                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 LEIF THURSTON CARLSON, SR.,                            No. 13-16535
               Petitioner-Appellant,
                                                          D.C. No.
                        v.                             3:11-cv-02976-
                                                            CRB
 ATTORNEY GENERAL OF THE STATE
 OF CALIFORNIA,
              Respondent-Appellee.                        OPINION


       Appeal from the United States District Court
           for the Northern District of California
     Charles R. Breyer, Senior District Judge, Presiding

                  Argued and Submitted
        November 20, 2014—San Francisco California

                         Filed June 26, 2015

    Before: Marsha S. Berzon and Johnnie B. Rawlinson,
    Circuit Judges and Elaine E. Bucklo,* Senior District
                           Judge.

                      Opinion by Judge Berzon




  *
    The Honorable Elaine E. Bucklo, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
2               CARLSON V. ATT’Y GEN. OF CAL.

                           SUMMARY**


                          Habeas Corpus

    The panel affirmed the district court’s denial of Leif
Carlson, Sr.’s habeas corpus petition challenging his
conviction for willful infliction of harm or injury to a child,
in a case in which the trial court, invoking the forfeiture-by-
wrongdoing doctrine, determined that Carlson had
surrendered his Sixth Amendment right to confront his wife
and son who did not appear in court but whose statements
were admitted through the testimony of a police officer.

    The panel held that Supreme Court authority clearly
establishes that the forfeiture-by-wrongdoing doctrine
applies where there has been affirmative action on the part
of the defendant that produces the desired result, non-
appearance by a prospective witness against him in a criminal
case; and that simple tolerance of, or failure to foil, a third
party’s previously express decision either to skip town
himself rather than testifying or to prevent another witness
from appearing is not a sufficient reason to foreclose a
defendant’s Sixth Amendment confrontation rights at trial.

    The panel held that because the trial court could have
reasonably inferred on the record before it that Carlson
directly participated in securing his wife’s and son’s absence,
and because Supreme Court authority permits application
of the forfeiture-by-wrongdoing exception in such
circumstances, admission of their statements was not an

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             CARLSON V. ATT’Y GEN. OF CAL.                 3

objectively unreasonable application of Supreme Court
precedent.


                        COUNSEL

Mark McBride (argued), Kavinoky Law Firm, Encino,
California, for Petitioner-Appellant.

Jill M. Thayer (argued), Deputy Attorney General; Kamala D.
Harris, Attorney General; Gerald A. Engler, Senior Assistant
Attorney General; Peggy S. Ruffra, Supervising Deputy
Attorney General, San Francisco, California, for Respondent-
Appellee.


                        OPINION

BERZON, Circuit Judge:

    One early Sunday afternoon, Joshua Barragan (“Joshua”)
called the Moraga Police Department to report that his step-
father, Leif Carlson, Sr. (“Carlson”), had hit seven-year-old
Leif Carlson, Jr. (“Leif Jr.”) in the face. When Officer
Ronald Ward arrived on the scene, he observed redness and
bruising on Leif Jr.’s left cheek. The state charged
Carlson—Leif Jr.’s father—with willful infliction of harm or
injury to a child, Cal. Penal Code § 273a(b).

   The case went to trial. Carlson’s wife, Lena Carlson
(“Lena”), and Leif Jr. were subpoenaed to testify but never
appeared in court. Invoking the Supreme Court’s forfeiture-
by-wrongdoing doctrine, the trial court determined that
Carlson was complicit in their absence, and that he had
4            CARLSON V. ATT’Y GEN. OF CAL.

surrendered his Sixth Amendment right to confront them.
Accordingly, the trial judge allowed Officer Ward to testify
to statements made by Leif Jr. and Lena in the hours after the
incident.

    Carlson was convicted and sentenced to ten days’ jail
time and four years’ probation. The Appellate Division
affirmed the judgment, the Court of Appeal denied a petition
for writ of mandate, and the California Supreme Court denied
habeas relief. Carlson then timely filed a federal habeas
petition. See 28 U.S.C. § 2254. The district court denied the
petition, concluding that the trial court’s determination that
Carlson forfeited his Confrontation Clause rights was not an
unreasonable application of the Supreme Court’s forfeiture-
by-wrongdoing doctrine as articulated in Giles v. California,
554 U.S. 353 (2008).

     We affirm. Simple acquiescence in another’s wrongful
conduct designed to keep a witness from testifying does not
amount to forfeiture by wrongdoing. But the state court’s
ruling on the forfeiture question, while murky, is consistent
with a finding that Carlson engaged in more culpable
conduct. The evidence supporting such a finding was not
trifling. Under the highly deferential standard of review
required by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), we can grant habeas relief only if
we find that the state court’s decision was contrary to, or an
unreasonable application of, Supreme Court precedent, or that
the factual findings on which the decision relied were
unreasonable in light of the evidence. 28 U.S.C. § 2254(d).
Because we cannot say that the state court’s decision was
unreasonable under that standard, we must affirm the denial
of the habeas petition. See Schriro v. Landrigan, 550 U.S.
465, 473 (2007).
              CARLSON V. ATT’Y GEN. OF CAL.                    5

                      I. BACKGROUND

    A. The Incident

    The incident underlying Carlson’s conviction occurred
while Carlson was supervising Leif Jr.’s guitar practice. The
two were tired, having arrived home earlier that morning
from Cub Scouts camp. According to Carlson’s testimony,
when he attempted to correct Leif Jr.’s hand positioning, Leif
Jr. started yelling, “literally screaming in [Carlson’s] ear.”
Carlson struck Leif Jr. on the left cheek with the back of his
hand or with his fist. Leif Jr. began to cry.

     Joshua—one of three Carlson stepchildren living with
Carlson and his wife—called the police. Officer Ward of the
Moraga Police Department arrived on the scene, briefly
questioned the family, and then placed Carlson under arrest.
After securing Carlson in his car, Ward returned to the house
to take further statements from Leif Jr. and his mother, Lena.
It is the admissibility of these statements, detailed below, that
underlies this appeal.

    Carlson was charged with willful infliction of harm or
injury to a child, Cal. Penal Code § 273a(b), an offense that
requires, the jury was instructed, proof that “the defendant
wilfully inflicted unjustifiable physical pain or mental
suffering on a child,” and that he “did not act while
reasonably disciplining a child.”

    B. Pre-Trial Proceedings

   The trial was set for Thursday, July 9, 2009, in the Contra
Costa County Superior Court. Carlson did not appear. An
order to show cause for non-compliance issued, and trial was
6                CARLSON V. ATT’Y GEN. OF CAL.

reset for Tuesday, July 14th.1 Subpoenas were issued for
Lena and Leif Jr. to appear as witnesses. One subpoena was
addressed to Lena, instructing her to bring her son to court,
and the other to Leif Jr. and “parent.”

    On Tuesday, July 14, Carlson appeared, accompanied by
Lena but not Leif Jr. Judge Grossman, presiding, asked Lena
why she had not brought her son to court, inquiring whether
she had received the subpoenas.2 Lena stated that she had
observed an officer hand her husband some documents on
July 10th; the officer had been waiting for the Carlsons when
they pulled into the driveway upon return from their vacation.
Carlson “told [her] not to worry about it.” She did not
specify whether she saw the subpoenas, or whether she knew
Leif Jr.’s presence in court was demanded, but she confirmed
that she was present “pursuant to the subpoena.” The judge
told her that unless she produced her son the next morning,
she would be in contempt of court.



    1
    Carlson’s attorney appeared, but Carlson, Lena, and Leif Jr. were on
vacation in Alaska. Carlson had earlier unsuccessfully moved to postpone
the trial to accommodate the vacation. Carlson had been directed to bring
his son with him to court that day, although his counsel had argued
previously, and argued again at the July 9th appearance, that it was
inappropriate to require a defendant to bring an adverse witness to testify
against him.
    2
     The case was initially assigned to a different judge, Judge Hinton.
Carlson’s counsel later summarized these proceedings before Judge
Hinton to Judge Grossman. He reported that Judge Hinton “said she did
not feel it was worth the trauma of bringing the child to court for this case,
and, therefore, she felt it was in the interest of justice that the case should
be dismissed.” According to Carlson’s counsel, the district attorney
“objected,” and the case was transferred to Judge Grossman for
proceedings that same day.
             CARLSON V. ATT’Y GEN. OF CAL.                   7

    Lena did not appear on Wednesday morning. Neither did
her son. The court thereupon issued a warrant for her
detention. Recognizing the issue that would arise if Lena and
Leif Jr. did not appear (and, indeed, they never appeared over
the remaining three days of trial), the judge noted the
possibility that Carlson had forfeited his Sixth Amendment
right to confront them. Judge Grossman indicated that if he
found Carlson was “somewhat complicit” in or
“encourage[ed]” his wife and son’s absence, he would allow
their statements to Officer Ward to be introduced for the truth
of the matter asserted.

    To aid in determining Carlson’s complicity, the court
called Officer Daniel Lynch to the stand. Officer Lynch had
been to the Carlson home earlier that day, to transport
Carlson’s stepson Joshua to court. Lynch testified that Joshua
told him Carlson, Lena, and Leif Jr. had not come home
Tuesday night—that is, after Lena had been instructed to
produce Leif Jr. the next day, under penalty of contempt.
Over Carlson’s hearsay objection, Lynch also testified that
Joshua reported that his brother Christian, another of
Carlson’s stepsons, told him that their mother had said “she
was leaving the area . . . and not to call her.” After Lynch’s
testimony, the judge told the parties that he was “not prepared
to make a finding. . . at this time that Mr. Carlson is somehow
complicit in all this.”

   C. Evidentiary Hearing

   By the next morning, however, the judge had switched
gears. He announced his intention to revisit the forfeiture-by-
wrongdoing question by conducting an evidentiary hearing.
8             CARLSON V. ATT’Y GEN. OF CAL.

     At the outset of the hearing, the state called Christian to
the stand. Christian testified that on Tuesday, the first day of
trial, Lena had been “really freaked out” about coming to
court and had done so only in response to his coaxing. When
asked what his mother was scared of, Christian responded
that “[s]he did not want [Leif Jr.] to testify,” and that he was
under the impression that “she thought it would be extremely
traumatizing for him.”

     Christian went on to report that Lena never came home
Tuesday night. Carlson did, but only briefly. While at home,
he told Christian that his mother was “really stressed out”and
“was going to be somewhere else for a while,” and that the
kids were not to call her. By the time of his Thursday
testimony, Christian had not seen Lena or Leif Jr. since the
trial began. Carlson had stopped at home again on
Wednesday evening, but, once more, did not stay the night.

    On cross-examination, Christian reported that Lena was
currently receiving treatment for anxiety, and possibly for
bipolar disorder. He described Carlson’s relationship with
Leif Jr. as a very good one—the two were “pretty much as
close as can be for father and son,” he testified. Carlson and
Joshua, however, did not get along.

    Before Christian’s testimony, Carlson’s counsel had
informed the court of an interchange between Lena and Judge
Hinton, the judge initially assigned to the case. Lena, counsel
recounted, had told Judge Hinton she “had no intention of
bringing the child to court,” despite orders to do so. Judge
Grossman expressed surprise and frustration that no one had
informed him of that statement before. At the end of the
evidentiary hearing, the judge remarked that, based on all he
had heard, he did not think the forfeiture-by-wrongdoing
              CARLSON V. ATT’Y GEN. OF CAL.                 9

exception applied, as “it would be difficult” to find that
Carlson “took actions with specific intent to make Lena
Carlson and Leif Carlson unavailable.” The case then
proceeded to trial.

   D. Trial

    The state’s principal witnesses were Joshua and Officer
Ward. Joshua, who acknowledged that he did not get along
with his stepfather, testified that on October 12th, 2008, he
was in the midst of doing laundry when he heard a
“smacking” noise and then heard Leif Jr. crying, “Why did
you punch me?” The judge instructed the jury that Leif Jr.’s
statement could be considered only for Joshua’s state of
mind. Joshua entered the room where Carlson was helping
Leif Jr. with his guitar practice and saw that Leif Jr.’s face
was red on the left side. When Joshua tried to comfort his
half-brother, Carlson intervened, telling him it was “none of
[his] business” that he had “the power to kick [him] out.”
Several hours later Joshua called the police.

    Officer Ward testified that on the day of the incident, he
met Joshua at a parking lot near the Carlson home, as
arranged by the police dispatcher. Ward went on to
state—over Carlson’s objection to the statements as double
hearsay—that Joshua had reported encountering his younger
brother crying and saying “daddy punched me, daddy
punched me.”

   Officer Ward’s testimony continued as follows: Ward
went to the Carlson home, where he observed Leif Jr. with a
red and lightly bruised cheek. Ward thought Leif Jr.’s
condition consistent with “some type of closed fist contact.”
He also described Leif Jr.’s timid appearance and his apparent
10           CARLSON V. ATT’Y GEN. OF CAL.

relief when his father was taken from the home. Lena was
nervous but cooperative.

    When Ward informed Carlson that he was under arrest,
Carlson asked,“For what? . . . What are you doing? It was an
accident. My hand slipped. I did not mean to hit him with
the back of my hand.” Later, after he was given Miranda
warnings, Carlson said “I just wanted to slap him to get his
attention and somehow my hand got turned around, and I hit
him with the back of my hand.” Carlson continued: “I knew
I should not have hit him. I knew it was wrong, but I was
tired and frustrated, and I lost control.”

    At the close of the prosecution’s case, the court returned
to the forfeiture question. Still of the view that there was
insufficient proof that Carlson had forfeited his Sixth
Amendment right to confront Lena and Leif Jr. by his
involvement in their failure to appear, the judge considered
declaring a mistrial or ordering the trial continued until the
witnesses’ presence could be secured.

    By the following morning, Judge Grossman had changed
his mind on the confrontation issue. He told counsel he had
reviewed Giles overnight and was “prepared, based on [his]
reading of Giles to make the finding that the defendant has
engaged in conduct designed to keep the witnesses from
testifying.”

    Christian and Officer Ward were then each recalled to
testify. Christian’s testimony repeated what had been elicited
at the evidentiary hearing: Lena and Leif Jr. had not been
home since Tuesday, and Carlson had not slept at home;
Christian believed Lena to have anxiety and bipolar disorder
and had had to persuade her to go to court on Tuesday; Lena
               CARLSON V. ATT’Y GEN. OF CAL.                         11

“did not want Leif to testify because she thought he would be
traumatized by the experience”; and Carlson had told him not
to contact his mother because “she was on the verge of
having a breakdown.” He also testified that it was not
unprecedented for Lena to leave home when overly stressed,
explaining that “sometimes she will leave for a few days to
just get away from it all.”

    Officer Ward testified to the statements made to him by
Lena and Leif Jr. When he arrived on scene, Leif Jr. told him
“daddy punched me,” and indicated that he had done it with
a closed fist. Lena told him Leif Jr. was crying when she got
home and told her he was in pain.3

    Carlson then took the stand in his own defense. His
version of events was as follows: The afternoon in question,
he was explaining to Leif Jr. how to position his fingers for
a chord Leif Jr. was playing incorrectly. Leif Jr. got upset.
Carlson said he patiently and calmly pointed Leif Jr. to the
printed demonstrations in his music book. Leif Jr.’s agitation
escalated, and soon he began to shout in his father’s ear, “you
are wrong, you are wrong[!]” Carlson said he then tried to
“swat” Leif Jr. on the left shoulder with the back of his hand,
but missed and hit “what [he] thought was the underside of
his chin.” He avowed that he “absolutely did not punch” his
son, and that he could not have done so, as severed tendons
in his right hand prevented him from making a closed fist.



 3
   Ward also reported that, according to Lena, Leif Jr. said Carlson did
not want Lena to know what happened. That comment was admitted only
for Officer Ward’s state of mind, and was therefore not subject to
Confrontation Clause protection. Williams v. Illinois, 132 S. Ct. 2221,
2235 (2012).
12            CARLSON V. ATT’Y GEN. OF CAL.

    The jury returned a guilty verdict after two hours of
deliberation. The Superior Court, Appellate Division
affirmed, and the Court of Appeal denied a petition for writ
of mandate. The California Supreme Court denied Carlson’s
habeas petition. All state rulings on review were summary.

   The district court denied Carlson’s federal habeas petition
and entered judgment for the state. A certificate of
appealability issued on the question whether admission of
Lena and Leif Jr.’s statements violated Carlson’s
Confrontation Clause rights under the Sixth Amendment.

                      II. DISCUSSION

     A. Standard of Review

    As Carlson’s petition was filed after passage of AEDPA,
the constraints of 28 U.S.C. § 2254 apply. We review the
district court’s application of AEDPA de novo, Lambert v.
Blodgett, 393 F.3d 943, 964 (9th Cir. 2004), and may grant
relief only if the state court’s decision was contrary to, or an
unreasonable application of, clearly established federal law as
determined by the U.S. Supreme Court, or was based upon an
unreasonable determination of the facts in light of the
evidence presented. 28 U.S.C. § 2254(d). Here, because all
the California appellate court decisions in Carlson’s case
were summary denials, we “look through” to the trial court’s
reasoning. See Cannedy v. Adams, 706 F.3d 1148, 1157–58
(9th Cir. 2013). We review the district court’s factual
findings for clear error. Lopez v. Thompson, 202 F.3d 1110,
1116 (9th Cir. 2000) (en banc).
             CARLSON V. ATT’Y GEN. OF CAL.                  13

   B. The Forfeiture by Wrongdoing Doctrine

    The Confrontation Clause of the Sixth Amendment
ordinarily bars “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36,
53–54 (2004). Statements made in response to the
questioning of a law enforcement officer are testimonial if the
circumstances establish that “the primary purpose of the
interrogation [was] to establish or prove past events
potentially relevant to later criminal prosecution.” Davis v.
Washington, 547 U.S. 813, 822 (2006); see also Michigan v.
Bryant, 131 S. Ct. 1143, 1154 (2011).

     Not surprisingly, the state has not disputed that Lena’s
and Leif Jr.’s contested statements were testimonial. Without
a doubt they were. Officer Ward questioned Lena and Leif
Jr. several hours after Leif Jr. was hit. Carlson had already
been taken into custody and secured in the back of Ward’s
vehicle. See Davis, 547 U.S. at 822. Ward’s questions
reflected a concern for what had “happened” rather than what
was “happening.” Id. at 830 (internal quotation marks
omitted). So, unless the forfeiture-by-wrongdoing exception
applies, admission of those statements against Carlson was
prohibited by the Confrontation Clause of the Sixth
Amendment. Crawford, 541 U.S. at 53–54, 68–69.

    The forfeiture-by-wrongdoing doctrine is an exception to
the Confrontation Clause’s protections. That doctrine permits
the introduction of a testimonial statement by an unavailable
witness if the preponderance of the evidence shows that the
“witness is absent by [the defendant’s] own wrongful
procurement.” Reynolds v. United States, 98 U.S. 145, 158
14              CARLSON V. ATT’Y GEN. OF CAL.

(1878); United States v. Johnson, 767 F.3d 815, 822–23 (9th
Cir. 2014) (holding that forfeiture by wrongdoing must be
proven by a preponderance of the evidence).

    The leading post-Crawford case on forfeiture by
wrongdoing, Giles, explains that the rationale behind the rule
is avoidance of “an intolerable incentive for defendants to
bribe, intimidate, or even kill witnesses against them.”
554 U.S. at 365. Relying on that rationale, Giles rejected a
theory of forfeiture by wrongdoing that would have permitted
unconfronted testimonial statements to be admitted against a
defendant any time the defendant had by his own culpable
acts rendered the witness unavailable. Id. at 364–65, 368.
Explaining that the “bad acts” theory could not be reconciled
with “the common law’s uniform exclusion of unconfronted
inculpatory testimony by murder victims,” id. at 368, Giles
held that forfeiture by wrongdoing applies only where the
defendant engaged in “conduct designed to prevent a witness
from testifying,” id. at 365.

    As the parties here agree,4 Giles established the mens rea
aspect of the forfeiture-by-wrongdoing exception: The
defendant must intend that a witness be made unavailable to
testify. Neither party’s briefing, however, articulates a
standard for the kind of action a defendant must take to
effectuate that intent.

 4
   Carlson’s argument that the forfeiture-by-wrongdoing doctrine applies
only to statements made by the defendant’s “victims” has no merit.
Supreme Court authority does not so limit the forfeiture exception, and the
rule’s incentive-avoidance rationale applies as fully to non-victim
witnesses as to victims. See Davis, 547 U.S. at 833 (explaining that the
forfeiture-by-wrongdoing doctrine applies “when defendants seek to
undermine the judicial process by procuring or coercing silence from
witnesses and victims” (emphasis added)).
                CARLSON V. ATT’Y GEN. OF CAL.                         15

    Despite the parties’ reticence, Supreme Court authority is
as clear on the overt act point as on the mens rea question.
The standard was articulated in the Court’s first opinion
applying the forfeiture-by-wrongdoing exception, Reynolds,
98 U.S. 145, and cited approvingly in Giles. See Giles,
554 U.S. at 366; see also Crawford, 541 U.S. at 62 (citing
Reynolds).

    Reynolds explained that, “as long ago as the year 1666,”
in Lord Morley’s Case, 6 How. St. Tr. 769, 771 (H.L.1666),
adjudicators had admitted statements of an absent witness
who “was detained by the means or procurement of the
[defendant],” and that “now, in the leading text-books, it is
laid down that if a witness is kept away by the adverse party,
his testimony . . . may be given in evidence.” Id. at 158–59
(emphasis added) (citing evidence textbooks). Reynolds
concluded that, in that case, the state had proven enough to
shift the burden to the defendant to show that he was not
“instrumental in concealing or keeping the witness away.”5
Id. at 160.

    Well over a century later, Davis and Giles reaffirmed that
the Confrontation Clause does not protect statements by a
witness kept from testifying “by the means or procurement of
the [defendant].” Giles, 554 U.S. at 359 (internal quotation
marks omitted); see also Davis, 547 U.S. at 833 (describing

  5
    An 1866 edition of the Dictionary of the English Language defines
“instrumental” as “(1) Conducive as means to some end; . . . (2) Acting to
some end; contributing to some purpose; helpful.” 1 Robert Gordon
Latham, A Dictionary of the English Language 1273 (1866) (emphasis
added). See also 1 B. Abbott, Dictionary of Terms and Phrases Used in
American or English Jurisprudence 630 (1878) (defining “instrument” as
“a means of accomplishing something; a thing useful in the execution of
a purpose”).
16            CARLSON V. ATT’Y GEN. OF CAL.

a defendant who “procur[es] or coerc[es] silence from
witnesses . . . who obtains the absence of a witness by
wrongdoing”). In examining what “means or procurement”
signifies, Giles cited dictionaries defining “to procure” as,
inter alia, “to contrive and effect”; “to get . . . as by request,
loan, effort, labor or purchase”; “to contrive or devise with
care . . . ; to endeavour to cause or bring about.” Giles,
554 U.S. at 360 (internal quotation marks and alteration
omitted).

    The pertinent Supreme Court authority, then, clearly
establishes that the forfeiture-by-wrongdoing doctrine applies
where there has been affirmative action on the part of the
defendant that produces the desired result, non-appearance by
a prospective witness against him in a criminal case. Simple
tolerance of, or failure to foil, a third party’s previously
expressed decision either to skip town himself rather than
testifying or to prevent another witness from appearing does
not “cause” or “effect” or “bring about” or “procure” a
witness’s absence. Such passive behavior is therefore not a
sufficient reason to foreclose a defendant’s Sixth Amendment
confrontation rights at trial.

     C. The State Court’s Ruling

    Judge Grossman correctly identified Giles as the
governing standard, and in general terms stated that standard
correctly—whether a witness is “kept away” by a defendant
who “engaged in conduct designed to keep the witness from
testifying.” It is not clear from the record precisely what
conduct toward that end the court found Carlson to have
committed. AEDPA, however, “demands that state-court
decisions be given the benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam). Because the
                CARLSON V. ATT’Y GEN. OF CAL.                          17

court could have reasonably inferred on the record before it
that Carlson directly participated in securing Lena’s and
Leif’s Jr.’s absence, see 28 U.S.C. § 2254(d)(2), and because
Supreme Court authority permits application of the forfeiture-
by-wrongdoing exception in such circumstances, admission
of Lena and Leif Jr.’s statements was not an objectively
unreasonable application of Supreme Court precedent.
28 U.S.C. § 2254(d)(1).

    Before proceeding to survey the evidence, we note that on
several occasions, Judge Grossman appeared to state a
weaker standard, characterizing what Carlson did as
“acquiesc[ing]” in the wrongful procurement of Lena and
Leif Jr.’s absence, and justifying his ruling by stating his
conviction that Carlson was “involved” in or “acquiesced” in
Lena and Leif Jr.’s absence, without specifying that Carlson
had any responsibility for or meaningfully participated in
securing the witnesses’ absence.6 As we have explained,


  6
    The only reference Giles made to “acquiescence” was in quoting the
Federal Rule of Evidence codifying the forfeiture-by-wrongdoing
exception to the hearsay rule. That Rule states that forfeiture by
wrongdoing occurs when the defendant has “engaged or acquiesced in
wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness.” Giles, 554 U.S. at 367 (quoting Fed. R. Evid.
804(b)(6) (1997) (internal quotation marks omitted)); see also Johnson,
767 F.3d at 822. Giles was, at that juncture, summarizing Rule 804(b)(6),
not independently construing it. Neither Giles nor Davis, which described
Rule 804(b)(6) as “codif[ying] the forfeiture doctrine,” ever mentioned
“acquiescence” other than in quoting the Rule, and both referred to the
kind of act required only in active terms, as we have seen. Giles, 554 U.S.
at 367 (quoting Davis, 547 U.S. at 833).

     Further, “it is beyond doubt that evidentiary rules cannot abrogate
constitutional rights.” Thus, to the extent that the Rule does “codify” the
forfeiture doctrine, it must be read “to permit the admission of those
18              CARLSON V. ATT’Y GEN. OF CAL.

simple acquiescence in another’s decision not to appear or to
cause someone else not to appear is insufficient to trigger the
forfeiture-by-wrongdoing exception to the Confrontation
Clause.

    Judge Grossman, however, also made other statements,
using language drawn almost verbatim from Giles, indicating
that he found that Carlson had engaged in active, culpable
conduct, as Giles requires. The judge found, for example,
that the witnesses were “kept away by means of the defendant
or . . . the defendant’s procurement defined in Giles to
contrive and effect.” At one point, he noted his conclusion
that “the defendant has procured this development on his
own.” It would not be unreasonable to conclude that Carlson
engaged both in passive acquiescence and in more active
involvement in the witnesses’ absence. So the dual
articulation of standards cannot demonstrate the application
of an erroneous constitutional template. Given that
consideration as well as the judge’s correct statements of the
applicable standard, AEDPA does not allow us to suppose
that the trial judge applied a standard contrary to clearly




hearsay statements that would be admissible under the constitutional
doctrine of waiver by misconduct.” United States v. Cherry, 217 F.3d 811,
816 (10th Cir. 2000) (emphasis added); see also id. at 820 (concluding
that “the following interpretation of the ‘acquiescence’ prong of Rule
804(b)(6) is consistent with the Confrontation Clause: . . . [the defendant]
participated directly in planning or procuring the declarant’s
unavailability through wrongdoing”). Indeed, the 2011 stylistic
amendments to Rule 804(b)(6) make more clear that Rule applies where
the defendant is responsible for the result—where he “wrongfully
caused—or acquiesced in wrongfully causing—the declarant’s
unavailability as a witness, and did so intending that result.” Fed. R.
Evid. 804(b)(6) (2011) (emphasis added).
              CARLSON V. ATT’Y GEN. OF CAL.                  19

established Supreme Court law. See 28 U.S.C. § 2254(d)(1);
Visciotti, 537 U.S. at 24.

    Turning to the record before us, we cannot say that, under
28 U.S.C. § 2254(d)(2), the trial court’s finding that Carlson
himself actively procured the witnesses’ failure to appear was
“objectively unreasonable in light of the evidence presented
in the state-court proceeding, § 2254(d)(2).” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). The evidence is, to be
sure, essentially circumstantial. But the applicable trial court
burden of proof in this instance was preponderance of the
evidence, not proof beyond a reasonable doubt. See People
v. Zambrano, 41 Cal. 4th 1082, 1147 n.21 (2007),
disapproved of on other grounds by People v. Doolin, 45 Cal.
4th 390 (2009); see also Johnson, 767 F.3d at 822–23.

    The evidence upon which the judge could have relied was
as follows:

          (1) Lena was distraught and may have had
       mental health issues. That evidence could
       support an inference that she would require
       emotional care and practical help.

           (2) Carlson was away from his own home
       on the nights during the trial when his wife
       and son were not there. That evidence
       suggests that he knew where they were and
       was with them while they were absent.

           (3) According to Christian, Carlson had
       instructed him and the other children not to
       call their mother. Also, Christian had been
       the family member who encouraged Lena’s
20              CARLSON V. ATT’Y GEN. OF CAL.

         attendance on the first day of trial. That
         evidence could support both (i) an inference
         that Carlson wanted to keep his wife and son’s
         whereabouts secret so they would not be
         found and compelled to appear, and (ii) an
         inference that he wished to keep his wife
         away from any influence that might persuade
         her to reappear, with their son or without him.

    In Reynolds, the Supreme Court concluded that the
forfeiture-by-wrongdoing doctrine applied to a similar set of
facts. 98 U.S. at 160. There, the defendant had told an
officer looking for a witness that the witness was not home,
when the facts suggested that she was, and informed the
officer that the witness would “not appear in this case.” Id.
(internal quotation mark omitted). The facts in Reynolds in
some respects more strongly supported the inference of
wrongful procurement—there, the defendant directly rebuffed
law enforcement’s efforts to locate a witness, id., whereas
here, Carlson suggested his knowledge of his wife’s
whereabouts to his own family, not to the police. Also,
Christian testified that Lena had her own aversions to
testifying, and to allowing Leif Jr. to testify, while in
Reynolds we learned nothing about the witness’s own
motivation to avoid testifying, one way or the other. But the
reason a defendant procures a witness’s absence is not
pertinent to the forfeiture-by-wrongdoing doctrine, once the
court has rejected the witness’s protests and insisted that the
witness appear.7


  7
    We recognize that requiring a young child to testify against his own
father could well be traumatizing to the child. We note that the dilemma
presented by this case perhaps could have been minimized by cooperation
among the parties and the court. The fear of trauma to Leif Jr. might have
                 CARLSON V. ATT’Y GEN. OF CAL.                            21

    Also, in some other respects, the facts supporting a
finding of wrongful procurement here are at least as strong as
those in Reynolds. Carlson himself was not at home on the
nights his wife and son were away, and he affirmatively
sought to keep other family members from communicating
with his wife or knowing where she was. Like the facts in
Reynolds, those circumstances demonstrate both concealment
of the witnesses’ whereabouts and insulation of the witnesses
from the reach of either compulsion or persuasion regarding
showing up at trial. They also indicate that Carlson had some
involvement in assuring their wellbeing while they were
evading process. Overall, then, the facts in this case are
approximately as strong in suggesting active involvement in
the witnesses’ nonappearance as those in Reynolds—or, at
least, a reasonable jurist could so conclude.

    Under AEDPA’s “highly deferential” standard, Visciotti,
537 U.S. at 24 (internal quotation mark omitted), we cannot
say that it was objectively unreasonable for the court to make
an inference with regard to Carlson’s conduct here similar to
the one Reynolds sanctions. We therefore deny relief. See
28 U.S.C. § 2254(d)(2).

                          III. CONCLUSION

    The judgment of the district court is AFFIRMED.


been lessened, for example, had he been allowed to testify from a
comfortable location remotely, via one-way, closed-circuit TV. See
People v. Lujan, 211 Cal. App. 4th 1499, 1506 (2012), as modified on
denial of reh’g (Jan. 15, 2013); see also United States v. Garcia, 7 F.3d
885, 888 (9th Cir. 1993) (holding that the Child Victims’ and Child
Witnesses’ Rights statute, 18 U.S.C. § 3509, allowing victims of child
abuse to testify via closed circuit television, does not violate a defendant’s
Confrontation Clause rights).
