Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 01 CR 676-1 & 01 CR 676-3-John F. Grady, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before EASTERBROOK, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges.
On December 19, 2000, a shipment of 1300 Sony digital cameras disappeared from O'Hare International Airport soon after arriving on an American Airlines flight from Japan. After an investigation resulted in confessions from two American Airlines employees-defendants Hugh Willis and Victor Trout-the United States charged them both with stealing and conspiring to steal a foreign shipment. A jury convicted Trout of conspiracy but acquitted him of the theft charge, resulting in twenty-seven months' imprisonment. Another jury convicted Willis on both counts, earning him forty-one months' imprisonment. These appeals followed, raising a number of issues concerning the administration of the trials and one related to sentencing. For the reasons set out below, we affirm Trout's and Willis's convictions, but vacate Willis's sentence and remand for resentencing.
On the afternoon of December 18, 2000, a shipment of 1300 Sony digital cameras arrived at O'Hare International Airport on an American Airlines flight. The shipment came from Japan, and Nippon Express was supposed to be pick it up the next day. But when Nippon Express came to get it, the cameras, all $690,885 worth, were gone. Understandably put out by the loss, Nippon Express contacted American Airlines who, in turn, contacted the Chicago Police Department to investigate.
The investigation soon bore fruit. On the night of the disappearance, an American Airlines employee, Rosarito Solomon, had come upon three individuals-Hugh Willis, a man named Mark Patterson, and an unidentified man in a ski mask-taking apart what appeared to be a shipment of cameras. Their behavior was suspicious for a number of reasons. Willis told Solomon that they were breaking down the shipment because it had been crushed en route to London, but the men hadn't filled out a damage report as required. Also, the men were working outside and shipments were typically broken down indoors. And based on the tracking number for the shipment, the contents were supposed to stay in Chicago, not move on to London as Willis had said. Over the next few days, cameras started to turn up in strange places around the airport; three were found in the back of a luggage tug and another one showed up in a misplaced cart behind a privacy fence.
On December 22, 2000, Chicago detectives Milorad Sofrenovic and Stephan Combes interviewed Willis about the lost cameras. At first, Willis denied any knowledge. But based on what Sofrenovic already knew about Willis's involvement, he arrested him anyway. Willis soon confessed, first verbally then in writing. As he recounted it, the heist was a straightforward one. Willis said that when the shipment arrived, he decided to steal it, thinking the shipment consisted of camcorders. So he, Patterson, and Trout began breaking down the load of cameras and putting them into freight cars. Trout then took the shipment out of the cargo area, and later that night, the men divvied up the cameras, eventually taking them off-site and selling them. Willis would receive $1500 for his lot of the cameras.
A few days later, Trout confessed to Officers Sofrenovic and Combes as well. He said that Willis had called him on December 18 to ask if he wanted to make some extra money, but Trout was noncommital. Later, Patterson called asking if Trout would move the load of cameras. Trout agreed and moved the cameras with the understanding that he would be paid after they were sold; he said he would've been happy to receive $200 for his time. Circumstantial evidence made Trout's involvement plausible. He was at work but unaccounted for from 4 P.M. on December 18 until 2 A.M. on December 19-the time of the robbery. And he had access to the luggage tug in which the three misplaced cameras were found.
In light of this evidence and their confessions, indictments were forthcoming for both Trout and Willis, charging them with stealing a foreign freight shipment in violation of 18 U.S.C. §§ 659 & 2 and conspiring to do so in violation of 18 U.S.C. § 371. A jury acquitted Trout of the actual theft, but convicted him of conspiracy, resulting in twenty-seven months' imprisonment. A separate jury convicted Willis on both counts, and the judge sentenced him to forty-one months' imprisonment. In reaching this sentence, the court found that Willis had perjured himself on two separate occasions and added two, two-level obstruction-of-justice enhancements. These appeals followed.
Together, Willis and Trout raise five issues on appeal, four of which concern the administration of the trial and one that concerns sentencing. Willis challenges the government's use of a peremptory strike against the only African-American venireperson and the district court's imposition of two obstruction-of-justice enhancements in calculating his sentence. In his appeal, Trout submits that the government both committed prosecutorial misconduct by objecting during his attorney's closing argument and improperly commented on his decision not to testify at trial. He also claims that the district court improperly handled a jury note sent out during deliberation. We discuss each issue in turn, providing additional facts as necessary.
On appeal, Willis claims that the dismissal of the only African-American venireperson constituted a Batson violation.Of the forty people called in the venire for Willis's trial, only one-Juror No. 1-was African American. After a recess between voir dire and the selection of the jurors for trial, the government asked the court if it could pose a few more questions to Juror No. 1. She had recently moved from being the manager of a fast-food restaurant to the ranks of the unemployed. The government doubted that a person would voluntarily reduce her income from a managerial salary to unemployment benefits. And the government's attorneys wondered if theft or misconduct precipitated the move, potentially fomenting "animosity towards people in authority" and ostensibly biasing her against the government's case. Because she was the only African-American juror, the government did not want to immediately strike her. So it proposed asking her a few more questions to clear up her employment history instead.
Willis's attorney characterized the government's motivations less charitably. He responded to the government's request by voicing his "concern . . . that the government [wa]s hunting . . . for . . . some independent reason" to strike the "single African-American individual." The court ultimately denied the government's request for more questioning. But because it considered the govern-ment's concerns to be "real" and "reasonable," it said that it would be "within [the government's] rights to excuse her . . . on a peremptory challenge." He told Willis's attorney that he could "make a Batson objection, but [he didn't] think it would be well taken." After the court made its decision, Willis's attorney said that he "wanted to note for the record the action of the government striking Juror No. 1, . . . the only African-American in the entire 40-member venire." The court recognized his concern, but said that it could not "require the government to take a juror that it would not otherwise take just because that juror happens to be black."
The Equal Protection Clause of the Fourteenth Amendment prohibits a party from dismissing a potential juror because of that juror's race, Batson v. Kentucky, 476 U.S. 79 (1986), a prohibition that applies to the federal government as a feature of due process. Dunham v. Frank's Nursery & Crafts, Inc., 919 F.2d 1281, 1282 n.4 (7th Cir. 1990). Courts preserve this substantive right through a three-part procedural device: (1) if an objecting party makes out a prima facie showing that the opposing party has dismissed a potential juror for impermissible reasons, (2) the burden shifts to the opposing party to articulate a non-discriminatory reason for the dismissal, (3) after which the district court must determine whether this reason is deserving of belief and whether the objecting party has proved an equal protection violation. Batson, 476 U.S. at 97-98.
Were the government's concerns over Juror No. 1's employment history the actual reason for dismissing her? The parties dispute how much deference we should give the district court's affirmative answer to this question. In the government's estimation, Willis forfeited this claim by never raising a proper Batson challenge in the district court, meaning we would only review the decision for plain error and will only reverse if "a discriminatory intent is inherent in the prosecutor's explanation." United States v. Chandler, 12 F.3d 1427, 1432 (7th Cir. 1994). Willis on the other hand argues that he preserved his Batson claim below, which would entitle him to de novo review as to his prima facie case, see Mahaffey v. Page, 162 F.3d 481, 484 (7th Cir. 1998), but a clear error standard of review with respect to discriminatory intent. United States v. Jones, 224 F.3d 621, 624 (7th Cir. 2000).
In light of the record below, Willis did not forfeit his Batson claim. A Batson inquiry is very specific: is a party trying to eliminate a potential juror because of that person's race or gender? The answer to this question most often hinges on the credibility of the race-neutral reason put forth to strike the venireperson. Batson, 476 U.S. at 98 n.21. And evaluating the believability of the proffered reason turns on the constellation of facts surrounding the case and the voir dire-an evaluation better made by the district court. Id. When a party simply objects to the opposing party's use of a peremptory challenge, the court has no reason to evaluate whether the reason for dismissal was instead a pretext for discrimination; the party could have eliminated the venireperson for any reason, good or bad. As a practical matter then, this Court can only find a Batson violation articulated for the first time on appeal if the discrimination is plain on the face of the party's justification in the district court, and so the standard of review is plain error. But where the prosecutor gives a race-neutral reason for dismissal to fend off a Batson claim in advance, a different situation arises. ...