U.S. v. Lindsey

• Citation: 634 F.3d 541
• Decision Date: 14 January 2011
• Docket Number: No. 09–50459.,09–50459.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jamonn Lamont LINDSEY, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

634 F.3d 541

11 Cal. Daily Op. Serv. 595

2011 Daily Journal D.A.R. 749

UNITED STATES of America, Plaintiff–Appellee,

v.Jamonn Lamont LINDSEY, Defendant–Appellant.

No. 09–50459.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 2010.Filed Jan. 14, 2011.

Thomas P. Sleisenger, Los Angeles, CA, for the defendant-appellant.April A. Christine, Assistant United States Attorney; Mark R. Yohalem, Assistant United States Attorney, Criminal Appeals Section, Los Angeles, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. 2:08–cr–00186–GAF–1.Before: HARRY PREGERSON, D.W. NELSON and SANDRA S. IKUTA, Circuit Judges.Opinion by Judge D.W. Nelson; Concurrence by Judge PREGERSON.

OPINION

D.W. NELSON, Senior Circuit Judge:

This case concerns the proper remedy for a good faith, erroneous denial of a defendant's peremptory challenge. Due to the district court's error in counting, Appellant Jamonn Lamont Lindsey (“Lindsey”) received just nine out of the ten peremptory challenges afforded him by the Federal Rules of Criminal Procedure. Our circuit precedent provides for automatic reversal under these circumstances. United States v. Annigoni, 96 F.3d 1132, 1134 (9th Cir.1996) (en banc). We conclude, however, that Annigoni was effectively overruled by the Supreme Court in Rivera v. Illinois, ––– U.S. ––––, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009). Accordingly, we reject Annigoni's automatic reversal rule and review the denial of Lindsey's peremptory challenge under a more deferential standard of review. Finding no reversible error, we affirm Lindsey's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lindsey appeals his conviction and sentence for conspiracy, armed bank robbery, and brandishing a firearm during a crime of violence. On May 23, 2008, a grand jury returned a second superseding indictment against Lindsey, charging one count of conspiracy, 18 U.S.C. § 371; one count of armed bank robbery, 18 U.S.C. § 2113(a), (d); one count of brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii); and one count of forfeiture, 21 U.S.C. § 853, 18 U.S.C. § 981(a)(1)(C), and 28 U.S.C. § 2461(c). The indictment charged that Lindsey and two accomplices took approximately $132,464 during their robbery of Banco Popular, located in Wilmington, California. A three-day jury trial was held beginning on February 24, 2009.

At trial, the facts established that Lindsey and two co-conspirators, Jeffrey Gibson and a man known only as “Lil Ball,” discussed the robbery in a park the day before the robbery occurred. The three men, masked and armed, entered Banco Popular the next day. Lindsey forced a bank employee, Jorge Padilla, to take him to the vault at gunpoint. At the vault, Lindsey took a large amount of cash, stuffed it in a bag, and fled with his accomplices. The three men left the bank in a stolen gray Toyota and drove to a nearby alley. They then abandoned that vehicle and entered a white SUV, driven by a fourth person. They drove to an apartment to split the proceeds from the robbery. Lindsey bought a Lexus with his share of the money. The car was later found at his sister's home.

Lindsey's accomplice, Jeffrey Gibson, testified in detail about Lindsey's involvement in the bank robbery. Additionally, a DNA profile from a nylon cap found in the abandoned getaway vehicle matched Lindsey's DNA profile.

The jury returned a verdict of guilty on counts one through three.

Lindsey subsequently filed a motion for new trial, which was denied on May 4, 2009. On September 14, 2009, Lindsey was sentenced to a term of 204 months. This appeal followed.

II. PEREMPTORY CHALLENGE

Due to the district court's error, Lindsey received one fewer peremptory challenge than he was due under Rule 24 of the Federal Rules of Criminal Procedure.¹ When the time came for the parties to exercise peremptory challenges, the district court engaged them in the following colloquy:

COURT: Okay, we were talking about the mechanics of jury selection. I think I've described we've got 12 in the box, six out front. Peremptory is exercised against those in the box. The low-numbered juror out front, whoever is left, goes in to replace the person who has been excused.

When we get to the point where we've only got 11 in the box, then we call seven more names. First name called goes in the box, next six go out front.

If a party passes—obviously if you both pass, we're done; we have a jury. If one passes and then the other side continues to exercise peremptories, the question becomes what happens with respect to pass. And as I started to say, there are two ways of handling it. I confer with counsel as to which way they prefer; if you want to preserve the peremptory then future peremptories are only used against newly seated jurors. In other words, so if you want to hoard peremptories, you can hoard them, but you are stuck with whoever was in the jury box [w]hen you exercised your pass.

If—the other way and the way I prefer and the way all counsel have wanted it in prior trials—is you lose—the [pass] is a use or lose. So if you pass, you don't have that peremptory any more. Counsel has lost a peremptory, but you can use any other peremptory that [is] left against anyone in the box.

Just before jury selection, defense counsel chose the “use or lose” option. He stated that the other option had been “a little more confusing” to him.

The parties proceeded to exercise their peremptory challenges when voir dire and challenges for cause had been completed. After Lindsey was allowed nine peremptory challenges, the government was given an opportunity to exercise its last peremptory challenge. The government passed, and the district judge stated, “All right. And the defense has no further peremptories.” He then instructed the clerk to swear in the jury panel. Defense counsel did not object.

Lindsey argues that this error requires automatic reversal. He contends that the denial of a peremptory challenge falls within the limited class of errors for which there can be no harmless-error review, citing United States v. Annigoni, 96 F.3d 1132 (1996) (en banc).

In Annigoni, the district court had improperly denied defendant his use of a peremptory challenge to strike a juror. Id. at 1136. The defense counsel there attempted to exercise a peremptory challenge against an Asian juror. The district court denied the challenge because it believed the challenge was racially motivated and therefore ran afoul of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Because the district court based its decision only on “the bare fact of a male juror of Asian heritage,” it erred in denying the defendant's peremptory challenge. Annigoni, 96 F.3d at 1136 (internal quotations omitted). On en banc review, the issue before us was whether a harmless-error analysis was the appropriate standard of review for the erroneous deprivation of a defendant's right of peremptory challenge. Id.

We began our analysis by noting that, although peremptory challenges are not guaranteed by the Constitution, “the right of peremptory challenge is nonetheless an important statutory right that courts have considered vital to an impartial jury trial.” Id. at 1137. Given this importance, we noted, the Supreme Court “has long maintained that ‘[t]he denial or impairment of the right is reversible error without a showing of prejudice.’ ” Id. at 1141 (quoting Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)). We observed that our court had long followed Swain's remedial principle. Id. (citing United States v. Turner, 558 F.2d 535, 538 (9th Cir.1977)). Two recent developments in the law, however, warranted a revisiting of the issue. First, the government argued that “ Batson and subsequent cases [had] effectively eroded the right of peremptory challenge.” Id. at 1142. We disagreed, concluding that Batson and its progeny merely limited the right of peremptory challenge; they did not evince an intent to abolish it altogether. Id. In fact, we noted, “post- Batson decisions by the Supreme Court confirm the continuing viability and importance of peremptory challenges as a means of achieving an impartial jury.” Id. We did not believe that a rule of automatic reversal would punish district courts who were zealous in their enforcement of Batson. Finally, we stated that Batson had “left intact that portion of Swain ” that provided for automatic reversal when the right of peremptory challenge was denied or impaired. Id. at 1143.

The second development in the law was the adoption of harmless-error review for trial errors. We also disagreed that this development compelled us to abandon our automatic reversal rule. We gave a number of reasons that, in our view, made the peremptory challenge error ill-suited for harmless-error analysis, including that the error does not occur during the presentation of the case to a jury, that it may not be “quantitatively assessed” in the context of other evidence presented, that peremptory challenges could be made in a highly subjective and arbitrary fashion without a litigant being able to prove any bias or hostility, and that a dearth of information concerning jury room events presented an obstacle to such review. Id. at 1144–45.

Finally, we rejected the idea that the denial of the right of peremptory challenge had to be categorized as a classic trial error or structural error. Generally, “[i]n determining whether an error is subject to harmless-error analysis, a reviewing court must determine whether the error is a ‘classic trial error,’ such as the improper admission of evidence.” Id. at 1143 (internal quotations omitted) (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). A trial error is properly subject to harmless-error analysis. Id. “Structural” errors, by contrast,...