1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

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

File Name: 04a0011p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant/

Cross-Appellee,

v.

ALFONSO G. ANGEL,

Defendant-Appellee/

Cross-Appellant.

X

-

-

-

-

>

,

-

-

-

-

N

Nos. 02-3320/3321

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 00-00727—James G. Carr, District Judge.

Argued: October 22, 2003

Decided and Filed: January 9, 2004 

Before: KEITH, DAUGHTREY, and GILMAN, Circuit

Judges.

_________________

COUNSEL

ARGUED: Jeffrey P. Singdahlsen, UNITED STATES

DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,

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

2 United States v. Angel Nos. 02-3320/3321

Ardsley, New York, for Appellee. ON BRIEF: Joseph R.

Wilson, ASSISTANT UNITED STATES ATTORNEY,

Toledo, Ohio, Monica S. Abrams, UNITED STATES

DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,

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

Ardsley, New York, for Appellee.

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

DAUGHTREY, J., joined. KEITH, J. (pp. 27-38), delivered

a separate opinion concurring in part and dissenting in part.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. A jury convicted

Alfonso Angel of conspiring to both possess and distribute

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

§§ 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

contends that (1) Angel’s trial counsel and the district court

allowed a biased member of the jury pool to sit on the jury,

and (2) Angel’s trial counsel engaged in unconstitutional

discrimination by purposefully allowing this person, a

member of a racial minority, to remain on the jury.

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

brief concerning his sentence and allegations of prosecutorial

misconduct. The United States has cross-appealed,

contending that the district court committed clear error by

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

challenge the essential factual elements of guilt, attempted to

have a government witness killed, and expressed no remorse

until the district court suggested it as a way to avoid a life

sentence. For the reasons set forth below, we AFFIRM

Angel’s conviction, REVERSE the district court’s two-level
Nos. 02-3320/3321 United States v. Angel 3

reduction for acceptance of responsibility, and REMAND for

resentencing.

I. BACKGROUND

A. Jury selection issues raised by Angel’s counsel

Angel’s first two arguments on appeal involve one

particular juror, Delores Chandler, who served as the

foreperson of the jury that convicted Angel. The parties have

stipulated that Chandler is African-American. During jury

selection, the following exchange occurred between Chandler

and the magistrate judge:

THE COURT: And in looking at your questionnaire, one

of the very important questions is whether or not you

would be able to serve on the jury if the trial were to last

from three to six weeks. And your response was that you

are not able to sit on the jury. Have you had an

opportunity to think about that response recognizing that

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

jury when called, and it certainly is inconvenient for

everyone? Are you willing to serve if you are selected?

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

I don’t want to.

THE COURT: Well, if you were selected would you

then hold it against either of the parties? Would you hold

it against the government or the defendants if you were

selected to serve?

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

against the parties or the government.

THE COURT: Or against the Court?

CHANDLER: Or against the Court.

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

THE COURT: All right. You’ve indicated that you

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

it is an important service that we are all required to

perform from time to time?

CHANDLER: I recognize that if I have to do it, I’ll do

it. That’s all I recognize.

THE COURT: All right. Could you tell us if it is not

such a great invasion of your privacy as to why you’re so

reluctant to serve?

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

four to six weeks. That’s the main reason.

THE COURT: All right. Do you understand that under

our system of law every person is equal and every person

is entitled to equal protection of the laws, and it’s

important to have jurors from various areas representing

various backgrounds?

CHANDLER: Yes. I understand that. I just don’t want

to do it. But I perfectly understand that.

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

you will agree to do it?

CHANDLER: Yes.

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

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

mind?

CHANDLER: Yes.

THE COURT: And listen to the evidence that’s

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

CHANDLER: Yes, I would.

Angel’s lawyer, Sheldon Wittenberg, then had a chance to

question Chandler:

WITTENBERG: My only concern, and I detect maybe

– I don’t know you, but it seems like there’s a little level

of anger okay, and it’s at the situation rather than – you

wouldn’t hold it against my client, Mr. Angel, or any of

the defendants?

CHANDLER: No. No, I wouldn’t. I might sound like

that. It’s because I don’t want to be here. That’s the

only –

[. . .]

WITTENBERG: [. . .] You’ve seen the panel, correct?

CHANDLER: Yes.

WITTENBERG: 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?

CHANDLER: Yes.

WITTENBERG: So I could be assured that if you were

chosen that given the other problems that are associated

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

take six, but given it would be at least a few weeks, you

could give my client a fair and impartial hearing?

CHANDLER: Yes.

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?

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

CHANDLER: No, I wouldn’t.

WITTENBERG: I believe you wouldn’t.

After Wittenberg finished his questions, the lawyer for one

of Angel’s codefendants, in an apparent attempt to avoid

Chandler being challenged by the government, asked her if

she would “be fair to the United States government in hearing

their evidence.” “Yes, I would,” Chandler replied.

Another defense lawyer then asked Chandler to “elaborate

a little bit on what your views of the drug laws are,” based

upon one of her responses to the juror questionnaire form

indicating that the drug laws should be more strict. Chandler

replied: 

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

I hear is, like, the first time you get off, you pay a fine or

something, and then the next time something else, and

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

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

wouldn’t be a second and third.

The defense lawyer followed up by asking her what the

punishment should be “the first time someone gets caught

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

punishment is.”

B. Pro se issues

The six issues raised by Angel in his pro se brief all relate

to either his sentence or to the alleged misconduct of the

prosecutor. Rather than set forth the factual background for

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

analysis in Part II.C. below.
Nos. 02-3320/3321 United States v. Angel 7

C. The government’s cross-appeal

At the second of three appearances in connection with

Angel’s sentencing, the district court raised the possibility of

Angel receiving a sentence reduction by accepting

responsibility pursuant to United States Sentencing

Guidelines § 3E1.1. “I don’t think the defendant’s deserving

of a life sentence,” the court stated. “A 30-year sentence

maybe also is severe.” The court then suggested that “to the

extent I’m able to do so, to give him credit for truly accepting

responsibility . . . . I will consider that. The fact that he put

the government to its proof and that it was a long and

protracted trial doesn’t matter to me.” After making this

suggestion, the court postponed the sentencing hearing to give

Angel a chance to discuss the issue with his lawyer.

When the sentencing hearing resumed, Angel made the

following statement to the court:

I understand the consequences that I face and that I owe

a responsibility for the actions which I have, which I

have done. I accept responsibility. Well, I’ll get to that

in a minute.

I’m sorry for being here on the judgment of this

honorable court and regret doing so. I see the mistake I

have made and the great cost to everybody involved. I

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

punished and separated from my family and loved ones.

After this general admission of responsibility, the following

dialogue occurred between Angel and the court:

ANGEL: I would like to admit my guilt of the elements

of the indictment, sir.

THE COURT: Each and every count of which you were

found guilty?

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

ANGEL: Well, there are some I don’t approve of, but at

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

Angel then admitted that he was involved in the acquisition

and distribution of “substantial” quantities of cocaine and

marijuana and said that he “had a double life” as a restaurant

owner and a drug distributor. He gave a detailed description

of his drug-distribution network. Although Angel denied any

direct involvement in one particular transaction involving 55

kilograms of cocaine, he said he understood that he was

legally responsible for the transaction. Angel also admitted

that he was involved in drug transactions beyond those

charged in the present case. The court concluded that Angel

had admitted the conduct “attributed to him in the indictment”

and had also admitted that “the allegations against him

brought by the government did not encompass all of his

activities.” 

After Angel at least partially admitted his involvement in

the charged drug transactions, the court asked about Angel’s

attempt to murder a government witness. According to the

government’s evidence, while Angel was in custody after he

was indicted, he offered a fellow inmate, William Wainscott,

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

Angel. Wainscott informed the FBI of the incident, and

subsequent investigation confirmed some of the details of

Wainscott’s story. 

Based on this attempted murder, the district court enhanced

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

pursuant to U.S. Sentencing Guidelines § 3C1.1. When the

court asked Angel to admit responsibility for this conduct,

however, Angel denied asking Wainscott to murder the

government witness. Despite Angel’s denial, as well as his

reluctance to disclose his involvement with the cocainetrafficking established at trial, the district court found that

Angel qualified for a two-point sentence reduction for

acceptance of responsibility. Both Angel and the government

have filed timely notices of appeal.
Nos. 02-3320/3321 United States v. Angel 9

II. ANALYSIS

A. Juror bias

Angel contends that juror Chandler was biased against him,

and that both his trial counsel and the district court erred by

allowing Chandler to remain on the jury. To demonstrate

ineffective assistance of counsel, a defendant must show that

his attorney’s conduct “fell below an objective standard of

reasonableness,” and that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984). This court has

also stated that

[c]ounsel is also accorded particular deference when

conducting voir dire. An attorney's actions during voir

dire are considered to be matters of trial strategy. A

strategic decision cannot be the basis for a claim of

ineffective assistance unless counsel's decision is shown

to be so ill-chosen that it permeates the entire trial with

obvious unfairness.

Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001).

We will generally “not address on direct appeal claims of

ineffective assistance unless the record has been sufficiently

developed to provide meaningful factual review.” United

States v. Brown, 276 F.3d 211, 217 (6th Cir. 2002), cert.

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

appeal is the appropriate forum, however, for ineffectiveassistance claims that either depend entirely upon facts within

the record or that present purely legal questions. See United

States v. Wunder, 919 F.2d 34, 37-38 (6th Cir. 1990)

(considering ineffective-assistance claims on direct review

where the claims were based entirely on facts within the

record and/or could be resolved as a matter of law); cf. United

States v. Neuhausser, 241 F.3d 460, 474 (6th Cir. 2001)

(refusing to consider ineffective-assistance claims on direct

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

review where claims were based on facts outside the record or

where the evidence in the record was not adequate to establish

ineffective assistance as a matter of law). 

In the present case, the record is adequate to allow us to

address Angel’s claims. The facts underlying both claims are

undisputed and contained entirely within the record. Angel

does not suggest that he will be able to develop any further

evidence on collateral review. His claim of unconstitutional

discrimination, moreover, presents the following pure

question of law: Does the Equal Protection Clause prohibit a

defense attorney from purposefully allowing a person to

remain on the jury because of that person’s race? No

additional facts are necessary for the panel to resolve that

question.

Because Angel’s claim of error by the district court is being

raised for the first time on appeal, we will apply the “plain

error” standard of review. Johnson v. United States, 520 U.S.

461, 466-67 (1997); United States v. Page, 232 F.3d 536, 543

(6th Cir. 2000); Fed. R. Crim. P. 52(b). Under plain-error

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

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

legal rights. Johnson, 520 U.S. at 467. If the appellant makes

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

it “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (citations and quotation marks

omitted). This court has recognized that district courts have

“broad discretion” in conducting voir dire. Hughes, 258 F.3d

at 457. 

Angel must demonstrate that Chandler was actually biased

in order to prove either that he was prejudiced by the alleged

ineffective assistance of his trial counsel or that the district

court committed reversible error. See id. at 457-58. Chandler

told the district court that she was hesitant to serve as a juror

because “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 four to six

weeks. That’s the main reason.” Contrary to Angel’s
Nos. 02-3320/3321 United States v. Angel 11

argument, this comment demonstrated nothing more than

Chandler’s general unwillingness to serve on the jury. The

comment does not demonstrate that Chandler was actually

biased against Angel.

Chandler also stated during voir dire that she believed that

the drug laws should be more strict. Angel contends that this

statement demonstrates that Chandler was actually biased

against him. The Supreme Court, however, has held that a

juror is impartial “if the juror can lay aside his impression or

opinion and render a verdict based on the evidence presented

in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961). In the

present case, Chandler said that, if selected, she “would not

hold [it] against the [defendants] or the government,” could

come into court with an open mind, and could listen to the

evidence and follow the judge’s instructions. She told the

various defense attorneys that she would give Angel a fair and

impartial hearing and would also be fair to the government in

hearing its evidence. Chandler, in other words, assured the

lawyers and the court that she could “lay aside [her] . . .

opinion [about the drug laws] and render a verdict based on

the evidence presented in court.”

Both the Supreme Court and this court, moreover, have

found no actual bias where the evidence of bias was much

stronger than Chandler’s general opinion about the drug laws.

See Patton v. Yount, 467 U.S. 1025, 1029-30 (1984) (holding

that the trial court did not commit manifest error by finding

the jurors to be impartial, even though eight jurors admitted

that, due to pretrial publicity, “at some time [prior to trial]

they had formed an opinion as to [defendant’s guilt]”); see

also United States v. Pennell, 737 F.2d 521, 529-30 (6th Cir.

1984) (holding that there was inadequate evidence of actual

bias where five jurors received threatening, late-night phone

calls telling them to find the defendant guilty, and one juror

stated that the phone calls might influence her judgment in the

case). If the evidence in Patton and Pennell was not adequate

to establish actual bias, then Chandler’s general comments

about the drug laws were certainly not sufficient. Angel has

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

therefore failed to demonstrate either that his trial counsel’s

failure to challenge Chandler “permeate[d] the entire trial

with obvious unfairness,” Hughes, 258 F.3d at 457, or that the

district court committed plain error by allowing Chandler to

serve on the jury.

B. Discrimination in jury selection

Angel next contends that his trial counsel engaged in

unconstitutional discrimination by purposefully including

Chandler on the jury because of her race. This alleged

discrimination, Angel argues, supports his claims of

ineffective assistance of counsel and error by the district

court. Although the “plain error” standard of review

generally applies to claims raised for the first time on appeal,

Johnson, 520 U.S. at 466-67; Page, 232 F.3d at 543; Fed. R.

Crim. P. 52(b), any racial discrimination in jury selection

constitutes structural error that requires automatic reversal.

See Avery v. Georgia, 345 U.S. 559, 561 (1953) (holding that

jury selection based on race warrants reversal of a conviction

regardless of the strength of the evidence presented); Vasquez

v. Hillery, 474 U.S. 254, 263-64 (1986) (holding that racial

discrimination in the selection of grand jurors is structural

error that requires automatic reversal).

Engaging in racial discrimination during the exercise of

peremptory challenges violates the equal protection rights of

both the defendant and the challenged juror. In Batson v.

Kentucky, 476 U.S. 79, 89 (1986), the Supreme Court held

that “the Equal Protection Clause forbids the prosecutor to

challenge potential jurors solely on account of their race.”

Although Batson based its holding on the Equal Protection

Clause of the Fourteenth Amendment, which does not apply

to actions of the federal government, Batson applies to federal

court proceedings through the equal protection component of

the Fifth Amendment’s Due Process Clause. See Buckley v.

Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in

the Fifth Amendment area is the same as that under the

Fourteenth Amendment.”) 
Nos. 02-3320/3321 United States v. Angel 13

Defense attorneys, like prosecutors, may not challenge

potential jurors because of their race. Georgia v. McCollum,

505 U.S. 42, 59 (1992). Angel contends that his equal

protection rights were violated when his counsel rejected an

unspecified “otherwise qualified, white juror to make room

for [Chandler] as a minority juror” and purposefully included

Chandler on the jury because of her race.

Angel’s argument that his trial counsel rejected an

“otherwise qualified, white juror” fits within the BatsonMcCollum framework, which prohibits defense attorneys

from excluding jurors on account of their race. But this

argument lacks support in the record. Angel does not contend

that his trial counsel exercised peremptory challenges to

excuse any juror who was placed in the jury box prior to

Chandler, much less Angel’s hypothetical “otherwise

qualified, white juror.” This argument is therefore

unpersuasive.

Angel’s alternative argument—that equal protection

prohibits a defense attorney from using race as a reason to

leave a minority on the jury—is questionable as a matter of

law. He cites no case that directly supports his contention.

Instead, Angel argues that Batson, McCollum, and the

Supreme Court’s other jury-discrimination cases stand for the

general proposition that the Constitution prohibits any racial

discrimination in the selection of jurors. The government, on

the other hand, contends that no precedent supports Angel’s

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

dealing with discrimination in jury selection] is to ensure

minority representation on juries.”

We agree that Batson and McCollum do not apply to the

facts of the present case. Those Supreme Court cases prohibit

the act of exercising peremptory challenges where that act is

accompanied by the intent to discriminate on the basis of race.

See Batson, 476 U.S. at 89 (“[T]he Equal Protection Clause

forbids the prosecutor to challenge potential jurors solely on

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

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

that the Constitution prohibits a criminal defendant from

engaging in purposeful discrimination on the ground of race

in the exercise of peremptory challenges.”). 

Regarding the requirement of a discriminatory act, there

was no such conduct in the present case. Angel’s trial

counsel simply decided not to challenge Chandler. We find

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

to challenge a juror, even if motivated by race, implicates the

equal protection rights of either the juror or the defendant. 

We note that the dissent cites Batson for the general

proposition that “the defendant [has] the right to be tried by

a jury whose members are selected pursuant to

nondiscriminatory criteria.” Dis. Op. at 28 (quoting 476 U.S.

at 85). Although that is a correct statement of the law, the

problem with applying Batson—or any other equal protection

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

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

no affirmative act to control who sat on the jury.

All prior cases, including those cited by the dissent, have

found equal protection violations only where some

affirmative, discriminatory act was involved. Batson and

McCollum, for example, do not prohibit prosecutors or

defense attorneys from having racially based thoughts. Those

cases instead prohibit the act of exercising a peremptory

challenge where that act is motivated solely by the

prospective juror’s race.

In City of Richmond v. J.A. Croson, 488 U.S. 469 (1989),

for example, the Supreme Court struck down the City of

Richmond’s plan that “required prime contractors to whom

the city awarded construction contracts to subcontract at least

30% of the dollar amount of the contract to one or more

Minority Business Enterprises (MBE’s).” Id. at 477. Like

the lawyers whose conduct was at issue in Batson and

McCollum, the City of Richmond engaged in an affirmative,
Nos. 02-3320/3321 United States v. Angel 15

discriminatory act—specifically, imposing the set-aside

requirement upon prime contractors.

Similary, in United States v. Nelson, 277 F.3d 164 (2d Cir.

2002), the Second Circuit concluded that the district court had

acted improperly by making an affirmative attempt to alter the

racial composition of the jury. For example, “when an

African-American empaneled juror was excused, the district

court did not simply replace this juror with the first alternate,

who was white, but instead, sua sponte, removed a second

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

created with an African-American juror and with [a] Jewish

[j]uror.” Id. at 172. Nelson clearly did not involve a district

court’s failure to act. To the contrary, the alleged equal

protection violation was the affirmative (and overzealous) act

of the district court.

The dissent also points to the following language from

Davis v. School District of City of Pontiac, 309 F. Supp. 734,

741-42 (E.D. Mich. 1970): “When the power to act is

available, the 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.”

Dis. Op. at 29. Although this language, considered in

isolation, appears to support the dissent’s argument that the

failure to act can violate equal protection principles, a review

of the facts of Davis demonstrates that the quoted language

actually supports our conclusion in the present case. 

In Davis, members of the school board had “intentionally

utilized the power at their disposal to locate new schools and

arrange boundaries in such a way as to perpetuate the pattern

of segregation within the City and thereby, deliberately, in

contradiction of their announced policies of achieving a racial

mixture in the schools, prevented integration.” Id. at 741.

The equal protection violation in Davis, therefore, was not

simply the school board’s failure to act, but its failure to

remedy the effects ofits prior affirmative, discriminatory acts.

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

See id. at 742 (“This Court acknowledges the recently

enunciated position that a Board of Education has no

affirmative duty to eliminate segregation when it has done

nothing to create it, but this Court finds that the Pontiac

Board of Education did a great deal to create the patterns

presently existing within that school district and is now

responsible to take action so as to eliminate the very situation

which it caused.”). Davis therefore supports our conclusion

that there can be no equal protection violation without some

affirmative, discriminatory act.

Batson, McCollum, Croson, Nelson, and Davis all prohibit

harmful affirmative acts undertaken with a racially

discriminatory intent. They do not, however, stand for the

proposition that the Constitution’s equal protection guarantee

prohibits racially based thoughts without a corresponding act.

Lawyers 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 juryselection procedures used in the Northern District of Ohio.

Assuming that those procedures are constitutional, Batson’s

requirement was satisfied because Chandler was in fact “tried

by a jury whose members [were] selected pursuant to

nondiscriminatory criteria.” Batson, 476 U.S. at 85.

Regardless of Wittenberg’s state of mind, the lack of any

affirmative, discriminatory act means that there was no equal

protection violation in this case.

In addition to the legal weakness of Angel’s position, his

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

Supreme Court’s jury-discrimination cases to date prohibit

both the government and the defense fromexcluding potential

jurors because of their race. If we were to go beyond these

rulings by holding that the Fifth Amendment can be violated

whenever a lawyer decides to leave a member of a racial

minority on the jury because of that person’s race, we would

be flying in the face of the general policy behind the Supreme

Court’s decisions, which is to allow members of racial

minorities to serve on juries.
Nos. 02-3320/3321 United States v. Angel 17

Adopting Angel’s argument would also undermine a

defendant’s Sixth Amendment right to the effective assistance

of counsel. In a case like the present one, where the defense

attorney in good faith believes that the benefit of having a

particular minority juror decide the client’s case outweighs

any negative aspects of that juror, the defense attorney would

nevertheless be required to remove the juror with a

peremptory challenge. The defense attorney, in other words,

would be required to act contrary to what he or she perceives

to be the best interests of the client. We thus disagree with the

dissent’s contention that “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

. . . .” Dis. Op. at 36-37. To the contrary, we find 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. We would also note that any

attempt to challenge Chandler for cause would have been

futile. See Part II.A. above for a discussion of the relevant

cases.

Finally, Angel’s argument conflicts with the fundamental

principle that the law does not prohibit wrongful intent

without an accompanying act. 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.” 1 Wharton’s Criminal Law

§ 25 (15th ed. 2003). Here, Angel urges us to hold that the

Constitution’s equal protection guarantee requires the reversal

of a conviction simply because trial counsel allegedly

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

because she is African American. Neither precedent nor

policy supports Angel’s position, and we reject it.

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

C. Claims raised in Angel’s pro se brief

Angel raised the following six additional arguments in his

pro se brief: (1) the district court erred in calculating the

quantity of drugs attributed to him for sentencing purposes,

(2) the evidence does not support a sentence enhancement for

being an organizer or leader, (3) the district court erred in

attributing to Angel 55 kilograms of cocaine discovered in a

Jeep Cherokee, (4) prosecutorial misconduct deprived him of

due process, (5) the evidence does not support a sentence

enhancement for obstruction of justice, and (6) he was

deprived of his Sixth Amendment right to a jury trial because

the district court, rather than the jury, determined the drug

quantities for which Angel was held responsible.

The first two arguments are easily disposed of because the

district court’s findings are supported by overwhelming

evidence. Witnesses testified that Angel was responsible for

delivering approximately 359 kilograms of cocaine, far in

excess of the 150 kilograms necessary for a base offense level

of 38 pursuant to U.S. Sentencing Guidelines Manual

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

about these drug quantities were not credible, but this court

“defers to the district court on credibility determinations

unless they are without foundation,” United States v. Pruitt,

156 F.3d 638, 647 (6th Cir. 1998) (quotation marks omitted),

and the record does not demonstrate that the testimony was

“without foundation.” Regarding the enhancement for being

a leader or organizer, the district court heard abundant

testimony that Angel was the leader or organizer of many

people as part of a large drug distribution ring in Ohio. We

again have no reason to question the credibility determination

of the district court.

Angel’s third argument, regarding the district court’s

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

delivered to him. In his pro se brief, Angel points to nothing

that demonstrates that the district court’s determination

regarding the credibility of these witnesses was “without

foundation.” See id.

Angel’s fourth claim, that he was deprived of due process

because of prosecutorial misconduct, lack support in the

record. One of his contentions is that the government

knowingly presented perjured testimony both to the grand

jury and at trial. “[A] conviction obtained through the

knowing use of perjured testimony is fundamentally unfair,

and must be set aside if there is any reasonable likelihood that

the false testimony could have affected the jury.” United

States v. Agurs, 427 U.S. 97, 103 (1976). But the allegedly

perjured testimony presented to the grand jury was not offered

at trial, and therefore could not have affected the jury’s

verdict. As to the testimony presented at trial, Angel

contends that the testimony of one of the government’s

witnesses was inaccurate and internally inconsistent. Even

assuming for the sake of argument that Angel is correct, there

is no evidence in the record to demonstrate that the

government had any knowledge that the witness’s testimony

was false.

Angel also contends that the prosecution withheld

exculpatory information from the grand jury. The

government, however, has no judicially enforceable duty to

provide a grand jury with exculpatory evidence. United

States v. Williams, 504 U.S. 36, 47 (1992). 

Angel’s final allegation of prosecutorial misconduct is

based upon his argument that the prosecution failed to

disclose exculpatory evidence to him, in violation of Brady v.

Maryland, 373 U.S. 83 (1963). But the prosecutors in this

case had an open file policy, allowing the defense to view all

relevant materials in the government’s possession. The

government also credibly contends that the evidence

discussed by Angel either was in fact provided to him or does

not exist.

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

Angel’s fifth contention is that the evidence was

insufficient to support an obstruction-of-justice enhancement.

A district court’s decision to impose an obstruction

enhancement must be sustained unless clearly erroneous.

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

Cir. 2002). An obstruction enhancement is appropriate where

a defendant directly or indirectly threatens, intimidates, or

otherwise unlawfully influences a codefendant, witness, or

juror, or attempts to do so. U.S. Sentencing Guidelines

§ 3C1.1, cmt. n.4(a). 

In the present case, the district court based its enhancement

on the facts set forth in the Presentence Report, which states

that Angel offered Wainscott $50,000 to kill a government

witness. Angel allegedly told Wainscott to use one of the

rifles that Angel had stored at his residence. After Angel

made the offer, Wainscott tore out a page of a phone book

that listed the witness’s name and phone number and sent the

page to his mother, presumably as proof of Angel’s offer.

Government agents corroborated Wainscott’s story by

(1) recovering the torn page from Wainscott’s mother,

(2) discovering that a phone book in the jail where Angel and

Wainscott were in custody was missing the page with the

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

to a search warrant, in the area indicated by Wainscott. In

light of this corroboration, the district court did not clearly err

by adopting the facts from the Presentence Report. 

The facts accepted by the district court, moreover, were

sufficient to support an obstruction-of-justice enhancement.

This court has upheld obstruction enhancements based upon

conduct far less serious than Angel’s. See, e.g., United States

v. Bingham, 81 F.3d 617, 632 (6th Cir. 1996) (upholding an

obstruction enhancement where the defendant wrote letters to

his girlfriend attempting to persuade her to testify falsely);

United States v. Moss, 9 F.3d 553-54 (6th Cir. 1993)

(upholding an obstruction enhancement where the defendant

solicited a codefendant to bribe a witness). This precedent

persuades us that the district court did not clearly err by
Nos. 02-3320/3321 United States v. Angel 21

imposing an obstruction enhancement based upon Angel’s

attempt to murder a government witness.

Angel’s sixth and final contention is that he was deprived

of his Sixth Amendment right to a jury trial when the judge

determined the relevant drug quantities at sentencing. The

Supreme Court has held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted

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

v. New Jersey, 530 U.S. 466, 490 (2000). In the present case,

the jury returned a supplemental verdict finding that Angel

had conspired to distribute, and conspired to possess with the

intent to distribute, at least 5 kilograms of cocaine and 1000

kilograms of marijuana. The jury’s finding mandated a

sentence of between 10 years and life in prison. See 21

U.S.C. § 841(b)(1)(A). 

Angel was sentenced to 360 months in prison, which is

within the range mandated by the jury’s verdict. Both the

United States Supreme Court and this court have held that

Apprendi applies only where a judge imposes a sentence

exceeding the range authorized by the jury’s verdict. See

Ring v. Arizona, 536 U.S. 584, 588-89 (2002) (stating that

Apprendi “held that the Sixth Amendment does not permit a

defendant to be expose[d] . . . to a penalty exceeding the

maximum he would receive if punished according to the facts

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

(quotation marks omitted); United States v. Corrado, 227

F.3d 528, 542 (6th Cir. 2000) (holding that Apprendi does not

apply where the court sentenced the defendants to prison

terms that were no greater than the 20-year term authorized by

the jury’s verdict); United States v. Chapman, 305 F.3d 530,

535 (6th Cir. 2000) (“Apprendi has never been held to apply

to every fact that increases the defendant's sentence within the

rubric of the guidelines.”). 

In the present case, the jury’s verdict authorized a

maximum punishment of life imprisonment. Angel’s

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

sentence of 360 months therefore renders Apprendi

inapplicable. We also note that Angel now faces a potential

sentence of greater than 360 months because we are reversing

the two-point reduction for acceptance of responsibility. So

long as the new sentence imposed by the district court does

not exceed life imprisonment, however, the sentence will be

within the range authorized by the jury’s verdict.

D. Downward departure for acceptance of responsibility

The district court granted Angel a two-point sentence

reduction for acceptance of responsibility pursuant to U.S.

Sentencing Guidelines § 3E1.1(a), which provides: “If the

defendant clearly demonstrates acceptance of responsibility

for his offense, decrease the offense level by 2 levels.”

(Emphasis in original.) “To qualify for this reduction, the

defendant bears the burden of showing by a preponderance of

the evidence that he or she has accepted responsibility for the

crime committed.” United States v. Williams, 940 F.2d 176,

181 (6th Cir. 1991). “The sentencing judge is in a unique

position to evaluate a defendant’s acceptance of

responsibility. For this reason, the determination of the

sentencing judge is entitled to great deference on review.”

U.S. Sentencing Guidelines § 3E1.1, cmt. n.5. The district

court’s determination regarding acceptance of responsibility

must be sustained unless clearly erroneous. United States v.

Webb, 335 F.3d 534, 537-39 (6th Cir. 2003).

The government contends in its cross-appeal that the

acceptance-of-responsibility reduction is not available to

Angel because he went to trial to challenge the factual

elements of the government’s case. An application note to

§ 3E1.1 states that “[t]his adjustment is not intended to apply

to a defendant who puts the government to its burden of proof

at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.”

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

exception to this rule in “rare situations,” such as “where a

defendant goes to trial to assert and preserve issues that do not
Nos. 02-3320/3321 United States v. Angel 23

relate to factual guilt (e.g., to make a constitutional challenge

to a statute or a challenge to the applicability of a statute to

his conduct).” Id. But the note cautions that even in these

rare situations, “a determination that a defendant has accepted

responsibility will be based primarily upon pre-trial

statements and conduct.” Id. 

This court emphasized the significance of pretrial

statements and conduct that express remorse in United States

v. Williams, 940 F.2d 176 (6th Cir. 1991), where the

defendant had sent a letter expressing remorse to the district

judge only after conviction. The district court in Williams

granted the sentence reduction, but this court reversed on the

ground that the defendant’s expression of remorse came too

late, stating: “A letter sent prior to sentencing but after

conviction does not reflect the type of timely acceptance of

responsibility envisioned in the Sentencing Guidelines.” Id.

at 182. This court also emphasized that “where, as here, the

defense consists of a denial of criminal conduct, the reduction

is not appropriate.” Id. at 182. Like the defendant in

Williams, Angel went to trial to deny all criminal conduct and

admitted responsibility for his crimes only after he was

convicted. Moreover, Angel’s remorse was not spontaneous,

but came at the suggestion of the district judge. Comparing

the facts of Williams to the facts of the present case leads us

to conclude that the district court clearly erred by granting

Angel a reduction for acceptance of responsibility.

The government next contends that the district court clearly

erred by granting the reduction because Angel also received

a sentence enhancement for obstruction of justice pursuant to

U.S. Sentencing Guidelines § 3C1.1. An application note to

§ 3E1.1 (Acceptance of Responsibility) states that “[c]onduct

resulting in an enhancement under § 3C1.1 (Obstructing or

Impeding the Administration of Justice) ordinarily indicates

that the defendant has not accepted responsibility for his

criminal conduct. There may, however, be extraordinary

cases in which adjustments under both §§ 3C1.1 and 3E1.1

may apply.” § 3E1.1, cmt. n.4 (emphasis added). The

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

defendant has the burden of proving the extraordinary nature

of his or her case. United States v. Mahaffey, 53 F.3d 128,

135 (6th Cir. 1995). We review de novo a district court’s

determination that a case is extraordinary. United States v.

Gregory, 315 F.3d 637, 640 (6th Cir. 2003), cert. denied,

Lockhart v. United States, 72 U.S.L.W. 3239 (U.S. Oct. 6,

2003) (No. 02-11164).

This court’s decision in Gregory provides an instructive

example of circumstances where an acceptance-ofresponsibility reduction is appropriate despite an obstructionof-justice enhancement. According to the court in Gregory,

“[a]ppropriate considerations for determining whether a

reduction is warranted include the defendant’s truthful

admission of the offense conduct, the defendant’s voluntary

assistance to authorities in resolving the offense, and the

timeliness of defendant’s conduct in affirmatively accepting

responsibility for his actions.” 315 F.3d at 640. The court

concluded that a reduction was warranted because Gregory

confessed a week after committing the crime, agreed to

cooperate with federal authorities, urged his sister—who was

also involved in the crime—to cooperate as well, and pled

guilty. Id. Although Gregory had initially obstructed justice

by attempting to persuade his sister not to talk to federal

officials, “he effectively undid that conduct” by calling her

the next day and “urging her to cooperate.” Id. The court

emphasized that “[a]ll of his obstructive conduct predated his

indictment, and he has never denied his own responsibility

and guilt.” Id. at 641.

In contrast to Gregory, several decisions of this court

illustratecircumstanceswhere an acceptance-of-responsibility

reduction is not appropriate. One is United States v. Rapanos,

235 F.3d 256 (6th Cir. 2000), vacated on other grounds by

533 U.S. 913 (2001), where the defendant went to trial to

challenge the applicability of a statute to his conduct rather

than to challenge the factual elements of his guilt. This court

reversed the district court’s grant of the reduction, noting that

the defendant’s pretrial conduct—ignoring cease-and-desist
Nos. 02-3320/3321 United States v. Angel 25

orders from government agencies, refusing to fill out required

paperwork, and refusing to provide requested financial

information to a probation officer—did not clearly

demonstrate acceptance of responsibility. Id. at 260-61.

Similarly, in United States v. Wilson, 197 F.3d 782 (6th Cir.

1999), the defendant received an obstruction enhancement for

lying about his legal name to the probation office and

magistrate judge in the course of a plea agreement. This court

affirmed the district court’s decision to deny an acceptanceof-responsibility reduction. Despite the fact that the

defendant had pled guilty, this court emphasized that he “had

no right to mislead the court and the probation office about

his birth name and criminal history.” Id. at 787. Finally, in

United States v. Mahaffey, 53 F.3d 128, 135 (6th Cir. 1995),

this court upheld the district court’s decision to deny an

acceptance-of-responsibility reduction because the defendant

also received an obstruction enhancement for “making false

statements during his grand jury testimony.”

Like the defendants in Rapanos, Wilson and Mahaffey,

Angel obstructed justice and made no effort to repudiate that

obstruction. Angel would not even admit to the district court

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

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.

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

In sum, we conclude that the government is correct in

asserting that the sentence reduction was inappropriate.

Angel is precisely the type of defendant mentioned in the

notes to § 3E1.1 “who puts the government to its burden of

proof at trial by denying the essential factual elements of

guilt, is convicted, and only then admits guilt and expresses

remorse.” U.S. Sentencing Guidelines § 3E1.1, cmt. n.2. As

in Williams, Angel’s expression of remorse came too late.

Angel’s case, moreover, does not present the kind of

extraordinary circumstances where both allowing an

acceptance-of-responsibility reduction and imposing an

obstruction enhancement is appropriate. See U.S. Sentencing

Guidelines § 3E1.1, cmt. n.4. Although the district court’s

desire to grant the reduction in order to allow Angel to avoid

a life sentence is perhaps understandable, the decision cannot

be sustained under the Guidelines.

III. CONCLUSION

For the reasons set forth above, we AFFIRM Angel’s

conviction, REVERSE the district court’s two-level

reduction for acceptance of responsibility, and REMAND for

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

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

DAMON J. KEITH, Circuit Judge, concurring in part,

dissenting in part. I join the court’s opinion in Parts II.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 (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 13 (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

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

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 (citing Martin v. Texas, 200 U.S. 316, 321 (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 (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 (emphasis 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 DICTIONARY24 (6th ed. 1991). Specifically,

the majority looks to the criminal law in an attempt to

circumscribe the conduct at issue. Op. at 17 (“The criminal

law, for example, has long recognized that ‘[t]he mere
Nos. 02-3320/3321 United States v. Angel 29

1

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 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 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. 

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 (1971).1 Thus, the misuse

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

2

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.

of a peremptory challenge, properly considered, occurs when

there is an abuse of the principles of equal protection that

“prohibit[] all forms of 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 lie; the Equal Protection Clause is not selfcorrecting. 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 (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
Nos. 02-3320/3321 United States v. Angel 31

3

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

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.

4

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 12. 

the case.” Batson, 476 U.S. at 99 n. 24.3 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 12. 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 candidates 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

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

5

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 15. 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

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 (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

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

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 14. 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 14. 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. 

6

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

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 (1991)). 

Like Nelson, the defense attorney in this case wanted to

include Chandler, or to 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. Feeney, 442 U.S. 256, 279 (1979)

(explaining the showing needed for a finding of

discriminatory purpose).6 And by failing to strike Chandler

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

procedures used in the Northern District of Ohio.” Op. at 15 (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 16 (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 nondiscriminatory criteria” and

the attorney acted improperly. 

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 (citing

Loving v. Virginia, 388 U.S. 1 (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 (1989) (holding that governmentally conferred
Nos. 02-3320/3321 United States v. Angel 35

7

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 14.

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. 

benefits based on race, just like detriments, can be offensive

to the Equal Protection Clause).7

The majority next argues that “[a]dopting Angel’s

argument would also undermine a defendant’s Sixth

Amendment right to the effective assistance of counsel.” Op.

at 16. 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. 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

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

minority on the jury would outweigh the potential negative

impact of that juror’s generalized opinion of the drug laws.”

Op. at 16-17. 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 state- sponsored group

stereotypes rooted in, and reflective of, historical prejudice.”

J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 128 (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

(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” maybe

used to outweigh the negative aspects of choosing a particular

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

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

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. 

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 17.

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, “[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.

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

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-acceptable “evil

thoughts.”

Therefore, I respectfully dissent.