U.S. v. Angel

• Decision Date: 09 January 2004
• Docket Number: No. 02-3321.,No. 02-3320.,02-3320.,02-3321.
• Citation: 355 F.3d 462
• Parties: UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Alfonso G. ANGEL, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

355 F.3d 462

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Alfonso G. ANGEL, Defendant-Appellee/Cross-Appellant.

No. 02-3320.

No. 02-3321.

United States Court of Appeals, Sixth Circuit.

Argued: October 22, 2003.

Decided and Filed: January 9, 2004.

Appeal from the United States District Court for the Northern District of Ohio, James G. Carr, J.

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Joseph R. Wilson (briefed), Assistant United States Attorney, Toledo, OH, Jeffrey P. Singdahlsen (argued), Monica S. Abrams (briefed), United States Department of Justice, Criminal Division, Appellate Section, for Appellee.

Susan M. Damplo (argued and briefed), Ardsley, NY, for Appellant.

Before: KEITH, DAUGHTREY, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KEITH, J. (pp. 479-485), delivered a separate opinion concurring in part and dissenting in part.

OPINION

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 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.

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?

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?

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.

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?

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...