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U.S. v. NELSON
277 F.3d 164 (2002)
United States Court of Appeals, Second Circuit.
Argued May 3, 2000.
3. The Race-and-Religion-Based Reshuffling of the Jury. At the close of the orderly process of jury selection, the district court faced a jury that it viewed as insufficiently racially and religiously diverse. When one of the empaneled jurors was excused because of illness, the district court formulated a novel plan in order to cure this perceived defect. As is by now familiar, the court sua sponte removed a second, and white, juror from the main panel and then filled the two newly open places on the jury with an African American and a Jewish juror (Juror 108) respectively, both of whom were selected from the list of alternate jurors out of order. Furthermore, the record leaves no room for doubting that it was the jurors' race and religion that motivated the district court's choice of which juror to remove from the main panel and its decision to move the two chosen alternate jurors onto the main panel ahead of the non-African-American, non-Jewish jurors who were next in line.52 What the district court did in its effort to achieve a racially and religiously balanced jury was unquestionably highly unusual. It was also improper. The error is made plain by the reasoning behind Batson v. Kentucky,476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Georgia v. McCollum,505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (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. After these cases it is beyond peradventure that the racial and religious reconstruction of the jury that occurred in this case could not constitutionally have been achieved at the instigation of the parties. 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. Indeed, the violation of equal protection that occurs when a person is excluded from a jury on the basis of his race (or religion) would seem only to be made more serious when the exclusion occurs at the behest not just of the parties but of the court itself, whose duties under the Equal Protection Clause are particularly strong. And, 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. The significance of a jury in our polity as a body chosen apart from racial and religious manipulations is too
great to permit categorization by race or religion even from the best of intentions. As the Supreme Court has said, "[t]he Fourteenth Amendment's mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system." Powers v. Ohio,499 U.S. 400, 415, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).53 Indeed, so central is equal protection to the legitimate functioning of the courts and specifically of juries that Congress has enacted a separate statute mandating that "[n]o citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude." 18 U.S.C. § 243. This statutory prohibition, as the Supreme Court has said, "makes race neutrality in jury selection a visible, and inevitable, measure of the judicial system's own commitment to the commands of the Constitution," and accordingly, "[t]he courts are under an affirmative duty to enforce the strong statutory and constitutional policies embodied in that prohibition." Powers, 499 U.S. at 416, 111 S.Ct. 1364. There can be no doubt that the district court's race- and religion-based jury reconstruction (no matter how well motivated) directly violated this affirmative duty and hence was unacceptable. This is so, moreover, regardless of whether the racial and religious jurymandering engaged in by the court formally violated the Equal Protection Clause, or simply came to the very edge of doing so. For, even if such actions were not unconstitutional, they would still be sufficiently inappropriate to a federal court as to be subject to our inherent supervisory authority. Our authority over the district courts, though "not a form of free-flowing justice, untethered to legal principle" does allow us to "ensure that fair standards of procedure are maintained" and "to review procedures used in federal courts [without being] limited to ascertaining whether they are constitutionally valid." United States v. Ming He,94 F.3d 782, 792 (2d Cir.1996) (citing McNabb v. United States,318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943)). The government contends, however, that since in this case the parties agreed to the racial and religious reconstruction of the jury, as they undoubtedly did, whatever objections (either constitutional or otherwise) exist to the court's action have been waived and cannot now be raised. The difficulty with this argument is that, if it were to be countenanced, parties could always, with the court's consent, empanel a jury that was of precisely the racial and religious mix that they wished. If the court was of like mind, there would be nothing to stop civil litigants from agreeing, for example, that a contract or tort action between them should be heard by a jury composed only of members of their own racial or religious groups. And all Congress's and 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," Powers, 499 U.S. at 416, 111 S.Ct. 1364, would be a dead letter. Of course, parties can, in appropriate situations, opt out of the judicial system-say by agreeing to arbitration. And if they do so,
they can choose arbiters of whatever racial or religious sorts they wish. But that is totally different from bending the judicial system to their racial and religious preferences. For, unlike private institutions, the judicial system belongs not to the parties but to the nation. It is for analogous reasons that the Supreme Court has treated as unwaivable a formally similar, if substantively very different, claim involving a threat to another set of judicial structures. In Freytag v. Commissioner of Internal Revenue,501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), the Supreme Court considered a challenge, under the Appointments Clause of the Constitution, Art II, § 2, cl. 2, to the authority of the Chief Judge of the United States Tax Court to appoint Special Trial Judges to preside over tax disputes, pursuant to 26 U.S.C. § 7441. The Court reached the merits of this claim — in spite of the fact that the petitioners had waived it by consenting to appear before such a Special Trial Judge — and found that the petitioners' challenge invoked "the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers." Freytag, 501 U.S. at 879, 111 S.Ct. 2631 (internal quotation marks omitted). In effect, the High Court concluded, the importance of the petitioner's claim so implicated the very structural authority of the tribunal they contested that their claim could not be waived by their individual action. See also Glidden v. Zdanok,370 U.S. 530, 535-36, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality opinion) (treating an Appointments Clause objection to judicial officers as unwaivable). In Freytag, as in the case before us, the parties, in concert with the relevant judge, could, absent unwaivability, persist in using an illegitimate decision maker to the permanent detriment of the nation's judicial system.
1. Kingston Avenue is a predominantly Jewish commercial street. 2. After he had been arrested and had received his Miranda warnings, Nelson admitted to police detective Edward Brown that he had stabbed Rosenbaum. Nevertheless, when asked whether he had stabbed Rosenbaum because Rosenbaum was Jewish, Nelson continued to deny this motive, saying "no, I was just high from the beer," and "[n]o, that's not why I did it. I just got caught up in the excitement." (Tr.1994, 2018). 3. See, e.g., The Crown Heights Acquittal, N.Y. Times, Oct. 31, 1992, at A20; Is This Justice? Why the Nelson Verdict Rankles, N.Y. Newsday, Oct. 31, 1992, at 16. 4. The court was referring to the 1992 state court trial in which a jury that included no African-Americans acquitted four white Los Angeles police officers of criminal charges arising out of their videotaped beating of an African American motorist, and to the widespread rioting that occurred after the verdict. See, Richard A. Serrano, All 4 Acquitted in King Beating, L.A. Times, Apr. 30, 1992, at A1; Marc Lacey & Shawn Hubler, Rioters Set Fires, Loot Stores, L.A. Times, Apr. 30, 1992, at A1. 5. Similarly, the district court said that
Until [the] case goes forward and the public receives — well, if there was a jury with three blacks, two Jews, two minorities, a mix of America and they came to a resolution and we actually respect it for the same reasons we did not respect the first verdict in the Rodney King and I did not respect the verdicts as a prosecutor in two cases involving the killings of young African Americans ... and for the same reason that we are here today, because the first jury here was not representative of the community. [Based] on my experience as a prosecutor, that is probably the critical issue in any decision to bring the second case. (Tr. 759). 6. This account, although complete in all material respects, represents a somewhat simplified description of the chain of events in the district court. 7. The Ex Post Facto Clause requires application of this prior version of the Guidelines, i.e., the version in effect at the time Nelson committed the crime, rather than the version in effect on the date he was sentenced, because an intervening amendment to the Guidelines would have increased Nelson's base offense level by 1. See United States v. Fitzgerald,232 F.3d 315, 318-19 (2d Cir.2000) (per curiam). 8. Nelson and Price objected that the underlying conduct was voluntary manslaughter, which carries a base offense level of 25. See U.S.S.G. § 2A1.3. 9. The State Action Doctrine refers to the constitutional guarantee under Section One of the Fourteenth Amendment that "no State shall deprive any person of `life, liberty, or property, without due process of law,' nor deny to any person `equal protection of the law,'" Morrison, 529 U.S. at 619, 120 S.Ct. 1740 (internal citation omitted), and requires that the wrongful conduct of private individuals have some connection to state authority to be actionable under the Fourteenth Amendment, see Civil Rights Cases, 109 U.S. at 17, 3 S.Ct. 18. 10. In Morrison, the Court, referring to the "time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action," Morrison, 529 U.S. at 621, 120 S.Ct. 1740, concluded that Section Five of the Fourteenth Amendment did not authorize the particular congressional creation of a federal civil remedy for the victims of private gender-motivated violence established by the Violence Against Women Act of 1994, § 40302, 108 Stat.1941-42, 42 U.S.C. § 13981. In so doing, the Court appears to have rejected the position that United States v. Guest,383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and District of Columbia v. Carter,409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), had effectively overruled Harris and the Civil Rights Cases and had held that Congress can, under Section Five of the Fourteenth Amendment, reach actions taken by private individuals. See Morrison, 529 U.S. at 624, 120 S.Ct. 1740 (stating that "[w]e accordingly have no hesitation in saying that it would take more than the naked dicta contained in Justice Clark's opinion [in Guest], when added to Justice Brennan's opinion [in Guest], to cast any doubt upon the enduring vitality of the Civil Rights Cases and Harris," and that Carter's reference to the Guest opinions "is of course entirely dicta, and in any event cannot rise above its source").
Nevertheless, the precise scope of the rule laid down by Morrison, and in particular the question of that rule's implications for the relationship between the State Action Doctrine, as it applies to Section One of the Fourteenth Amendment, and the limits of congressional power, under Section Five, to reach private action as a way of furthering Section One's prohibition on State action, is not ultimately decided by Morrison. Indeed, Morrison leaves this door open by relying upon the description of Congress's Section Five powers in the Civil Rights Cases, which construe the ability of Congress to regulate private action as permissible so long as its legislation is sufficiently tied to remedying prohibited exercises of state authority and thereby imply a case-by-case analysis, as well as by applying the "congruence and proportionality" test established in the City of Boerne v. Flores,521 U.S. 507, 525, 530, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), which addressed whether particular congressional legislation was properly remedial rather than improperly declaratory of new substantive rights. See Morrison, 529 U.S. at 624, 625-26, 120 S.Ct. 1740; see also Robert Post and Reva Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale. L.J. 441, 445 (arguing that rather than "announcing a per se rule forbidding the use of Section 5 power to regulate private parties, [Morrison] is better read as requiring a case-by-case determination of whether Section 5 legislation is congruent and proportional to the constitutional violation it seeks to remedy"). Because the question of Morrison's consequences for such Fourteenth Amendment arguments as the government initially presented in the case before us remains open, we note that the government's decision not to pursue its earlier argument involving Section Five of the Fourteenth Amendment does not amount to an active abandonment or rejection of that argument. Similarly, our decision not to reach the question whether Morrison precludes finding that § 245(b)(2)(B) is authorized under Section Five of the Fourteenth Amendment does not express any view as to that question's ultimate answer. 11. See also Civil Rights Cases, 109 U.S. at 33, 3 S.Ct. 18 (Harlan, J., dissenting) ("The terms of the thirteenth amendment are absolute and universal. They embrace every race which then was, or might thereafter be, within the United States."). 12. Of course, as the Supreme Court itself has noted, the modern usage may well itself be a fiction, in the sense that it groups people into what are no more than socially constructed categories. See Saint Francis Coll. v. Al-Khazraji,481 U.S. 604, 610 n. 4, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (collecting references to biological and anthropological sources arguing that racial classifications are socio-political rather than biological). 13. Indeed, Justice Brennan concurred specially in order to make clear that, in his view, the majority's holding applied to all ethnic groups and that only "discrimination based on birthplace alone is insufficient to state a claim under § 1981." Id. at 614, 107 S.Ct. 2022 (Brennan, J., concurring). 14. The defendants try to defeat this conclusion by arguing that, whatever race meant in 1866, the 1968 Congress that included the language "because of his race, color, religion or national origin" in 18 U.S.C. § 245(b)(2)(B) gave the word "race" its modern usage and, consistent with this usage, aimed to protect Jews not as a race but as a religion. The defendants imply that because Congress, in enacting 18 U.S.C. § 245(b)(2)(B), intended to protect Jews as a religion and not as a race, and that because Congress's powers under the Thirteenth Amendment do not extend to protecting religions, the constitutionality of 18 U.S.C. § 245(b)(2)(B) as it was adopted cannot be upheld under the Thirteenth Amendment. And that that is so even if Congress could, under that Amendment, have protected Jews as a race had it chosen to do so.
But quite apart from the fact that this argument fails because, the Thirteenth Amendment extends its protections against slavery to religions as well as to races, see infra, the argument confuses the category of persons that Congress may protect under the Thirteenth Amendment with the heading under which Congress acts in protecting such persons. And, especially where words — that is headings — change their meanings over time, it is the former, rather than the latter, that determines whether Congress has acted within or exceeded its constitutional powers. Cf. Kimel v. Fla. Bd. of Regents,528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (analyzing Age Discrimination in Employment Act of 1967 under the Fourteenth Amendment even though Congress did not explicitly state it was acting pursuant to that power); Jones v. United States,526 U.S. 227, 232-33, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (interpreting the federal carjacking statute, 18 U.S.C. § 2119, as defining three distinct offense even though the "look" of the statute suggested that it defined only one offense with three separate sentencing provisions); United States v. Kozminski,487 U.S. 931, 939-40, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988) ("Federal crimes are defined by Congress, and so long as Congress acts within its constitutional power in enacting a criminal statute, this Court must give effect to Congress' expressed intention concerning the scope of conduct prohibited. Congress' power to enforce the Thirteenth Amendment by enacting § 241 and § 1584 is clear and undisputed. The scope of conduct prohibited by these statutes is therefore a matter of statutory construction." (internal citations omitted)); Griffin v. Breckenridge,403 U.S. 88, 97, 104-05, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (noting that, given its text, most courts had interpreted 42 U.S.C. § 1985(3) by reference to the Fourteenth Amendment, but analyzing its constitutionality under the Thirteenth Amendment); Woods v. Cloyd W. Miller, Co.,333 U.S. 138, 144, 68 S.Ct. 421, 92 L.Ed. 596 (1948) ("The constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise."); Civil Rights Cases, 109 U.S. at 10, 3 S.Ct. 18 (analyzing the Civil Rights Act of 1867 under the Thirteenth Amendment although Congress specifically invoked the Fourteenth Amendment). Congress is authorized to protect Jews under the Thirteenth Amendment because that Amendment's framers understood Jews to come within its purview; and once Congress enjoys this authority, Congress may exercise its power for whatever reason and under whatever heading it chooses. 15. There is a dispute about whether any form of coercion, if sufficiently powerful, may reduce a person to actual slavery or involuntary servitude, or whether only physical or legal coercion may do so. See Kozminski, 487 U.S. at 944, 108 S.Ct. 2751 (concluding that a historical survey of Thirteenth Amendment precedents reveals that the prohibitions against actual slavery and involuntary servitude have been applied only in cases of physical or legal coercion but expressly "draw[ing] no conclusions from this historical survey about the potential scope of the Thirteenth Amendment"). This question about the precise limits of the concept of actual slavery is irrelevant to the case before us, however, since our case involves not actual slavery but rather the badges and incidents of slavery. 16. Although, see infra pages 182-83, Jones, 392 U.S. at 441 n. 78, 88 S.Ct. 2186, overruled Hodges v. United States,203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906), the Jones Court declined to adopt the position articulated by Justice Harlan's dissent in Hodges, namely that "by its own force, [the Thirteenth] Amendment destroyed slavery and all its incidents and badges." Hodges. 203 U.S. at 27, 27 S.Ct. 6 (Harlan, J., dissenting, joined by Day, J.) (emphasis added). 17. Although the Supreme Court has recently clarified the scope of Congress's power to enact legislation that abrogates the states' sovereign immunity, see, e.g., Seminole Tribe of Fla. v. Florida,517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the scope of Congress's power under Section Two of the Thirteenth Amendment to enforce the prohibition on slavery and its badges and incidents probably remains unaffected by Seminole Tribe's holding. As the argument to follow demonstrates, the independent scope the Supreme Court has accorded Congress's power under Section Two makes it unnecessary to determine the extent of Congress's power to enforce the Amendment under Article I, Section 8 of the Constitution, which grants Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States," including those specified in the Thirteenth Amendment. Of course, Seminole Tribe mandates that if Congress did indeed depend on this Article I power to enforce the Thirteenth Amendment, it could not, under the heading of the Thirteenth Amendment, abrogate State sovereign immunity under the Eleventh Amendment. See Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114. This limitation, however, probably does not apply insofar as Congress's power to enforce the prohibition on slavery arises directly out of Section Two of the Thirteenth Amendment. The Supreme Court, in Seminole Tribe, expressly re-affirmed its earlier holding in Fitzpatrick v. Bitzer,427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), that Congress does enjoy power to abrogate State sovereign immunity under the Fourteenth Amendment. Indeed, the Court recognized that "the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution," and consequently that, "through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment." Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. Moreover, the Court indicated in Fitzpatrick, 427 U.S. at 454-55, 96 S.Ct. 2666, and emphasized in Ex parte Virginia,100 U.S. 339, 25 L.Ed. 676 (1879) upon which Fitzpatrick relied, that both the Thirteenth and Fourteenth Amendments "were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress," Ex parte Virginia, 100 U.S. at 345, 100 U.S. 339. Thus, by analogy, Congress's enforcement powers under Section Two of the Thirteenth Amendment would seem not to be limited by Seminole Tribe and its progeny. 18. When the Court, in Jones, disapproved of Hodges's narrow account of the Section Two enforcement power, see infra, it also strongly suggested that the Hodges Court had improperly departed from earlier understandings of the enforcement power, specifically that "[t]he conclusion of the majority in Hodges rested upon a conception of congressional power under the Thirteenth Amendment irreconcilable with the position taken by every member of this Court in the Civil Rights Cases and incompatible with the history and purpose of the Amendment itself." Jones, 392 U.S. at 441 n. 78, 88 S.Ct. 2186. 19. Although this language (specifically the quotation from the Civil Rights Cases) uses the words "necessary and proper," subsequent cases, discussed infra, make plain that the broad scope of Congress's power under the Thirteenth Amendment arises directly out of the enforcement clause of Section Two itself and not merely by application of the Necessary and Proper Clause of Article I, Section 8 to the Enforcement Clause. See, e.g., Griffin, 403 U.S. at 105, 91 S.Ct. 1790. 20. A similar doctrinal history establishes the analogous position with respect to the enforcement clause of the Fifteenth Amendment. See South Carolina v. Katzenbach,383 U.S. 301, 324, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (interpreting the enforcement clause of the Fifteenth Amendment to permit Congress to use "any rational means to effectuate the constitutional prohibition").
It is true that several recent Supreme Court cases — including Board of Trustees of the University of Alabama v. Garrett,531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); United States v. Morrison,529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); Kimel v. Florida Board of Regents,528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999); City of Boerne v. Flores,521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) — have undertaken to limit Congress's enforcement authority under Section Five of the Fourteenth Amendment to controlling conduct that directly violates the substantive provisions of Section One. But these cases do not refer to the Thirteenth Amendment context and hence cannot be read by us as applying to that context or as undermining the foundational principle that Congress's enforcement power under Section Two of the Thirteenth Amendment extends well beyond the scope of the direct prohibitions contained in Section One. There is, moreover, a crucial disanalogy between the Fourteenth and Thirteenth Amendments as regards the scope of the congressional enforcement powers these amendments, respectively, create. Whereas there is a long, well-established, doctrinally rich, and highly sophisticated tradition of judicial interpretation of the substantive protections established by Section One of the Fourteenth Amendment, the meaning of Section One of the Thirteenth Amendment has almost never been addressed directly by the courts, in the absence of specific congressional legislation enacted. Indeed, the Supreme Court has expressly referred to "the inherently legislative task of defining `involuntary servitude.'" Kozminski, 487 U.S. at 951, 108 S.Ct. 2751. And the task of defining "badges and incidents" of servitude is by necessity even more inherently legislative. 21. Not all attacks "because" a victim is black are, however, racially motivated in the relevant sense. Thus a racially indifferent attacker (one who gets his kicks from assaulting victims regardless of race) might nonetheless pursue exclusively black victims in the belief that the police will be less likely to seek out or prosecute those who commit violent acts against blacks. But we need not concern ourselves with whether § 245(b)(2)(B) would cover such assaults. The facts of the case before us (which leave no doubt as to the anti-Jewish motivation of Nelson and Price), do not require us to develop a fine-grained analysis of this question.
Our interpretation, which — at least for current purposes — treats "because" as imposing a requirement of class-based animus, is subtly but pervasively influenced by the fact that § 245(b)(2)(B) is a criminal statute concerned with acts of force. The above example — of a racially indifferent attacker who pursues exclusively black victims in the belief that assaults against such victims are less likely to be punished — is much less plausible (and was less likely pressing on the Congress's mind) than the analogous, civil, non-force-based example of a racially indifferent employer who hires only whites in the belief that his customers prefer to deal with a business that employs a white workforce. We wish to make plain that our view that "because" as it is used in § 245(b)(2)(B) seems to create a requirement of discriminatory animus does not translate in any direct or natural way to civil anti-discrimination statutes. 22. Finally, we note that some members of Congress objected to the version of § 245 that covered acts done "while" a victim was engaged in a protected activity on the grounds that some people, for example people who are employed by the federal government or who receive social security benefits, might be said to engage in these protected activities at all times, so that any and every impermissibly category-motivated act of violence against such people might have fallen within the scope of § 245 as originally conceived. See S.Rep. No. 90-721, at 8, reprinted in 1968 U.S.C.C.A.N. at 1844. But although the change from "while" to "because" no doubt helped satisfy those who presented this objection, we reject the government's suggestions that meeting this objection was the reason for the change, and that the scope of § 245 as it was eventually adopted, with the second "because" included, should be read no more narrowly than is necessary to achieve that particular purpose. Thus, this limited objection might have been met by a much less dramatic change than adopting the second "because." For example, language such as "in association with" or "connected to" in place of "while" would have done as well, and Congress's decision to adopt "because" cannot adequately be explained in terms of the intent the government proposes. Moreover, as the additional portions of the Senate Committee Report discussed in the main text reveal, Congress expressly meant the change to "because" to have the more dramatically narrowing implications. 23. The difference is important. An assailant who is paid to beat up a member of a racial or religious group by someone who is motivated by a desire to punish the victim for using a public facility is not himself or herself motivated by the desire to punish the victim's use of the facility (the motive is simply to get money) but would, nonetheless, have the intent needed to violate the law. 24. The Circuit Courts that have considered the dual requirement that appears throughout § 245 have adopted statutory constructions that are consistent with, if occasionally less specific than, the construction we adopt. See United States v. Woodlee,136 F.3d 1399, 1405 (10th Cir.1998) (noting and distinguishing both "because" requirements in § 245(b)(2)(F)); United States v. Makowski,120 F.3d 1078, 1081 (9th Cir.1997) (noting that § 245(b)(2)(B) applies only where a defendant "attack[s] the victim with the specific intent to deprive him of using a public place due to his race"); United States v. Ebens,800 F.2d 1422, 1429 (6th Cir.1986) (focusing, in analyzing a conviction under § 245(b)(2)(F), on a defendant's use of force that was racially motivated and that was committed with the intent to intimidate and dissuade his victim from remaining on the premises of a place of public entertainment), abrogated on other grounds by Huddelston v. United States,485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); United States v. Price,464 F.2d 1217, 1218 (8th Cir.1972) (separately identifying racial bias and intent to interfere with a victim's use of a public facility in a case involving § 245(b)(2)(B)). 25. The presence of these two (narrowing) requirements in § 245(b)(2)(B) makes easier our upholding of the statute's constitutionality. But we did not so read the statute in order to avoid constitutional difficulties. Accordingly, we emphasize that we are not holding that both (and in particular the second) of the conditions are necessary to the statute's constitutionality. Thus a statute, for example, that federally criminalized private racially motivated violence quite generally might or might not be constitutional under the Thirteenth Amendment. Cf. Griffin, 403 U.S. at 105, 91 S.Ct. 1790 ("We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men."). 26. The legislative history of § 245(b)(2)(B) reveals that Congress did not expressly make this determination, but instead enacted the statute in the belief that its constitutionality could be sustained under the Commerce Clause, S.Rep. No. 90-271, at 5, reprinted in 1968 U.S.C.C.A.N. at 1842, and the Fourteenth, and perhaps also the Fifteenth, Amendments, id. at 6, reprinted in 1968 U.S.C.C.A.N. at 1841-42. As a general matter, however, "Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review." Turner Broad. Sys., Inc. v. FCC,512 U.S. 622, 666, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (opinion of Kennedy, J.). And although the Supreme Court has recently reconsidered this principle in connection with legislation enacted under the "substantial effects" prong of the Commerce Clause, see United States v. Lopez,514 U.S. 549, 563, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the general rule remains unassailed in the context of the Thirteenth Amendment. Finally, even though the Congress that enacted § 245(b)(2)(B) made no findings under the headings of the Thirteenth Amendment and badges of servitude, it manifestly did make the underlying factual findings on which the determination that the conduct reached by the statute imposed badges and incidents of slavery depends. For example, the House Committee found that "[v]iolence and threats of violence have been resorted to in order to punish or discourage Negroes from voting, from using places of public accommodation and public facilities, from attending desegregated schools, and from engaging in other activities protected by Federal law." H.R.Rep. No. 90-473, at 3-4. And the Senate Committee stated that § 245 was enacted specifically "to strengthen the capability of the Federal Government to meet the problem of violent interference, for racial or other discriminatory reasons, with a person's free exercise of civil rights." S.Rep. No. 90-721, at 3, reprinted in 1968 U.S.C.C.A.N. at 1838. These findings are, of course, nearly perfect analogues to the historical conclusions earlier recounted with respect to badges and incidents of slavery. 27. We are mindful of the irony that attaches to applying the Thirteenth Amendment in this case. In doing so, we employ a constitutional provision enacted with the emancipation of black slaves in mind to uphold a criminal law as applied against black men who, the jury found, acted with racial motivations, but in circumstances in which they were, at least partly, responding to perceived discrimination against them. We make no effort to dissolve this irony, noting only that the post-Civil War amendments' specific historical focus on black Americans and the amendments' generally egalitarian language are all too often in tension. Cf. Adarand Constructors, Inc. v. Pena,515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); City of Richmond v. J.A. Croson Co.,488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Wygant v. Jackson Bd. of Educ.,476 U.S. 267, 106, S.Ct. 1842, 90 L.Ed.2d 260 (1986); Fullilove v. Klutznick,448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Regents of the Univ. of Cal. v. Bakke,438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). 28. Because we find that § 245(b)(2)(B) is a constitutional exercise of the powers granted Congress under the Thirteenth Amendment, we do not reach the alternative arguments — based on the Fourteenth Amendment and the Commerce Clause respectively — that the government has at various points in this litigation advanced. We note, however, that an important connection exists between the Thirteenth Amendment argument on which we uphold the constitutionality of § 245(b)(2)(B) and the suggestion that the statute is a constitutional exercise of Congress's powers under the Commerce Clause.
The Supreme Court has recently expressed a great reluctance to allow the Commerce Clause to grant Congress powers to regulate activities that are not directly economic. See Morrison, 529 U.S. at 610-11, 120 S.Ct. 1740 (noting that "Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor"); Lopez, 514 U.S. at 559-60, 115 S.Ct. 1624. And the activities regulated by § 245(b)(2)(B) unquestionably fall into this non-economic category. But the dominant theme in Lopez and Morrison was to protect from federal interference activities that are local in character and, in particular, these cases reflect the fear that a broad reading of the commerce power that allowed Congress to regulate even non-economic activities whenever these substantially affected interstate commerce "`would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'" Morrison, 529 U.S. at 608, 120 S.Ct. 1740 (quoting Lopez, 514 U.S. at 556-57, 115 S.Ct. 1624). It is in response to this worry that the Court has declined to adopt an expansive understanding of what might count as substantially affecting commerce. Under such a broad understanding, the Court opined, it would be "difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign." Lopez, 514 U.S. at 564, 115 S.Ct. 1624. The Thirteenth Amendment argument presented in the main text reveals, however, that private violence motivated by a discriminatory animus against members of a race or religion, etc., who use public facilities, etc., is anything but intrinsically a matter of purely local concern. Instead, such violence has long been intimately connected to a system of slavery and involuntary servitude that the Thirteenth Amendment made centrally a matter of national concern. And for this reason, congressional action taken to regulate such activity is not likely to infringe impermissibly on local affairs. It follows that laws such as § 245(b)(2)(B) (if the activity regulated also involves substantial effects on interstate commerce) may well be constitutional directly under the Commerce Clause, even after Lopez and Morrison, and even without any independent resort to the Thirteenth Amendment. The fact that Congress may regulate an activity pursuant to its Thirteenth Amendment powers in itself indicates that the regulated activity is fundamentally national rather than local. And, as a result, Congress might also, separately, opt to regulate the activity pursuant to its Commerce Clause powers. See S.Rep. No. 90-271 at 5, 1968 U.S.C.C.A.N. at 1841-42. 29. Because we reject the defendants' arguments in this connection and conclude that the street is a "facility" for purposes of § 245(b)(2)(B), we need not consider whether it might, additionally or alternatively, be a "benefit," "service," "privilege," or "activity" within the meaning of the statute. 30. The defendants also cite, in this connection, the canon of statutory construction that says that statutes should be construed to avoid unconstitutionality, see Tunick v. Safir,209 F.3d 67, 75 (2d Cir.2000), and suggest that, in light of this canon, we should read "facility" as narrowly as possible, to exclude city streets, because to do otherwise would place the constitutionality of § 245(b)(2)(B) in doubt. We reject this suggestion in light of our finding that the statute falls easily within Congress's powers under the Thirteenth Amendment. 31. The defendants also argue that reading "facility" as it is used in § 245(b)(2)(B) to include city streets would create an inconsistency with § 245(b)(2)(E), which also makes reference to the term "facility," because § 245(b)(2)(E) refers to facilities in a manner that, they say, even more obviously excludes streets. This suggestion is entirely uncompelling. Section § 245(b)(2)(E) prohibits discriminatory interference with a person because he or she is "traveling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air." Section 245(b)(2)(E) therefore treats interstate roads, highways, and streets as facilities, so that an interpretation of § 245(b)(2)(B) that understands "facility" as used there to include city streets harmonizes rather than conflicts with the plain meaning of the latter subsection. 32. Other courts that have considered the question directly have reached the same conclusion and done so with similar dispatch. See United States v. White,846 F.2d 678, 695 n. 27 (11th Cir.1988) (reversing a district court's judgment of acquittal of conspiracy to violate § 245(b)(2)(B) and holding, as one of three alternative grounds for its decision, that streets were facilities provided by the City of Decatur); United States v. Three Juveniles,886 F.Supp. 934, 945 (D.Mass.1995) (holding that streets administered by a local government were facilities within the meaning of § 245(b)(2)(B)). 33. This interpretation of § 245(b)(2)(B) was in effect conceded by the government at oral argument when it stated that for an act to violate the statute, "[t]here has to be evidence of motive ... [to keep the victim] from using [a public facility] ... [or] ... an intent to punish [the victim] for using it." Oral Argument Tr., May 3, 2000, at 37. 34. The defendants suggest that this requirement of intent is essential to an upholding of the statute's constitutionality. This, they maintain, makes it more doubtful that the evidence presented at trial was sufficient to establish that the defendants had the specific intent that they claim the statute must require. The defendants thereby present their challenge to the sufficiency of the evidence underlying their conviction under § 245(b)(2)(B) as of a piece with their prior challenge to the statute's constitutionality. They contend that any reading of § 245(b)(2)(B) that makes the statute sufficiently limited and precise as to be within the scope of Congress's constitutional powers, also makes it so limited and precise as to render the evidence presented against them insufficient to bring their conduct within its terms.
In addition to concluding that the evidence of intent was sufficient to sustain the defendants' convictions, we emphasize that in reaching this conclusion we do not view ourselves as acting under the specter of possible unconstitutionality. Instead, we reiterate that § 245(b)(2)(B), as we have interpreted it, is comfortably constitutional, although we of course express no opinion concerning the constitutionality of any broader statute not before us. See supra note 25. 35. The defense could perhaps be read to be saying that the charge was incorrect because by uniting the charge for category-based and activities-based intent and using language of intent in that charge, the court erred in stating what must be shown in order to demonstrate class-based motivation. To the extent that this is their argument, and to the extent the charge to the jury could be criticized for not specifying that category-based "because" required racial or religious animus or motivation any such error would be harmless. The evidence in this case established beyond peradventure that racial or religious animus or motivation existed. 36. Defendant Price — focusing on defendant Nelson's contention that his immediate motive for stabbing Rosenbaum was to free himself from Rosenbaum's grasp and thereby to escape apprehension by the police — also contends that the verdict should be reversed because there was insufficient evidence of class-based motive. This argument is frivolous. Nelson's immediate aim of escaping does not preclude his having had other forms of motive as well, and the trial produced overwhelming evidence of precisely such independent anti-Jewish animus. 37. We note that this is a case in which the naked inference identified in this instruction is at issue. The defendants do not claim that the jury improperly discounted countervailing evidence tending to show, specifically, that the defendants did not intend the ordinary consequences of their actions (for example, evidence that the defendants had planned to commit their attack away from the city street and attacked on the street only after their plan failed, or that they took other affirmative steps to diminish the association between their attack and the street). Instead, the defendants claim that the jury's inference is impermissible even where no evidence contradicts it. 38. We therefore find no merit in defendant Nelson's contention that in upholding the conviction against the defendants' sufficiency challenge, we create a mandatory presumption that whenever an assault occurs on or near city streets, then the assault occurs because of the victim's use of the streets. 39. We of course reach this conclusion based on our own independent analysis, and not because we are compelled to follow the Report's reading. 40. In fact, the Price court went further, calling the defendant's sufficiency challenge "a frivolous contention." Id. Oddly, it made this remark in the context of the trial court's instruction to the jury that "a person intends the natural and probable consequences of acts knowingly done or knowingly omitted." Id. This jury instruction might be the presumption of intent instruction forbidden by Sandstrom rather than the permissive instruction that Francis allows. (Which side of the Sandstrom/Francis distinction this jury instruction falls on depends not on any particular form of words that the instruction uses, but rather on the sense conveyed by the jury charge as a whole and on whether a reasonable juror could read the charge as a whole as creating an unconstitutional presumption. See Payne, 825 F.2d at 707.) Price was decided before Sandstrom, of course, and Sandstrom, by affecting the correctness of the specific jury instruction at issue in Price, might alter the outcome of that case were it argued today. It does not, however, call into question the underlying principle employed by the court in Price. This is the notion that where a jury infers intent by deciding that a given defendant meant to bring about the consequences of his actions, that defendant cannot (without pointing to countervailing evidence that the jury ignored) unseat this finding by challenging the sufficiency of the evidence. And this, of course, is the principle we re-affirm today. 41. In addition, the district court made plain to the parties that peremptory challenges raised against the two Jewish prospective jurors in the group of 45 out of which the jury was ultimately chosen would be frowned upon. Thus the district court stated that "I'm putting you right on notice that an attempt to get rid of the two Jewish jurors here, you are going to have to make an overwhelming showing," and added that it would require any peremptory challenges raised against Jewish jurors to be accompanied by sworn affidavits from defense counsel. (Tr. 683-84). The defendants do not appeal directly on the basis of these statements, which therefore serve merely to provide background to the district court decisions that the defendants do appeal. (In spite of the remarks reported above, the district court ultimately did grant the defendants' peremptory challenge against one Jewish juror.) 42. A second African-American juror, seated as Alternate Juror 3, was also excused (for hardship). 43. Although they opposed the district court's denial of their for-cause challenge to Juror 108, the defendants did not exercise a peremptory challenge against this juror. 44. The defendants had initially presented a fourth related argument on appeal, claiming that the district court had improperly denied them a peremptory challenge to Juror 108. The defendants withdrew this claim, however, after the government pointed out that they did not in fact seek to exercise a peremptory challenge against this juror. 45. Here, and subsequently, we refer to Juror 108 as a "biased juror." This phrase connotes a juror's predisposition with respect a defendant's guilt or innocence which precludes the person from serving on a jury. We do not employ the term "bias" in its common use of an individual's racial prejudice or other form of intolerance. 46. In addition to actual bias, a for cause challenge to a juror may be grounded on "implied bias" and "inferable bias." See id. Appellate review of district court decisions based on these grounds raises questions, and is governed by standards, that we need not address here. 47. Juror 108 did this, of course, by expressing his disappointment with Nelson's acquittal in State court. 48. Of course, "most constitutional errors can be harmless." Arizona v. Fulminante,499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Thus, where a "defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis." Rose v. Clark,478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). And errors that count as "structural," and require automatic reversal, occur only in a "very limited class of cases." Johnson v. United States,520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). We are confronted, however, with precisely such a case. As the Supreme Court has reiterated, "[a]mong those basic fair trial rights `that can never be treated as harmless' is a defendant's `right to an impartial adjudicator, be it judge or jury.'" Gomez v. United States,490 U.S. 858, 876, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (quoting Gray v. Mississippi,481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (quoting Chapman v. California,386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967))). 49. The government also argues that any abuse of discretion the district court committed in rejecting the defendants' for-cause challenge to Juror 108 did not rise to the level of plain error, and was forfeited since the challenge to Juror 108 was not renewed when the panel was selected. We reject this contention because the arguments against the government's waiver theory that follow in the main text apply equally, mutatis mutandis, against any theory of forfeiture. We also note that such a forfeiture theory would have to be based on the defendants' failure to object to the empaneling of Juror 108. But, in a federal trial, a forfeiture of an objection to a trial court's denial of a for-cause challenge to a juror may not be implied from the failure subsequently to exercise a peremptory strike against that juror. Thus, the Supreme Court has expressly "reject[ed] [the] contention that under federal law, a defendant is obliged to use a peremptory challenge to cure the judge's error [in failing to grant a challenge for cause]." Martinez Salazar, 528 U.S. at 307, 120 S.Ct. 774. In other words, it would seem that the defendants' initial challenge is sufficient to avoid forfeiture. 50. Fay's holding dealt with ordinary state law waiver rules and exhaustion requirements under federal habeas law. We note that although Fay's approach to these matters was affirmed by Fay v.. Noia,372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), Fay v. Noia was itself limited by Wainwright v. Sykes,433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and overruled by Coleman v. Thompson,501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). But although Fay's holding concerning garden variety waiver and federal review of habeas petitions brought by state prisoners has been superceded by a new and very different habeas regime, Fay's dicta about extraordinary cases of waiver remains as powerful and relevant today as when it first issued. 51. This list, of course, is not exhaustive, but merely provides examples designed to emphasize the narrow set of cases to which our discussion of unwaivability applies. 52. This scheme clearly violated Fed.R.Crim.P. 24(c), which states that "[a]n alternate juror, in the order called, shall replace a juror who ... is found to be unable or disqualified to perform juror duties." Any claim based on solely on the district court's technical violation of the procedures established in Rule 24(c) has, however, clearly been waived by the defendants' agreement to that plan. See Viserto, 596 F.2d at 539-40. 53. This is so, Powers teaches, not least because race-based selection of juries violates the equal protection rights not just of the parties to a proceeding but also of the would-be jurors who have been excluded. Thus, while "[a]n individual juror does not have a right to sit on any particular petit jury, ... he or she does possess the right not to be excluded from one on account of race." Powers v. Ohio, 499 U.S. at 409, 111 S.Ct. 1364. 54. One might question whether our dicta in Fay, together with holdings such as Freytag, should have sufficed to constitute such express judicial disapproval. But we need not so decide in order to resolve this case. 55. Judge Straub's thoughtful partial dissent does, however, warrant some further comment. Judge Straub believes, as we do, that Juror 108 should have been excluded for cause. He also agrees that the selection of this juror on a racial and religious basis constituted serious error that should not be countenanced. But he wishes to apply any prohibition only in the future. In support of his position he addresses various arguments against giving the defendants, who knowingly participated in the creation of the racially and religiously selected jury, the benefit of their own misdeeds. These arguments are not without merit. The problem with them is, however, that the decisive issue for us is neither prospective application nor juror bias but, as we discuss infra II(B)(4), whether a court may seat a biased juror in exchange for the seating of another juror who is selected on the basis of race. To illustrate this point most dramatically, consider a biased juror (as Judge Straub's partial dissent concedes Juror 108 to be) whatever his or her religion. Would we condone a court's offer that if, and only if, a defendant accepted, and indeed waived all objections to, such a biased juror, the court would — out of turn — seat a juror who was of defendant's race or religion? I think not. The court's jurymandering plan, accepted by the parties constituted precisely such an offer.
Additionally, prospective application would fail, in our view, to address Judge Straub's appealing arguments about the undesirability of letting defendants benefit from the impropriety of a scheme in which they were full participants. The trouble with barring jurymandering in the future only, is that Judge Straub's arguments against reversal would be every bit as meritorious in a future case in which the parties and the judge agreed to jury selection based on race or religion. And if they were to be accepted then, as Judge Straub suggests that they should be now, the wrong that he agrees has occurred would be repeatable in perpetuity. This, of course, might not occur if the court or the government had any proper expectations in this case that what was done was acceptable. But such a view is not sustainable. Apart from the existence of our dicta in Fay, 300 F.2d at 350-51, warning against jurymandering, the rules prohibiting officially created racial classifications unless they survive strict scrutiny are clear. See, e.g., Adarand Constructors, Inc. v. Pena,515 U.S. 200, 224, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Moreover, well before this opinion issued, both the court and the government gave unmistakable indications that they were aware of the likely impropriety of what had been done. The court did this when it suggested that the parties ought not broadcast the arrangement. And the government did so when it, admirably, suggested error in open court but asked for prospective application only. This, then, is not a case of "sandbagging" or surprise because of which it may be appropriate to apply a "new" rule in the future only. This is a situation in which, for motives that we do not at all question, the court together with the parties did something that they had good reasons to believe they should not do. Since the same circumstances may well occur again in the future, prospective application is apt to be chimerical and, hence, not suffice to safeguard society's fundamental interest in properly selected juries. It is also worth noting that insofar as the rule permitting waivers even of crucial constitutional rights is grounded in part on the concern that defendants may give themselves two chances at an acquittal by strategically passing over constitutional challenges at trial and raising them on appeal only if they lose, this worry is less pressing in cases in which the violations occur off the district court's own bat. When the court takes the lead in the proceedings, the opportunities for strategic manipulation by the parties are considerably diminished. Judge Straub makes one further point that needs attention. He says in footnote 3 that "the evidence here proving guilt was powerful" and that "[w]e can have overwhelming confidence that these two [defendants] were [justly and fairly] convicted." Op. Dissenting in part at 9 n.3. The issue is not quite so easy. In order for these federal convictions to stand there must not only be proof that the acts alleged in the indictment were done (as to which we readily concur that the evidence was strong), but there must also be proof "beyond a reasonable doubt" that the acts were committed because the victim was using a public facility. We have held in Part II of this opinion that, despite the absence of any direct evidence of this essential defendant intent, the fact that a jury is permitted (but not required), see Francis v. Franklin, 471 U.S. at 315, 105 S.Ct. 1965, to infer that defendants intended the foreseeable consequences of their acts, was enough to allow these convictions to withstand a serious challenge based on insufficiency of the evidence. (But see Judge F.I. Parker's contrary view on this point, infra Op. Dissenting in part and Concurring in part at 10.) Our holding in this respect was, necessarily, based on the strong reliance our system places on the findings of a properly selected and unbiased jury. Once it is conceded that the jury was not properly chosen, our confidence in the finding that the defendants' intended to attack the victim because he was using a public facility (a finding which, we repeat, is a fundamental prerequisite of the federal crime that is here charged) is necessarily shaken. And, inevitably, so is the validity of the conviction. We fully share Judge Straub's distress at prolonging the pain of the community and the family of the victim. But we cannot affirm a conviction whose correctness has been put in doubt by the fact that a highly uncertain element of the crime was found to exist by a jury that was not chosen in accordance with the most basic precepts of our legal system. 56. The "deal" that was offered the defendants was not only improper, it was also, perhaps, "unfullfilable." See Brady, 397 U.S. at 755, 90 S.Ct. 1463. In the case before us, the defendants' have challenged their conviction asserting, in part, that the racially and religiously selected jury they faced did not constitute a jury at all, and hence that their trial before it — regardless of their consent — was a nullity. This argument is by no means frivolous (even if we ultimately did not need to decide its merit). And the same argument might conceivably also cut the other way. Thus, had the defendants been acquitted, could not the government have contended that the acquittal, having been issued by such a non-jury, was a nullity and that double-jeopardy did not bar a retrial? Jeopardy, after all, attaches only after a jury is empaneled and sworn. Crist v. Bretz,437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). And, if it were held that a group of people seated on the basis of race or religion did not constitute a jury, it is not impossible that a court could conclude that no jeopardy had attached. Were that so, the "deal" offered to the defendants in exchange for the seating of Juror 108 would have proven worthless. 57. Analogously, we cannot imagine that an agreement by the defense not to object on Batson grounds, to the prosecution's use of racially based peremptory challenges, if made in exchange for the prosecution's commitment to let the defense employ racial criteria in its peremptory challenges, could stand. And the fact that a court approved, or encouraged, such an agreement, far from insulating it from subsequent attack, would, doubtless, make it even more vulnerable. 58. Although the author of this opinion has argued, and adheres to the view, that the dual sovereignty doctrine is in need of rethinking, see All Assets of G.P.S. Auto. Corp., 66 F.3d at 496-99 (Calabresi, J., concurring), and although he also believes that a reexamination of the doctrine is particularly appropriate in light of distinctions drawn by the Supreme Court in United States v. Balsys,524 U.S. 666, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998), between the relationships among the several sovereigns that constitute the United States, and those among these sovereigns and foreign countries, such a reconsideration of a Supreme Court doctrine is not the province of the Courts of Appeals. 1. Black's Law Dictionary (7th ed.1999). 2. Bouvier's Law Dictionary (8th ed.1914). 3. Because is clearly used as a preposition in its first use in § 245(b)(2): "[A]ny person because of his race...." § 245(b)(2)(emphasis added). It is also used as a preposition in its second appearance in § 245(b)(2), even though "of" does not follow "because": "[A]nd because he is or has been —...." Id. (emphasis added). The second because cannot be a conjunction because it does not connect two dependent clauses, e.g., "We stopped at the filling station because we needed gasoline." Webster's Third International Dictionary 194 (14th ed.1961). Even if "because" were construed as a conjunction, the definition of the conjunction because equally supports the plain meaning interpretation of the statute I urge. Because as a conjunction is defined as "for the reason that" or "on account of the cause that." Id. 1. Pursuant to Fed.R.Crim.P. 24(c), each member of the venire is assigned a number which determines the order of prospective jurors and ultimately, jury members. Thus, for example, prospective juror 50 would deliberate as a member of the final jury only when all but 11 of the prospective jurors numbered 1 to 49 had been excused. 2. In part, I believe that the agreement between defense, prosecution and Judge to empanel a juror indicates a shared consensus that the resulting jury will fairly adjudicate the case. Where the parties decide that they prefer a jury containing the allegedly biased juror to a different jury without him, I believe that an appellate court can do little more to guarantee impartiality by reviewing the cold transcript of the juror's voir dire. The agreement of the parties who make a conscious, knowing and intelligent decision serves as an adequate guarantee of impartiality, enabling us to construe the defendants' behavior as a waiver of their earlier objection. 3. The majority disputes the deterrent value of a prospective rule, worrying that if a future panel were to find my argument equally applicable, the injuries would be "repeatable in perpetuity." As a conceptual matter, my argument would not apply in a future case. This is because a future panel would have to address our representation here that this Circuit will reverse and remand any conviction obtained by a jury that was selected with race or religion in mind. My argument, which focuses on the deterrent value of court rulings, necessarily takes notice of and gives effect to such explicit warnings. In practical terms, I think the majority's concern is even more unwarranted. I am certain that the government (or a district court) will not select a jury in flagrant disregard of this Court's explicit warnings in the odd hope that our Court might alter its explicitly articulated view in so fundamental a matter. Warnings can be credible, even where a penalty is not assessed at the first possible moment. 4. It is also worth noting that a prospective rule is appropriate where, as here, the defendants failed to properly object to the allegedly erroneous decision by the District Court. Although the defendants did initially make a for-cause objection to Juror 108, they subsequently waived that objection when they gave their intelligent and knowing agreement to the plan to seat that juror. As I believe that this waiver is equivalent to a failure to object, we therefore may correct the District Court's decision only if it is (1) error, (2) that is plain, (3) that affects substantial rights and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings. See Johnson v. United States,520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
I think we may establish a prospective rule because the defendants here satisfy the first, but not the last, two prongs of the test. I am inclined to agree that the District Court erred, and that, given the ruling announced here, that error is plain. Cf. id. at 467-68. Therefore, we may conclude that the law in this Circuit prohibits the use of race and religion as criteria for the inclusion of a juror in the future. I do not, however, think that the error affected substantial rights in this trial, as the inclusion of Juror 108 was not "structural error" for the reasons discussed above. See id. at 468-69. Nor do I believe that, when examined in the context of this trial, the decision seriously affected the fairness, integrity or public reputation of the judicial proceedings. See id. at 469-70. As our discussion of the defendants' challenge to the sufficiency of the evidence indicates, the evidence of guilt was compelling and the trial, though not error-free, can give us confidence that the evidence was fundamentally weighed and evaluated as our laws and Constitution require. We can be confident that these two defendants were convicted based on the evidence and pursuant to fair and just proceedings. Since the defendants did not properly preserve their objection to the jury selection, we may not correct the errors made by the District Court.
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