dissenting:
I respectfully dissent over two points.
I. The Jury Issue
The majority glosses over a key fact concerning the jury problem: Defense counsel was aware of everything the judge had said and done, but instead of moving for a mistrial, defense counsel implored the judge to keep Radcliff on the jury and stated that he had no objection to allowing the deliberations to continue.
On the afternoon of May 15, the judge informed counsel of Radcliff s “public beating” note. Defense counsel responded:
Well, I think that she’s being driven off the jury. And what she’s saying here is she is angry and upset and that she’s getting treated badly by the other jurors. That doesn’t make her a.person that’s unable to continue. That just means that she doesn’t like it.
(Emphasis added.)
The judge then stated his intention to interview Radcliff in chambers in the presence of both counsel. Before the interview began, defense counsel made it clear to the judge that he did not want to lose Radcliff as a juror:
[DEFENSE COUNSEL]: This would be the — if you decided to excuse her, this would be the second black juror and a woman, and a black woman. I think that we would then be deprived of a fair cross-section of the community and I would ask for a mistrial.
THE COURT: You mean based on the fact that there is a black person being dismissed?
[DEFENSE COUNSEL]: Yes.
Just before the interview commenced, defense counsel objected to the procedure of singling out Radcliff for interview on the grounds that the procedure would pressure her to “change her vote or be excused.” However, after Radcliff was questioned and had left the room, defense counsel made only one statement: “Sounded like an intelligent, articulate person who has a difference of an opinion.” He no longer voiced any objection to the procedure, made no mention of any coercion or pressure, and made no motion for mistrial.
After foreman Wyke was interviewed and left chambers, the judge announced his decision to “let them continue to deliberate.” The judge also briefly discussed a minor scheduling issue. After stating his rulings, the judge said to counsel, “Any objection to that?” Defense counsel replied, “No, I don’t.”
A party is not permitted to wait-and-see what a verdict will be, and then upon receiving an unfavorable result, raise for the first time a problem with the jury of which he was previously aware. As the First Circuit put it, “We will not allow counsel to stand by quietly and gamble on a favorable verdict, only to complain when it turns out to be otherwise.” United States v. Morris, 977 F.2d 677, 686 (1st *585Cir.1992). Defense counsel knew full well how the judge had responded to the Rad-cliff situation, but defense counsel wanted this jury to continue its deliberations notwithstanding whatever the judge did, or could have done better. Had the judge declared a mistrial sua sponte based on either Radcliff s statements or the judge’s own statements, the petitioner would have had a legitimate right to complain that a mistrial violated his right against Double Jeopardy. See United States v. Shaw, 829 F.2d 714, 719 (9th Cir.1987) (citing Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). Defense counsel’s faith in this jury was not altogether misplaced: The jury acquitted the petitioner of 10 of the 17 counts.
Perhaps the reason that defense counsel did not seek a mistrial is that he recognized at the time, as the California Court of Appeal and the district court did later, that the judge’s comments did no harm. After the coercion supposedly began, the jurors deliberated for at least an additional eight and a half hours. This fact strongly suggests the absence of coercion. We have held that claims of jury coercion were rebutted by much shorter periods of continued deliberations following supposed coercion. See., e.g., United States v. Daas, 198 F.3d 1167, 1180 (9th Cir.1999) (one hour); United States v. Plunk, 153 F.3d 1011, 1027 amended on denial of reh’g, 161 F.3d 1195 (9th Cir.1998), (roughly two hours); United States v. Easter, 66 F.3d 1018, 1023 (9th Cir.1995) (two and a half hours); United States v. Lorenzo, 43 F.3d 1303, 1307, n. 3 (9th Cir.1995) (five and one-half hours); United States v. Bonam, 772 F.2d 1449, 1451 (9th Cir.1985) (90 minutes); United States v. Beattie, 613 F.2d 762, 766 (9th Cir.1980) (three and a half hours).
In this case, the California Court of Appeal held that “the comments made and not made by the court to the jury did not coerce a particular verdict or deny Packer any constitutional rights.” The petitioner has failed to demonstrate that this decision was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States, as required for relief under 28 U.S.C. § 2254(d)(1).
II. The Leg Brace
I agree with the majority that the petitioner has failed to show that he was prejudiced by having to wear a leg brace under his clothing. However, I cannot agree with the portion of the opinion that says that the petitioner’s rights were violated by his having to wear the brace to begin with. A trial judge has wide discretion to decide whether public safety considerations warrant increased security measures. See Morgan v. Bunnell, 24 F.3d 49, 51 (9th Cir.1994). The California Court of Appeal reviewed the trial court’s hearing on the matter and held:
The record at the hearing ... established Packer’s potential for nonconforming future behavior, despite the hearsay nature of and unknown source of some of the information. The court thus acted within its discretion in minimizing the likelihood of courtroom disruption. The court need not wait for an escape or a violent tragedy to occur before ordering an appropriate physical restraint. The court’s order was particularly appropriate in view of its finding that the “leg brace will not be visible to the jury; will not impede communications with [Packer’s] lawyer; will not detract from the dignity or the decorum of the judicial proceeding; will not be painful to the defendant; and [the defendant] will be seated before the jury enters and remain seated until the jury leaves.” Although after the trial Packer complained about the emotional distrae*586-594tion and physical discomfort of the leg brace, it was a reasonable physical restraint warranted by the circumstances revealed at the hearing and not necessarily visible by the jury.
The petitioner has not shown that the Court of Appeal’s decision on this point was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1).