United States of America v. Alfonso G. Angel

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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.
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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

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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?

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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.

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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 cocaine-
trafficking 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.

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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 ineffective-
assistance 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

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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.”)

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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 Batson-
McCollum 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,

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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 of its 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 jury-
selection 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 from excluding 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.

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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

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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

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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

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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-of-
responsibility reduction is appropriate despite an obstruction-
of-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
illustrate circumstances where 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

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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 acceptance-
of-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.

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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

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Nos. 02-3320/3321 United States v. Angel 29
1The majo rity counters that Da vis lends support to its conclusion. It
states that the “eq ual pro tection violation in Da vis, therefore, was not
simply the school board’s failure to act, but its failure to remedy the
effects of its prior affirmative, discriminatory acts.” O p. at 15 . Yet,
Da vis cond emns 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 o f the harm . We
are presented with an analogous situation here. Defense counsel
“intentionally utilized the power at [his] d isposal to” accep t or reje ct 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 Da vis,
its constitutional violation was its failure to act to remed y defense
counsel’s actions. In this way, b oth the defense counsel and the district
court acted in a way tha t 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
2The 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 self-
correcting. Defense counsel was not going to object to his
own race-based action. The prosecutor was not going to
object because it is in the government’s interest to have a
juror who thinks the sentencing laws should be stricter. The
district court had “the power to act” to correct defense
counsel’s improper jury selection methods, and its “failure to
take the necessary steps so as to negate or alleviate” the
harmful situation was fatal. Davis, 309 F. Supp. at 741-42.
Thus, the failure to protect Angel’s rights was complete.
Ultimately, the district court is responsible for ensuring that
there is a constitutionally composed jury. The Supreme Court
explained this in Powers v. Ohio, when it stated that “the
courts are under an affirmative duty to enforce the strong
statutory and constitutional policies embodied in” the
statutory prohibition on discrimination in the selection of
jurors, 18 U.S.C. § 243, enacted pursuant to the Fourteenth
Amendment’s Enabling Clause. 499 U.S. 400, 416 (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

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Nos. 02-3320/3321 United States v. Angel 31
3The 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 impro per inc lusion m ight appear to be to strike
the racially tainted juro r. 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.
4In 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
reaso n 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
5The majo rity 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. N owhere in m y 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 purp ose o f ensuring a racially and religiously balanced jury. Nelson
is used to show that, in the jury selection process, both inclusion and
exclus ion based on race violates the Equal Protection Clause. T he
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
different from exclusion when it stated, “although the motives
behind the district court’s race- and religion-based jury
selection procedures were undoubtedly meant to be tolerant
and inclusive rather than bigoted and exclusionary, that fact
cannot justify the district court’s race-conscious actions.” Id.
at 207 (emphasis added).5 Further, the court stated that if

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Nos. 02-3320/3321 United States v. Angel 33
majo rity cites Nelson for the proposition that a district court acts
imprope rly when it “mak[es] an affirmative attem pt to alter the racial
composition of the jury.” Op. at 14. The act cited by the majority as
offensive in Nelson, however, was when the district “removed a second
(white) juror from the panel and filled the two spaces created with an
African American and with [a] Jewish juror.” Op. at 14. Thus, the
majo rity 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 co mpo sition 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 collective ly
offensive to the princip les of eq ual pro tection.
6The 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 (emp hasis
in original). Thus, according to the majo rity, “Chandler was in fact ‘tried
by a jury whose mem bers [were] selected by nondiscrimina tory criteria.’”
Op. at 16 (citation omitted). The majority’s explanation of jury selection
is over ly 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 abo ut 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
attorne y’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

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Nos. 02-3320/3321 United States v. Angel 35
7The 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 co ntexts other than jury selection, benefits and
detrim ents based on race are examined under the E qual Pro tection 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 wa s 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” may be
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

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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.

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