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### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff- Appellant / Cross-Appellee,

v.

A LFONS O G. ANGEL , Defendant-Appellee/ Cross-App ellant. 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

Befor e: KEI TH, DAUG

HTREY, a

nd GILMAN , Circuit Judges.

_________________ COUNSEL

ARGUED: Jeffrey

P. Singdahlsen, UNITED STATES DEPARTMENT OF JUSTICE, CRIMI NA L DIVI SION, W as hington, D.C., for Appellant. Susan M. Damplo, 2 United States v. Angel Nos. 02-3320/3321

Ar ds le y, New York, for Appellee. ON BRI EF: Joseph R. Wilson, ASSISTANT UNI TED S T ATES ATTORNEY, Toledo, Ohio, Monica S. Abrams, UNITED ST ATES DEPARTMENT OF JUSTICE, CR IMI NAL DI VISI ON, Washington, D.C., for

A ppellant. Susan M. Damplo, Ardsley, Ne

w York, for Appellee.

GIL MA N , J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KEITH, J. (pp. 27-38), delivered a separ ate opini on concu

rring i n part an d dissentin

g in par t.

_________________ OPINION

_________________ RON ALD LEE G

IL MAN, Circ

uit Judge. A jury convicted AlfonsoAngel o f conspir ing to bot h possess and d istribute
c ocain e and mari

juana, a ll in violat

ion of 21 U .S.C. §§ 841(a)(1) and 846. The district court sentenc ed Ange l to 360 months in prison, followed by 10 y ears of supervised release. On this dir

ect appe al, Ang el’s a

ppel late counsel
c ontend s that (1) Angel’s trial counsel and the district court allowed a biased m emb er of

th e j ur y po ol to si t o n t he ju ry, an d (2) Angel’s trial counsel engaged in unconstitutional discrimination by p

urposef ully all owin g this person, a member of a raci al mi no ri ty, to re ma in on th e j ur y. Moreover, Angel has raise d six additional issues i n his pro se brief concer ning hissentence and allegationsof prosecutorial misconduc

t. The United States has cross-appealed, contendingt hat the district court committed clear error by reducing Angel’s offense level by two pointsfor acceptance of responsi bility pursuant

to United St

ate s Sentencing Guidelines § 3E1.1, de spite the f act that A ngel we nt to trial to chall enge the essential factual elements of guilt, a ttempted t

o have a government

witness killed, and expressed no remorse until the district court suggested it as a way to avoid a life senten ce. For the reasons set forth below, we AFF IR M Angel’s conviction, REVERSE the district court’s two-levelNos. 02-3320/3321 United States v. Angel 3

reduction for acceptance of re sponsibility, and REMAND for resent encin g.
I. BACKGROUND A. Jury selection issues raised by Angel’s counsel Angel’s first two arguments on ap peal involve one particular juror, Delores Chandl er, wh o served as the foreperson

of the jury that

convicted Angel. Theparties have stipulated that Chandler is African-American. Du ri ng jury selection, the following exchange occurre d between Cha nd ler and the magistrate judge:

THE COURT: And in looking at your questionnaire, one of the very important questi ons is whether or not you would be able to serve on the jury if the trial were to l ast fromthree to six weeks. Andyour response was that you
are n ot able to sit on the jury. Have y ou ha d a n opportuni ty to think about that response recognizing that it’s an importa

nt obliga tion of cit i zen ship to serve on a jury when ca lled, and it certa inly is in convenient for every one? Are y

ou willing

to serve if you are selected?

CHANDL

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

THE COURT: Well, if you were selec ted wo uld y ou thenhold it

against either of the parties? Would you hold it against the government or the def endants if you were selected to serve?

CHANDL

ER: No, I would no t. I would not hold that against the par

ties or the gover nment.
THE COURT : Or ag ainst the C ourt?

CHANDL

ER: Or ag ainst the C ourt. 4 United States v. Angel Nos. 02-3320/3321

THE COURT : Al l right. You’ve indicated that y ou don’t want to serve, but do you recognize and

agree that it is an important

service that we a

re all re quired to perform from time to time?

CHANDL ER: I reco gnize that if I have to do it, I ’ll do it. That’s all I recog

nize.

THE COURT: All right. Could you tell us if it is not sucha great invasion of y

our privacy as to why you ’re so reluctant to serve?

CHANDL

ER: I just I don ’t want to

stay here in Toledo. Ilive 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 eve

ry person is equa

l and every

person is entitled to equal pr o tection of the laws, and it’s importantto have jurors from various areas represe nting various b ackgr

ounds?

CHANDL

ER: Yes. I

understa nd that. I just

don’t want to do it. Bu

t I pe rfectly understa nd that.

THE COURT: And

even t hough you

don’t wa nt to do it, you will agr ee to do it ?

CHANDL

ER: Yes.

THE COURT: A

nd if you were se lected to

serve a s a juror, could y

ou come in

to court and serve with an open mind?

CHANDL

ER: Yes.

THE COURT: And listen to the evidence that’ s presen ted he re in co urt an d the i nstru ction s of th e judge
as to the law

to be appl ied in thiscase, and would you follow tho se instruc

tions?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 o nl y co ncern, and I de tect maybe

– I don’t know y

ou, but it seems like there’s a little level of anger okay , and it ’s at the situation rather than – y ou wouldn’t h

old it ag ainst my

client, Mr. Angel, or any of the defe ndants?

CHANDL

ER: No. No, I wouldn’t. I might sound like that. It’s bec aus e I d on’t wan t to be here. That’s the
on ly – [. . .]

WITTE NBERG: [. . .] You’ve

seen the panel, c orrect ?

CHANDL

ER: Yes.

WITTENBERG: So it’s important if w e can g et some minority representation on

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

erstand the way we fee l?

CHANDL

ER: Yes.

WITTENBERG: So I could be assured that if you were chosen that given the other problems that are associate d 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 wee ks, you could give my cli ent a fa ir and impar tial hearin g?

CHANDL

ER: Yes.

WITTENBERG: And if you wer e firmly convince d of your opinion, y

ou would ke ep that a

nd not just

chang e to
ma ke th e o th er te n o r 1 1 h ap py? 6 United States v. Angel Nos. 02-3320/3321

CHANDL

ER: No, I

wouldn’t.

WITTE NBERG: I

believe you wouldn’t.

After Wittenber

g finished his que stions, the lawyer f or one of Angel’ s codefe

ndants, in

an appa rent atte mpt to avoid Chandler be in g c ha ll en ge d b y the gov ernment , asked h er if she would “be

fair to the United States government in hearing their evidence.” “Yes, I

would,” Chandler replied.

Another defense lawy

er then aske d Chandle

r to “ela borate
a little bit on what your views of the drug laws are,” based upon o ne of her responses to the juror questionnaire f or m indicating that

the drug laws shou

ld be more

strict. Chandler replied : Well, Idon’t know too much about them, but from what Ihear is, like, the first time you get off, y oupay a fine

or somet hing, and then the n ext time something else, and thenfinally

you get ar ound to being punished. So I think if you took c are of it the f irst time, t

here pr obably wouldn’t be a second and third.

The def ense lawye

r followed up by a sking her what the punishm ent

should be “the first time someone gets caught with drugs . . . .” Ch andler re sponded: “Whatever the punishment is.”

B. Pro se issues

The six issue s raised

by A ngel in h is pro se b

rief all relate to either his sentence or to the a lleged mi sconduct of the prosecutor. Rather than set forth the factual background for theseissues here, the relevant facts are discussed as part of the analysis in Part I

I.C. below.Nos. 02-3320/3321 United States v. Angel 7

C. The government’s cross-appeal

At the second of three appeara nces in connec

tion with Angel’s sentencing, the district court raised the possibility of Angel receiving a sentence re duction by ac cepti ng responsi bility pursuant to U ni ted States Sentencing Guidelines § 3E1.1. “I don’t think the defendant’s deserving of a life sentence,” the cou rt stated. “A 30-year sentence may be also is severe.” The court then sugg ested that “to the extent I’m able to do so, to give him cre dit for truly acc epting responsi bility . . . . I will consider

tha t. The fact that he put the government to its proof and that it was a lon g an d protracted

trial doesn’t matter to me.” Af ter makin g this suggestion, the court postponed the sentenc ing hearing to give Angel a chance to discuss the issue with his lawy er.
When th e sentencing hearing re sumed, Angel made the following statemen t to the co urt: I understand the conseque nces that I face a nd that I owe
a respons ibility for the actions which I have, which I have done. I

accept responsi bility . Well, I ’ll get to that in a minute.

I’m sorry for be ing here on the judgment of thi s honorable court and regre t doing so. I see the

mistake I hav e made and the great cost to every body involved. I broke the law of my countr y, and for tha

t I sh all be punished and separa ted from m

y f amily and loved

ones.
After this general ad

mission of r

esponsibi lity , the following dialogu e occur red between Ang el and the court:

ANG EL: I would like to admit my guilt of the elements of the indictment, sir.

THE COURT: Each and every count of which you

were fo un d g ui lt y? 8 United States v. Angel Nos. 02-3320/3321

ANG EL: Well, there are some I don’t approve of, but at this position, I have to ad mit to all of

them. Angel then admitted that

he was involved in the acquisition and distribut io n 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 de tailed description of his drug-distribution network. Although Angel denied a ny direct involvement

in one particular transaction involving 55 kilogra ms of cocaine, he s aid he understood that he was legall y responsi ble for the tran saction. Angel also admitted t hat he was in

volved in d

rug tra nsaction s bey

ond those charged in the present case. The court concluded that Angel had admitted t

he condu ct “attr ibuted to h

im in the ind

ictment” and had also a

dmitted tha

t “the all egation s again st him brought by t he gove rnment d id no t encompa ss all of hi s activities.”

After Angel a t least pa rtially admitted h

is involv eme nt 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 Wains cott, $50,000 to kill one of the governmen t’s w itnesses a

gainst Angel. Wainscott informed the FBI of the inc ide nt, and subsequent

inv estigation confirmed some of the details of Wainscott’s story.

Based onthis attempted

murder, the district court enhanced Angel’s sentence by

two points for obstruction o f j ustice, pursuant to U.S. Sentencing Guidelines § 3C1.1. Wh en the court as ked Ang el to admit

responsi bility for this c onduct, however, Angel denied

aski ng Wainscott to murder the government

witness. Despite A nge l’s denia l, as well as his reluctance to disclose h is involvement with the cocainetrafficking

establi sh ed at trial, the district court found that Angel qualified for a

two -point sentence reduction for acceptanceof responsibility. Both Ang el and the government have fil ed timely

notices o f appea

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

II. ANALY SIS

A. Juror bias Angel contends

that juror Chandler was biase d again st

him, andthat both his trial counsel and the district court erred by allowing C ha nd le r t o r em ai n o n t he ju ry. To demons trate ineffective assistanc e of coun sel, a de fendant must show that his attorney’s c onduct “fell below an objective standard o f
reaso nablen ess,” and that “ there is a reasona ble proba bility that, butfor coun sel’s unprofessional err ors, the r esult of the proceeding

would have been d iffere nt.” Strickland v. Washington
, 466 U.S. 668, 688, 694 (1984). This court has also stated that [c]ounsel is also accorded particular defer ence when conductingvoir dire. An attorn ey 's a ction s duri ng voir dire are considered to be matters of trial strateg y. A strategic decision cannot be the basis for a claim of ineffective assistanc e unlesscounsel' s decision is shown to be so ill-chosen that it permeates the entire t rial wi th obvious un fairne ss. Hughes v. United States , 258 F.3d 453, 457 (6th Cir. 2001).

We will generally

“not addr

ess on dir ect app eal claims of ineffective assistance unless therecord has been sufficie ntly developed

to provide

meanin gful factual review.” United St ates v. Brown , 276 F.3d 211, 217 (6th Cir. 2002), cert. denie d
, Scruggs v. United States , 535 U.S. 1079. Direct appeal is the appr opria

te forum, however, for ineffectiveassistance claims that either depend entirely uponfacts within the record or that present purely

legal questions. See United States v. Wunder , 919 F.2 d 34, 37-38 (6th Cir. 1990) (considering

ineffective-assistance claims on direct re view wher e the claims were based entirely on facts withi n th e record and/or c ould be re solved as a matter of law); cf. United States v. Ne uhausser , 241 F.3d 460, 474 (6th Cir. 2001) (refu sing to consider ineffective-assistance claims on direc t 10 United States v. Angel Nos. 02-3320/3321

review where claims were based on fac ts outside the record or where the evidence in the record wasnot adequ ate to establi sh ineffective assistance as a matter of la w).

Inthe present case, the record is ade quate t o allow us t o address Angel’s claims. T

he fact s underly

ing both claims are undisputed

and conta

ined enti rely with in the record. Angel does no t s ug ge st th at he wi ll be ab le to de ve lo p a ny furthe r evidence on collateral review. His claim of unconstitutional discrimina tion, moreover, presents the following pure questionof law: Does the Equal Pro tection Cl ause prohibit a defense at torney from pur

posefull y a llowing a person to remain on the jury beca

use of that person’s rac e? No add itional facts are necessary for the panel to resolve tha t question.

Becau se Angel’ s claim

of error by

the district court is being raised for th e first

time on ap

peal, we will apply

the “pla in 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. C r im. P. 52(b). Under plain-error review, the appel lant mus t show (1) that there was an error, (2) that is clear and obvious, and (3) t hat a ffects 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 af

fects the fa ir ne ss , i nt eg ri ty, or public reputation of judicial proceedings.” Id. (citations and quotation marks omitted). This court has recognized that districtcourts have “broad discretion” in conducting voir dire. Hughes
, 258 F.3d at 457. Angel must demonstrate that Chandler was actually biased inorder to prove either that he was prejudiced by

the alleged ineffe ctiv e assi stance 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 a s 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
we eks. T hat’s the main reason.” Contrary to Angel’sNos. 02-3320/3321 United States v. Angel 11

arg ument, this comme

nt demonst

rated no thing mor

e th a n Chandler’s gener

al u nwilli ngness to serve on the jury . The comment does not de

monstrate that Chand

ler was a ctually biased a gainst A ngel.

Chandler also stated during voir dire that she believed that the drug laws should be more strict. Angel contends that

this statement demo nstrates that Chandler was actually biased againsthim. The S upreme Court, how ever, ha s held tha t a juror is impartia

l “if the juror can lay

aside his impression or opinion and

render a verdict based on the evidence prese nted incourt.” Irvin v. Dowd

, 366 U.S. 7 17, 723 (1 961). In the present case, Chandler said that, if selected, she “would not hold [it] against the [defendants] or the government,” coul d
come into co urt with an open mind, and could listen to the evidence and follow the judge’s instructions. She told the various de fe ns e a tt or ne ys that she would give Angel a fair and impartial hearing

and would

also be f air to the gover nment in hearing its evidence. C han dler, in other words, assured the lawyersan d 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 Cour

t and this court, moreover, have found no actual bias where the evidence of b ias was much stronger thanChandler’s general opinion about the drug laws. See Patton v. Yount , 467 U.S. 1025, 1029-30 (1984) (holding that the trial cour

t did no t commit manifest error by f inding the j urors to b e imparti al, even though e ight jur

ors admitt

e d that, due to pre

trial publ icit

y , “at some

time [prior

to trial] they had formed an opinion as to [def en dant’s g

uilt]”); see also United Sta tes v. Pe

nnell , 737 F.2d

521, 529-30 (6th Cir. 198 4) (holding that there was inadequate evidenc e of actual bias where five jurors received threatening, late-night phone calls telling t

hem to find

the defe ndant g u ilty, and one juror stated that the phone calls might influence her judgment in the case). If the

evidence in Patton and Pennell was not a dequate to esta blish actu al bias, then Chandl er’s g eneral comments about the drug laws were

certainly not suff

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

therefore failed to demonstrate either that his trial counsel’s failure to chall enge Chandler “permeate[d] the entire trial with obvious unfairness,” Hughes , 258 F.3d at 457, or that

the districtcourt committed

plain error

by a llowing Chandler

to
se rv e o n t he ju ry. B. Discrimination in jury selection Ange l next

contends

that his tr

ial couns el enga

ged in unconstitutional di sc ri mi na ti on by p ur po se fu ll y including Chandl er o n the jury beca

use of her race. This allege d discrimination, Angel a rgues, supports h

is cl aims of ineffective assistance of counsel and error b y the district court. Although the “plain erro r” standard of review gener ally applies to claims raised for the first time on appeal, Johnson
, 520 U.S. at

466-67; Page , 232 F.3d a t 543; Fed . R. Crim. P. 52(b), any

racial d iscriminati on in jury selection constitutes s truct ural er

ror that r equires automatic

revers al. See Avery v

. Georgia , 345 U.S. 559, 561 (1953) (holding that jury selection based on race warra nts reversal of

a conviction regar dless of the str

ength o f the evi dence presente d); Vasquez

v. Hillery , 474 U

. S. 254, 263-64 (1986) (holding that racial discrimi n ationin the selection of grand jurors is structural error that requires automatic reversal). Engaging i n racial discrimination during the exercise of peremptory

challenges violates t

he equa l protec tion rig

hts of both the defe ndant a nd the challenged juror. I n Batson v. Kentucky
, 476 U.S. 79, 89 (1986), the Supreme C ourt held that “the Equal Protection Clause forbids the prosec

utor to chall enge poten ti al jurors solely on ac count of their race.” Alth ough Batson based its h oldi ng o n th e Equal Protection Clause of the Fourteenth Amendment, which does not apply to actions of the federal governme nt, Batson applies to

federal court procee dings throu gh the equal protection component of the Fift h Amendmen

t’s Due Pr

ocess Clause. See Buckley v. Valeo
, 424 U.S. 1, 93 (1976)(“Equa l protection anal

ysi s in the Fifth Amen dment are a is the same as that under the Fourteenth Amendment.”)Nos. 02-3320/3321 United States v. Angel 13

Defens e attorne

ys, like pros e c utors , may not c halle nge potential jurors be cause of their race. Georgia v. McCollum
, 505 U.S. 42, 59 (199 2). Angel contends that his equal protection

rights were violated when his counsel rejected an
un specified

“otherwise qualified, white juror to make r oo m for [Chandler] as a minority juror” and pur posefully included Chandler on the jury be cause of her race. Angel’s argume

nt that his trial counsel rejected an “otherw ise qualifie d, white

ju ror” fits within the BatsonMcCollum framework, whic h prohibit s defens e att or ne ys from excluding

jurors on

accoun t of their race. B ut this argument lacks support in the record. Angel does not contend that his tr ial co unsel exer

cised pe remptory challen ges to
excuse anyju ro r w ho wa s p la ce d i n t he ju ry box prior to Chandler, much les s An gel’s h ypothetical

“otherw

ise qualified, whi te juror.” This argument is therefore unpersuasive. Angel’s alternativ e argument—that equal protection prohibits a d ef en se at to rn ey f

ro m using r

ace as a reason t o leave a minor ity on the jury—is questionable as a matter of law. He cites no case that directly supports his contention. Instead, Angel a

rgues t hat Batson , M

cCollum , and the Supreme Court’s other jury-discr

imination cases stand for the general proposition thatthe Constitution prohibits anyracial discrimination in the selection of jurors. The government, on the other hand, contends that no precedent supports Ang el’s argume nt, and that “[t]he thrust of [the Supreme Court’s cases dealingwith discrimination in jury selection] is to e n sure minority represe

ntation on juries.”

We agree that Bats on 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 actis accompanied

by the intent

to discriminate on the basis of race. See Batson , 476 U.S. at 89 (“[T]he Equal Protectio n 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 Const

itut ion prohibits a criminal defendant from engaging in purposef

ul 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 sim ply decided not to cha llenge Chandler. We find
no support

for the propo sition that

a defen se attorney ’s

failure to challenge a

juror, even

if motivated by rac e, implicates the equal protection rights of either the juror or the de fendant.

We note that

the disse

nt cites Batson for the gene ral prop os ition that “the defendant [has] the right to be tried by
a jury whose me mb ers are selecte d pursuan

t to nondiscriminatory

criteria.” Dis. Op. at 28 (quoting 476 U.S. at 85). Although that is a corre ct st atement of the law, the problemwith

applying Batson —or any other equal protection preced ent—to the present case is that Angel’s trial counse l did not select any juror

. Angel’ s counsel , in fact , enga ged in
no af fi rm at iv e a ct to co nt ro l w ho sa t o n t he ju ry.
All prior cases, including those cited by the dissent, have found equal pr

otection violations

only where s ome affirmative, discriminato ry a ct was involved. Batson and McCollum
, for example, do not prohibit prosecutors or defense attorneys fr

om having racially

based thoughts

. Those
cases instead prohibit the act of exercising a peremptory chall enge where that act is motivated solely by the prospective juror’s race.

I n Cityof Richmond v. J.A. Croson , 488 U.S. 469 (1989), for example, the Supreme Court struck down the City of Richmond’s plan that

“requir ed prim e cont ractors to whom the city awarde d constru

ction con tracts to subcontr act at le ast 30% of the dollar amount of the contract to one or more Minori ty Bu siness Enterprises (MBE’s).” Id. at 477. Like the lawyers w

hose conduct was at issue in Batson an d McCollum
, the City of Richmond engaged in an affirmative,Nos. 02-3320/3321 United States v. Angel 15

discrimina tory

act—specifically , imposing the set-aside require ment upon prime con

tractors.
Si mi la ry, in United States v. Nelson , 277 F.3d 164 (2d Cir. 2002), the Second Circuit concluded that the district court

had acted improper ly by making a

n affirmative attempt

to alter the racial composition of the jury . For e xample, “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, rem oved a second (white) juror from the panel and fill ed the two spaces t his created with an African-American juror and w ith [a] Jew is h [j]uror.” Id. at 172. Nelson clearly did not involve a district court’s fa il ur e t o a ct . T o t he co nt ra ry, t he alleged equal protection

violation was the affirmative (and overzealous) act of the dis trict cou

rt.

T he dissent also points to the following language f ro m Davisv. School District of City of Pontiac , 309 F. Supp. 734, 741- 42 (E.D. Mic

h. 1970): “

When the power to ac

t is available, the failure to take th e neces sary steps so a s to negate or alleviate a sit

uation wh ich is harmful is as wrong as is the t aking of affirmative steps to advance that situation. Sins of omission

can be a s serious

as s ins of co mmission.” Dis. Op. at 29. Althoug h this lang

uage, consider

ed in isol ation, appears to support the dissent’s argument that the failure to act can violate equalprotection principles, a review of the facts of Davisdemonst r ates t hat th e quot ed lan guage actually supports our c onclusion in the present case.

In Davis , membe rs of

the schoo l board ha

d “intent ionally utilized the powe

r at their disposal to

locate new schools and arrange boundaries in such a way as to perpetuate the pattern of segre gation w

ithin the City

and ther eby , deliber

ately , in contradiction

of their announced

policies of achieving a racial mixture in th e scho ols, preven ted in tegr ation.” Id. at 741. The equal protection violation in Davis , t h erefore, was not si mply the school boa

rd’s fa ilure to a ct, but its f

ailure to remedy the eff ects of i ts prior affirmat

ive, discriminator

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

See id. at 7 42 (“This Co urt ackn owledg es the re cently enunciated

position that a Board of Educat ion has no affirmative duty to e lim inate segregation when it has done nothing to create it, but this Court find s that the Pontiac Board of Education did a great deal to cre ate the patterns present ly existing within that school district and is now responsi ble to take action

so as to eliminate the very situation whichit caused.”). Davistherefore supports our conclusion that ther e can be no equal p

rotection violation

without some affirma tive, disc riminator y a ct.

Batson , McCollum
, Croson , Nelson
, and Davis all prohib it harmfu l a ffirmat

ive acts underta ken with a

raciall y discriminatory

intent. They do not, however , stand for the proposition that the Constitution’s equal protection guarantee prohibits raciall y based thoughts without

a corre sponding

act. Lawy ers do not sele ct j urors, af te r a ll ; t he y on ly remove prospective jurors. Chandler, for example, was seated on

the jury not because of Angel’s lawy er, bu t a s a re su lt of

th e j ur yselection procedures used in the Northern District of Ohio. Assuming that those procedures are constitutional, Batson ’s requirement

was satis fied bec ause Chandler was in fact “tried b y a jury whose me

mbers [were] selected pursuan t t o nondiscriminatory

criteria.” Batson , 476 U.S

. at 85. Regar dless of Wittenberg’s state of mind, the lack of any affirmative, discriminatory act mea ns that there was no equal protection violation in this case.

Inaddition to t he legal weakness of Ange l’s position, his argument is questionable as a matter of policy . A ll of th e Supreme Court’s ju

ry -discrim

ination c ases to date prohibit both the government and

the defe nse from excluding

potential jurors because of their race. If we were to go be yon d these rulin gs by holding that the F ifth Amendment can be violated whenever a lawy er decides to leave a member of a racial minority onthe jury beca

use of that per son’s ra

ce, we would be flying in the

face of the genera

l policy behind the

Supreme Court’s decisions, which is to allow members of racial minoritie s 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 c oun sel . In a case like the present one, where the defe nse attorney in good fai th belie ves th at the benefi t of ha ving a p a rticular minority juror decide the c lient’s case outweighs any negative aspects of

that juror, the def

ense att orney would nevertheless be required to remove thejurorwith a peremptory

challenge. Thedefense

attorne y, i n other w ords, would be required to act contrary to what he or she perceives to be the best inter

ests of the client. We thus disagree with the dissent’s contentionthat “a r easonab le defense

attorne y with
a client, like Angel, who has a prior drug convi ction, wo uld most likely excuse Ch andle r for ca use or, if a for ca use objectionwas not granted, exercise a p erempt ory chall enge

. . . .” Dis. Op. at 36-37 . To the c ontrary, we find nothing
unreasonablein defen se counse l’ s presumed belief that having at least one racial minority on the jury woul d out weigh the potential negative impa ct o f that juror’s generalized opinion of th e 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.
F ina ll y, Angel’s argument conflicts with the funda mental principle that the law does not prohibit wrongful intent withoutan accompany

ing act. The criminal law, for example, has long reco gniz e d that “[t]he mere ha rboring of an evi l thought, such as the intent to engage in criminal conduct, does notcons ti tute a cr

ime; a cr ime is comm

itted only if the evil thinker becomes an evil doer.” 1 Wharton’s Cri minal Law § 25 (15th e d. 2003). Here, A ngel u rges us to hold that the Constitution’s e qual prot

ection g uarante e requir

es th e revers a l of a convi ctio n simply

because trial cou

nsel alle gedly harb ored the “evil thought” of leaving Chandler on the jur y because she is African American. Neither pre cedent nor policy supports A

ngel’s position, a

nd we re ject it. 18 United States v. Angel Nos. 02-3320/3321

C. Claims raised in Angel’s pro se brief Angel raised the followi

ng six additional argume

nts in his pro se brief: (1) the district court erred in calc u lating the quantity of drug s attribut

ed to him for sentencing pu rposes, (2) the evidence does not support a sentence enhancement for being an organizer or leader, (3) the district co urt e rred in attributing to Angel55 kilogr ams of cocaine discovered in a Jeep Cherokee, (4) prosecutorial misconduct deprived him of due process, (5) the evidence does not support a sentenc e enhancem ent fo r obstruction of justice, and (6) he was deprived of his Sixth Amendment r ight to a jury trial bec ause the district court, rather than the jury , det ermined the drug quantities for which Angel was held responsible.

The first two arguments are easily disposed of

because the districtcourt’s findings are supported by overwhelming evidence. Witnesses testified that Angel was resp onsible for deliveringapproximately 359 kilograms of c o caine, far in
excess of the 150 kilograms necessary for a ba se offense level of 38 pursuant to U.S. Sentencing Guide li nes Manual § 2D1 .1. An gel contends that the witnesses who testified about th ese d rug quantities were not credible, but this court “defers to the district court on c redibi lity 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 t e stimony was “without foundation.” Regarding the enhancement for

being
a leader or organizer, the district court he ard a bundant testimony that Angel was the lead e r or organizer of many people as part of a larg e dru

g dis tribu tion r ing i n Ohio . We again have no reason

to question the credibility determination of the dis trict cou

rt. Angel’s third argument, regarding the district court’s decisionto attribute

the 55-ki logram

seizure to

Angel, is also based upon an evaluation of witness cr e dibility. Witnesses testified that Ange l owned the Jeep Cherokee in which the drugs were found and that the cocaine wa s going to beNos. 02-3320/3321 United States v. Angel 19

delivered to him. I n his pro se brief, Angel

points to nothing that de monst

rates that the district court’s determination

r egarding the credibility of these w itnesses was “w ithou t foundation.” See id. Angel’ s fourth

claim, that he was deprived of due pr ocess because of prosecutorial misconduct, lack support in the record. One of his conte ntions is that the government knowing ly

presented perjured testimony both to the grand jury and at trial. “[A] conviction obtaine d throug h the knowing use of p erjured testimony is fundame ntally unfair, and must be set aside if there

is any rea sonable likelihood that the false testimony could have affected the j ury.” United States v . Agurs , 427 U.S. 97, 103 (1976). But the allegedly perjured testimony

presented to the grand

jury was not offe

red at trial, and therefore could not have aff ected the j ur y’ s verdict

. As to t he testi mony presented a t trial, Angel contend s that the testimony of one of the government’s witnesses was i nacc urate and internally inconsistent. Even assuming for the sake of argument that Angel is correct, there is n o 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 wi t hheld
exc ulpatory

information from the grand jury

. Th e gover nment, however, has no judicially enforceable d

uty to provide a gran

d ju r y with exculpatory

evidence. United States v. Williams , 504 U.S. 36, 47 (1992). Angel’s final allegation of prosecu toria l miscondu

ct is ba sed upon his ar

gument t hat the pr

osecution faile d t o disclose exculpatory

evidenc e to him, in violation of Brady v. Maryland
, 373 U.S. 83 (1963). But the pro secutors i n t his
casehad an open file policy , allowing the defense to view all relevant materials in the government’s possession. The government

also credibly c o nt ends that the evidence discussed by Angel e ither wa s 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 obs truction-of-j ustice e nhance ment. A district court’s decision to impose a n ob struction enhancement

must be sustained unles s clearly errone ous. United States v. Ja ckso n-Randolph , 282 F.3d 369, 390 ( 6th Cir. 2002). An

obstruct ion enhan cement is appropr iate where
a defendant directly

or indirectly threa

tens, intimidates, o r othe rwis e unlawfully influence s a codefendant, witness, or juror
, or att empts to do so. U.S. Sentencing Guidelines § 3C1.1, cmt. n.4(a).

Inthe present

case, the district court based its enhancement
onthe facts set forth

in the Pre sentenc e Report, which states that A ngel offered Wainscott $50,000 to kill a government witn ess. An gel allegedly told Wainscott to use one of the rif l es that Angel had stored at his residence. Af ter Angel made the offer, Wainsco t t tore out a page of a phone book that listed the witness’s name and phone number and sent the page t o his mother, presumably as pr oof of Angel’s off

er

. Government

ag en ts co rr ob or at ed Wa in sc ot t’ s s to ry b y (1) rec ove ring 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 ar ea in di cat ed b y Wai nsc ot t. In light of this corr oboration, the dist

rict cou rt did not c learly

err by adopting the

facts from the Presentence Report.

The facts a

ccepte d by

the distri ct court , mo reov er, were sufficient to support

an obstru

ction-of -justice enhanc ement. 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 obstructionenhancement where the defenda nt wrote letters t o his girlfriend attempting to persuade her to testify falsely

); United States v. Moss , 9 F.3d 553-54 (6th Cir. 1993) (upholding an obstructionenhancement where the defe ndant solicited a c o defendant to bribe a witness). This precedent persuades us th at the district court did not clearly err byNos. 02-3320/3321 United States v. Angel 21

imposing an obstruction enhancement based upon Ange l’s attempt to murder a gover nment witness.
A n gel’s sixth and final contention is that he was deprived of his Sixth Amen dment ri ght to a jury tri al whe n the j udge det ermined

the relevant drug quantities at sentencing . The Supreme Court has held

that “[o]ther than the fact of a prior conviction, any fac

t thatincre ases the

penalty for a cr ime beyond the prescribed statutory maximum must

be submitted to a jury, and prove d beyond

a reasonable doubt.” Apprendi

v. New Jersey , 530 U.S. 466, 490 (2000). In the present case
, the jury returne d a s upplemental verdict finding that Angel had conspire d to distrib

ute, and c onspired

to possess with the intentto distribu

te, at lea st 5 kilograms of cocaine and 1000 kilogra ms of marijuana. The jury ’s finding mandated a sentence of between 10 y ears and life in prison. See 21 U.S.C. § 841(b)(1)(A).

An gel was sentenced to 360 months in prison, which i s within the rang e mandat

ed by the jury ’s v erdict. Both the United States Supr

eme Co urt a

nd this court have held that Apprendiap pl ie s o nl y w her e a judge imposes a sentence exceedingthe range authorized by the jury’s ver

dict. See Ring v. Arizona , 536 U.S. 584, 588-89 ( 20 02) (stating that Apprendi“held

that the Sixth Ame

ndment doe s not perm

it a d ef endant to be expose [d] . . . to a pe nalty exceeding

the maximum he would receive if punished according to the facts reflected in th e j ur y v er dict alone”) (e mphasis in origina

l) (quotationmarks omitted); United Sta tes v. Corr ado
, 227 F.3d 528, 542 (6th Cir. 2000) (holding that Apprendidoes not apply where the court sentenced the def endants to prison terms that were no greater than the 20-yea

r term authorized by the jury ’s verdi ct); United States v. Chapman , 305 F.3d 530, 535 (6th Cir. 2000) (“

Apprendihas never

been he ld to apply to every f act that increases the defendant's sentence within the rubric of the guidelines.”).

Inthe 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 o f 360 month s theref ore ren ders 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 sentenceimpo sed by the district court doe s not exceed life imprisonment, however, the sentence will be within the

range authorize d by

the jury ’s verdi ct.

D. Downward departure for acceptance of responsibility

The district c ourt gr

anted An gel a two-point se

ntenc e re d uctionfor acc eptance

of responsibility

pursuant to U.S. Sentenci ng Gu idelines § 3E1.1(a), which provides: “I f the defendant clearly de

monstra t es acce

ptance o f respon sibility for his offense, decrease the offe nse l ev el by 2 levels.” (Emphasi s i n orig inal.) “To qualify f or this reduction, the defendant bears the burden of showing by a preponde

rance of the evidence that he or she has accepted responsibility for the crimecommitted.” United States v. Williams , 940 F.2d 176, 181 (6th Cir. 1991). “The sentenci ng jud ge is in a unique position to evaluate a defen dant’s a cceptance o f respo nsibili ty. For this reason, the determination of the sentencingjudge is entitled to great defere nce on revi ew.” U.S. Sentencing Guidelines § 3E1.1 , cmt. n.5. The district court’s determination regarding accept ance of responsi bility must be sustaine d unlessclearly e rroneous. United States v. Webb , 335 F.3d 534, 537-39 (6th Cir. 2003).

The government contends in its cr oss -appeal that the accept ance-o f-resp onsibility

reduction is not av ail able to Angel because he went to trial to c hall enge the factual elements of the go v ernment ’s case . An appli cation no te to § 3E1.1 sta

tes that “ [t]his adjustment is not in tended to apply to a defen dant who p

uts the g overnme

nt to its burden of proof at trial by deny

ing the essential factual el em ents of g uilt, is convicted, and only then

admits guilt and expresses remorse.” § 3E1.1, cmt. n.2. The not e reco gnizes there might be an exception to this rule in “rare situations,” suc h as “w here a defendant goes to trial to assert and preserve issues that do notNos. 02-3320/3321 United States v. Angel 23

relate to factual guilt ( e.g. , to m ake a co nsti tuti onal c halle nge to a statute or a challenge to the app licability of a statu

te to his conduct).” Id. But the note caut ions that e

ven in the se rare situations, “adetermination that a defendant has accepte d responsi bility will be based pr imari ly upon pre-trial statements and conduct.” Id.

This court em

p hasized the significance of pretrial statemen ts and cond

uct that express re

morse in United States

v. Williams , 940 F.2d 176 (6th Cir. 199 1), where the defendant had sent

a letter expressing remorse to the district judge only

after c onviction . The dis trict co urt 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 convictiondoes not r

eflect the type of timely

acceptance of responsibility envisioned

in the SentencingGuidelines.” Id. at 182. This court also emphasized that “where, as here, the defense consistsof a denial of criminal conduct, the reduction is not appropriate.” Id. at 182. Like the d efe ndant in Williams
, Angel w ent to trial to deny all criminal conduct and admitted responsi bility fo r his crimes only afte r he was convicted. Moreover, Angel’s remorse was not sponta neous, butcame at the suggestion of the district judg e. Co mparing the facts of Williams to the fa cts of the present case leads us to conclud e that the district court clearly erred by granting An ge l a re du ct io n f

or ac ce pt an ce of

re sp on si bi li ty.
The gover nment next c ontends that the dist rict cou rt clear ly
e rred by gr anting the reduction because Ang el also rec eive d
a sentence enhancement

for obstruction of justice pursuant to U.S. SentencingGuidelines § 3C1.1. An application note to § 3E 1. 1 ( Ac ce pt an ce of

Re sp on si bi li ty) states that “[c]onduct resulting in an enhancemen t under § 3C1.1 (Obstructing or Impeding t h e Administration of Justice) ordinarily indicates that the defendant has not accept ed resp onsibility for his criminal conduct. There may , however, be extra ordinary
cases i n which adjustments under both §§ 3C1.1 and 3E1.1 may a pply.” § 3E1.1, cmt. n.4 (empha sis added). Th e 24 United States v. Angel Nos. 02-3320/3321

defendant has the burden of proving the extraordinary nature of his o r her case. United States v. Mahaffey , 53 F.3d 12 8 , 135 (6th Cir. 1995). We review de novo a district court’s d ete rminationthat a case is extraordinary

. United States v. Gregory , 315 F.3d 6 37, 64 0 (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 instr u ctive exampleof circumstances where an ac cep t ance-ofresponsi bility reducti on is appropr

iate des pite an obstructionof-justic e enhancement. Accord ing to the court in Gregory , “[a ]ppropria

te considerations for determining whether a reduction is warranted include the defendant ’s tr uthful admission of the off

ense c onduct, the defendant’s voluntary
ass is tance to authorities in resolving the offense, and the timeliness of defendant’s conduct i n affirmatively

accepting

r espons ibility

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

that a reduction was warranted bec ause Gre gor y c onfessed a week after committing the crime, ag reed t o coopera te with federal authorities, urged his sister—who was also involved i n th e crime—to cooperate as well, and pled gu il ty. Id. Although Gregory had initially obstructed justice by attempting to persuade his sister not to talk t o federal officia ls, “he effectively

undid thatcondu ct” by ca lling her the next d ay a nd “urging her to coopera te.” Id. The court emphasized

that “[a]ll of his obstruct

ive condu ct preda ted his indictmen t, and he ha s never d

enied his o wn responsi

bility and guilt.” Id. at 641.

Incontrast to Gregory , several decisions of t h is court i llustrate circumstances where an acceptance -of-re sponsibilit y reduction is not appr

opriate . One is United

States v. Rapanos , 235 F.3d 256 ( 6th Ci r. 20 00), vacated on other grounds by 533 U.S

. 913 (2001 ), wher e the def endant w ent to tria

l to chall enge the applicability of a statute to his conduct rather thanto challenge the factual elements of his g uilt. This court reversed the district court’s grant of the reduction, noting that the defenda

nt’s pretrial con

duct—ig norin g c ease-a

nd-desis tNos. 02-3320/3321 United States v. Angel 25

orders from

government agencies, r

efusingto fill out required paperwork, and ref

usin g to provide requested financial informationto a proba tion offic er—did not clearl y demonstr ate accept

ance of responsi bili ty

. Id. at 260-61. Similarly , in United States v. Wilson , 197 F.3d 782 (6th Cir. 1999), the defe

ndant re ceived a

n obstructi o n enhancement for lying about his l egal na

me to the probati on of fice and magistr ate judge in

the course of a pl ea ag

reemen t. This court affirmed the distri ct court’s decision to denyan acceptanceof-res ponsibility

reducti on. Despi

t e the fact that the defendant had pled guilty, this court emphasized that he “had
no right to mislead the court and the probation off ice about his birth name and criminal history .” Id. at 787. F inally , in United States v. Mahaffey , 53 F.3d 128, 135 (6th Cir. 1995), this court upheld the district court’s decision to deny an accept ance-o f-resp onsibility

reducti on beca

use the defendant also received an obstruction enhancement for “mak ing false statements during his grand jury testimony.”

Like the de fendants in Rapanos , Wilson and Mahaffey
, Angel obstructed justice and made no effort to repudiate that obstruction. Angel would not e ven admit to the district court that he had of fered Wa inscott $50,000 to kill the government witness, despite the court’s finding that this event occur red and that it constituted a basis fo r the obstruction-of-justice enhanc ement. Attempting to have a witness killed, moreover, is far more serious than ignoring governme nt orders ( Rapanos ), lyin g about a legal name and c riminal history ( Wilson ), or making

false sta

tements t o the grand jury ( Mahaffey ). Even more

signific ant is the fact that, unlike the defendant in Gregory , Angel’s obstructive conduct happened after he was indicted. Angel never attempted to undo that condu ct, he offered no assistance to the authorities, and h e went to trial to challenge the essential factual ele ments of guilt. Comparing the above cases to the one now bef ore us demonstrates that the d

istric t court clearly

erred by granting Angel the acceptance -of-responsibility reduc tion. 26 United States v. Angel Nos. 02-3320/3321

Insum, we c onclu de that th e gove rnment is c orrect

in assertingthat the sentence reduction was inappropriate. Angel is precisely the ty pe of defendant ment io ned in the notes to § 3E1.1 “who puts the government to its burden of proof at trial by de

nyi n g the essential factual elements of guilt, is convicted, and only then admits guilt and e xpresses remorse.” U.S. Sentencing Guidelines § 3E1.1, cmt. n.2. As in Williams , Angel’s expression of re m orse came too late. Angel’s case, moreove r, d oes not present the kind of extraordinary circumstance s where both allowing an acceptance-of-re spo ns ibility reduction and imposing an obstructionenhancement is appropriate. See U.S. Sentencing Guidelines § 3E1.1, cmt. n.4. Altho ugh the district court’s desire to grant the reducti on in orde r to allow Angel t o avoid
a life sentence is perhaps understandable, the decision cannot be sustai ned unde r the Guid

elines.

III. CONCL USION

For the reasons se t forth above, we AFFIRM Angel’s conviction, REVE R SE the district court’s two-level reduction for acceptance of re sponsibility, and REMAND for resent encin g.Nos. 02-3320/3321 United States v. Angel 27

______________________________________________ CONCURRING IN PART, DISSENTING IN P ART

______________________________________________ D AMON J . KEI TH, Circu it Judge, c oncurri

ng in pa rt, dissenting in part. I join the court’s opinion in Parts II.A., II .C., and II .D. I wr

ite sepa rately to express my disagre ement with the cour t’s resol ution of An

gel’s d iscrimina tio n i n jury selection cla im in Par t II.B . I wou ld hold tha t defens e counsel’s use of race as the criterion for c ho osing Chandler violated the Equal Protection Clause of the Fourtee

nth Amendmen

t, as incorporated into the Fifth A men dment, of the United States Constitution. As an error in jury selection is a structural error that requires automatic r eversal, I would grant Angel a new tria l. Accor dingly , I re sp e ctfully

dissent.

The issue bef

ore the c ourt is one

of first impress ion - whether the inclusion of a juror, who expressed views contrary to the defendant ’s i nterest, violated the Equal ProtectionCla

use w hen that inclusion was based on race. Rather than seriously considering the merits of the claim, the majority simply agree s with the governme nt th at the re is no preced ent. In fi nding tha t there is no precedent, the majority opinion interp rets Ba tson v. Kentucky , 476 U.S. 79 (1986), too narrowly. It sta

tes that Batson prohibits “the act o f exercising p ere mptory

challen ges whe re that a

ct is accompanied

by the intent

to discrim

i nate on the basis of race.” Op. at 13 (emphasis in original). Thus, acco rding to the majority, because

defen se cou nsel did not exercise a peremptory

challen ge or o therwise

challen ge Chandler, the Equal Protection Clause is not vi olated e ven if de fense counsel’s inclusion of Chandler was based on her rac e.
While it is true t hat the court in Batson prohibited the discriminatory

use of peremptory

challenges, there is no suggestion

that its hol ding wa s so n arrow as to exclude the discriminatory misu se of an otherwise valid and intelligent perempt ory challen ge. Mor eover, t here isno indication that 28 United States v. Angel Nos. 02-3320/3321

the proh ibition against the use of race in the jury selection process applies exclusively to peremptory challenges. To the
co nt ra ry, the Court in Batson stated, “the defendant [has] the right to be tr ied b y a jury

whose members are selected pursuant to nondiscriminatory criter ia.” Batson , 476 U.S. at 85-86 ( citi ng Martin v. Texas , 200 U.S. 316, 321 (1906)). The Court went on to explain, “[c]ompetence to ser ve as a juror ultimately depends on an asse ssment of individua l qualifications a nd ability impartially to consider evidence presented at a tria l. A person ’s race

simply is unrela ted to his fitnessas a juror.” Id. at 87 (internal quotations and citations omitted). Finally, in summarizing its previous holdings, the Courtstated that it “has made clear that the Constitution prohibits all forms of purpos e f ul racia l discrimin

ation in selection of jurors.” Id. at 88 (emphasis added). Thus, I c an nothold, as do es the ma

jority , that Batson and its progeny are limitedto the context

of pere mptory challen ges on the basis of race, and

cannot accept the majority ’s further implication that th e concept of use within the context of peremptory challen ges isso narrow as to exclude its correlative, misuse.

The majority fi x at es on th e n ee d f or a d is cr im in at or y act
an d f inds that the “failure to challenge a juror, even if motivated by race ” does not implicate the e qual protection rightsof either

the juror or the defendant because the f ailure to challenge is not

an act. It is at this point that the majority’s reasoningsqueezes the concept of use into the word “act
, ” and in so doing

strips the

word use

of it s in tended power. Yet, even the word

act it self i s incl usiv e enou gh to cover the conduct at iss ue is t his ca se. Acc ordin g t o Black ’s Law Di ct io na ry: “In its most genera l sens e, [act] signifies something done voluntarily by a person; the exercise of an individual’s power; an

effect produce d in the exte

rnal wor ld by an exercise of

th e p ow er of

a p er so n o bj ec ti ve ly, prompted by intention, and proximately caused by a motion of the will.” B LACK ’ S L AW D ICTIONARY 24 (6 th ed . 1 99 1) . S pe ci fi ca ll y, th e majori ty lo oks to the c riminal la

w in an att

empt to circumscribe the conduc t at i ssue. Op. at 17 (“The criminal law, for example, has long recognized that ‘[t]he mereNos. 02-3320/3321 United States v. Angel 29

1 The majo rity coun ters that Da vis lends support to its conclusion. It stat es that the “eq ual pro tecti on viola t ion in Da vis , theref ore, was n ot simply the s chool boar d ’s fai lure to act, but its fail ure to remedy the eff ec t s of its prio r affirmativ e, discr iminato ry acts.” O p. at 15 . Yet, Da vis cond emn s both affi rmative and negative discriminat ory acts. The wrongfulness of

a negative discri minatory act i s dependent on whether the “power to act

is avai labl e,” n ot on the nece ssary cre ation o f the harm . W e
are presented with an analogo us si tuatio n here. Defense coun sel “intention ally utilized the pow er at [his] d ispos al to” a ccep t or reje ct a juror “in such a way as to perpetua te” racial st ereotypes by includi ng Chandler on the jury because of her race. We know this becau se he st ated to Chan dler that i t was important t o get some “minority represent ation”

on the j ury . The process, properly considered, had both a cause - the voli ti on of defense counsel - and an eff ec t - t he inclusi on of Chandler, and, whether

termed affir

mative or negative dis criminati on, offended the princi ples of

equal protection. Moreover, the dis tri ct c ourt was a ware of defense couns el’ s ra ce-ba sed ac ti on, a nd, like t he school board in Da vis , its cons tit utional vi olation was its failure to act to remed y defense

cou nsel’s action s. In this way, b oth the defense counsel and the di stri ct

cou rt acted in a way tha t was offe nsive to the co nstitution. harbo ring of an ev il th ought , such as the inten t to en gage i n crimina l conduct, does not c onstitute a crime; a crime is committed

only if the evil thi nker becomes an evil doer.”) (citationomitted). In its attempt, however , the majority circuito usly 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 fa ce. Th e definition of a “criminal act” states that: “There
can be no crime without some act, affirmative or negative

. Anomission or failure to act may c o nstit ute an act for purposes of criminal law.” Id . (emphasis added).

As I stated many

years a go in Davis v. School District of City of Pontiac, Inc. ,“[w]hen the power to act is available, failure to take the nece ssary steps so as to neg ate or a lleviate
a situation w

hich is harm ful 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 majorit

y conceptu aliz e s Chand ler’s inclusion on the jury as a starti ng point, or as a gi ven. Yet, because i nclus ion is only poss ible af ter a process (voir dire) has occurred, i t 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 rac ial d iscrimina tion in sele ction o f jurors,” whether it comes in the form of an omission or commission.
Here, defense

counsel’ s misuse, or act, was his choic e to inc lude Chandler based on her race. 2 Once thi s constituti onally

offensive deed

was done, the harm could not be left to lie ; the Equa l Protecti on Cl ause is not selfcorrec ting. Defens e counse l was n ot going to object to his
ownrac e- based ac

tion. The p

rosecut or was no t going

to ob ject because it is in the government’s interest to h ave a juror who thinks the sentencing laws should be stricter. The districtcourt ha

d “the power to act” to co rrect d efense counsel’s improper jury sele ction methods, and its “failur e to take the nece ssary

steps so a s t o negate or alleviate” the harmful situation was fatal. Davis , 309 F. Su pp. at 741-42. Thus, the failure to protect Angel’s rig hts was complete.

Ul ti ma te ly, the distri ct court is responsible for ensuring that there is a constitutionally composed jury . The Supreme Court explained this in Powers v. Ohio , when it stated th at “the courts are under an affirmative d uty to enforce the strong statutory and constitutional policies embodied in” the statutory prohibition on discrimination in the selection of jurors, 18 U.S.C. § 2 43, enacted pursu ant to the Fourtee

nth Amendment’s Enablin g Clause. 499 U.S. 400, 416 (1991). Once the jury selection process wa s ta inted by defense counsel’s use o f

race to include Chandler, the acc eptable remedy was for the district court to “discharge the venire and select a new jury fr

om a panel not

previous ly a ssociate d withNos. 02-3320/3321 United States v. Angel 31

3 The other potential remedy mentioned in Batson is to “di sallow the discriminatory

chal leng es an d res ume se lection with the im pro perly chall enged juror s re ins tat ed on the ven ire. ” Batson , 476 U.S. at 99 n.24. If reinstat ement is a remedy for improper ex clusion, t hen the corresponding remedy

for impro per inc lusion m ight ap pea r to be to strike the racially tainte d juro r. Be cause the first Batson reme dy is sufficien t to remedythe harm in this case, however, the appropriateness of t he alt ernative remedyneed not be addre ssed.

4 In an eff

ort t o less en the a ffi rmati ve nature of t he act at issue in this case, the majori ty s eeks t o charact er i ze the inclusion as “using race as a
reaso n to lea ve a m inority o n the jur y.” Op . at 12. the cas e.” B atson , 476 U.S. at 99 n. 24. 3 Rather than washing the jury of its rac ial taint, the d istrict court allowed the racially c omposed jury to stand.

Nor do I find the majority ’s distinction bet wee n inclusion
and exc lusi on con vinci ng. 4 The majority appe ars to agree with the government’s argument that the policy behind Batson and

its prog eny

is to “ensure minority r

epresentation
onjuries.” Op. at 12. How far t hen are parties and judges allowed to go in or

der to en sure such minority representation? In United States v. Nelson , 277 F.3d 164 (2d Cir. 2002), a
caseinvolving a hate crime committed by an Afric an American man against a Jewish man
, the Secon d Circuit found that the d

istrict c ourt had gone to o far in try ing to
ensure a racially

and religiously

bal anced j ury. At trial, the districtcourt

“expressed its desire to empanel a jury (and not merely begin froma venire ) that represents

this community.” Nelson, 277 F.3d at 172 (inte rnal quotations and citations omitted) (emphasis in original). To that end, the district court denied a Batson challenge to the fact that the g overnment used 55% of its p erempt ory chall enge s to strike African American candidates fro m the jur y. Id . Next, the district court denie d a for- cause c halle nge of a Jewish juror who had “expressed

grave doubts abo

ut his abili

ty to be obje c tive about the case.” Id. Finally, when a n Africa n Amer ican empaneled

juror wa s excuse d, the distri ct court failed to 32 United States v. Angel Nos. 02-3320/3321

5 The majo rity attempts to dis tinguis h Nels on by stating that “ Nels on clearly did not involve a dist rict court’ s fai lure t o act .

. . the al leged equal prote cti on violati on was the affi rmative (and overzealous) act of t he d ist rict cour t” Op . at 15. N owh ere in m y discus sion o f Nels on do I downplay the di stri ct court ’s act s. To the c ontrary , my di scu ss ion of Nels on highlights a ll of th e conduct t hat t he dist rict court en gaged in f

or the purp ose o f ensuring a racia lly a nd re ligiously b alanc ed ju ry. Nels on is used to show that, in the jury s election process, both i ncl usion and exclus io n base d on race v iolates the Eq ual P rotec tion C lause. T h e replace the juror with the first alternate, who wa s white, and ins tead removed a second white jur

or from the panel a

n d filled the two spaces with an African American juror and the previous ly

mentioned Jewish juror. Id. The di strict court took these ste ps to obta

in an empaneled jury

that contained both A frica n Americans and Jews in a racial and religious balance so that“nobody

could com

plain wha tever th e result” of the trial

. Id. (quoting

Tr. 866) . The def

endantsconsented to the proposal on the record. Id.

Infinding that the d

istrict court’s actions were improper, the Second Cir

cuit state d, “the e

rror is ma

de plain by t he reasoningbehind” Batson and Georgia v . McCollu m , 505 U.S. 42 (1992) , “in whic

h the Supre

me Court he ld

that neither prosecutors nor defendants could, without violating the Equal ProtectionClause, exercise peremptory strikes onthe basis

of race.” Nelson , 277 F.3d

at 207. The court went on toexplain t hat “it is beyond pera

dventure that the racial and religious reconstruction

of the jury . . . could not have be en 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 e

ven with the consent of the parties.” Id. The court sp ecific ally

discounte d the arg

ument tha

t inclusion

is different fro m exclusion when it stated, “although the motives behind the district court’s race- an d religion-based jury selection pro c edures were undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusi onary , that

fac t cannot justify the district court’s rac e-conscious actions.” Id. at 207 (emphas is added)

. 5 Further, the cour t stated that ifNos. 02-3320/3321 United States v. Angel 33

majo rity cites Nels on for the p rop osition that a distric t court a cts impr ope rly when it “mak[e s] an affirm ative attem pt to alt er the racial composi ti on of th e jury .” Op. at 14. The act ci ted by t he majorit

y as of fe nsive in Nels on , however, was when the dis trict “removed a second (whit e) juror from th e pan el a nd fi ll ed the t wo spaces cr eated wi th an Afric an Ameri can an d w ith [a] Je wish juror.” Op. at 14. Thus, the majo rity char acte riz es t he f il li ng i n of

the two spaces in Nels on , th at is the incl usi on of the two juror s base d on their rac e, as an affirmative act. Y et, the majority ref

uses to recognize that

the inclus ion o f

Cha ndler in this

case based on her r ace was an act. The harm in Nels on and this case i s the

use of race to de termin e the co mpo sit ion of t he jury. As t

he Second Circu it foun d, and as I woul d now find, both t he exclusive and incl usive acti on invol ved in composi ng such a jury are ind ividua lly and c ollective ly offensiv e to the princip les of eq ual pro tection

.
6 The majori ty st ates tha t “ [l] awye rs do not sel ect jurors , af ter al l; t hey only remove prospe cti ve ju rors . Chan dler , f or exa mple, was s eate d on the jury not beca use of Ange l’s lawyer, but as a re sul t of the jury -se lection parties and the court were allowed to agreeto empanel a jury that was “precisely

of the rac ial and religious mix they wished,” then “the Supreme Court’s language abou t ‘race neutral ity in jury selection’ as a

‘measure o f t he judicial system’scommitment to the commands of the Constitution,’

. . . would be a d ead letter.” Id. at 208 (quot ing Powers v. Ohio , 499 U.S. 400, 416 (1991)).

Like Nelson , the d efense attorne y in this case wanted to include Chandler, or to use the majority’ s languag e, w anted “to le av e” Ch an dl er on th e j ur y be cause of the need for “m inority re pr es en ta ti on .” To th at en d, th e a tt or ne y k ep t Chandler, who had expres s ed her views that the sentencing laws need t o be stricter, r ather th an strike

her and r

isk empanelinganother

white juror. In other word s, the def ense attorney “se lected

or reaf firmed a particu lar 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 Massa chusett

s v. Feeney , 442 U.S. 256, 279 (1979) (explaining the showing needed for a finding of discriminatory

purpose). 6 And by failing to s trik e Chandler 34 United States v. Angel Nos. 02-3320/3321

procedures used in

the Northe rn Dist

rict of Ohio.” O p. at

15 (emp hasis in origina l). Th us, acc ord ing to the majo rity, “Cha ndler was in fact ‘tr ied by a jury whose mem bers [ were ] selecte d by n ond iscrimina tory criter ia.’” Op. at 16 (citati on omitted). Th e ma jority’s expl anat ion of jury sel ecti on is over ly si mpli sti c. The ma jori ty ’s logi c suppor

ts only the concl usi on that the ven ire wa s “ selected by nondiscriminat ory criteri a.” In jury sel ecti on there is a venire and following v oir dire, the attorney must make

a choic e abo ut each pote ntial juro r. The at torn ey may accept a jur or (by faili ng to cha lle nge th e jur or) or reje ct a juror

(through the use of

a for

cause or peremptory challenge). The fail ure to st rike a juror signi fies t

he attorne y’s app rova l of a parti cular juror. If t hat approvalwas based solely

on race, then the jury was not “s elected by nondiscriminat ory criteri a” and the attor ney ac ted im pro perly. as should have been done, and as would have been done had it notbeen for Chandler’s and the other potential jurors’ race,
a notherwise qualified white juror was necessarily exclude d because of race. Thus, this inc lu sion carries with it an exclusion.

Even if an inclu sion did not carry with it a cor responding exclu si on, the fact that the inclusion was based on race renders it ju st as h arm ful as a n ex clu si on b ase d on rac e. In Powersv. Ohio , the Supreme Court rejec ted th e idea that racial classifications in jury selec tion may survive equal protection

scrutiny simply because white juror s are subject

to the same risk of discrimination as are all ot her jurors . The Courtstated, “ [i]t is axiomat ic that racial classifications do notbecome legitimate on the assumption th at all persons suffer them in equal degree.” Powers , 499 U.S. at 410 (citing Lo v ing v. Virgini

a , 388 U.S. 1 (1967)). Further, as we have learned from the affirm ative ac tion context, both exclusionary and inclusionary discrimination can of fend equal protection principle s. See City of Richmond v. J.A. Croson Co ., 488 U.S. 46 9 ( 19 89 ) ( ho ld in g t ha t g ov er nm en ta ll y c on ferredNos. 02-3320/3321 United States v. Angel 35

7 The majority’s attempt to dist inguish Cit y of Ri chmon d v. J. A. Croson further hi ghlights the disagr eem ent that is at issu e in this case. I cite d the Croson case to furt her b olster t he Secon d Circ uit ’s concl usi on in Nels on that, i n the context of j ury select ion, both inclus ion and excl usi on can vi olat e th e Equal Protec ti on Claus e. Thus , I cit ed Croson to expla in that in co ntexts o th er than jury sel ection, benefi ts and detrim ents based on race are examined under the E qual Pro tection Clause und er the sa me standard. The majority seeks to dist inguish Croson by stati ng that there was an affir mative discri minator y act in t hat cas e, imposing the set -as ide r equir ement upon prime cont

ractors , and t

hat su ch

an aff ir mati ve di scri minat ory a ct doe s not exi st in t

his case . Op. a t 14. Th e disp ute in this case is whether there wa s a discriminatory act. T hus, the majority’s recitat ion of the facts in Croson does nothing to undermine the noti on th at i nclu sion and exclusion are tr eated the same under the Eq ual P rotec tion C lause. benefits based on

race, just like detriments, can be offensive to the Equal Protection Clause). 7

The majority

next arg

ues that “ [a]dopti ng An gel’s argument would also

undermine a defe

ndant’ s Sixth Amendment

right to the effective assistanceof counsel.” Op. at 16. The Sixth Amendment right to couns el, to the extent that it prote cts co unsel 's freedom to make strategic dec isions concerning

the composition of

the jury, has bee

n held to give way to the Fou

rteenth Amendmen

t's g uarant ee of equal protection

u nder the law. Batson , in fact, stands for the proposition that

a strategic decision concerning a juror, based
onthe rac e of the juror, is o ffensiv e to the F ourteen th Amendmen

t, and mus t, the refore, y

ield to the equal protection guarantees contained in the Fourteenth Amendment. Batson , 476 U.S. at 98- 99. Li

kewise, to the exten

t that the s t ra tegic decisionof counsel inthis case offends the guarantee of equal protection, it must give way. N either t he majority nor the gov ernment

has cited anything

in our jurisprudence tha t allows counsel to cloak one constitutional violation in th e garb of another constitutional protection.

T he majority

finds “no thing unr

easonab le in def

ense counsel’s presume d belief that havi

ng at l east on e racial 36 United States v. Angel Nos. 02-3320/3321

minority on the jury would outweig h the potential negative impact of that juror’s generalized opinion of the drug laws.” Op. at 16-17. The majority ’s “pre sumed bel ief,” however, is nothing more than a euphemism for s tereoty ping. As the Supreme Court has stated, “pot ential jurors, as well as litigan ts, have an equal protection right to jury selection procedures that are free fr o m 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). Defens e cou

nsel’s “presumed belief” that the race of Chand le r outweighs the fac t that she e xpressed her unwill ingness to
serve and stated that

it ta kes until the third time a defendant is convicte d before

he gets punished is the exact type of racial stereotyping

expressly

rejecte d in B atson . 476 U.S. at 98 (finding that the E qual Prote ction Clau se forbi ds the Stat e to strike B lack veniremen on the assumption that they will be partial to the defendant because of their sha red race).

The majority offers “virtually no support for the c onclusion that [race] alone is an a ccurat e predi ctor o f juro r's attitudes ;” yet it holds that “the same stereotype s that justified the wholesa le exclusion of [racial minorities] from juries” may b e used to outweig

h the neg ative as

pects of choosing a particular ju ror. J.E.B. , 511 U.S. a t 139. I can not ho ld, as doe s th e ma jo ri ty, that

a juror’s race may

outweigh the other potential negative aspects

of that juror. Such a finding feeds into the very stereoty pes that Batson and its progeny try to combat. Furthermore, there is no sup port for the proposition that
race may be used a s a fact

or in jury selection

. Batson , 476 U.S. at 87 (“A person’s ra ce simply is unrela ted to hisfitness
as a juro r.”) (citation omitted). The record does not reve al any “neutral explanation,” unrelated to race, that justifies the choice of Chandler. Batson , 476 U.S. at 98 (explaining that
once the defe

ndant has made a pr

ima faci e case, the State must come forth with a neutral explanation for stri king a particular venireman). Mor

eover, b ecause

a reasonable defense attorney with a c lient, li ke Angel, who has a prior drugconviction, would most likely excuse Chandler for cau seNos. 02-3320/3321 United States v. Angel 37

or, if a for cause objection was not gra n t ed, exercise a peremptory

challenge, theonly

reasona ble conclusion based
onthis record is that race was n ot only a factor , but the moving force behind the decision to include Chandler.

Finall y, th e majorit

y a rgues t hat the f act that d

efense counsel “allegedly

harbored the ‘evil thought ’ of leaving Chandler on the jury

because she is African America n” is not enough to require reversal of Angel’s conviction. Op. at 17. The majority is correc

t in stating that the law does not pr ohibit the harboring of an “evil thought.” “ Neither precedent nor policy” has r

ecognized a

way to discern

an evil thou gh twithout a corresponding action. When the “evi l thought” is
, as in this case, transformed into words and actions, however, “[n]ei ther preced ent nor po licy

supports” turning a blind eye to the unconstitutional conduct.

It is the dialogue between an attorney and a potential juror that leads an

attorne y to accept or reje ct a juror. An examination of that dia

logue ma y a lso “support or refute an inference of discriminator y purpose” on the part of the at to rn ey. Ba tson , 476 U.S. a t 97. I n this cas e, defe

nse co uns el stated, “you’ve

seen the panel, correct?” After Chandler responded, “y

es,” defense cou

nsel stated, “so it’s importantif we can g e t some minority representa tion on the panel if you ’re cho sen as a

juror. You do understand the way
we fee l?” J.A. at 518. The exchange betwe en defe nse counsel and Chandler re ve als defe nse coun sel’s “e

vil thoughts

. ” When defense counsel included Chandler, by failing to challenge her despite her views on the drug sentencinglaws and her unwillingness to serve, he pursued a specific course of action in furth erance

of his “evil thought,” and thus became an “evil doer.” The majority’s foc us 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 coun sel ’s own mou th demonstr ate that his actions were motivated by race. When coupled with the surrounding circumstances, there ca n be no doubtthat the principle

of race neutral ity i

njur y selection, embodied in the Equal Protection Clause, was violated. The majority’sslight-o f-hand, however well-inte

ntioned, i s incapab le of red ucing constitutiona lly- offensi v e disc ri minatory

acts into c onstitutionally-acce ptable “ evil thoughts.”

Theref ore, I respectfully

dissent.