68 F.3d 279 (9th Cir. 1995), 94-50422, United States v. Annigoni
|Citation:||68 F.3d 279|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Richard ANNIGONI, Defendant-Appellant.|
|Case Date:||June 08, 1995|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted April 4, 1995.
Amended Sept. 21, 1995.
Order Granting Rehearing En Banc Jan. 10, 1996.
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.
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.
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.
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
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 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.
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...
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