FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLORIA BARAJAS, No. 06-15494
Petitioner-Appellee,
v. D.C. No.
CV-02-06202-DLB
KAREN WISE, Parole Agent,
OPINION
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Argued and Submitted
December 7, 2006—San Francisco, California
Filed March 23, 2007
Before: Myron H. Bright,* Dorothy W. Nelson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Bright
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
3449
BARAJAS v. WISE 3451
COUNSEL
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Mary
Jo Graves, Senior Assistant Attorney General, Carlos A. Mar-
tinez, Supervising Deputy Attorney General, and Marcia A.
Fay, Deputy Attorney General, Sacramento, California,
briefed for the appellant. Ms. Fay argued for the appellant.
Jacob M. Weisberg and Lawrence Gibbs, Berkeley, Califor-
nia, briefed for the appellee. Mr. Weisberg argued for the
appellee.
3452 BARAJAS v. WISE
OPINION
BRIGHT, Circuit Judge:
In August 1998, a Fresno County, California, Superior
Court jury convicted Petitioner-Appellee Gloria Barajas
(“Barajas”) of conspiring to sell, possessing, transporting, and
offering to sell heroin based on the testimony of an under-
cover informant. She was sentenced to three years in state
prison. Her direct appeals failed, as did her state habeas peti-
tion. In February 2006, a federal district court granted Bara-
jas’ habeas petition, holding that the state trial court’s refusal
to order production of the informant’s current and former
addresses violated the Confrontation Clause. This appeal by
Respondent-Appellant parole agent Karen Wise (“the state”)
followed.
We conclude that clearly established federal law requires
the prosecution to provide reasons specific to the case in liti-
gation if it declines to disclose the names and addresses of
key witnesses. In this case, the testimony of the informant
represented the only evidence against Barajas, and the state
provided no reasons specific to this case why it should not
disclose the information. In accepting the state’s arguments,
the state court applied a standard that was objectively unrea-
sonable. We affirm the grant of relief.
I.
Barajas met longtime confidential drug informant Maria
Arellano in January 1998. Barajas gave Arellano the phone
number of her brother-in-law, Juan Hernandez. Hernandez
arranged to sell Arellano ten ounces of heroin for $12,000.
Arellano notified police, who arranged for a controlled buy of
the drugs.
Hernandez was arrested during the drug buy. Officers
arrested Barajas the next day without incident. She consented
BARAJAS v. WISE 3453
to a search of her house and car, which produced no evidence
of involvement in narcotics.
Two weeks later, Arellano received $4,000 for her work as
an informant. A police officer testified that she would not
have been paid if the arrests had not occurred, but that the
amount she would be paid was not determined until after
Barajas’ arrest.
Before trial, the prosecutor provided a witness list to Bara-
jas’ attorneys that did not list Arellano’s name or address. The
prosecutor wrote that “[t]he confidential informant will be
disclosed one week before the trial date . . . and will be avail-
able for interview.” Disclosure, he added, was being delayed
“as disclosure at this time would compromise our ongoing
investigations on other cases.”
Barajas filed a motion to compel disclosure of Arellano’s
name earlier or, in the alternative, to dismiss the case. The
trial court ordered prosecutors to produce Arellano’s name a
week before trial, on the schedule originally announced.
After learning Arellano’s identity, Barajas filed a motion to
compel disclosure of (a) Arellano’s current and past addresses
for the five years preceding Barajas’ arrest; (b) Arellano’s
arrest and conviction records, if any; (c) evidence of promises
or consideration paid to Arellano in connection with Barajas’
case; and (d) a copy of the California Department of Justice
Bureau of Narcotics Enforcement manual on supervising and/
or controlling informants. The district attorney provided (b)
and (c), but objected to (a) and (d).
In its response to Barajas’ motion for discovery of Arel-
lano’s addresses, the state argued:
[D]isclosure of either current or former addresses
jeopardizes the informant’s ability to continue to
work as an informant. In respect to both classifica-
3454 BARAJAS v. WISE
tions of addresses, once an investigator begins pok-
ing around the address, talking to neighbors, and
otherwise communicating either directly or inferen-
tially that the person in question is an informant, or
just an unsavory witness, the informant’s ability to
continue working in an anonymous fashion [is
injured]. The risk of threats or harm to the informant
is increased dramatically once her address is
released.
....
In the case at bar the informant will not be painted
as a convicted felon and drug addict but will be
described as a person who has worked as an
informer for about 20 years, has no misdemeanor or
felony convictions and works strictly for money. In
this case she was paid $4000 for her services. Her
background will be shown. Therefore this informant
will be put in the “proper setting.”
The prosecution did not distinguish between pre-trial and at-
trial disclosure.
After a continuance, the court heard Barajas’ motion to
compel discovery. Barajas argued Arellano was “an enigma,”
and that she required Arellano’s addresses to put her in her
“proper setting.” The state replied that Barajas had made no
showing of why she needed the addresses. To release the
addresses, the state argued, would affect Arellano’s future
effectiveness and “subject her to risks and danger because
there is no question when you are a tattle tale or snitch people
don’t like you.” Moreover, the prosecutor said, Arellano had
been interviewed for thirty minutes by Barajas’ counsel. She
had no criminal record and admitted she earned money as an
informant in this and other cases. Disclosure of her address,
the state added, “is not going to add anything to that.”
BARAJAS v. WISE 3455
The trial court summarily denied the request for disclosure
of Arellano’s addresses. After the conclusion of her state
court proceedings Barajas filed this § 2254 petition in federal
district court. The district court rejected her insufficiency of
the evidence claim but granted relief because the state courts’
refusal to order production of Arellano’s current and former
addresses violated Barajas’ Sixth Amendment right to con-
front her accuser.
Here, the state challenges the district court’s ruling, arguing
that clearly established federal law, as determined by the
United States Supreme Court, does not require prosecutors to
disclose current and former addresses of confidential infor-
mants before or at trial.
II.
This court reviews de novo a district court’s decision to
grant or deny a petition for habeas corpus, Sanders v. Ratelle,
21 F.3d 1446, 1451 (9th Cir. 1994), and its factual findings
for clear error, Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.
1995).
This petition was filed after the April 24, 1996, effective
date of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”); consequently, our review is governed by
AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326 (1997);
Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999).
The standards of review under AEDPA are:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judg-
ment of a State court shall not be granted with
respect to any claim that was adjudicated on the mer-
its in State court proceedings unless the adjudication
of the claim —
3456 BARAJAS v. WISE
(1) resulted in a decision that was con-
trary to, or involved an unreasonable appli-
cation of, clearly established Federal law,
as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
(e) (1) In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determi-
nation of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correct-
ness by clear and convincing evidence.
28 U.S.C. § 2254.
A state court decision is “contrary to” clearly established
federal law if it arrives at a conclusion opposite to that of the
Supreme Court on a question of law, or decides the case dif-
ferently than the Supreme Court on a set of materially indis-
tinguishable facts. Williams v. Taylor, 529 U.S. 362, 405
(2000).
To be an “unreasonable application of” clearly established
federal law, the state court decision must have identified the
correct legal rule but unreasonably applied it to the facts at
hand. Id. at 406.
[1] In its decision below, the district court relied on Smith
v. State of Illinois, 390 U.S. 129 (1968). In Smith, the Court
explained that
[W]hen the credibility of a witness is in issue, the
very starting point in ‘exposing falsehood and bring-
BARAJAS v. WISE 3457
ing out the truth’ through cross-examination must
necessarily be to ask the witness who he is and
where he lives. The witness’ name and address open
countless avenues of in-court examination and out-
of-court investigation. To forbid this most rudimen-
tary inquiry at the threshold is effectively to emascu-
late the right of cross-examination itself.
Id. at 131. Smith reinforces the fundamental right of a defen-
dant to confront witnesses against her, a right which states
must honor under the Fourteenth Amendment. Pointer v.
Texas, 380 U.S. 400, 403 (1965). The main mechanism for
confrontation is cross-examination:
Cross-examination is the principal means by
which the believability of a witness and the truth of
his testimony are tested. Subject always to the broad
discretion of a trial judge to preclude repetitive and
unduly harassing interrogation, the cross-examiner is
not only permitted to delve into the witness’ story to
test the witness’ perceptions and memory, but the
cross-examiner has traditionally been allowed to
impeach, i.e., discredit, the witness.
Davis v. Alaska, 415 U.S. 308, 316 (1974).
[2] The identity of an informant is “the very starting point”
of an effective cross-examination. Smith, 390 U.S. at 131.
“Where the disclosure of an informer’s identity . . . is relevant
and helpful to the defense of an accused . . . the trial court
may require disclosure and, if the Government withholds the
information, dismiss the action.” Roviaro v. United States,
353 U.S. 53, 60-61 (1957). Moreover, when an informant is
a participant in the events critical to the prosecution’s case, no
claim may be raised under Roviaro that the informant’s iden-
tity can be lawfully withheld from the appellants — disclo-
sure is inherently “relevant and helpful.” United States v.
Hernandez, 608 F.2d 741, 744-45 (9th Cir. 1979).
3458 BARAJAS v. WISE
The state reads Barajas’ habeas petition as claiming that
she was denied pre-trial disclosure of Arellano’s past and
present addresses. In the state’s view, her claim therefore falls
outside the ambit of Smith, because Smith dealt only with a
failure to disclose the name and address of a confidential
informant at trial. Barajas replies that, although the request
for information was made before the trial, the timing of the
request was consistent with California law. Therefore, Barajas
argues, although the request was made before the trial, it was
not merely a request for pre-trial disclosure. Barajas’ motion,
for example, cited Roviaro, 353 U.S. 53 (requiring disclosure
of an informant’s identity); Alford v. United States, 282 U.S.
687, 692 (1931) (requiring disclosure at trial of witness’s
address in order to put the witness in her “proper setting”);
and Smith, 390 U.S. 129 (requiring disclosure of informant’s
address at trial).
The state in this case protested any disclosure of Arellano’s
present or past addresses, both prior to trial and at trial. The
state argued that the Confrontation Clause only required Arel-
lano to be put in her “proper setting” during examination, and
that her background would be sufficiently explained at trial
without disclosing her addresses. Moreover, the trial court
made no indication whatsoever that its denial of Barajas’
motion was limited to pre-trial disclosure, and both the Cali-
fornia Court of Appeal and the federal district court inter-
preted the ruling to prevent disclosure throughout the trial.
Indeed, the California Court of Appeal reasoned that neither
pre-trial nor at-trial disclosure was required because cross-
examination “was not emasculated.” Furthermore, the govern-
ment did not adopt the position that the trial court’s ruling
was limited to pre-trial disclosure until the instant appeal,
which further suggests that it, too, interpreted the ruling to
prevent disclosure throughout the entire trial process.
The state argues that, even assuming the issue is a refusal
to disclose the informant’s address at trial, there exists no
clearly established federal law regarding the showing a prose-
BARAJAS v. WISE 3459
cutor must make to justify nondisclosure. The state asserts
that only Supreme Court holdings may be cited to determine
clearly established federal law, noting that the district court
cited only circuit cases and dicta from a concurring opinion1
in a Supreme Court case for the proposition that federal prece-
dent requires a more specific showing than the state provided
to justify nondisclosure.
[3] Although AEDPA directs courts to look to Supreme
Court decisions to determine “clearly established Federal
law,” circuit precedent is informative. “Our cases may be per-
suasive authority for purposes of determining whether a par-
ticular state court decision is an ‘unreasonable application’ of
Supreme Court law, and also may help us determine what law
is ‘clearly established.’ ” Duhaime v. Ducharme, 200 F.3d
597, 600-01 (9th Cir. 2000). “Section 2254(d) merely limits
the source of clearly established law that the Article III court
may consider, and that limitation serves to govern prospec-
tively classes of habeas cases rather than offend the court’s
authority to interpret the governing law and to determine the
outcome in any pending case.” Id. at 601 (citing Green v.
French, 143 F.3d 865, 874 (4th Cir. 1998), cert. denied, 525
U.S. 1090 (1999)).
[4] The district court cited United States v. Hernandez, 608
F.2d 741, 745 (9th Cir. 1979), for the proposition that “cur-
tailment of cross-examination into an informant’s address
must be supported by some indication, provided either by the
Government or the witness, why open-court disclosure should
be prevented.”
1
The district court cited a concurring opinion in Smith, 390 U.S. at 134
(White, J., and Marshall, J., concurring) for the proposition that the Gov-
ernment or a witness should come forward with some showing justifying
a need to withhold information. “Clearly established Federal law” is to be
derived from the holdings, not the dicta, of Supreme Court decisions. Wil-
liams, 529 U.S. at 412.
3460 BARAJAS v. WISE
This line of reasoning is contradicted, the state argues, by
the Fifth Circuit’s holding in United States v. Avalos that the
Supreme Court has “established no hard and fast rule regard-
ing questions about present addresses.” 541 F.2d 1100, 1117
(5th Cir. 1976). However, the Avalos court also noted,
“[W]here the government had reason to believe that two gov-
ernment witnesses’ lives were in danger and the witnesses
were under the protection of a United States Marshal, the
court did not err in prohibiting the defense from asking on
cross-examination for the witnesses’ present addresses.” Id.
While the Supreme Court may not have drawn a bright line,
it did indicate, as did the Fifth Circuit, that some showing was
necessary to overcome a defendant’s right to cross-examine a
witness. Id.
[5] We recognize that the Supreme Court has cautioned that
the right to cross-examine a witness is not absolute. “On the
contrary, trial judges retain wide latitude insofar as the Con-
frontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the wit-
ness’ safety, or interrogation that is repetitive or only margin-
ally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). In this case, however, the district court found cor-
rectly that the state courts were objectively unreasonable in
applying their latitude to allow the state to withhold Arel-
lano’s addresses without any showing particular to this case.
Indeed, if a prosecutor were only required to make vague and
conclusory statements about possible harm to prevent disclo-
sure of an informant’s address — such as those made by the
prosecutor in the instant case — Smith and Alford would be
rendered ineffectual in virtually every case involving an infor-
mant.
III.
Violations of the Confrontation Clause are subject to harm-
less error review. Coy v. Iowa, 487 U.S. 1012 (1988); Van
BARAJAS v. WISE 3461
Arsdall, 475 U.S. at 682 (“[T]he denial of the opportunity to
cross-examine an adverse witness does not fit within the lim-
ited category of constitutional errors that are deemed prejudi-
cial in every case.”); Belmontes v. Brown, 414 F.3d 1094,
1123 (9th Cir. 2005). We must assess the harm of trial errors
by determining whether the error had a “substantial and inju-
rious effect or influence in determining a jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Even after
AEDPA’s passage, federal district courts should always apply
the Brecht standard when conducting their own independent
harmless error review. Bains v. Cambra, 204 F.3d 964, 977
(9th Cir. 2000) (“[T]he Brecht standard should apply uni-
formly in all federal habeas corpus cases under § 2254.”).
[6] The Supreme Court has been quite specific in directing
how harmless error review is conducted for Confrontation
Clause violations. Courts must make such prejudice determi-
nations by excluding any evidence as to which proper con-
frontation was denied and examining the remaining evidence
presented at trial. Coy, 487 U.S. 1021-22 (“An assessment of
harmlessness cannot include consideration of whether the wit-
ness’ testimony would have been unchanged, or the jury’s
assessment unaltered, had there been confrontation; such an
inquiry would obviously involve pure speculation, and harm-
lessness must therefore be determined on the basis of the
remaining evidence.”). Thus, because the government’s fail-
ure to provide Arellano’s address violated Barajas’ confronta-
tion rights, Arellano’s testimony cannot be considered in our
prejudice analysis.
[7] We cannot conclude that the remaining evidence ren-
ders the Confrontation Clause error harmless. Arellano was
the only witness against Barajas. Barajas was not present
when the drug transaction took place. In fact, no evidence
besides the informant’s testimony and her relationship with
Hernandez connected Barajas to the sale. Because so little
remaining evidence was brought to bear against Barajas, a
3462 BARAJAS v. WISE
proper cross-examination of Arellano would be particularly
important to the jury’s deliberations.
IV.
The California state courts erred in the negligible burden
they placed on the state to justify the withholding of Arel-
lano’s addresses from Barajas. The error constitutes an unrea-
sonable application of clearly established federal law, as
determined by the Supreme Court of the United States. By
refusing to order disclosure of Arellano’s addresses, the state
trial court made it impossible for Barajas to effectively cross-
examine her. The lack of other evidence against Barajas mag-
nifies this error, which, under governing Supreme Court pre-
cedent, we cannot consider harmless.
AFFIRMED.