MEMORANDUM
Adelmo Sais Beltran appeals from the January 21, 2003, order of the United States District Court for the Northern District of California, Hon. Marilyn Hall Patel, denying his pro se application for habeas relief pursuant to 28 U.S.C. § 2254. The district court certified for appeal appellant’s claim that the jury was exposed to extrinsic evidence in violation of his Sixth Amendment rights.
We reverse the denial of the petition and remand with instructions that Beltran either be released or granted a new trial.
At trial in Superior Court, the prosecution proved that Beltran’s two co-defendants drove from San Francisco to Beltran’s home in Los Angeles County, where they and Beltran loaded ten kilograms of cocaine into a car door. The two co-defendants then drove back to San Francisco. There was no direct evidence that the defendants knew the packages contained cocaine, but the prosecution argued that, under the circumstances, it should have been obvious. The defense argued, and one defendant testified, that the defendants thought they were handling an illegal black powder used in making fireworks.
During deliberations, the jury read aloud a government agent’s affidavit attached to a search warrant for Beltran’s co-defendant’s home. The affidavit had been ruled inadmissible but, for reasons unexplored at the state level, it was mistakenly attached to the search warrant cover page admitted at trial. When a note from the jury brought the error to the court’s attention, jurors were instructed not to consider the evidence. When polled, each answered they could forget the evidence. The court also determined that one juror had read the government affidavit and return attached to the search warrant for Beltran’s home, which had also been excluded from evidence, and which [184]*184listed a weapon and ammunition as among the goods seized. That juror, upon being further instructed, answered that he could ignore the evidence. The affidavit for the first warrant completely undermined the defense because it contained a confidential informant’s hearsay statements that one of Beltran’s co-defendants was a cocaine trafficker who made weekly trips to Los Angeles to purchase cocaine.
Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) (2000), an applicant for habeas relief must demonstrate that the state courts’ adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented.”
We hold that the jurors’ exposure during deliberations to the excluded evidence contained in the government affidavits was constitutional error depriving Beltran of his Sixth Amendment rights to confrontation, cross-examination and assistance of counsel. Contrary to United States Supreme Court precedent, the state trial court, the California Court of Appeal, and the California Supreme Court each failed to find that this amounted to federal constitutional error. See Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”); Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Marshall v. United States, 360 U.S. 310, 312-13, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).
We cannot defer to the state court’s prejudice determination because it placed the burden on Beltran to demonstrate prejudice from the error, contrary to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Chapman requires that the burden of demonstrating the absence of prejudice from constitutional error rest with the state. See 386 U.S. at 24 (“constitutional error, in illegally admitting highly prejudicial evidence or comments, easts on someone other than the person prejudiced by it a burden to show that it was harmless”).
On collateral review, we must determine whether the constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Brecht standard is derived from the Court’s decision in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), in which the Court explained:
[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Kotteakos, 328 U.S. at 765; see Brecht, 507 U.S. at 637-38 (explicitly adopting Kotteakos standard).
We hold that, of the two excluded affidavits erroneously considered by the jury, the first affidavit attached to the search [185]*185warrant for Beltran’s co-defendant’s home leaves us in grave doubt that the error did not have a substantial and injurious effect on the jury’s verdict. The affidavit had been ruled too prejudicial to be admissible at trial — it bore the government’s imprimatur, it described prior identical criminal activity of one of the defendants and was incriminating as to all defendants, seriously undermining the defense. We find that a jury instruction to ignore the affidavit could not cure its prejudicial impact. It is extremely unlikely that the jury, even if instructed to do so, could be expected to set such highly prejudicial evidence aside. The fact that the jurors had the affidavit read out loud during their deliberations is inconsistent with the proposition that it was not of great significance to them. The instruction was inadequate here because Beltran was deprived of the opportunity to rebut the evidence, to discuss its significance in argument to the jury, or to take other steps to lessen its prejudicial impact.
“[W]e are dealing here with a trial error of constitutional dimension — of the sort that seriously risks an unreliable trial,” and we are in grave doubt as to the harmlessness of the error, and therefore, relief must be granted. O’Neal v. McAninch, 513 U.S. 432, 442, 445, 115 S.Ct.
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MEMORANDUM
Adelmo Sais Beltran appeals from the January 21, 2003, order of the United States District Court for the Northern District of California, Hon. Marilyn Hall Patel, denying his pro se application for habeas relief pursuant to 28 U.S.C. § 2254. The district court certified for appeal appellant’s claim that the jury was exposed to extrinsic evidence in violation of his Sixth Amendment rights.
We reverse the denial of the petition and remand with instructions that Beltran either be released or granted a new trial.
At trial in Superior Court, the prosecution proved that Beltran’s two co-defendants drove from San Francisco to Beltran’s home in Los Angeles County, where they and Beltran loaded ten kilograms of cocaine into a car door. The two co-defendants then drove back to San Francisco. There was no direct evidence that the defendants knew the packages contained cocaine, but the prosecution argued that, under the circumstances, it should have been obvious. The defense argued, and one defendant testified, that the defendants thought they were handling an illegal black powder used in making fireworks.
During deliberations, the jury read aloud a government agent’s affidavit attached to a search warrant for Beltran’s co-defendant’s home. The affidavit had been ruled inadmissible but, for reasons unexplored at the state level, it was mistakenly attached to the search warrant cover page admitted at trial. When a note from the jury brought the error to the court’s attention, jurors were instructed not to consider the evidence. When polled, each answered they could forget the evidence. The court also determined that one juror had read the government affidavit and return attached to the search warrant for Beltran’s home, which had also been excluded from evidence, and which [184]*184listed a weapon and ammunition as among the goods seized. That juror, upon being further instructed, answered that he could ignore the evidence. The affidavit for the first warrant completely undermined the defense because it contained a confidential informant’s hearsay statements that one of Beltran’s co-defendants was a cocaine trafficker who made weekly trips to Los Angeles to purchase cocaine.
Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) (2000), an applicant for habeas relief must demonstrate that the state courts’ adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented.”
We hold that the jurors’ exposure during deliberations to the excluded evidence contained in the government affidavits was constitutional error depriving Beltran of his Sixth Amendment rights to confrontation, cross-examination and assistance of counsel. Contrary to United States Supreme Court precedent, the state trial court, the California Court of Appeal, and the California Supreme Court each failed to find that this amounted to federal constitutional error. See Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”); Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Marshall v. United States, 360 U.S. 310, 312-13, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).
We cannot defer to the state court’s prejudice determination because it placed the burden on Beltran to demonstrate prejudice from the error, contrary to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Chapman requires that the burden of demonstrating the absence of prejudice from constitutional error rest with the state. See 386 U.S. at 24 (“constitutional error, in illegally admitting highly prejudicial evidence or comments, easts on someone other than the person prejudiced by it a burden to show that it was harmless”).
On collateral review, we must determine whether the constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Brecht standard is derived from the Court’s decision in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), in which the Court explained:
[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Kotteakos, 328 U.S. at 765; see Brecht, 507 U.S. at 637-38 (explicitly adopting Kotteakos standard).
We hold that, of the two excluded affidavits erroneously considered by the jury, the first affidavit attached to the search [185]*185warrant for Beltran’s co-defendant’s home leaves us in grave doubt that the error did not have a substantial and injurious effect on the jury’s verdict. The affidavit had been ruled too prejudicial to be admissible at trial — it bore the government’s imprimatur, it described prior identical criminal activity of one of the defendants and was incriminating as to all defendants, seriously undermining the defense. We find that a jury instruction to ignore the affidavit could not cure its prejudicial impact. It is extremely unlikely that the jury, even if instructed to do so, could be expected to set such highly prejudicial evidence aside. The fact that the jurors had the affidavit read out loud during their deliberations is inconsistent with the proposition that it was not of great significance to them. The instruction was inadequate here because Beltran was deprived of the opportunity to rebut the evidence, to discuss its significance in argument to the jury, or to take other steps to lessen its prejudicial impact.
“[W]e are dealing here with a trial error of constitutional dimension — of the sort that seriously risks an unreliable trial,” and we are in grave doubt as to the harmlessness of the error, and therefore, relief must be granted. O’Neal v. McAninch, 513 U.S. 432, 442, 445, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (“when a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief”); see also Belmontes v. Woodford, 350 F.3d 861, 905-06 (9th Cir.2003) (noting that under O’Neal inquiry, “the state bears the ‘risk of doubt’ ”).
REVERSED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.