , 106 S.Ct. 1712 . Likewise, to the extent that the strategic decision of counsel in this case offends the guarantee of equal protection, it must give way. Neither the majority nor the government has cited anything in our jurisprudence that allows counsel to cloak one constitutional violation in the garb of another constitutional protection.

The majority finds “nothing unreasonable in defense counsel’s presumed belief that having at least one racial minority on the jury would outweigh the potential negative impact of that juror’s generalized opinion of the drug laws.” Op. at 473-474. The majority’s “presumed belief,” however, is nothing more than a euphemism for stereotyping. As the Supreme Court has stated, “potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from states — sponsored group stereotypes rooted in, and reflective of, historical prejudice.” J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 128 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994). Defense counsel’s “presumed belief’ that the race of Chandler outweighs the fact that she expressed her unwillingness to serve and stated that it takes until the third time a defendant is convicted before he gets punished is the exact type of racial stereotyping expressly rejected in Batson. 476 U.S. at 98 , 106 S.Ct. 1712 (finding that the Equal Protection Clause forbids the State to strike Black veniremen on the assumption that they will be partial to the defendant because of their shared race).

The majority offers “virtually no support for the conclusion that [race] alone is an accurate predictor of juror’s attitudes;” yet it holds that “the same stereotypes that justified the wholesale exclusion of [racial minorities] from juries” may be used to outweigh the negative aspects of choosing a particular juror. J.E.B., 511 U.S. at 139, 114 S.Ct. 1419 . 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 very stereotypes that Batson and its progeny try to combat.

Furthermore, there is no support for the proposition that race may be used as a factor in jury selection. Batson, 476 U.S. at 87 , 106 S.Ct. 1712 (“A person’s race simply is unrelated to his fitness as a juror.”) (citation omitted). The record does not reveal any “neutral explanation,” unrelated to race, that justifies the choice of Chandler. Batson, 476 U.S. at 98 , 106 S.Ct. 1712 (explaining that once the defendant has made a prima facie case, the State must come forth with a neutral explanation for striking a particular venireman). Moreover, because a reasonable defense attorney with a client, like Angel, who has a prior drug conviction, would most likely excuse Chandler for cause or, if a for cause objection was not granted, exercise a peremptory challenge, the only reasonable conclusion based on this record is that race was not only a factor, but the moving force behind the decision to include Chandler.

*485 Finally, the majority argues that the fact that defense counsel “allegedly harbored the ‘evil thought’ of leaving Chandler on the jury because she is African American” is not enough to require reversal of Angel’s conviction. Op. at 473. The majority is correct in stating that the law does not prohibit the harboring of an “evil thought.” “Neither 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, “[njeither 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. Bat-son, 476 U.S. at 97 , 106 S.Ct. 1712 . 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.

The words out of defense counsel’s own mouth demonstrate that his actions were motivated by race. When coupled with the surrounding circumstances, there can be no doubt that the principle of race neutrality in jury selection, embodied in the Equal Protection Clause, was violated. The majority’s slight-of-hand, however well-intentioned, is incapable of reducing constitutionally-offensive discriminatory acts into constitutionally-aceeptable “evil thoughts.”

Therefore, I respectfully dissent.

. The majority counters that Davis lends support to its conclusion. It states that the "equal protection violation in Davis , therefore, was not simply the school board's failure to act, but its failure to remedy the effects of its prior affirmative, discriminatory acts.” Op. at 15. Yet, Davis condemns both affirmative and negative discriminatory acts. The wrongfulness of a negative discriminatory act is dependent on whether the "power to act is available,” not on the necessary creation of the harm. We are presented with an analogous situation here. Defense counsel "intentionally utilized the power at [his] disposal to” accept or reject a juror "in such a way as to perpetuate” racial stereotypes by including Chandler on the jury because of her race. We know this because he stated to Chandler that it was important to get some "minority representation” on the juiy. 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 Davis , its constitutional violation was its failure to act to remedy defense counsel's actions. In this way, both the defense counsel and the district court acted in a way that was offensive to the constitution.

. The majority conceptualizes Chandler's inclusion on the jury as a starting point, or as a given. Yet, because inclusion is only possible after a process (voir dire) has occurred, it cannot be the default position.

. 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, 106 S.Ct. 1712 . If reinstatement is a remedy for improper exclusion, then the corresponding remedy for improper inclusion might appear to be to strike the racially tainted juror. Because the first Batson remedy is sufficient to remedy the harm in this case, however, the appropriateness of the alternative remedy need not be addressed.

.In an effort to lessen the affirmative nature of the act at issue in this case, the majority seeks to characterize the inclusion as "using race as a reason to leave a minority on the jury.” Op. at 471.

. The majority attempts to distinguish Nelson by stating that "Nelson clearly did not involve a district court's failure to act ... the alleged equal protection violation was the affirmative (and overzealous) act of the district court” Op. at 472. Nowhere in my discussion of Nelson do I downplay the district court's acts. To the contrary, my discussion of Nelson highlights all of the conduct that the district court engaged in for the purpose of ensuring a racially and religiously balanced jury. Nelson is used to show that, in the jury selection process, both inclusion and exclusion based on race violates the Equal Protection Clause. The majority cites Nelson for the proposition that a district court acts improperly when it "mak[es] an affirmative attempt to alter the racial composition of the jury." Op. at 472. The act cited by the majority as offensive in Nelson , however, was when the district "removed a second (white) juror from the panel and filled the two spaces created with an African American and with [a] Jewish juror.” Op. at 472. Thus, the majority characterizes the filling in of the two spaces in Nelson , that is the inclusion of the two jurors based on their race, as an affirmative act. Yet, the majority refuses to recognize that the inclusion of Chandler in this case based on her race was an act. The harm in Nelson and this case is the use of race to determine the composition of the jury. As the Second Circuit found, and as I would now find, both the exclusive and inclusive action involved in composing such a jury are individually and collectively offensive to the principles of equal protection.

. The majority states that "[l]awyers do not select jurors, after all; they only remove prospective jurors. Chandler, for example, was seated on the jury not because of Angel’s lawyer, but as a result of the jury-selection procedures used in the Northern District of Ohio.” Op. at 472 (emphasis in original). Thus, according to the majority, “Chandler was in fact 'tried by a jury whose members [were] selected by nondiscriminatory criteria.' ” Op. at 473 (citation omitted). The majority's explanation of jury selection is overly simplistic. The majority's logic supports only the conclusion that the venire was “selected by nondiscriminatory criteria.” In jury selection there is a venire and following voir dire, the attorney must make a choice about each potential juror. The attorney may accept a juror (by failing to challenge the juror) or reject a juror (through the use of a for cause or peremptory challenge). The failure to strike a juror signifies the attorney's approval of a particular juror. If that approval was based solely on race, then the jury was not “selected by nondiscriminatoiy criteria” and the attorney acted improperly.

. 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 in Nelson that, in the context of jury selection, both inclusion and exclusion can violate the Equal Protection Clause. Thus, I cited Croson to explain that in contexts other than jury selection, benefits and detriments based on race are examined under the Equal Protection Clause under the same standard. The majority seeks to distinguish Croson by stating that there was an affirmative discriminatory act in that case, imposing the set-aside requirement upon prime contractors, and that such an affirmative discriminatory act does not exist in this case. Op. at 472. The dispute in this case is whether there was a discriminatory act. Thus, the majority's recitation of the facts in Croson does nothing to undermine the notion that inclusion and exclusion are treated the same under the Equal Protection Clause.