- 217 -
barred from further proceedings against all Kersting
petitioners.97
Mr. Sticht also contends that the Government's misconduct
resulted in a structural defect in the trial of the test cases,
but he characterizes the defect differently. Mr. Sticht asserts
that the Court effectively was precluded from supervising the
trial process because Judge Goffe was not informed of the
Thompson and Cravens settlement agreements. In conjunction with
this argument, Mr. Sticht maintains that nontest case petitioners
were deprived of procedural due process insofar as their
decisions to execute piggyback agreements, as opposed to
accepting one of the Government's settlement offers before the
trial, were made without knowledge that two test case petitioners
had decided to settle their cases. Mr. Sticht relies on United
States v. Noushfar, 78 F.3d 1442 (9th Cir. 1996), and Riley v.
Deeds, 56 F.3d 1117, 1121 (9th Cir. 1995), for the proposition
that an "abdication of judicial control over" a trial constitutes
a structural defect. Citing United States v. Annigoni, 96 F.3d
1132, 1143-1147 (9th Cir. 1996), Mr. Sticht argues in the
alternative that, even if the Government misconduct did not cause
a structural defect in the trial of the test cases, these cases
are not amenable to harmless error analysis because the impact of
97 Our research does not disclose any case in which this
Court has invoked such an extraordinary remedy, and petitioners
have brought no such case to our attention. A new trial normally
is the proper remedy in the case of a structural defect or
reversible error in a trial. See Arizona v. Fulminante, 499 U.S.
279 (1991).
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