United States v. Watson, Dwight W.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2006 Decided April 13, 2007

No. 04-3082 & 04-3090

UNITED STATES OF AMERICA,
APPELLANT/CROSS-APPELLEE

v.

DWIGHT W. WATSON,
APPELLEE/CROSS-APPELLANT

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.
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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 (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 (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
 3

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 (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
 4

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 (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 (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 (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. 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. If the
government offers such an explanation, the trial judge then must
decide whether the defendant has proved purposeful racial
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discrimination. Id. at 98; see Hernandez v. New York, 500 U.S.
352, 358-59 (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 (citations omitted) (internal quotation
marks omitted).

In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128-29
(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, and recounted the “long and unfortunate history of sex
discrimination,” id. (internal quotation marks omitted) (quoting
Frontiero v. Richardson, 411 U.S. 677, 684 (1973)); see id. at
131-34. 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 (quoting
Schlesinger v. Ballard, 419 U.S. 498, 508 (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 (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; see id. 136-
38. “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 (first omission in
original) (second alternation in original) (quoting Batson, 476
U.S. at 97-98). A member of a class entitled to heightened
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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 (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, 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 legislation
indicates that governmental consideration of those
differences in the vast majority of situations is not only
legitimate but also desirable.

Id. at 442-44. In other words, “the wide variation in the abilities
and needs of the retarded themselves [means] governmental
bodies must have a certain amount of flexibility and freedom
from judicial oversight in shaping and limiting their remedial
efforts.” Id. at 445. Noting that federal and state governments
had recently responded to the needs of the mentally retarded, the
Court concluded that disabled individuals did not constitute a
powerless class, id. at 443-46, and declined to presume that any
classification drawn on the basis of disability was rooted in
unconstitutional discrimination, id. at 446.
 7

In Board of Trustees of the University of Alabama v.
Garrett, 531 U.S. 356, 366-68 (2001), the Supreme Court
reaffirmed that classifications based on disability are subject
only to rational basis review. Quoting from Cleburne, the Court
explained that “if the large and amorphous class of the mentally
retarded were deemed quasi-suspect . . ., it would be difficult to
find a principled way to distinguish a variety of other groups
who have perhaps immutable disabilities . . . and who can claim
some degree of prejudice from at least part of the public at
large.” Id. at 366 (internal quotation marks omitted) (quoting
Cleburne, 473 U.S. at 445). Reasoning from Cleburne, the
Court concluded that “States are not required by the Fourteenth
Amendment to make special accommodations for the disabled,
so long as their actions towards such individuals are rational.”
Id. at 367. Concluding that Congress’s action was not supported
by a relevant history and pattern of constitutional violations, the
Court sustained the States’ Eleventh Amendment immunity to
suits for damages under Title I of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12111-12117. Garrett,
531 U.S. at 374.

From this precedent, it would follow that peremptory
challenges of blind jurors are not subject to heightened scrutiny.
The Equal Protection Clause affords a prospective juror a right
not to be excluded from a particular jury on the basis of race or
gender, see Powers v. Ohio, 499 U.S. 400, 409 (1991); J.E.B.,
511 U.S. at 128-29, because discrimination on these grounds
strikes at the “core guarantee of equal protection,” J.E.B., 511
U.S. at 146 (internal quotation mark omitted), and is rarely
justifiable, see Cleburne, 473 U.S. at 440-41. By contrast, the
Supreme Court has declined to treat the disabled as a suspect
class in recognition of the reality that the States may have
legitimate reasons for treating differently persons whose
disabilities reduce their ability to perform certain functions. See
Garrett, 531 U.S. at 366-67; Cleburne, 473 U.S. at 442-46.
 8

Watson seeks extension of the Batson rule to the blind,
however, on the ground that in Lane the Supreme Court
recognized that States deprived disabled individuals of a
fundamental right by excluding them from jury service. See
Lane, 541 U.S. at 524 & n.9, 525 & n.14. In Lane, the Court
observed that Title II of the ADA was enacted “against a
backdrop of pervasive unequal treatment in the administration
of state services and programs, including systematic
deprivations of fundamental rights.” Id. at 524. The Court
explained that Title II addressed the deprivation of certain “basic
constitutional guarantees, infringements of which are subject to
more searching judicial review,” id. at 522-23, including “the
right of access to the courts at issue in this case,1 [which is]
protected by the Due Process Clause of the Fourteenth
Amendment,” id. at 523. The Court noted, among other
examples, that many States had prohibited disabled persons
from serving as jurors. Id. at 524 & n.9, 525 & n.14. In view of
the significant evidence of discrimination against the disabled,
see id. at 524-27, the Court determined that Title II exhibited “a
congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end,” id.
at 520 (internal quotation marks omitted) (quoting City of
Boerne v. Flores, 521 U.S. 507, 520 (1997)); see id. at 531, and
therefore concluded that Congress had validly abrogated the
States’ immunity under the Eleventh Amendment, id. at 514-15,
533-34.

Lane is not as helpful to Watson as he suggests. In
addressing the disabled generally, the Supreme Court in Lane
stated that “classifications based on disability violate [the

1
The respondents in Lane, paraplegics who used wheelchairs,
cited the physical barriers they faced in accessing courthouses, such
as the absence of elevators. Id. at 513-14.
 9

Fourteenth Amendment only] if they lack a rational relationship
to a legitimate governmental purpose.” Lane, 541 U.S. at 522;
see Garrett, 531 U.S. at 365-68. As examples of such violations,
the Court referenced absolute bars to jury service by disabled
individuals and discretionary bars invoked by trial judges. See
Lane, 541 U.S. at 524 & n.9, 525 & n.14 (citing Mich. Comp.
Laws Ann. § 729.204; Tenn. Code Ann. § 22-2-304(c) (1994);
Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1289 (9th
Cir. 1982); Galloway v. Superior Court of District of Columbia,
816 F. Supp. 12, 14 (D.D.C. 1993); DeLong v. Brumbaugh, 703
F. Supp. 399, 405 (W.D. Pa. 1989)). It also noted a state case
that involved a peremptory challenge under the State
constitution’s equal protection guarantee that was decided under
rational basis review. See id. at 525 n.14 (citing People v.
Green, 561 N.Y.S.2d 130, 133 (County Ct. 1990)). The Court’s
reasoning in Lane was thus relevant to demonstrating that
categorical exclusions from jury service possibly implicated the
denial of fundamental rights, but does not support Watson’s
contention that the exercise of peremptory challenges of
individual jurors on the basis of disability related to the
particular case triggers heightened scrutiny or violates Batson.
Even were we to interpret Lane as recognizing that individual
exclusions of prospective jurors on a case-by-case basis because
of their disability implicate fundamental rights, it cannot be that
only the blind have this fundamental right, and Watson fails to
explain why, under his interpretation of Lane, heightened
scrutiny would not extend to all peremptory challenges of
disabled persons or indeed of all persons.

For these reasons, we find no basis for applying heightened
scrutiny to peremptory challenges of blind jurors.

III.

Alternatively Watson contends that the prosecutor’s
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peremptory strikes were not rational because the charges against
him did not rely on visual evidence and to the extent the
government chose to introduce such evidence it was, by reason
of technical defects, virtually useless to the jury. The Supreme
Court suggested, prior to Batson, that “[t]he essential nature of
the peremptory challenge is that it is one exercised without a
reason stated, without inquiry and without being subject to the
court’s control.” Swain, 380 U.S. at 220. The government now
maintains that any peremptory challenge is permissible so long
as it is not exercised on grounds that trigger heightened scrutiny
under the Equal Protection Clause. It relies on Purkett v. Elem,
514 U.S. 765, 768-69 (1995), which noted that a “legitimate
reason” for exercising a challenge need not make sense.
Although suggestive, Purkett is not dispositive. The Court also
noted that the reason given could not deny equal protection and
its analysis focused on whether an irrational justification was
race-neutral for Batson purposes, see id. at 769; it did not
consider whether an irrational justification would itself violate
equal protection.

Watson’s case is in much the same posture as that in United
States v. Harris, 197 F.3d 870 (7th Cir. 1999), where the Seventh
Circuit applied rational basis review, relying on the statement in
Batson that “the State’s privilege to strike individual jurors
through peremptory challenges[] is subject to the commands of
the Equal Protection Clause.” Id. at 873 (alteration in original)
(quoting Batson, 476 U.S. at 89); see Purkett, 514 U.S. at 769.
Watson, like Ms. Harris, contests the rationality of the
prosecutor’s strikes of the excluded jurors. See Harris, 197 F.3d
at 876. The Seventh Circuit reasoned that “[i]f the government
had struck [a disabled juror] because of an irrational animosity
toward or fear of disabled people, this would not be a legitimate
reason for excluding her from the jury.” Id.; see Cleburne, 473
U.S. at 450.
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It is unnecessary to decide whether the Seventh Circuit was
correct to apply rational basis review because we conclude that
the prosecutor’s use of peremptory challenges was rational. The
prosecutor explained: “[T]hese two [blind] jurors can cause the
government a concern because a substantial amount of the
government’s evidence is either photographs or videos, the types
of things, for the juror to understand the full impact, the juror
must see.” Although the two videotapes in Watson’s case were
of poor quality, one was still shown to the jury and there is no
evidence that the quality was so poor that the footage was not
visible. Other visual evidence included multiple photographs of
Constitution Avenue Gardens and the surrounding area,
Watson’s tractor and its location in the Gardens, items found in
the tractor, and the damage caused to the property. Watson
counters that the photographs and videotapes were of minimal
importance to the government’s case, that the threats charge was
based solely upon Watson’s statements — some of which were
recorded on audio tapes — and that the damage to public
property charge was described in detail by several witnesses.

The rationality of the prosecutor’s peremptory challenges
cannot rest on the evaluation of the defense of the evidence
needed by the government to prove its case, much less on tactical
decisions yet to be made by the defense at trial, including
whether to object to any of the government’s evidence. Watson
may consider the prosecutor’s understanding of a blind person’s
capability to observe outdated,2 but it is not necessarily irrational

2
See D. Nolan Kaiser, Juries, Blindness, and the Juror
Function, 60 CHI.-KENT L. REV. 191, 199-200 (1984); D. Nolan
Kaiser, Just Justice: A Reply to Mr. McConnell, 60 CHI.-KENT L. REV.
215, 216-17 (1984); see also Nancy Lawler Dickhute, Jury Duty for
the Blind in the Time of Reasonable Accommodations: The ADA’s
Interface with a Litigant’s Right to a Fair Trial, 32 CREIGHTON L.
REV. 849, 855-56, 880 (1999).
 12

to think that a person is likely to acquire a more accurate
understanding of a scene by seeing it rather than merely hearing
about it.3 Defense counsel offered no basis on which the district
court could have found that the prosecutor’s peremptory strikes
were based on a vague, undifferentiated fear that blind persons
were incapable of serving as jurors. Counsel proffered no expert
opinion, even in secondary form, that a blind juror would be able
to fully assess the strengths and weaknesses of the government’s
visual evidence. Nor did counsel suggest a means of
accommodating blind jurors, much less request that the
government provide an accommodation by presenting, for
example, descriptive oral testimony of the scenes and events
depicted in the videotapes. See, e.g., Galloway, 816 F. Supp. at
17-18 & n.11; Dickhute, supra, at 870-72 (citing Galloway, 816
F. Supp. at 17-18 & n.11; People v. Caldwell, 603 N.Y.S.2d 713,
714-16 (N.Y. Crim. Ct. 1993), aff’d, 661 N.Y.S.2d 436 (1997);
AMERICAN BAR ASS’N, INTO THE JURY BOX: A DISABILITY
ACCOMMODATION GUIDE FOR STATE COURTS (1994)).

Therefore, because rational basis review is “highly[]
deferential,” Brown v. City of Michigan City, 462 F.3d 720, 733
(7th Cir. 2006) (quoting Turner v. Glickman, 207 F.3d 419, 426
(7th Cir. 2000)); see also Williams v. Pryor, 240 F.3d 944, 948
(11th Cir. 2001); Steffan v. Perry, 41 F.3d 677, 685, 690 (D.C.
Cir. 1994), we can only conclude that the prosecutor’s
explanation was sufficient to show that the peremptory
challenges were rationally related to ensuring a fair trial for
Watson. See Harris, 197 F.3d at 876. The visual evidence could
add drama and meaning to the events underlying the indictment
and render undeniable the serious disruption and the physical

3
See Lewinson v. Crews, 282 N.Y.S.2d 83, 85-86 (N.Y. App.
Div. 1967), superseded by statute as noted in People v. Guzman, 555
N.E.2d 259, 261-62 (N.Y. 1990); James G. McConnell, Blind Justice
or Just Blindness?, 60 CHI.-KENT L. REV. 209, 212-14 (1984).
 13

damage to public property that Watson had caused. The
experienced district court acknowledged that there was
considerable visual evidence in the government’s case and there
is nothing to suggest that it was included for the purpose of
denying blind persons an opportunity to serve as jurors.

IV.

In its cross appeal of Watson’s sentence, the government
contends that the district court committed the same error as
occurred in United States v. Fanfan, 543 U.S. 220, 228-29
(2005), the companion case to United States v. Booker, 543 U.S.
220 (2005), where the district court failed to appreciate its
authority to enhance a sentence based on factual findings other
than those made by the jury. Following Booker’s instruction that
district courts treat the Sentencing Guidelines as advisory, id. at
244-46, this court has instructed, albeit after Watson’s
resentencing, that district courts retain authority to impose a
reasonable sentence within the statutory range based on factual
findings by the jury, or admissions by the defendant, and may
still find facts in determining the applicable Guidelines range,
see United States v. Coles, 403 F.3d 764, 768-69 (D.C. Cir.
2005). Watson’s objection that the government failed to
preserve its Booker objection by presciently arguing in the
district court that the Guidelines should be considered advisory
is of little moment. Even under plain error review, this court has
emphasized the importance that a sentence not have been
affected by the error, see United States v. Saro, 24 F.3d 283, 288
(D.C. Cir. 1994), and that is all the government seeks in its cross-
appeal. The district court plainly erred by failing to appreciate
the sentencing authority that it retained after Booker.

Therefore, we must remand the case for resentencing. The
record suggests that the district court intended to sentence
Watson close to the upper limits of its authority. See United
 14

States v. Simpson, 430 F.3d 1177, 1184 (D.C. Cir. 2005). The
district court initially sentenced Watson at the upper end of the
sentencing range, stating that the sentence was intended to deter
others who might be tempted to act as Watson had. Watson does
not dispute that the district court, in resentencing him, imposed
what it believed was the maximum lawful sentence. Although
the sentencing judge has since retired and the original transcripts
of Watson’s character witnesses are unavailable, the case will be
assigned to another district court judge and Watson may seek
leave to present character evidence and to supplement that
evidence in view of the passage of time. At oral argument, the
government conceded that the district court will have authority
to reconsider the enhancement factors and to allow Watson to
present character evidence again. The district court will need as
well to give due consideration to the fact that Watson likely has
completed serving his sixteen months of imprisonment.

Accordingly, we affirm the judgment of conviction and
remand the case to the district court for resentencing.