On December 19, 2000, a shipment of 1300 Sony digital cameras disappeared from O’Hare International Airport soon after arriving on an American Airlines flight from Japan. After an investigation resulted in confessions from two American Airlines employees — defendants Hugh Willis and Victor Trout — the United States charged them both with stealing and conspiring to steal a foreign shipment. A jury convicted Trout of conspiracy but acquitted him of the theft charge, resulting in twenty-seven months’ imprisonment. Another jury convicted Willis on both counts, earning him forty-one months’ imprisonment. These appeals followed, raising a number of issues concerning the administration of the trials and one related to sentencing. For the reasons set out below, we affirm Trout’s and Willis’s convictions, but vacate Willis’s sentence and remand for resentencing.
I. Background
On the afternoon of December 18, 2000, a shipment of 1300 Sony digital cameras arrived at O’Hare International Airport on an American Airlines flight. The shipment *765 came from Japan, and Nippon Express was supposed to be pick it up the next day. But when Nippon Express came to get it, the cameras, all $690,885 worth, were gone. Understandably put out by the loss, Nippon Express contacted American Airlines who, in turn, contacted the Chicago Police Department to investigate.
The investigation soon bore fruit. On the night of the disappearance, an American Airlines employee, Rosarito Solomon, had come upon three individuals — Hugh Willis, a man named Mark Patterson, and an unidentified man in a ski mask — taking apart what appeared to be a shipment of cameras. Their behavior was suspicious for a number of reasons. Willis told Solomon that they were breaking down the shipment because it had been crushed en route to London, but the men hadn’t filled out a damage report as required. Also, the men were working outside and shipments were typically broken down indoors. And based on the tracking number for the shipment, the contents were supposed to stay in Chicago, not move on to London as Willis had said. Over the next few days, cameras started to turn up in strange places around the airport; three were found in the back of a luggage tug and another one showed up in a misplaced cart behind a privacy fence.
On December 22, 2000, Chicago detectives Milorad Sofrenovic and Stephan Combes interviewed Willis about the lost cameras. At first, Willis denied any knowledge. But based on what Sofrenovic already knew about Willis’s involvement, he arrested him anyway. Willis soon confessed, first verbally then in writing. As he recounted it, the heist was a straightforward one. Willis said that when the shipment arrived, he decided to steal it, thinking the shipment consisted of camcorders. So he, Patterson, and Trout began breaking down the load of cameras and putting them into freight cars. Trout then took the shipment out of the cargo area, and later that night, the men divvied up the cameras, eventually taking them off-site and selling them. Willis would receive $1500 for his lot of the cameras.
A few days later, Trout confessed to Officers Sofrenovic and Combes as well. He said that Willis had called him on December 18 to ask if he wanted to make some extra money, but Trout was noncom-mital. Later, Patterson called asking if Trout would move the load of cameras. Trout agreed and moved the cameras with the understanding that he would be paid after they were sold; he said he would’ve been happy to receive $200 for his time. Circumstantial evidence made Trout’s involvement plausible. He was at work but unaccounted for from 4 P.M. on December 18 until 2 A.M. on December 19 — the time of the robbery. And he had access to the luggage tug in which the three misplaced cameras were found.
In light of this evidence and their confessions, indictments were forthcoming for both Trout and Willis, charging them with stealing a foreign freight shipment in violation of 18 U.S.C. §§ 659 & 2 and conspiring to do so in violation of 18 U.S.C. § 371. A jury acquitted Trout of the actual theft, but convicted him of conspiracy, resulting in twenty-seven months’ imprisonment. A separate jury convicted Willis on both counts, and the judge sentenced him to forty-one months’ imprisonment. In reaching this sentence, the court found that Willis had perjured himself on two separate occasions and added two, two-level obstruction-of-justice enhancements. These appeals followed.
II. Discussion
Together, Willis and Trout raise five issues on appeal, four of which concern the administration of the trial and one that concerns sentencing. Willis challenges the *766 government’s use of a peremptory strike against the only African-American venire-person and the district court’s imposition of two obstruction-of-justice enhancements in calculating his sentence. In his appeal, Trout submits that the government both committed prosecutorial misconduct by objecting during his attorney’s closing argument and improperly commented on his decision not to testify at trial. He also claims that the district court improperly handled a jury note sent out during deliberation. We discuss each issue in turn, providing additional facts as necessary.
A. Willis’s Appeal
1. Batson Claim
On appeal, Willis claims that the dismissal of the only African-American veni-reperson constituted a Batson violation. Of the forty people called in the venire for Willis’s trial, only one — Juror No. 1 — was African American. After a recess between voir dire and the selection of the jurors for trial, the government asked the court if it could pose a few more questions to Juror No. 1. She had recently moved from being the manager of a fast-food restaurant to the ranks of the unemployed. The government doubted that a person would voluntarily reduce her income from a managerial salary to unemployment benefits. And the government’s attorneys wondered if theft or misconduct precipitated the move, potentially fomenting “animosity towards people in authority” and ostensibly biasing her against the government’s case. Because she was the only African-American juror, the government did not want to immediately strike her. So it proposed asking her a few more questions to clear up her employment history instead.
Willis’s attorney characterized the government’s motivations less charitably. He responded to the government’s request by voicing his “concern ... that the government [wa]s hunting ... for ... some independent reason” to strike the “single African-American individual.” The court ultimately denied the government’s request for more questioning. But because it considered the government’s concerns to be “real” and “reasonable,” it said that it would be “within [the government’s] rights to excuse her ... on a peremptory challenge.” He told Willis’s attorney that he could “make a Batson objection, but [he didn’t] think it would be well taken.” After the court made its decision, Willis’s attorney said that he “wanted to note for the record the action of the government striking Juror No. 1, ... the only African-American in the entire 40-member venire.” The court recognized his concern, but said that it could not “require the government to take a juror that it would not otherwise take just because that juror happens to be black.”
The Equal Protection Clause of the Fourteenth Amendment prohibits a party from dismissing a potential juror because of that juror’s race,
Batson v. Kentucky,
Were the government’s concerns over Juror No. l’s employment history the
*767
actual reason for dismissing her? The parties dispute how much deference we should give the district court’s affirmative answer to this question. In the government’s estimation, Willis forfeited this claim by never raising a proper
Batson
challenge in the district court, meaning we would only review the decision for plain error and will only reverse if “a discriminatory intent is inherent in the prosecutor’s explanation.”
United States v. Chandler,
In light of the record below, Willis did not forfeit his
Batson
claim. A
Batson
inquiry is very specific: is a party trying to eliminate a potential juror because of that person’s race or gender? The answer to this question most often hinges on the credibility of the race-neutral reason put forth to strike the venireperson.
Batson,
That is what happened in the district court. The court evaluated and credited the government’s non-discriminatory reasons for dismissing Juror No. 1 in light of an accusation — first potential, then actual — that the government dismissed her because of her race. The government prefaced its request for additional questioning with the observation that its concerns were “in line with what [Willis’s attorney] want[ed] to talk to you about.... It’s obvious there’s only one African-American juror on the venire.” And the government’s attorney said that he, “as an individual, did not want to strike the only African-American prospective juror.” In addition, Willis’s attorney accused the government of “hunting ... for some ... independent reason” to strike Juror No. 1, whom he called the “single African-American individual” in the venire. And after the court’s decision, he renewed his objection to the dismissal of Juror No. 1, “for the record, the only African-American in the entire 40-member venire.” Finally, the court characterized the government’s concerns as “real” and “reasonable,” and it added that “putting myself in the position of the prosecutor in this case, I’d have the same concerns.” The court also “kn[e]w that this juror would not be excused by the government because of her race.” And although the court said it would “listen to [Willis’s attorney] if he want[ed] to raise a Batson objection,” the court did not “think it would be well taken.” Although the treatment of the issues was not ordered as *768 Batson would have it, this colloquy suffices to preserve Willis’s Batson claim for review.
Despite the standard of review, these facts are insufficient to show a
Bat-son
violation. The issue on appeal is solely whether the government’s non-discriminatory reason was valid and worthy of belief. It’s unnecessary to determine whether Juror No. l’s dismissal sufficed to establish Willis’s prima facie case. The government gave its race-neutral justification for striking Juror No. 1, and the trial judge ruled that this reason was not a pretext for discrimination. So the “issue of whether [Willis] has established a prima facie case is moot.”
United States v. Jones,
Nonetheless, the government offered a valid reason for striking Juror No. 1, and there is no indication that the district court erred in crediting these reasons as the “real” reasons for dismissal. To survive a
Batson
challenge, the reason offered by a party for its use of a peremptory challenge doesn’t have to be an objectively good one; it just can’t be race or gender and it must be the actual reason motivating the party.
United States v. Brown,
2. Obstruction-of-Justice Enhancements
Willis also challenges the district court’s imposition of two obstruction-of-justice enhancements for two separate incidents of perjury. For his convictions, Willis’s base offense level was four and the court added on twelve levels because of the high market value of the 1300 stolen digital cameras. The district court then added two more two-level enhancements for acts of perjury that Willis committed during a pre-trial suppression hearing and during trial itself. The court thought that it would be a “bad message to send” if a single two-level increase applied for two distinct acts of perjury, so the court added four more levels for a total offense level of twenty. This set the Guidelines range at thirty-three to forty-one months’ imprisonment, and the district court ultimately settled on the maximum, a forty-one-month sentence. The government conceded that this was error on appeal, a conclusion unswayed even after this Court requested supplemental briefing on the treatment of analogous adjustments under the Guidelines.
The issue is whether the district court erred in adding two obstruction-of-justice enhancements for two distinct acts of perjury, meaning that the point of departure before application of 18 U.S.C. § 3553(a) should have been an offense level of eighteen rather than twenty. The text and commentary of § 3C1.1 do not provide much help. Section 3C1.1 of the Sentencing Guidelines provides that a district *769 court should “increase the offense level by 2 levels”:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense....
U.S.S.G. § 3C1.1 (2005). The behavior justifying the enhancement — “obstructive conduct” — is susceptible to either a broad or a narrow reading; the meaning of the term “conduct” can range from an “act” or “manner” to a “process of carrying out.” WebsteR’s Third New International 473 (1981). As a result, one could — as the district court did — read the “obstructive conduct” punished by § 3C1.1. to consist of a single “act” of obstruction, justifying a separate enhancement for each obstructive act. Or, as the parties argue, the enhancement could apply once; a sentencing switch that is either on or off such that the enhancement applies to the entire “process of carrying out” the obstruction. Section 3C1.1 does not point to the appropriate reading, and this creates an ambiguity.
But the text and commentary of other adjustments provide more explicit guidance. Section 3C1.1 is one of at least nineteen different adjustments in chapter three of the Sentencing Guidelines. These provisions all provide broadly applicable modifications to the base offense level for “real offense elements” — circumstances of the crime or of the defendant that apply to some or all criminal offenses. See U.S.S.G. § 1A1.1 ed. n. 4(a); ch.3 introductory cmt. For three of these adjustments, the Sentencing Commission has provided explicit guidance on how to calculate the offense level when a defendant has committed multiple acts supporting the same adjustment. Section 3B1.4 provides a two-level adjustment if “the defendant used or attempted to use a person less than eighteen years of age to commit the offense.” U.S.S.G. § 3B1.4. Just as a defendant can perjure himself on more than one occasion, he can employ more than one minor in committing an offense. If that’s the case, rather than call for multiple two-level enhancements under § 3B1.4, “an upward departure may be warranted.” U.S.S.G. § 3B1.4 cmt. n. 3. Similarly, § 3C1.2 provides a two-level enhancement when the defendant “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. When “the conduct posed a substantial risk of death or bodily injury to more than one person, an upward departure may be warranted.” Id. at cmt. n. 6. Finally, § 3A1.1 provides for a two-level enhancement where the “defendant knew ... that a victim of the offense was a vulnerable victim,” whereas if a “large number of vulnerable victims” were involved, this provision calls for a three-level adjustment. U.S.S.G. § 3Al.l(b)(2).
These three sections make it clear that a sentencing court should not apply the obstruction-of-justice adjustment more than once for multiple acts of obstruction. Where a particular adjustment expressly provides for a higher offense level for multiple acts, as with § 3Al.l’s treatment of a “large number of vulnerable victims,” it is not through multiple applications of the enhancement for each act calling for an adjustment. And where there is no express numerical increase in the offense level for multiple acts, the commentary indicates that a departure may be warranted. But no other provision in chapter three calls for the use of multiple adjustments for multiple acts, and given that these provisions provide the same type of adjustment to the defendant’s base offense *770 level, they should apply in a consistent manner. Thus, consistent with the commentary in §§ 3B1.4 and 3C1.2, we hold that multiple acts of perjury produce a single two-level enhancement under § 3C1.1 and possibly a higher or above-Guidelines sentence based on the discretion conferred by 18 U.S.C. § 3553(a), not the imposition of multiple obstruction-of-justice enhancements.
In a sense, this conclusion is largely procedural and does not substantively alter a district court’s ability to deal with a serial perjurer. The Sentencing Guidelines are famously advisory, and the district court has substantial discretion in choosing a reasonable sentence; a discretion that includes consideration of multiple acts of obstruction. But before this discretion kicks in, the district court must first properly calculate the advisory Guidelines range,
United States v. Elliott,
B. Trout’s Appeal
1. Prosecutorial Misconduct
Trout argues that the government committed prosecutorial misconduct by objecting during his attorney’s closing argument. Prior to his arrest, Trout had confessed to Chicago police officers Sofrenovie and Combes. When Officer Combes testified, he relied on the notes that he took during Trout’s interview to remember the specifics of what they had discussed, although the notes themselves were inadmissible hearsay. During his closing argument, Trout’s attorney characterized the government’s case as “boil[ing] down to ... this statement that they claim that Mr. Trout made.” He characterized Officer Combes as a “nice guy” who “knows nothing” and questioned his reliance on his notes, which were, in his estimation, of dubious value. Trout’s attorney continued,
[Tjhere is something wrong here with a case in which the government really only has some handwritten notes which you don’t even get to hold in your hands or look at, that say that the defendant is guilty and that he admitted it. And then these very—
At this point, the government objected, saying that it had “no objection to the notes going back.” After a brief colloquy between the government and the court, Trout’s attorney objected himself, stating that the government was “interrupting my closing argument in an improper way.” The court sustained Trout’s attorney’s objection, calling the “interruption ... not warranted,” and the closing argument continued uninterrupted.
Almost immediately after the jury began deliberating, it sent out its first note:
Dear Judge, can we see a written copy of the defendant’s statement to the police, even an edited copy? We know the notes of the [sic] Detective Combes are *771 not considered evidence, but can we see a copy of his statement from the arrest report or from the supplemental report prepared by the detectives on the case? Sincerely, the jury.
The judge called the jury into court and explained that the desired evidence was inadmissible hearsay. The court continued: it was regrettable that the jury did “not have all the information [it] would like to have but ... this is frequently the situation in trials where evidence that might be interesting or even relevant is for one reason or another excluded from consideration.” The “trier of fact ... has to get along without it.”
After the court sent the jury back to resume deliberations, the government expressed its concern that the court’s statement might have given the jury the impression that Combes’s testimony regarding Trout’s statement was “something they almost can’t consider.” Concerned that it had “misled them into thinking they can’t rely on their recollection,” the court called the jurors back in and told them that they “must rely on [their] recollection unassisted by the materials” requested of the court. After the jury resumed deliberating, Trout’s attorney filed a motion for a new trial or for a curative instruction. He cited the government’s objection during his closing argument and he claimed that the court emphasized the notes in its remarks to the jury. The court denied the motion, and after a few more notes to the court (two of which are discussed in the final section below), the jury convicted Trout.
On appeal, Trout argues that he was denied a fair trial by the government’s objection during his closing argument and that the district court erred in failing to declare a mistrial. This Court evaluates prosecutorial misconduct that does not implicate an enumerated constitutional right to “determine whether [it] deprived the defendant of a fair trial.”
United States v. Cotnam,
The government’s decision to object during the defendant’s closing argument is not unproblematic. Aside from disrupting the defendant’s final chance to present his case to the jury, it was largely unnecessary. For a minor objection, which was the kind made here, the government can always use its rebuttal to correct any misstatement made by the defendant or, if the situation demanded, seek a curative instruction. But regardless whether the objection rose to the level of improper conduct, which we do not decide, Trout’s trial was fair. In the first place, although the timing of the objection was not ideal, the defendant invited the response.
See Darden v. Wainwright,
2. Improper Commentary on Trout’s Failure to Testify
Trout also claims that the government impermissibly commented on his failure to testify during its rebuttal to his closing argument. During his own closing, Trout’s attorney made much of the “immense passage of time” between the December 2000 robbery and the trial. In his estimation, the “case boils down to ... this statement that [two police officers] claim Mr. Trout made.” These officers had “no memory of what happened” and “simply read ... what happened four and a half years ago.” These “obviously professional witnesses” could “avoid having their memory tested.” And Officer Combes, whom Trout’s attorney had “some more respect for,” could not “remember anything, zero, zip.” In closing, he remarked that he was “angry that this man is being put through this for four-and-a-half years based on a flimsy and completely unsupported claim that ... he confessed to this crime,” a confession that was before the jury based on the “completely evaporated memories of two police officers.”
During its rebuttal, the government addressed the statements made by Trout’s attorney:
It should be clear to everyone here now that a very large part of our case centers on the statement, the confession, made by Mr. Trout. What I am befuddled by ... is whether that statement has ever really been challenged. I mean, I was confused, I have to admit, by defense counsel’s concession that Stephan Combes, the guy who wrote down the notes, who told you about what ... Mr. Trout said, ... is an honest guy. So in order for ... us to disregard the confession, someone will have to have lied. Someone is lying about what was said by Mr. Trout. But there is really no challenge to the credibility of the officers. And you heard Detective Com-bes testify.
* * * * *
Now, on the one hand ... he is challenging the memory of the police officers, as that somehow benefits the government. But think about it. If you have police officers who are going to lie, who are willing to break the law, who are going to try to frame someone, as what’s being *773 suggested here although not said, then why admit on the stand, I don’t remember?
‡ ‡ ‡ ‡ ‡
Now, what we have done is we have distracted you now from the admissions that were made by Mr. Trout, which are not being challenged. And that confession, seals his fate.
Finally, the government concluded by noting that “the heart of our case rests with the statement.”
Trout argues that these statements indirectly commented on his failure to testify, which, because his attorney did not object in the district court, we review for plain error.
United States v. Sandoval-Gomez,
Trout cites the prosecution’s use of the phrases “no challenge” and “not being challenged” as proof that the government indirectly commented on his decision not to testify. Trout only confessed to Officers Sofrenovic and Combes, and thus a statement that their testimony was “not challenged” would, in his estimation, necessarily point to his silence. These terms can produce constitutional violations when, “by default,” the only person capable of “challenging” the government’s claims was a non-testifying defendant.
See Cotnam,
But whether the government had the “manifest intention” to treat the defendant’s silence as evidence of guilt depends on the context of the statement, not the government’s use of certain proscribed terms.
Robinson,
3. District Court’s Treatment of the Final Jury Notes
Finally, Trout argues that the district court improperly responded to a jury note indicating that the jury could not reach a verdict. The jury would ultimately send out four notes. Its third asked the court:
Is it possible to convict on either count while finding the defendant innocent of the other? In other words, could we find the defendant guilty on Count 1 but not guilty on Count 2? Or is it impossible from a legal perspective to decide he’s not guilty on Count 2 if we find him guilty on the conspiracy charge?
The court read the note to the parties and solicited responses. The government argued that a supplemental instruction was in order and agreed that the jury could reach different verdicts as to the two counts. Trout’s attorney also agreed that “the instructions and the verdict forms make[ ] it clear that ... there can be guilt on either side.” The court then called the jury in, read the jury’s note, and gave an affirmative answer to all three questions posed in the note before the jury returned to its deliberations.
Later that afternoon, the jury sent its fourth note, informing the court that
[Hjaving discussed both of the charges and having tried to reconcile our differences of opinion without success, we wish to report to you our inability to reach a unanimous verdict on either count.
The court had provided the jurors an instruction prior to deliberations — a so-called Silvern instruction — informing them that they should make every effort to reach a unanimous verdict based on their deliberations and their honest beliefs regarding the facts from trial. After reading the jury’s note to the parties, the court said that it saw “no point in repeating the Silvern instruction.” Instead, it decided to “ask whether there is any juror who has any opinion that with further deliberation they could reach a verdict on either count.” The court thought that “the answer [would] be no,” but wanted to “take that final step” before discharging the jury. Neither party objected, and the judge brought in the jury and asked whether “any juror ... has any belief that there is any prospect at all of a verdict on either count with further deliberation.”
In response, one juror asked whether the court was “implying that [the jury] could come to a verdict on one count and then still not” convict on the other. The court said this would be permissible, and one juror responded that he’d like to continue deliberating. Another juror then pointed the judge’s attention to the Pinkerton instruction that the court had given to the jury, which said that a guilty verdict as to the conspiracy count plus a finding that the robbery occurred required a conviction as to the robbery count as well. Nonetheless, the court told the jury that a guilty verdict as to the conspiracy count and no verdict as to the robbery count was a possibility because sometimes “juries will *775 reach verdicts that are apparently inconsistent, and that is permitted.” The court then sent the jury off to continue deliberating, and the jury eventually convicted Trout of the conspiracy charge and acquitted him of the robbery count.
On appeal, Trout raises two challenges to the court’s treatment of the fourth jury note, both raised for the first time on appeal and thus reviewed for plain error.
United States v. Miller,
But Trout has waived this claim because his attorney had already agreed to the substance of the court’s response during the discussion of the third jury note.
United States v. Askew,
In addition, Trout argues that the district court erred in the substance of its response to the jury’s note. He claims that the judge tendered an instruction that did not comply with this Court’s decision in
United States v. Silvern,
But before a court is required to give a
Silvern
instruction, the jury must be deadlocked,
Miller,
III. Conclusion
For the foregoing reasons, we Affirm both Willis’s and Trout’s convictions, but Vacate Willis’s sentence and Remand for resentencing.
Notes
. We do not decide whether it was proper for the district court to tell the jury that it could reach legally inconsistent verdicts. Trout has not specifically challenged this instruction on appeal, though he pointed to the district court's statements on the matter as being more "coercive of unanimity” for purposes of his
Silvern
argument. This claim fails both because, as discussed, the jury was not deadlocked and, having agreed to this supplemental instruction following the third note, Trout has waived the claim. This Court's reluctance to allow a defendant to make nullification arguments to the jury would suggest that an instruction permitting inconsistent verdicts would seldom, if ever, be warranted.
See, e.g., United States v. Anderson,