United States v. Richard Annigoni

96 F.3d 1132 65 USLW 2213 , 96 Cal. Daily Op. Serv. 7090 , 96 Daily Journal D.A.R. 11 ,608 UNITED STATES of America, Plaintiff-Appellee, v. Richard ANNIGONI, Defendant-Appellant. No. 94-50422. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1995. Filed June 8, 1995. Amended Sept. 21, 1995. Order Granting Rehearing En Banc Jan. 10, 1996. Argued and Submitted March 21, 1996. Decided Sept. 23, 1996. Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant. Miriam A. Krinsky and Daniel P. Collins, Assistant United States Attorneys, Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California, Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CR-94-00071-DT. Before: HUG, Chief Judge, and FLETCHER, POOLE, BEEZER, BRUNETTI, KOZINSKI, THOMPSON, LEAVY, T. G. NELSON, KLEINFELD, and HAWKINS, Circuit Judges. Opinion by Judge HAWKINS; Dissent by Judge LEAVY; Dissent by Judge KOZINSKI. MICHAEL DALY HAWKINS, Circuit Judge: 1 This case asks us to reconsider the longstanding principle that automatic reversal of a conviction is the proper remedy where a trial court…

Opinion by Judge HAWKINS; Dissent by Judge LEAVY; Dissent by Judge KOZINSKI.

This case asks us to reconsider the longstanding principle that automatic reversal of a conviction is the proper remedy where a trial court erroneously deprives a criminal defendant of the right of peremptory challenge.

Following a jury trial, defendant-appellant Richard Annigoni (“Annigoni”) was convicted of bank fraud in violation of 18 U.S.C. § 1344 . Annigoni appealed his conviction on two grounds. He challenged the district court’s pre-trial ruling limiting cross-examination of a government witness, and challenged the district court’s refusal, on Bat-son 1 grounds, to allow him to exercise a peremptory challenge to remove an Asian-American juror from the panel. He argued that the district court had erroneously denied his right of peremptory challenge, and that reversal of his conviction was therefore required.

*1134 A three-judge panel of this Circuit affirmed Annigoni’s conviction. United States v. Annigoni, 57 F.3d 739 (9th Cir.1995), as amended, 68 F.3d 279 . The panel upheld the district court’s decision to limit the scope of cross-examination of the government witness. It went on to find that…

with whom KOZINSKI and KLEINFELD, Circuit Judges, join, dissenting:

I respectfully dissent. The majority holds that a trial judge’s refusal to participate in what he thinks is a racially motivated exclusion of a qualified juror requires automatic reversal. The majority reaches this conclusion by focusing on the virtue of the peremptory challenge while losing sight of the significance of those cases decided since Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). It characterizes Holland v. Illinois, 493 U.S. 474 , 110 S.Ct. 803 , 107 L.Ed.2d 905 (1990); Edmonson v. Leesville Concrete Co., 500 U.S. 614 , 111 S.Ct. 2077 , 114 L.Ed.2d 660 (1991); Georgia v. McCollum, 505 U.S. 42 , 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992); and J.E.B. v. Alabama, 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994), as having “delineated and refined the anti-discrimination limitation on the use of peremptory challenges.” Majority opinion at 1140. Whether we think the result in McCollum is “remarkable,” as Justice O’Connor said at 505 U.S. 62 , at 112 S.Ct. 2360 -61, or “terminally absurd,” as observed by Justice Scalia at 505 U.S. 69 , at 112 S.Ct. 2364 , it, along with the other…

dissenting.

I agree with much in Judge Hawkins’s opinion and wish very much I could join it. In particular, I could not have expressed more clearly or eloquently the value of the peremptory challenge as a tool for ensuring not only that jurors be impartial, but that they appear so to the parties whose fates and fortunes they determine. I join Judge Leavy’s dissent because it reflects more accurately the Supreme Court’s teaching, and because I fear that the majority’s ruling will undermine the viability of peremptory challenges. I elaborate briefly on these points.

1. What makes this case difficult for me is that the error is not amenable to normal harmless error analysis, as we can never figure out what would have happened if one member of the jury had been struck and replaced by some other, unknown, person. Thus, we are forced to choose from two all- or-nothing rules: the error is always harmless or it is never harmless. There is no practical middle ground.

Given this choice, I believe the Supreme Court would conclude that this kind of error is always harmless. The right to a certain number of peremptory strikes-or to any at all-is not guaranteed by the Constitution; it’s not…