United States v. Nolan Nishida

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 25, 2022
• Docket: 21-10247
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10247

Plaintiff-Appellee, D.C. Nos. 1:19-cr-00025-SOM-1 v. 1:19-cr-00025-SOM

NOLAN NISHIDA, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding

Argued and Submitted July 6, 2022 Honolulu, Hawaii

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

Nolan Nishida appeals from the district court’s order denying his motion

under Batson v. Kentucky, 476 U.S. 79 (1986). As the parties are familiar with the

facts, we do not recount them here. We affirm.

1. The district court correctly determined that the facts here do not support a

finding of purposeful discrimination on the basis of gender. First, the district court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. did not err in her analysis of Juror 14 as compared to female jurors. Only

comparisons to female jurors who both share the same “objective characteristics”

as Juror 14 and were not struck by the prosecutor would be suggestive of

purposeful discrimination. United States v. Alanis, 335 F.3d 965, 969 (9th Cir.

2003). By noting that Juror 14’s “unusual demeanor” and informal greeting

distinguished him from every other juror, the district court effectively determined

that there was no female juror who shared his objective characteristics.

Next, Nishida’s contentions that the prosecutor misstated the composition of

the alternate list and relied on vague, extra-record explanations for strikes do not

support a finding of purposeful discrimination. See Flowers v. Mississippi, 139 S.

Ct. 2228, 2250 (2019) (“[M]istaken explanations should not be confused with . . .

discrimination.”); see also Snyder v. Louisiana, 552 U.S. 472, 477 (2008)

(affirming that “race-neutral reasons for peremptory challenges often invoke a

juror’s demeanor (e.g., nervousness, inattention)”). The prosecutor’s individual

questioning of a male juror also does not support an inference of discrimination

because he was a replacement juror who did not participate in the previous group

questioning.

Finally, the statistics Nishida raised do not compel a finding of purposeful

discrimination on their own. See, e.g., United States v. Hernandez-Garcia, 32

F.4th 1207, 1212, 1216 (9th Cir. 2022) (finding no Batson violation when a

2 prosecutor struck 60–75% of the Asian jurors in the venire). Even in cases with

significant statistical disparities, courts typically look to additional indicators of

discrimination before finding a Batson violation. See, e.g., Alanis, 335 F.3d at 966,

969; Flowers, 139 S. Ct. at 2235. Here, there are no such indicators.

2. The record does not support Nishida’s argument that the district court

relied on any justifications for striking Juror 14 other than those provided at

sidebar. The district court specifically limited her inquiry in the order on remand

to Juror 14’s supposed flippancy, which required her to consider his words, tone,

and demeanor. See Briggs v. Grounds, 682 F.3d 1165, 1178 (9th Cir. 2012). The

district court did not discuss the government’s unrelated “amplified” explanations.

3. Finally, while it was error for the district court to consider her

“overarching impressions of the [prosecutor], gathered over a period of years,” this

error does not warrant reversal. The district court’s analysis was otherwise

appropriate and provided ample evidence to support her conclusion that there was

no purposeful discrimination.

AFFIRMED.