Is a sanction imposed by a federal district court that prohibits a defense witness from testifying unconstitutional?

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.