                                                                           FILED
                           NOT FOR PUBLICATION                              APR 29 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LARRY ACOSTA,                                    No. 08-55537

              Petitioner - Appellant,            D.C. No. 5:05-CV-00443-JFW-
                                                 FMO
  v.

MIKE EVANS, Warden,                              MEMORANDUM *

              Respondent - Appellee.



GABRIEL AVILA,                                   No. 08-55541

              Petitioner - Appellant,            D.C. No. 5:05-cv-00447-JFW-
                                                 FMO
  v.

JAMES WALKER,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                       Argued and Submitted April 14, 2011
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW, BYBEE, and M. SMITH, Circuit Judges.

      Larry Acosta (“Acosta”) and Gabriel Avila (“Avila”) (collectively,

“Petitioners”) appeal the district court’s denial of their habeas petition. We have

jurisdiction under 28 U.S.C. § 2253(a) and affirm.

      The California Court of Appeal was not objectively unreasonable in

concluding that Jurors 4 and 6 were not dishonest during voir dire. See

McDonough Power Equip. Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (“[T]o

obtain a new trial . . . a party must first demonstrate that a juror failed to answer

honestly a material question on voir dire.”). Although the two jurors did not fully

disclose the details of their military backgrounds during voir dire, the questions

they answered were not phrased in a way that required them to do so.

      With respect to the jury tampering claim, we agree with the district court that

the state courts erred in failing to shift the burden to the prosecution to prove lack

of prejudice. See Remmer v. United States, 347 U.S. 227, 229 (1954) (“In a

criminal case, any private communication, contact, or tampering directly or

indirectly, with a juror during a trial about the matter pending before the jury is . . .

deemed presumptively prejudicial. . . .”). Because this was contrary to clearly

established federal law, we review the jury tampering claim de novo. See Frantz v.



                                            2
Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (en banc). Nonetheless, as the district

court found, the record shows that Petitioners were not prejudiced by the trial

court’s decision to keep Jurors 10 and 12 on the panel. In considering whether

“unauthorized communication between a juror and a third party . . . raised a risk of

influencing the verdict,” we examine “the length and nature of the contact, the

identity and role at trial of the parties involved, evidence of actual impact on the

juror, and the possibility of eliminating prejudice through a limiting instruction.”

Caliendo v. Warden, 365 F.3d 691, 697–98 (9th Cir. 2004). Here, the call was

directed only at Juror 5; Jurors 10 and 12 only learned of the message when Juror 5

played it for them to determine whether it was a joke or a serious threat. The

source of the call was unknown, and could not be attributed to Petitioners. In

response to questioning from the trial court, Jurors 10 and 12 repeatedly and

unequivocally stated that their knowledge of the message would have no impact on

their deliberations. Finally, any potential for prejudice was minimized by the trial

court’s clear instructions to Jurors 10 and 12 to disregard the message and not to

discuss the incident with the other jurors. Petitioners therefore suffered no

prejudice when the trial court declined to dismiss Jurors 10 and 12.

      The California Court of Appeal did not unreasonably apply federal

constitutional law in affirming the trial court's decision to strike Avila's testimony


                                           3
after he refused to identify a percipient witness (and potential accomplice) on

cross-examination. See 28 U.S.C. § 2254(d)(1). Once a defendant chooses to take

the stand, he “opens himself to cross-examination,” United States v. Panza, 612

F.2d 432, 438 (9th Cir. 1979), and “may no longer refuse to answer questions

regarding unprivileged matters reasonably related to his direct testimony,” id.

(citing Brown v. United States, 356 U.S. 148, 155–57 (1958)). There is no doubt

that the identity of this individual was “reasonably related to [Avila’s] direct

testimony.” Id. Prosecution witnesses had testified that the unidentified individual

accompanied the Petitioners throughout the incident, and participated in the assault

and the murder. Avila himself admitted that this person accompanied him

throughout the incident. The identity of this person was also relevant to the

prosecution’s argument that the murder was gang-related. Finally, had Avila

identified this individual, the person could have been called to testify to either

verify or impeach Avila’s testimony.

      Before deciding to strike all of Avila’s testimony, the trial court considered

less drastic remedies, such as striking only a portion of the testimony, or placing

Avila’s testimony about the unnamed witness under seal. Only after deeming these

solutions unworkable did the trial court strike Avila’s testimony in full.

Considering these circumstances, the California Court of Appeal reasonably


                                           4
concluded that the trial court's decision was not “arbitrary or disproportionate.”

Rock v. Arkansas, 483 U.S. 44, 56 (1987).

      AFFIRMED.




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