U.S. v. Annigoni

Decision Date10 January 1996
Docket NumberNo. 94-50422,94-50422
Citation68 F.3d 279
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard ANNIGONI, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Maria E. Stratton, Myra Sun, Deputy Federal Public Defenders, Los Angeles, CA, for defendant-appellant.

Richard E. Drooyan, Jennifer T. Lum, Assistant United States Attorneys, Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: JOHN T. NOONAN, Jr., O'SCANNLAIN and LEAVY, Circuit Judges.

NOONAN, Circuit Judge:

Richard Annigoni appeals his conviction of bank fraud in violation of 18 U.S.C. Sec. 1344. He presents two issues on appeal: an in limine restriction put on his cross-examination of a prosecution witness, and the denial to him of the exercise of a peremptory challenge because of a Batson objection. His second point requires us to determine whether erroneous denial of a peremptory requires automatic reversal. Holding that it does not, we affirm the district court.

FACTS

The facts proved at trial, recounted from the perspective of the government, established the following simple scam, engineered by Annigoni to get a $2.85 million loan:

Annigoni worked with two necessary confederates: James Perumean, a dentist and real estate investor, and Ronald Fauria, a senior vice-president of Orange Coast Title company. Manipulation of the escrows at the title company was essential to Annigoni's plan, which depended on barefaced falsifications and the quick transfer of cash. He set up a partnership in which his and Fauria's interests were concealed and Perumean appeared as the front man. Perumean approached the United California Savings Bank (the Bank) for a loan. Perumean told the Bank that the partnership had the opportunity to buy 401 N. Brookhurst Street in Anaheim, California, for $4 million. He represented that the owner was Par Western Interests, Inc., a company owned by Annigoni, and that a loan of $2.85 million would be needed to acquire the title from Par Western and to pay off the holder of the first trust deed, the Prudential Insurance Company. He assured the Bank that it would get a first trust deed as security. The Bank agreed to make the loan.

Annigoni's company, Par Western, in fact, did not own 501 N. Brookhurst; but it arranged to acquire it on the same day that the sale to the Perumean-fronted partnership was to occur. Fauria set up a double escrow where two closings occurred almost simultaneously. In Escrow One, title to 501 N. Brookhurst was purportedly delivered to the partnership by Annigoni's company. In Escrow Two, the Bank's wire for $2.85 million was disbursed, with payments being made of $1.84 million to the actual owner of 501 N. Brookhurst and the rest going to Fauria, Annigoni's wife, Annigoni's in-laws and Annigoni's lawyers. The Prudential was never paid off. The Bank was duped by falsified documents and discovered the fraud only two years later when the borrowers of the $2.85 million defaulted on the loan and the Bank discovered it had no valid first deed of trust.

PROCEEDINGS

Annigoni and Fauria were indicted for defrauding a bank in violation of 18 U.S.C. Sec. 1344 and for aiding and abetting the causing of a false statement to a federally-insured financial institution in violation of 18 U.S.C. Secs. 1014 and 1344. At the trial Perumean testified against both of them. His testimony was supplemented by that of Mary Ann Gigure, the escrow officer at Orange Coast, who testified to the disbursements she made from escrow of the proceeds of the Bank's loan.

Annigoni and Fauria were acquitted of aiding and abetting. Each was convicted of bank fraud.

Annigoni appeals.

ISSUES ON APPEAL

Two issues are presented:

First. Did the district court erroneously deny Annigoni the exercise of a peremptory challenge and, if so, does the error require reversal? Jury selection proceeded with four Batson challenges being made, which the district court ruled on at sidebars. Under the Federal Rules of Criminal Procedure, Rule 24(b), as the crime was punishable by more than a year's imprisonment the defendants were entitled jointly to ten peremptory challenges. They moved to strike one seated African-American juror and the government objected to the challenge as discriminatory, noting that there were only two African-Americans in the jury pool. The defense The government moved to strike two persons peremptorily--a woman and a Latino man. The defense objected to each strike, noting that the government had already struck two women and that there was no valid basis for striking the Latino man. The government replied that the woman had been chewing gum, was young, and had "stared down" at the prosecutor when she entered, and that the Latino man's occupation and marital status made him objectionable. The district court ruled that each challenge was improper under Batson. The jurors remained seated.

responded that the challenged juror had worked for the last six years as a jailor at the Los Angeles County Jail and might have a negative attitude toward Annigoni if his criminal record were admitted, as, under foreseeable circumstances, it might be. After hearing this explanation the district court permitted the peremptory strike.

The defense then exercised a peremptory challenge against Jue Hom. Hom was an employee of the transportation department of the Los Angeles Unified School District. On voir dire he had testified to a passive investment in a limited real estate partnership managed by Merrill Lynch. He was asked by the court if he had had any involvement with litigation in connection with this investment. This colloquy ensued:

MR. HOM: Yes, on that investment through Merrill Lynch, I don't know if they have any allegation going on at this time which I don't know anything about--in the partnership.

THE COURT: All right. Do you suspect that there was any litigation regarding that investment? Have you received any notices about it?

MR. HOM: Not one in the past three months or so.

THE COURT: All right. How about in the past year?

MR. HOM: I have taken no action on that.

When the defense moved to strike Hom, this sidebar followed:

THE COURT: All right, what's your reasons?

MR. ANDRES (Counsel for Fauria): He has conservative investments. He has--I think he has various limited partnerships and investments. Because of his investment background, I think that it would be in my client's best interest to have him excused from this jury.

THE COURT: He's Asian.

MR. ANDRES: I understand that, and I think the Prosecution has kicked off number three, who was an Asian lady first strike out of the box. I don't think we've struck any Asian prospective jurors.

MS. SUN (Counsel for Annigoni): Your Honor, can I just add to that? I believe the exchange between the Court and Mr. Hom was as follows--he indicated he hadn't received any notices about legal action within the last three months. The Court then said, "Within the last year?", and I think his answer was, "I didn't take any action about those", which suggests to me that he did get more information and, perhaps, just wasn't willing to share. That made him, to me--that gave me some concern about the extent of those kinds of activities that he's engaged in.

MS. LUM (the prosecutor): Your Honor, I don't--I didn't interpret his answer that way. I don't think he's been involved in any litigation and there have been numerous minorities that have been on the panel and that have been struck by the Defendants. The fact that he is involved in limited partnerships--and it was in a very, very tangential way--he barely knew what it involved. I don't think that's sufficient reason to challenge.

The district court declared: "I'm not going to allow the exercise of the peremptory challenge because I think it's racially motivated."

Second. Did the district court err in ruling in limine that the defense could not examine Mary Ann Gigure on "her medical condition?" In response to a government motion to make this ruling, the district court held a hearing outside of the presence of the jury and also examined in camera Gigure's medical records. At the hearing Gigure testified that she started suffering symptoms of panic disorder in late 1989 and in January 1991 was diagnosed as suffering from this Gigure testified at the hearing that neither her ailments nor her medications affected her memory and in particular did not affect her memory of events in 1985 and 1986 as to which she was to testify at trial. She did admit to drowsiness from the medications and did state that the medications were still being adjusted. The defense elicited or offered no evidence that the medications or medical afflictions could affect her memory. Gigure had been an escrow officer for twenty years and at the time of trial was running her own escrow business. The district court ruled that she could not be examined at trial on her medical condition.

                condition.  The symptoms she experienced included lightheadedness, dizziness, imbalance, shortness of breath, heart pounding, nausea, vomiting, diarrhea, and sweating.  She testified that the disorder was "terrifying" and affected her daily life in that she was "limited to driving or going to malls or attending theatres or standing in bank lines or supermarket lines."   In February 1991 she was briefly hospitalized for treatment of the panic disorder.  At the time of the trial in 1994 she was also suffering from depression and from vertigo and was taking Zoloft, Antivert, Konopin, and Xanax for her three ailments
                

ANALYSIS

Neither issue is without difficulty. We begin with the in limine limitation on cross-examination.

The Limitation on the Examination of Mary Ann Gigure. Annigoni contends that his right to cross-examine an important witness against him was erroneously...

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9 cases
  • U.S. v. Annigoni
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 23, 1996
    ...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 the d......
  • State v. Arguelles
    • United States
    • Utah Supreme Court
    • July 12, 1996
    ...Because peremptory challenges "do not have a constitutional status, they do not have a structural status." United States v. Annigoni, 68 F.3d 279, 285 (9th Cir.1995). In light of the foregoing discussion, we find nothing in the cases cited by Arguelles that would warrant our concluding that......
  • U.S. v. Underwood
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 7, 1997
    ...On the one hand, a trial court applying Batson arguably should be left with some margin for error. See United States v. Annigoni, 68 F.3d 279, 284 (9th Cir.1995) (Noonan, J.) ("The reason for this 'substantial latitude' is the danger of the district court being whipsawed--damned if it does ......
  • U.S. v. Gillam, s. 97-50462
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 18, 1999
    ...that geographical area reflected racial division), superseded on other grounds by 84 F.3d 1549 (9th Cir.1996); United States v. Annigoni, 68 F.3d 279, 282-83 (9th Cir.1995) (mere fact that male juror of Asian heritage was challenged proved nothing when plausible race-neutral explanation was......
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