While on trial in Arizona state court, Robert Harold Fendler did not fully comply with the Arizona state criminal discovery rules. These rules permit extensive discovery in criminal cases, by both prosecution and defense, and provide sanctions for noncompliance. Because Fendler did not provide the prosecution with the addresses of two potential witnesses, as required by these rules, the state trial court prohibited those witnesses from testifying. On appeal from the district court's denial of his habeas corpus petition, Fendler argues, principally, that the exclusion of the two witnesses violated his sixth amendment right to present a defense. We agree with respect to one of the witnesses. However, since a transcript of the state court trial was not introduced in the habeas corpus proceeding, we are unable to determine whether the error was harmless. Accordingly we remand the matter to the district court for a further hearing.

In March 1977, Fendler, along with two other defendants, was charged in a 17 count indictment with criminal conduct in connection with the operation of several financial institutions headquartered in Phoenix, Arizona. One of the charges against Fendler was that he made a false book entry by overvaluing four assets: goodwill; account acquisition and retention; branch offices; and investment securities.

On March 21, 1977, the prosecution filed its initial disclosures pursuant to Rule 15.1 of the Arizona Rules of Criminal Procedure.1 Fendler failed to make the reciprocal disclosures required by Rule 15.2(b).2 At the prosecution's request, the Arizona state trial court ordered Fendler to comply with Rule 15.2. Fendler again did not comply, and on August 19, 1977 the trial court again ordered Fendler to obey the discovery rules or face possible sanctions pursuant to Rule 15.7.3 On September 2, 1977, Fendler finally filed his initial Rule 15.2 disclosure. This disclosure included the names of over 1,000 prospective witnesses.

The prosecution objected on September 14, 1977 to Fendler's disclosure because, among other reasons, he did not list the addresses for 131 of the potential witnesses as required by Rule 15.2. Colorado attorneys John Schaffer and Thomas Pierson were two of the witnesses for whom no addresses were given. The trial court then ordered Fendler to provide the addresses of every witness he intended to call. Fendler amended his disclosure statement, but still failed to provide numerous addresses, including those of Schaffer and Pierson. On October 6, 1977, the trial court granted the prosecution's motion for sanctions pursuant to Rule 15.7 and precluded Fendler from calling any witnesses for whom both names and addresses had not been provided.

Fendler's trial began on October 17, 1977. On January 8, 1978, several months into the trial and at the conclusion of the state's case, Fendler presented a list of the witnesses he intended to call. The names of attorneys Schaffer and Pierson were again included on the list, but once again no addresses were given. The state trial court, after hearing arguments on the issue, ruled that Fendler should have known before trial that the testimony of Schaffer and Pierson might be needed and that he should have provided their addresses. The trial judge therefore left intact his order precluding Schaffer and Pierson from testifying.

A jury convicted Fendler on the false book entry count on February 2, 1978,4 and the trial judge sentenced him to prison for not less than four nor more than five years. Fendler appealed the false book entry conviction to the Arizona Court of Appeals in part on the ground that the Arizona criminal discovery rules in general violated the fifth amendment right against self-incrimination. In addition, Fendler argued that the order precluding Schaffer and Pierson from testifying violated his sixth amendment right to present a defense. The Arizona Court of Appeals rejected both of these contentions and affirmed the false book entry conviction. State v. Fendler, 127 Ariz. 464, 622 P.2d 23, 40-42 (Ariz.App.1980). Fendler's request for review by the Arizona Supreme Court was denied on December 23, 1980.

Fendler subsequently filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1976) in the United States District Court for the District of Arizona.5 The petition challenged the Arizona criminal discovery rules and the state trial court's preclusion order on the same fifth and sixth amendment grounds raised before the Arizona Court of Appeals. The district judge referred the case to a magistrate, who conducted an extensive hearing on the events surrounding the exclusion of potential witnesses Schaffer and Pierson.6 The magistrate then recommended that Fendler's petition be dismissed. The district judge agreed with this recommendation and entered an order dismissing the petition. Fendler now appeals pro se7 the district court's denial of his habeas corpus petition.

Fendler's principal argument before us is that his sixth amendment right to present a defense was violated when the state court, as a sanction for noncompliance with discovery rules, precluded both Schaffer and Pierson from testifying.8 We are, therefore, presented with the question whether preclusion of witnesses is a constitutionally permissible sanction when defendants do not obey state criminal discovery rules. This question has been expressly left open by the Supreme Court and this circuit. See, e.g., Williams v. Florida, 399 U.S. 78, 83 n. 14, 90 S. Ct. 1893, 1897 n. 14, 26 L. Ed. 2d 446 (1970) ("Whether and to what extent a State can enforce discovery rules against a defendant who fails to comply, by excluding relevant, probative evidence is a question raising Sixth Amendment issues which we have no occasion to explore. It is enough that no such penalty was exacted here."); Robbins v. Cardwell, 618 F.2d 581 (9th Cir.1980), discussed infra at p. 1187. 1 C. Wright, Federal Practice & Procedure: Criminal Sec. 256, Sec. 436 (Supp.1982).

I. APPROACHES TO THE USE OF THE WITNESS PRECLUSION SANCTION

A. A PROHIBITION AGAINST USE OF THE WITNESS PRECLUSION SANCTION

Courts faced with sixth amendment challenges to witness preclusion orders have offered varied responses. The Fifth Circuit, for example, has held that "the sixth amendment forbids the exclusion of otherwise admissible evidence solely as a sanction to enforce discovery rules or orders against criminal defendants." United States v. Davis, 639 F.2d 239, 243 (5th Cir.1981). A number of commentators have expressed agreement with that view. See Pulaski, "Extending the Disclosure Requirements of the Jencks Act to Defendants: Constitutional and Nonconstitutional Considerations," 64 Iowa L.Rev. 1, 53 (1978) ("using a preclusion sanction to enforce [a discovery rule] may be constitutionally excessive."); ABA Standards for Criminal Justice Sec. 11-4.7(a) (2d ed. 1980) ("The exclusion sanction is not recommended because its results are capricious.... [E]xclusion of defense evidence raises significant constitutional issues."); Note, "The Preclusion Sanction--A Violation of the Constitutional Right to Present a Defense," 81 Yale L.J. 1342, 1364 (1972) (witness preclusion violates sixth amendment right to present a defense).

There is considerable force to the Fifth Circuit's position. To begin with, courts have consistently recognized the paramount importance of a defendant's sixth amendment right to present his own defense. As the Supreme Court has emphasized,

[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019 (1967) (emphasis added). See also Rezneck, "The New Federal Rules of Criminal Procedure," 54 Geo.L.J. 1276, 1294 (1966) (courts have been "historical[ly] willing[ ] ... to afford defendants in criminal cases an untrammeled right to be heard."). By precluding defense witnesses from testifying, a court may substantially hinder a defendant's efforts to persuade a jury of his innocence. See, e.g., Davis, 639 F.2d at 243; State v. Marchellino, 304 N.W.2d 252, 256-57 (Iowa 1981) (preclusion of defense evidence not permitted under Iowa criminal discovery rules because of its "severity" and "possible constitutional implications."); Note, "Constitutionality of Conditional Mutual Discovery Under Federal Rule 16," 19 Okla.L.Rev. 417, 424 (1966).

Second, a defendant's failure to comply with discovery rules will usually have nothing to do with the probative value of the evidence to be excluded. Consequently, the "exclusion of defense evidence may lead to an unfair conviction." ABA Standards, supra. Such a result would obviously "defeat the objectives of discovery." Id. See also Weinstein, "Some Difficulties in Devising Rules for Determining Truth in Judicial Trials," 66 Colum.L.Rev. 223, 237 (1966) ("Whether [a preclusion order] is sound or not (and putting aside possible constitutional objections), at the very least it would constitute a conscious mandatory distortion of the fact-finding process whenever applied."); Note, "The Preclusion Sanction--A Violation of the Constitutional Right to Present a Defense," 81 Yale L.J. 1342, 1361 (1972) ("The preclusion sanction alone threatens to permit the conviction of an individual who is innocent of the crime for which he is charged because of his commission of a separate wrong--the failure to comply with pretrial discovery.").9

In those cases where preclusion of testimony by defense witnesses is permitted, it is usually because the integrity of the evidence involved has been threatened. In cases involving defense violations of witness sequestration orders, for example, courts may preclude the witnesses involved from testifying if their testimony was tainted by the lack of sequestration. See, e.g., Holder v. United States, 150 U.S. 91, 14 S. Ct. 10, 37 L. Ed. 1010 (1893); Braswell v. Wainwright, 463 F.2d 1148 (5th Cir.1972).10 Discovery rules, on the other hand, have no effect on the probative value of otherwise admissible evidence. As the Fifth Circuit has noted, "discovery orders are designed to prevent surprise, not to protect the integrity of the evidence sought to be presented." Davis, 639 F.2d at 243.

There is every reason to believe that a preclusion order is no more effective than other available sanctions. Indeed, "[s]tiff disciplinary sanctions against the offending defense attorney seem a more effective deterrent." Rezneck, "The New Federal Rules of Criminal Procedure," 54 Geo.L.J. 1276, 1294 (1966). Other possible remedies include continuances (which eliminate whatever surprise advantage the defense may have sought), limiting other pretrial discovery by the defendant, prosecutorial comment during trial on the defendant's failure to comply, and various contempt or criminal sanctions. See, e.g., Note, "The Preclusion Sanction--A Violation of the Constitutional Right to Present a Defense," 81 Yale L.J. 1342, 1356-60, 1364 (1972) ("[E]ven if pretrial disclosure by the defendant is necessary, a range of alternative sanctions is available which, if implemented properly, should adequately enforce disclosure while restricting the rights of the accused less drastically."). Given the availability of such alternative means of forcing compliance with discovery orders, it would seem that preclusion orders are seldom if ever truly necessary.

Finally, use of the preclusion sanction may give rise to other significant legal issues that can be resolved only through collateral attack on the conviction. A defendant's case may be significantly hampered by a sanction imposed as the result of his counsel's negligence in failing to comply with discovery rules. As we have previously noted, "one ... question [raised by discovery sanctions] would be whether a defendant could be subject to sanctions absent any showing that he had been advised of the rules and instructed to cooperate with counsel in complying with them." Robbins v. Cardwell, 618 F.2d 581, 583 n. 4 (9th Cir.1980). Preclusion places the penalty squarely upon the defendant. Where the failure to comply may have been the attorney's, use of this remedy would not only compound the constitutional problem, but would also invite a challenge to the conviction on the ground of incompetence of counsel.

Despite the importance of a defendant's Sixth Amendment right to present a defense, the dangers of excluding relevant evidence and distorting the fact-finding process, and the availability of alternative sanctions, some state courts have argued that witness preclusion may sometimes be the only way to enforce discovery rules. Accordingly, a number of states, including Arizona, have adopted a balancing test. See State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979); State v. Mai, 294 Or. 269, 656 P.2d 315 (1982); State v. Roberts, 226 Kan. 740, 602 P.2d 1355 (1979); State v. Smith, 88 N.M. 541, 543 P.2d 834 (1975); State ex rel. Simos v. Burke, 41 Wis. 2d 129, 163 N.W.2d 177 (1968). Cf. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297 (1973) (the sixth amendment right to call and examine witnesses is "not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.... But its denial or significant diminution calls into question the ultimate integrity of the fact-finding process and requires that the competing interest be closely examined.").

In cases where the preclusion sanction has been permitted under the balancing approach, courts have considered several different factors. These include the effectiveness of less severe sanctions, the impact of witness preclusion on the evidence at trial and the outcome of the case, the extent to which the prosecution will be surprised or prejudiced by the witness's testimony, and whether the violation of discovery rules was willful or in bad faith. See, e.g., State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979).

II. THE TRIAL COURT ERRED BY PRECLUDING AN IMPORTANT DEFENSE WITNESS FROM TESTIFYING

This court has yet to decide the question of the constitutionality of witness preclusion as a sanction for failure to obey discovery rules. In United States v. Barron, 575 F.2d 752 (9th Cir.1978), we held that the trial court did not abuse its discretion by precluding the testimony of a defense alibi witness as a result of the defendant's failure to comply with Federal Rule of Criminal Procedure 12.1.11 The Barron court noted that if Rule 12.1is to have any teeth, trial courts must be able to impose sanctions, even the drastic one [witness exclusion] employed in this case. However, courts should impose a sanction only after a careful weighing of the interest of the defendant in a full and fair trial against the interests of avoiding surprise and delays.

Id. at 757.

While, at first blush, Barron might seem to put us on the side of those favoring a balancing test, we think it critical that we were not there considering a constitutional challenge, sixth amendment or otherwise, to the witness preclusion sanction. In Barron we said that we were applying only a traditional abuse of discretion test--one that assumes the constitutionality of the order--"[b]ecause the parties did not explore the possible Sixth amendment issues raised by the sanction." Id. at 757 n. 5. Thus, Barron is of no assistance on the constitutional question.12

In any event, since our decision in Barron we have determined that the constitutionality of witness preclusion as a sanction for failure to comply with general criminal discovery rules is an open question. In Robbins v. Cardwell, 618 F.2d 581 (9th Cir.1980), we specifically considered the Arizona criminal discovery rules. After noting that Arizona permits the imposition of "extreme sanctions" such as "prohibiting testimony by a defense witness," we emphasized that "[t]he issue whether these sanctions can be applied for breach of Ariz.R.Crim.P. 15.2 without offending the confrontation clause of the sixth amendment and the right to present a defense which is implicit in the sixth amendment is a constitutional question of importance to the administration of criminal justice." Id. at 582. We then stated that the question had been "expressly reserved by the Supreme Court" and that it was not properly presented "for our determination" on the record before us. Id. Finally, we "reiterate[d] that imposition of the extreme sanctions contained in the Arizona rules would present important questions of constitutional dimensions if raised in a proper case." Id. at 583.

In this case, it is also unnecessary to answer the constitutional question fully. Here, we narrow the question which we leave open to a choice between a rule flatly prohibiting use of the preclusion sanction, the Fifth Circuit approach, and a balancing test similar to that advocated by some state courts. We need not now choose between these alternatives because we find that, under either of these approaches, the Arizona state courts erred in excluding the testimony of an important defense witness.

Our analysis under the balancing test follows. At the outset we emphasize that for a balancing test to meet Sixth Amendment standards, it must begin with a presumption against exclusion of otherwise admissible defense evidence. No other approach adequately protects the right to present a defense. See Washington v. Texas, 388 U.S. at 19, 87 S.Ct. at 1923. With that starting point in mind, we proceed to weigh the relevant factors.13

We begin with the most significant factor: how important was the witness? Fendler was indicted on one count of false book entry because he allegedly overvalued four separate assets: goodwill; account acquisition and retention; branch offices; and investment securities. See State v. Fendler, 622 P.2d at 34 n. 22. Fendler sought to call both Schaffer and Pierson to testify that his valuation of the investment securities asset was correct. They were Fendler's expert witnesses on this point. Our review of the evidence presented at the federal magistrate's hearing indicates that Schaffer's testimony, at least, could have been of substantial importance to Fendler's defense on the investment securities issue.14

Although Schaffer said at the magistrate's hearing that he would have preferred to examine "a minimal amount of additional data" on the valuation of the investment securities before reaching a final conclusion, he consistently maintained that he was "certain that [his] testimony would have been in a range which might have, as to the value of the bank, ... been crucial to [Fendler's] defense." Because the trial judge precluded him from testifying, it was obviously not necessary for Schaffer to make a final review of the valuation information. Nonetheless, Schaffer emphasized that he was "certain" that his testimony would have been helpful to Fendler. We see no reason to require that Schaffer's potential testimony meet any higher standard. It would be both unreasonable and illogical to require a defendant whose witness has been precluded from testifying to prove exactly what the witness would have said under oath. We find that Fendler's defense on the investment securities aspect of the false entry charge was severely hampered by the exclusion of Schaffer's testimony.15

We also find that any possible prejudice to the prosecution's case was not nearly substantial enough to overcome Fendler's sixth amendment right to present a defense.16 To begin with, Fendler argues that he was not aware that Schaffer's testimony on the valuation of the investment securities would be necessary until the prosecution's strategic emphasis became evident at trial. In any event, the prosecution was not unaware of Schaffer or of Fendler's continuing desire to have him testify. To the contrary, Fendler consistently included Schaffer's name on most of the discovery lists presented both before and during trial, including one submitted following the close of the prosecution's case. The only information the prosecution lacked was Schaffer's address. Yet as the prosecution acknowledged at the hearing before the magistrate, it knew that Schaffer was a Colorado attorney; thus, his address and phone number could have been easily obtained from various legal directories or the state bar association. Finally, the prosecution presented its own expert testimony on the investment securities question and was thus presumably not ignorant of the issues involved. See, e.g., State v. Fendler, 622 P.2d at 34. Any state interest in preparing for cross-examination of Schaffer or rebuttal of his testimony could have been accommodated by a brief continuance.17

We assume that the failure to comply with the discovery orders was willful.18 We need not decide whether the willfulness was attributable to Fendler personally. The determinative factor here is that Fendler was deprived of the testimony of a witness who was important to his defense on a material issue. That is too high a price to exact for failure to comply with discovery orders issued pursuant to general discovery rules.19 We find that, under either of the potential standards, Fendler's sixth amendment rights were violated by the witness preclusion order.

Because the trial court's error affected substantial constitutional rights, we must determine whether the error was "harmless beyond a reasonable doubt." See, e.g., Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); United States v. Castillo, 615 F.2d 878 (9th Cir.1980). Notwithstanding our earlier statements as to the importance of Schaffer's testimony to one part of Fendler's defense, we cannot decide the question on the basis of the record before us.

We note that Schaffer would have testified as to the valuation of only one of the four assets that made up the false entry count. There is no way to determine without a transcript of the state trial which of the four assets the jury may have thought had been overvalued or even whether there is sufficient evidence as to any of the other three. It is possible that Fendler's valuation of the investment securities asset, about which Schaffer would have testified, convinced the jury to convict him. It may also be that the prosecution's case on the investment securities asset convinced the jury that Fendler generally engaged in unethical business practices and that this in turn affected its deliberations on the other three assets. Indeed, we consider it important that the Arizona Court of Appeals analyzed the evidence regarding the four allegedly overvalued assets "taken as a whole" when determining whether there was sufficient evidence to support Fendler's conviction. State v. Fendler, 622 P.2d at 35.20

We remand to the district court for a review of the trial transcript and a determination of whether the exclusion of Schaffer's testimony was harmless beyond a reasonable doubt. We also believe that the district court should appoint qualified counsel to represent Fendler in the proceedings on remand and in any further proceedings conducted pursuant to our decision here. If necessary, appointed counsel can also assist in fully developing Fendler's general fifth amendment challenge to the Arizona criminal discovery system. See note 8 supra.21

REVERSED AND REMANDED.

ALARCON, Circuit Judge, dissenting.

I respectfully dissent.

When the court's opinion was originally filed in this matter, I unqualifiedly concurred. After reading the petition for a rehearing, I became concerned that I may have erred. I then suggested that we should request a response to the petition for a rehearing. My colleagues disagreed.

I voted for a rehearing in this matter because I am now convinced that the opinion of the court is fatally flawed and that I was wrong to join in their number.

One. The majority has failed to perform its appellate function by declining to decide ripe federal constitutional questions properly raised on a petition for habeas corpus.

Two. The majority has instead, in excess of its jurisdiction, attempted to perform the duties of a trial court by making findings of fact contrary to those of the Arizona courts and in direct conflict with 28 U.S.C. Sec. 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981).

The Unanswered Constitutional Question.

The issue on this appeal is quite clear. Fendler did not comply with Arizona's reciprocal discovery rules which require disclosing the names of defense witnesses. As a sanction for Fendler's wilful disobedience, the Arizona court excluded the testimony of the unnamed defense witnesses.

Fendler has asked this court to hold that a state's rule which excludes the testimony of a defense witness for wilful noncompliance with reciprocal discovery rules violates an accused person's sixth amendment right to present a defense. In their petition for a rehearing, appellees also urge us to "resolve this constitutional issue."

The constitutionality of witness preclusion is an open question in this circuit. There are sound reasons for refusing to decide a constitutional question. None of these are present in this matter.

In United States v. Barron, 575 F.2d 752 (9th Cir.1978), we held that the trial court had not abused its discretion in excluding the testimony of defense witness. Barron did not argue that this sanction was unconstitutional. For that reason we noted: "Because the parties did not explore the possible Sixth Amendment issues raised by the sanction, we have limited our analysis solely to a determination of whether the district court abused its discretion in the circumstances of this case." Barron, 575 F.2d at 757 n. 5.

In Robbins v. Cardwell, 618 F.2d 581 (9th Cir.1980), we affirmed the denial of habeas corpus relief on a case which also involved an order of an Arizona state court that prohibited a defense witness from testifying because the defendant failed to disclose the names of witnesses. Before this court, the petitioner in Robbins argued that the exclusion order offended the sixth amendment. We refused to consider this issue. We explained our inaction as follows: "We reject the argument that this issue is presented for our determination on the record in this case." Robbins, 618 F.2d at 582.

Thus, in Barron, we did not reach the constitutional question because it was not raised. In Robbins, we abstained because, while the issue was raised on appeal, we concluded that the record did not permit us to act on the constitutional question. In the matter before us, we have been asked by both sides to decide the constitutional question presented by the preclusion sanction, and a proper record was made below to permit us to decide this controversy. Accordingly, I cannot come up with a compelling reason why we should place the burden of deciding this important constitutional question on other appellate shoulders. The majority has offered no explanation for its reticence. The majority is content, instead, to present us with elaborate dictum summarizing the forthright positions taken by other courts faced with this same constitutional question and marshaling the arguments which favor the rule adopted by the Fifth Circuit in United States v. Davis, 639 F.2d 239, 243 (5th Cir.1981).

A court faced with the constitutional issue presented to us by these facts has at least three choices. It can decide:

One. The sixth amendment does not bar the exclusion of a witness' testimony where there has been a deliberate violation of a discovery rule.

Two. The sanction of witness preclusion is permissible under the sixth amendment if the trial court has balanced the competing interests.

Three. The sixth amendment forbids the exclusion of evidence as a sanction to enforce discovery rules or orders.

The majority tells us that "[t]his court has yet to decide the question of witness preclusion as a sanction for failure to obey discovery rules." (at 1187). Later, the court states: "In this case, it is also unnecessary to answer the constitutional question fully" (at 1188).

The majority, without discussing the merits of the first alternative, i.e., witness preclusion is permissible as a sanction without balancing the competing interests, proceeds to "narrow the question we leave open" (at 1188) to a choice between the second and third alternatives. The opinion then states: "We need not now choose between these two alternatives because we find that under either of these approaches, the Arizona state courts erred in excluding the testimony of an important defense witness" (at 1188). In spite of this claimed neutrality, the majority spends considerable time advocating the merits of the third alternative. (at 1185-1187).

Thereafter, while the court insists it has decided no constitutional question, it, nevertheless, proceeds to apply the balancing test to this case and finds error which "affected substantial constitutional rights" (at 1190).

I would reject the rule adopted by the Fifth Circuit in Davis which forbids the exclusion of a witness' testimony as a sanction for a failure to comply with a discovery rule. I would instead adopt a balancing test and hold that the exclusion of the testimony of a witness as a sanction for the violation of a discovery rule, is not violative of the sixth amendment where the trial court has closely examined the competing interests. See State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979); State v. Mai, 294 Or. 269, 656 P.2d 315 (1982); State v. Roberts, 226 Kan. 740, 602 P.2d 1355 (1979); State v. Smith, 88 N.M. 541, 543 P.2d 834 (1975); State ex rel. Simos v. Burke, 41 Wis. 2d 129, 163 N.W.2d 177 (1968). The rule adopted by the Fifth Circuit is inconsistent with the view expressed by the Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). In Chambers, the Supreme Court stated:

Of course the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, (citation omitted). But its denial or significant elimination calls into question the ultimate 'integrity of the fact-finding process' and requires that the competing interest be closely examined. 410 U.S. at 295, 93 S.Ct. at 1046.

The state has a "legitimate interest" in enforceable reciprocal discovery rules. In Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970), the Supreme Court noted: "[T]he State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate." 399 U.S. at 81, 90 S.Ct. at 1896.

We applied the balancing test in reviewing the exclusion of an alibi interest in United States v. Barron, 575 F.2d 752 (9th Cir.1978). There, we said:

The rule [Fed.R.Crim.P. 12.1--Notice of Alibi] also serves to present trial delays which might otherwise be necessary to permit a surprise witness or alibi defense. (citation omitted). If these reasons are to be effectuated and the rule is to have any teeth, trial courts must be able to impose sanctions, even the drastic one imposed in this case [exclusion of an alibi witness]. However, courts should impose the sanction only after a careful weighing of the interest of the defendant in a full and fair trial against the interests of avoiding surprise and delays. 575 F.2d at 757 (emphasis added).

The analysis we employed in Barron fits squarely within the principles expressed in Chambers v. Mississippi concerning the balancing of competing interests.

It should be noted that the Fifth Circuit in Davis failed to cite or discuss the Supreme Court's earlier decision in Chambers v. Mississippi. This may explain its failure to consider adoption of the balancing test.

Fact Finding in Excess of Jurisdiction.

In this matter, the Arizona state court balanced the competing interests of the parties and found that exclusion of the witness' testimony was the only effective remedy under all the circumstances of this case. These factual findings were reviewed by the Court of Appeals for Arizona in State v. Fendler, 127 Ariz. 464, 622 P.2d 23 (App.1980). The Court of Appeals of Arizona found that "the trial court acted properly in precluding the witness' testimony." 622 P.2d at 42.

No contention has been made that the fact finding procedure employed by the Arizona courts was not adequate to afford a full and fair hearing. Fendler failed to meet his burden of persuading the district court by convincing evidence that the factual determinations of the Arizona courts were erroneous. 28 U.S.C. Sec. 2254(d)(8).

In the face of the factual findings of the Arizona courts and the failure of the petitioner to meet his burden in the federal district court, my colleagues have proceeded to make contrary findings of fact in spite of the fact that they admit they have not examined the transcript of the state court proceedings (at 1182-1183).

In Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981), the Supreme Court vacated a judgment of this court because this court exceeded its limited review under 28 U.S.C. Sec. 2254 by making findings which were "considerably at odds with the findings made by the California Court of Appeal." 449 U.S. at 543, 101 S.Ct. at 767. In Sumner v. Mata, the court held that we had failed to apply the "presumption of correctness" to factual determinations made by the state courts as compelled by Sec. 2254(d). The Court noted that this court "reached a conclusion which was in conflict with the conclusion reached by every other state and federal judge after reviewing the exact same record." 449 U.S. 548-549, 101 S.Ct. at 769-70. The majority protests at great length in footnote 21 that it has not violated Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981) by engaging in impermissible fact finding. Yet, in spite of this disclaimer, the court's analysis begins with the factual question "how important was the witness [Schaffer]" at 1188. The court then proceeds to weigh Schaffer's testimony presented before the magistrate to bolster its legal conclusion that constitutional error has occurred. Later, the majority reaches the factual conclusion that "[a]ny state interest in preparing for cross examination or rebuttal of his testimony could have been accommodated by a brief continuance." At 1189-1190. There is nothing in the record in the state proceedings or the federal habeas corpus hearing which would support this purely factual speculation.

The majority has also ignored the requirement of Sec. 2254(d) that the applicant who challenges the sufficiency of the evidence adduced in the state court proceedings "shall produce that part of the record pertinent to a determination of the sufficiency of the evidence." Here, the majority has determined, in the absence of any record, that the prosecution's interests would have been accommodated by a brief continuance, without considering the Arizona Court of Appeals discussion of the impact on the prosecution which would have flowed from the "tardiness of appellant's claim." 622 P.2d at 42.

This court has acted in excess of its limited jurisdiction under Sec. 2254(d) in making factual findings contrary to those made by the Arizona courts without even reading the record made before that court to determine its fairness and adequacy.CONCLUSION.

I would affirm the district court's denial of Fendler's habeas corpus petition. The Court of Appeals of Arizona has found that Fendler's rights to present a defense were properly balanced with the state's legitimate interest in enforcing reciprocal discovery. That finding is presumed correct under Sumner v. Mata and Sec. 2254(d). The majority has not only declined to decide the constitutional issue it was asked to address, but it has also ignored completely its responsibility under Sumner v. Mata and Sec. 2254(d) to refrain from making findings contrary to those made by the Arizona courts.

The majority explained its failure to choose between the balancing test suggested by the Supreme Court in Chambers v. Mississippi and the contrary rule applied in the Fifth Circuit because "under either of these approaches, the Arizona state courts erred." This conclusion is simply wrong under Sumner v. Mata. This court is bound by the Arizona courts' findings, in the absence of convincing evidence, presented to the district court, that the factual determinations of the Arizona courts were erroneous. Sec. 2254(d)(8). The district court was not persuaded "by convincing evidence" that the factual determinations were erroneous. The majority, without an evidentiary hearing nor a review of the state court proceedings, has determined that these findings were erroneous.

Under the principles discussed in Sumner v. Mata and Chambers v. Mississippi, and on the record before us, this court was required to conclude that no constitutional deprivation occurred in the Arizona state court proceedings.