                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1284
                                   ___________

Maizie Avichail, By next friend T.A.,     *
a minor,                                  *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
       v.                                 * District Court for the
                                          * Eastern District of Missouri.
St. John’s Mercy Health System, a         *
Missouri non-profit corporation, doing *
business as St. John’s Mercy Medical *
Center; Geraldine Jones; Fastaff, Inc., a *
Colorado Corporation, doing business *
as Fastaff Travel Nursing,                *
                                          *
             Appellees.                   *
                                   ___________

                             Submitted: December 14, 2011
                                Filed: July 24, 2012
                                 ___________

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
                         ___________

COLLOTON, Circuit Judge.

      Maizie Avichail brought a medical malpractice action as next friend of T.A.,
her minor daughter. There were three defendants: St. John’s Mercy Medical Center;
Geraldine Jones, a nurse involved in T.A.’s care; and Fastaff, Inc., Jones’s employer.
A jury found for the defendants, and the district court1 denied Avichail’s motion for
a new trial. Avichail appeals, arguing that the district court committed reversible
error in its conduct of the trial. We affirm.

                                           I.

       T.A. suffered from Beckwith-Wiedmann Syndrome, which causes
macroglossia, a condition in which the tongue is abnormally large. In July 2003, St.
John’s admitted T.A. for tongue reduction surgery, which required that she be placed
under general anesthesia. Following the procedure, T.A. was admitted to St. John’s
Pediatric Intensive Care Unit. Her surgeon, Dr. Jeffrey Marsh, sent written
instructions for the staff to monitor her oxygen levels continuously and to notify him
if oxygen saturation fell below 90%. Avichail alleges that despite these instructions,
T.A.’s oxygen levels went unmonitored for ten hours, during which time her oxygen
saturation plummeted from 94% to 50%. According to Avichail, the loss of oxygen
flow to T.A. caused irreparable brain damage. She alleges that, as a result, T.A. needs
constant supervision and is permanently limited in her ability to advance in school.

        Avichail sued the three defendants, and the case proceeded to trial. During jury
selection, Avichail sought to exercise a peremptory strike against Juror No. 17.
Citing Batson v. Kentucky, 476 U.S. 79 (1986), counsel for Jones objected on the
ground that both the challenged juror and his client are African-American. Counsel
for St. John’s joined the challenge, and the district court asked Avichail’s attorney to
provide a race-neutral explanation for striking the juror. Counsel responded:

      I’ll tell the Court as I’m going through these and until counsel
      mentioned it, I had forgotten that she’s of African-American descent. . . .
      It’s simply not something I think about, so that wasn’t into it. The

      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.

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      reason I struck her is she has some college. She gave us very little
      information; only hobby is swimming. She just didn’t seem to me to be
      a person who was involved enough to be able to understand what is
      going on in this case.

      The district court then examined whether the pool of unchallenged jurors
included any non-African Americans who were otherwise similarly situated to Juror
No. 17. After concluding that there were such jurors, the court announced its ruling:

      The decision is based as follows: The reasons stated of themselves were
      race neutral. The issue then becomes whether or not someone who is
      not of the African-American race remained on the jury with the
      same—or other jurors with the same or similar circumstances that were
      assigned as race neutral reasons. There were several jurors. I note Juror
      No. 2 specifically said that she didn’t have anything to say at all, and
      there were others with “some college.” So the ruling will be that the
      burden has been carried.

The district court then denied the peremptory strike and asked Avichail’s counsel to
select another juror.

       At trial, Avichail called as a witness Josephine Carolino, T.A.’s caregiver for
over eleven years, who grew up in the Philippines. Because Carolino’s native
language is Tagalog, Avichail asked the court to permit testimony through an
interpreter. To ascertain Carolino’s facility with English, the court asked her basic
questions outside the jury’s presence. Based on her answers, the court was satisfied
that she understood English. The jury was returned to the courtroom, and Carolino
began her testimony without the assistance of an interpreter. After examining
Carolino for a period, Avichail’s attorney requested a sidebar, where he renewed his
concern that Carolino was unable to comprehend some of his questions. The jury was
sent out again, and the court allowed Avichail’s counsel to use an interpreter to help
Carolino clarify her testimony. Once the questioning concluded, the court ruled that

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Carolino would continue her testimony before the jury in English. The court
expressed concern that because Carolino’s deposition had been conducted in English,
the use of an interpreter at trial might cause the jury to discredit her prior statements
as the result of a language barrier.

      The jury ultimately found in favor of the three defendants. Avichail raises two
issues on appeal: first, that the district court erroneously sustained the Batson
challenge to her peremptory strike of Juror No. 17, and second, that the court
improperly denied Carolino the opportunity to testify through an interpreter.

                                           II.

      Batson established that the Equal Protection Clause bars purposeful racial
discrimination by a State in the selection of a criminal jury. See 476 U.S. at 86. This
principle now applies to civil cases as well as criminal prosecutions, and it applies to
the federal government through the Due Process Clause. Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 616 (1991). A three-step process guides the
determination of whether a Batson violation occurred:

      First, a defendant must make a prima facie showing that a peremptory
      challenge has been exercised on the basis of race. Second, if that
      showing has been made, the prosecution must offer a race-neutral basis
      for striking the juror in question. Third, in light of the parties’
      submissions, the trial court must determine whether the defendant has
      shown purposeful discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (internal citations omitted).

       We have some doubt whether the district court correctly applied the law in
ruling on the peremptory strike. The court seemed to conclude that because Avichail
did not strike a white venireperson who was similarly situated to Juror No. 17,

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Avichail’s strike of Juror No. 17 was unconstitutional. In a similar vein, the court’s
post-trial order denying a motion for new trial explained the ruling as follows: “This
Court ultimately determined that similarly situated potential jurors of another race
were not challenged, and thus granted Defendants Jones and Fastaff, Inc’s Batson
challenge.” R. Doc. 176, at 4 (emphasis added); see also id. at 6 (“[T]he Court finds
that there was sufficient evidence to conclude that Plaintiff’s race-neutral explanation
was pretextual.”) (emphasis added).

        To rule that a strike is unconstitutional, however, the court must find that the
party challenging the strike has shown purposeful discrimination. Differential
treatment of similarly situated venirepersons may support an inference that the strike
was motivated by race, see Miller-El v. Dretke, 545 U.S. 231, 241 (2005), but it does
not require that conclusion. Cf. Nicklasson v. Roper, 491 F.3d 830, 842 (8th Cir.
2007) (“Although the inconsistent application of a prosecutor’s peremptory challenge
rationale between similarly situated white and black jurors constitutes evidence of
purposeful discrimination, there is not, nor should there be, a per se rule stating that
the presence of such evidence alone must always constitute ‘clear and convincing’
evidence.”) (internal citation omitted). In the process of exercising the limited
number of peremptory strikes that are allotted by rule, a party may face a choice
among similarly situated venirepersons who share race-neutral characteristics that the
party views as less than optimal. “[P]otential jurors are not products of a set of
cookie cutters,” however, so even “similarly situated” jurors will not be identical in
all respects. Miller-El, 545 U.S. at 247 n.6. The Constitution does not forbid a party
to strike some of these jurors and not others, so long as the strikes are not exercised
on account of race. Therefore, the court must make a finding about motivation in
order to resolve a challenge to a peremptory strike. The court here did say that “the
burden has been carried,” but the court may have conflated the initial burden to show
that a similarly situated venireperson remained on the jury and the ultimate burden
to establish purposeful discrimination.



                                          -5-
       If there was error, however, we conclude that it was harmless. A constitutional
violation arising from the racially-motivated exercise of a peremptory strike is a
structural defect in a trial that requires automatic reversal. Batson, 476 U.S. at 86;
Ford v. Norris, 67 F.3d 162, 171 (8th Cir. 1995). But the same is not true of a good-
faith but erroneous denial of a peremptory strike. As the Supreme Court explained
in Rivera v. Illinois, 556 U.S. 148 (2009), “[b]ecause peremptory challenges are
within the States’ province to grant or withhold, the mistaken denial of a state-
provided peremptory challenge does not, without more, violate the Federal
Constitution.” Id. at 158. This case arises under federal law, but the distinction
between sovereigns does not change the analysis. Peremptory strikes in a federal
civil case are authorized by 28 U.S.C. § 1870 and Federal Rule of Civil Procedure
47(b), not commanded by the Constitution.

      We acknowledge that Rahn v. Hawkins, 464 F.3d 813 (8th Cir. 2006),
concluded that an erroneous deprivation of a peremptory challenge in a federal civil
case amounted to “structural error” that defied harmless error analysis and required
automatic reversal if preserved. Id. at 819. Rahn relied on language from Swain v.
Alabama, 380 U.S. 202 (1965), where the Court said that the denial or impairment of
the right to peremptory challenges “is reversible error without a showing of
prejudice.” Id. at 219. This court in Rahn thought the mistake affected the “very
‘constitution of the trial mechanism,’” such that there is “no way to tell what would
have been the result had the error not occurred.” 464 F.3d at 819 (quoting Arizona
v. Fulminante, 499 U.S. 279, 309 (1991)).

      The reasoning of Rahn, however, was superseded by Rivera, and we therefore
need not follow Rahn. See T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960
(8th Cir. 2006). In Rivera, 556 U.S. at 160, the Supreme Court explained that United
States v. Martinez-Salazar, 528 U.S. 304 (2000), had disavowed the statement in
Swain on which Rahn relied. Martinez-Salazar said that “the oft-quoted language in
Swain was not only unnecessary to the decision in that case . . . but was founded on

                                         -6-
a series of our early cases decided long before the adoption of harmless-error review.”
528 U.S. at 317 n.4. Rivera also declared that a mistaken denial of a peremptory
challenge does not necessarily render a trial “fundamentally unfair or an unreliable
vehicle,” 556 U.S. at 160 (internal quotation omitted), and does not rise to the level
of “constitutional errors concerning the qualification of the jury or judge” that
necessitate reversal. Id. at 161. We therefore conclude in light of Rivera that a
federal court’s erroneous denial of a peremptory strike is subject to harmless-error
analysis. See United States v. Lindsey, 634 F.3d 541, 547-550 (9th Cir. 2011); United
States v. Gonzalez-Melendez, 594 F.3d 28, 33-34 (1st Cir. 2010).

       Assuming it was error to deny the strike of Juror No. 17, we conclude that the
error was harmless. Nothing in the record suggests that Juror No. 17 was removable
for cause or otherwise unqualified for jury service. Although the jury seated at trial
was constituted differently than if Juror No. 17 had been stricken, the jury was
qualified and impartial. There was thus no violation of Avichail’s constitutional
rights. As for the potential violation of the statute and Rule 47(b), there is no basis
in the record to conclude that the change in composition of the jury substantially
influenced the verdict. See Fed. R. Civ. P. 61; cf. Gonzalez-Melendez, 594 F.3d at 33-
34.

       It is also significant that “there is no suggestion here that the trial judge
repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational
manner.” Rivera, 556 U.S. at 160. The availability of harmless-error analysis is not
license for trial judges to implement their own notions of ideal jury composition
under the guise of enforcing the guarantees of equal protection and due process of
law. See Chinnery v. Virgin Islands, No. 2009-0037, 2011 WL 3490267, at *7 (V.I.
May 27, 2011) (granting a new trial based on denial of a peremptory strike where the
trial court ruled “based on its own personal preferences rather than a good-faith
attempt to follow Batson”); Pellegrino v. AMPCO Sys. Parking, 785 N.W.2d 45, 49,
57 (Mich. 2010) (granting a new trial where the trial judge denied a peremptory strike

                                         -7-
after saying that “until either removed from the bench by the disciplinary committee
or ordered to have a new trial, I am going to seek to have this proportional
representation on the juries that hear cases in this court”). But there is no hint of such
motivation here. The district court may have erred in denying the strike without
making a finding of discriminatory purpose, but we are confident that any error was
“a one-time, good-faith misapplication of Batson.” Rivera, 556 U.S. at 160.

                                           III.

      Avichail also argues that the district court abused its discretion by refusing to
allow Carolino to testify through an interpreter. District courts have wide discretion
in determining whether to allow the use of an interpreter during trial, see United
States v. Nguyen, 526 F.3d 1129, 1134 (8th Cir. 2008), and we think the district
court’s ruling was sound.

       Carolino did exhibit some confusion at first in responding to direct examination
about the chronology of events. But after receiving assistance from an interpreter
outside the presence of the jury, she rectified the earlier difficulty and presented clear
and responsive testimony on the order of events. Avichail cites other instances from
Carolino’s testimony that allegedly illustrate the witness’s confusion. To be sure,
Avichail’s attorney sometimes found it necessary or helpful to rephrase or repeat a
question, but these occurrences do not establish that Carolino “obviously neither
spoke nor understood the English language, or, despite some limited ability, clearly
had difficulty.” Luna v. Black, 772 F.2d 448, 451 (8th Cir. 1985) (per curiam). The
transcript reflects that while Carolino’s answers were not always precise, she
eventually was responsive and demonstrated adequate comprehension of counsel’s
inquiries. The district court also expressed a reasonable concern that Carolino’s
reliance on an interpreter during trial might cause the jury to discount her deposition
testimony, which was taken without interpretive assistance and used during her



                                           -8-
examination at trial. The district court thus did not abuse its discretion in declining
to permit an interpreter during the trial.

                                   *      *       *

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




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