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Name: U.S. v. Lindsey
Case #: 09-50459
Court: US Court of Appeals
District 9 Cir
Opinion Date: 01/14/2011

Where there is an erroneous deprivation of a defendant’s right of peremptory challenge and there is no objection, the error is subject to plain error analysis. The trial court miscounted and appellant received only nine of ten peremptory challenges. Defense counsel did not object. Pursuant to prior Ninth Circuit case law, that would have been grounds for automatic reversal. (U.S. v. Annigoni (9th Cir. 1996) 96 F.3d 1132.) But, the Ninth Circuit reconsidered its position after the high court’s recent decision in Rivera v. Illinois (2009) 129 S.Ct. 1446, which held that the loss of a peremptory challenge due to the trial court’s good-faith mistake is not structural and therefore not reversible per se if the defendant was tried before a qualified and unbiased jury. Although the high court left open the possibility that a state court may decide that, under state law, such an error is reversible per se, the court held it was not a federal constitutional concern. The high court’s reasoning conflicts with that in Annigoni and effectively overrules it. While harmless error analysis was applied in Rivera, here, given the failure to object, plain error review is appropriate. (Citing Puckett v. United States (2009) 129 S.Ct. 1423.)