# United States v. Richard Annigoni

> Court of Appeals for the Ninth Circuit · September 23, 1996 · 96 F.3d 1132

URL: https://www.frixlaw.com/law-library/cases/9489628

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Richard ANNIGONI, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 23, 1996
- **Citations:** 96 F.3d 1132; 96 Daily Journal DAR 11608; 96 Cal. Daily Op. Serv. 7090; 1996 U.S. App. LEXIS 24842; 1996 WL 536490
- **Precedential status:** Published
- **Opinion:** Dissent by Leavy
- **Judges:** Hug, Fletcher, Poole, Beezer, Brunetti, Kozinski, Thompson, Leavy, Nelson, Kleinfeld, Hawkins
- **Cited by:** 130 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Rivera v. Illinois, 556 U.S. 148 (2009).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489628

## How later opinions describe it (automated extraction)

- holding that a violation of Rule 24(b) of the Federal Rules of Criminal Procedure, regarding peremptory challenges, is an UNITED STATES v. MITCHELL 11679 error requiring automatic reversal
- holding that erroneous denial of criminal defendant’s peremptory challenge requires automatic reversal and rejecting possibility of harmless error analysis
- explaining that reversal is required for “structural” errors which affect the framework of a trial and defy analysis by harmless-error standards
- finding erroneous denial of right of peremptory challenge “not amenable to harmless-error analysis” and requiring reversal, although not deciding if such error constitutes structural error
- finding that erroneous denial of peremptory challenge is not subject to harmless error analysis and requires automatic reversal

## Opinion text

LEAVY, Circuit Judge,
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 cases cited, represents a “sea change,” not so much for the anti-discrimination goals but for the peremptory challenge itself. To achieve the long-standing goal of preventing state-sanctioned discrimination, the peremptory challenge has in certain circumstances become something other than peremptory.
The purpose of a peremptory challenge is to permit the litigant to participate with the court in the selection of a fair and impartial jury. McCollum, 505 U.S. at 57 , 112 S.Ct. at 2357 ; Edmonson, 500 U.S. at 630 , 111 S.Ct. *1148 at 2088 . Yet, it has always been something of an arbitrary act. In the last ten years, however, the Supreme Court has transformed the peremptory challenge from an arbitrary act of an individual into an exercise of governmental power.
Batson by its terms only changed the evi-dentiary formulation for assessing a prima facie ease of discrimination under the Equal Protection Clause. Edmonson transformed a private attorney representing a civil litigant into a state actor when exercising a peremptory challenge. The Court observed:
By their very nature, peremptory challenges have no significance outside a court of law. Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact. While we have recognized the value of peremptory challenges in this regard, particularly in the criminal context, see Batson, 476 U.S., at 98-99 [ 106 S.Ct., at 1724-25 ], there is no constitutional obligation to allow them. Ross v. Oklahoma, 487 U.S. 81, 88 , 108 S.Ct. 2273 [2278], 101 L.Ed.2d 80 (1988); Stilson v. United States, 250 U.S. 583, 586 , 40 S.Ct. 28 [29-30], 63 L.Ed. 1154 (1919). Peremptory challenges are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury.
Edmonson, 500 U.S. at 620 , 111 S.Ct. at 2083 .
In McCollum , the Court held that the Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges. As Justice O’Connor observed when the Court extended Batson and its progeny to gender, “today’s decision further erodes the role of the peremptory challenge ... we have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge....” J.E.B. v. Alabama, 511 U.S. at - - -, 114 S.Ct. at 1431-32 (O’Connor, J., concurring).
Thus, whether Mr. Annigoni likes it or not, he was a state actor when he attempted to challenge Mr. Horn. He was free to act with no reason, or for implausible or fantastic or even superstitious reasons, so long as he was not motivated by race or gender. The government also took state action when it opposed the challenge to Mr. Horn, and even had the right to assert Mr. Horn’s constitutional right to be free from race discrimination. In ruling on the challenge, the court was required to subject the challenge to scrutiny, because the erroneous grant of a racially or gender motivated peremptory challenge is per se reversible. The majority, in keeping with pre-Batson cases, now holds that the erroneous denial of a peremptory challenge, even when the denial is an effort to avoid unconstitutional race discrimination, is also per se reversible.
Except for Justice Marshall’s advocacy of the abolition of peremptory challenges in his concurrence in Batson, 476 U.S. at 103 , 106 S.Ct. at 1726-27 (Marshall, J., concurring), the Justices of the Supreme Court have repeatedly expressed their belief that the peremptory challenge serves a salutary function. Yet, in spite of its recognition of the value of the peremptory challenge, the Court has drastically changed the nature of the peremptory challenge by subjecting it to scrutiny in the case of challenges opposed on the basis of asserted gender bias or alleged racial bias. Because the peremptory challenge has changed, our review of the trial court’s scrutiny of its exercise must change, too.
In my view, to subject every trial court allowance or disallowance of a peremptory challenge to automatic reversal places the trial judge in an untenable position and endangers the continued existence of the statutory right. The erroneous disallowance of a peremptory challenge only deprives a party of a statutory right, and should be reviewed for harmless error.
“[I]t is important to recall that peremptory challenges are not constitutionally protected fundamental rights; rather, they are but one state-created means to the constitutional end of an impartial jury and a fair trial.” McCollum, 505 U.S. at 57 , 112 S.Ct. at 2358 . Thus, “peremptory challenges are a creature of statute and are not required by the Constitution....” Ross v. Oklahoma, 487 U.S. 81, *1149 89 , 108 S.Ct. 2273, 2279 , 101 L.Ed.2d 80 (1988). Congress may regulate the number of peremptory challenges available, Stilson v. United States, 250 U.S. 583, 586 , 40 S.Ct. 28, 29-30 , 63 L.Ed. 1154 (1919), and states may impose additional restrictions on peremptory challenges which “subordinate[ ] the absolute freedom to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury. Indeed, the concept of a peremptory challenge as a totally free-wheeling right unconstrained by any procedural requirement is difficult to imagine.” Ross, 487 U.S. at 90 , 108 S.Ct. at 2279 .
As noted, McCollum established that a criminal defendant exercising a peremptory challenge is performing a governmental function, and that his statutory rights must give way to the constitution’s prohibition on discrimination. 505 U.S. at 55-57 , 112 S.Ct. at 2357-58 . Because the criminal defendant’s peremptory challenge is now a governmental power, exercised under the control of the trial courts, trial courts have the difficult task of reviewing peremptories for unconstitutional motives and at the same time allowing the parties to exercise their statutory “right” to challenge potential jurors. Contrary to the majority’s assertion, Purkett v. Elem, - U.S. -, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995), did not make this task any easier. Purkett reduced the burden on the proponent of the peremptory challenge, not on the trial court. Under Purkett , “once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.” Id. at - - -, 115 S.Ct. at 1770-71 (emphasis added). While the explanation offered by the proponent need not be “persuasive, or even plausible,” id. at -, 115 S.Ct. at 1771 , the trial court must still make a determination “whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Id. (citing Batson). The trial court should have “substantial latitude” in making this determination, and not face automatic reversal for errors made in good faith. Cf. Wheat v. United States, 486 U.S. 153, 163 , 108 S.Ct. 1692, 1699 , 100 L.Ed.2d 140 (1988) (trial court should have substantial latitude in applying new rule concerning disqualification of counsel representing defendants jointly charged).
Moreover, in the last ten years the Supreme Court has established that even errors that violate important constitutional rights are subject to harmless error analysis. Structural errors “are the exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986). “Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Id. at 579 , 106 S.Ct. at 3106. Applying this presumption, the Supreme Court has held that: violations of the right to remain silent before and during trial, Brecht v. Abrahamson, 507 U.S. 619, 628-30 , 113 S.Ct. 1710, 1716-18 , 123 L.Ed.2d 353 (1993); violations of the due process right to have the prosecution prove every element of the crime, Yates v. Evatt, 500 U.S. 391, 402 , 111 S.Ct. 1884, 1892 , 114 L.Ed.2d 432 (1991); and the admission of a coerced confession which fully implicated the defendant in the charged crime, Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991), are all subject to harmless error review. Most recently, we said we were following the teaching of the Supreme Court when we reviewed for harmless error the denial of a defendant’s constitutional right of confrontation in a case in which the trial court received a verdict imposing the death penalty in the absence of the defendant. Rice v. Wood, 77 F.3d 1138 (9th Cir.1996) (en banc). We have gone from that holding to the majority’s holding that the denial of a defendant’s statutory right to exercise a peremptory challenge, which he has an unfettered right to exercise even for reasons of superstition, now calls for automatic reversal. John Quincy Adams said it best: “I told him that I thought it was law logic — an artificial system of reasoning, ex *1150 clusively used in Courts of justice, but good for nothing anywhere else.” 1
I would affirm Annigoni’s conviction, based on the unanimous verdict of twelve impartial jurors in this case of clear guilt.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489628. Public record. Not legal advice.