       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.
