U.S. v. Watson

• Decision Date: 13 April 2007
• Docket Number: No. 04-3090.,No. 04-3082.,04-3082.,04-3090.
• Citation: 483 F.3d 828
• Parties: UNITED STATES of America, Appellant/Cross-Appellee v. Dwight W. WATSON, Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

483 F.3d 828

UNITED STATES of America, Appellant/Cross-Appellee v. Dwight W. WATSON, Appellee/Cross-Appellant.

No. 04-3082.

No. 04-3090.

United States Court of Appeals, District of Columbia Circuit.

Argued November 17, 2006.

Decided April 13, 2007.

Appeals from the United States District Court for the District of Columbia (No. 03cr00146-01).

Roy W. McLeese, III, Assistant U.S. Attorney, argued the cause for appellant in 04-3082 and cross-appellee in 04-3090. With him on the briefs were Jeffrey A. Taylor, U.S. Attorney, and Jay I. Bratt, Attorney. David B. Goodhand, Assistant U.S. Attorney, entered an appearance.

A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellee in 04-3082 and cross-appellant in 04-3090.

Before: GINSBURG, Chief Judge, and RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

The principal question in this appeal is whether the prosecutor's peremptory challenge of two visually impaired ("blind") jurors was lawful under the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Watson contends that the rule established in Batson requiring heightened scrutiny of peremptory challenges on the basis of race should be extended to the blind in view of the long history of prejudice and discrimination against the disabled and the Supreme Court's suggestion in Tennessee v. Lane, 541 U.S. 509, 524 & n. 9, 525 & n. 14, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), that jury service is a fundamental right. We conclude, in light of Supreme Court precedent holding that disabled persons are not a suspect class to which a heightened degree of scrutiny attaches, that this contention must fail. Assuming peremptory challenges of blind jurors are subject to rational basis review, we conclude that the prosecutor's explanation was rational. However, because the district court plainly erred upon resentencing Watson, we vacate the sentence pursuant to the government's cross-appeal and remand the case to the district court for resentencing.

I.

Protesting the treatment of tobacco farmers by the government, Dwight W. Watson drove his tractor, along with a jeep and a trailer holding a metal box into the pond at Constitution Avenue Gardens and remained there for two days in March 2003. At one point, Watson drove around the perimeter of the pond, causing a three-and-a-half-foot wave. He also drove his tractor onto an island in the middle of the pond and moved the bucket on the tractor up and down, smashing it into the island. In response to questioning by Park Service employees, Watson stated that the metal box on the trailer contained organophosphates, a type of chemical which he implied were explosives. Watson repeatedly stated that he was willing to die for his cause.

Watson was indicted for threatening and conveying false information concerning the use of an explosive, in violation of 18 U.S.C. § 844(e) (Count One), and destruction of government property, in violation of 18 U.S.C. § 1361 (Count Two). During jury selection, one of the potential jurors informed the district court that he was legally blind and was supposed to have brought a note from his doctor but that he was willing to serve. A second potential juror was also blind. The prosecutor exercised two of the government's six peremptory challenges to strike the blind men from the prospective jury. See FED. R. CRIM. P. 24(b)(2). In response to an objection by defense counsel, based on an analogy to Batson, the prosecutor indicated concern about having blind persons on the jury in light of the visual materials in the government's case-in-chief. The district court agreed that there was a substantial amount of visual evidence in the government's case and overruled the objection. The jury convicted Watson on both counts.

The district court sentenced Watson to concurrent sentences on each count of seventy-two months' imprisonment and to three years' supervised release and ordered him to pay restitution of $5,168.20 for the damage he had caused and a special assessment of $200. The following day the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Watson subsequently moved for reconsideration of his sentence. After concluding that Watson's sentence had been unconstitutionally enhanced by the addition of fourteen points as a result of factual findings that were not made by the jury, the district court resentenced Watson to concurrent terms of sixteen months' imprisonment and three years' supervised release and ordered him to make restitution and pay a special assessment.

Watson appeals the judgment of conviction, and the government cross appeals the sentence.

II.

In Batson, the Supreme Court reaffirmed the principle, enunciated as early as 1880 in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), that the State denies an African-American defendant's rights protected by the Equal Protection Clause of the Fourteenth Amendment "when it puts him on trial before a jury from which members of his race have been purposefully excluded." Batson, 476 U.S. at 85, 106 S.Ct. 1712 (citing Strauder, 100 U.S. at 310). Strauder involved a state statute qualifying only white people for jury duty and thus contravened one of the central purposes of the Fourteenth Amendment: "exemption from unfriendly legislation against [African Americans]." Strauder, 100 U.S. at 308; see id. at 305-08. Over the years the Court addressed various other means by which African Americans had been excluded from jury service. In Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court held that in the absence of a statutory bar, evidence of systemic exclusion of African Americans through peremptory challenges over a period of time could also demonstrate a violation of the Equal Protection Clause. In Batson, the Supreme Court overruled Swain to the extent of holding that a defendant could establish a prima facie case of purposeful discrimination based solely on evidence of the prosecutor's exercise of peremptory challenges in his own case. Batson, 476 U.S. at 95, 106 S.Ct. 1712. The Court also shifted the burden to the government to present a race-neutral explanation related to the particular case for the challenges. Id. at 97-98, 106 S.Ct. 1712. If the government offers such an explanation, the trial judge then must decide whether the defendant has proved purposeful racial discrimination. Id. at 98, 106 S.Ct. 1712; see Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The Court explained that "the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at other stages in the selection process." Batson, 476 U.S. at 88, 106 S.Ct. 1712 (citations omitted) (internal quotation marks omitted).

In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128-29, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the Supreme Court extended Batson to the government's exercise of peremptory challenges on the basis of gender. The Court observed that "with respect to jury service, African-Americans and women share a history of total exclusion," id. at 136, 114 S.Ct. 1419, and recounted the "long and unfortunate history of sex discrimination," id. (internal quotation marks omitted) (quoting Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973)); see id. at 131-34, 114 S.Ct. 1419. Noting that heightened scrutiny applies to all gender-based classifications because of "the real danger that government policies that professedly are based on reasonable considerations in fact may be reflective of `archaic and overbroad' generalizations about gender," id. at 135, 114 S.Ct. 1419 (quoting Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975)), "or based on `outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas,'" id. (internal quotation marks omitted) (quoting Craig v. Boren, 429 U.S. 190, 198-99, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976)), the Supreme Court concluded that discrimination on the basis of gender in jury selection did not "substantially further[] the State's legitimate interest in achieving a fair and impartial trial," id. at 136-37, 114 S.Ct. 1419; see id. at 136-38, 114 S.Ct. 1419. "As with race," the court reasoned, "the `core guarantee of equal protection, ensuring citizens that their State will not discriminate ..., would be meaningless were we to approve the exclusion of jurors on the basis of ... assumptions [that] arise solely from the jurors' [gender].'" Id. at 146, 114 S.Ct. 1419 (first omission in original) (second alternation in original) (quoting Batson, 476 U.S. at 97-98, 106 S.Ct. 1712). A member of a class entitled to heightened scrutiny therefore receives protection under the rule established in Batson.

Disability, by contrast, has been accorded no heightened scrutiny by the Supreme Court. In City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442-46, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the Supreme Court declined to treat the mentally retarded as a suspect class, observing that disability may legitimately be taken into account by the States in a wide range of situations. Although race and gender distinctions rarely constituted justifiable grounds for differential treatment, see id. at 440-41, 105 S.Ct. 3249, the Court explained:

[T]hose who are mentally retarded have a reduced ability to cope with and function in the everyday world. ... They are thus different, immutably so, in relevant respects, and the States' interest in dealing with and providing for them is plainly a legitimate one.... [L]egislation [ ] singling out the retarded for special treatment reflects the real and undeniable differences between the retarded and others. That a civilized and decent society expects and approves such...