United States of America v. Nolan Nishida

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NOLAN NISHIDA,
Defendant-Appellant.
No. 21-10247
D.C. Nos.
1:19-cr-00025-SOM-1
1:19-cr-00025-SOM
MEMORANDUM*
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.
FILED
JUL 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
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 of 3 --

3
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.

-- 3 of 3 --