FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN MACIAS,

Defendant-Appellant.

No. 13-50211

D.C. No.

3:11-cr-04340-H-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, District Judge, Presiding

Argued and Submitted

July 10, 2014—Pasadena, California

Filed June 15, 2015

Before: Fortunato P. Benavides,*

 Kim McLane Wardlaw,

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Benavides;

Partial Concurrence and Partial Dissent by Judge Wardlaw

* The Honorable Fortunato P. Benavides, Senior Circuit Judge for the

U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2 UNITED STATES V. MACIAS

SUMMARY**

Criminal Law

The panel affirmed the district court’s judgment in a case

in which the defendant was convicted of being a removed

alien found in the United States and making a false claim of

United States citizenship.

The panel held that the district court’s admission of an

affidavit, signed by two border patrol agents, amending the

defendant’s delayed registration of birth violated the

Confrontation Clause because the affidavit constituted a

testimonial statement and the government failed to call the

agents to testify. The panel held that the admission

constituted plain error, but did not affect the outcome of the

trial and thus did not affect the defendant’s substantial rights. 

Because the panel concluded that the admission of the

affidavit was harmless, the panel did not address the merits of

the defendant’s evidentiary challenges to its admission.

Rejecting the defendant’s contention that the prosecutor

drew an improper inference during closing argument by

claiming that the defendant’s delayed birth registration was

a “forgery,” the panel held that the argument that the

document is a fabrication is a reasonable inference from the

evidence, and that the prosecutor’s remarks during closing

argument do not constitute error, much less plain error.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MACIAS 3

The panel held that the defendant failed to show the

multiple errors necessary to prevail on a claim of cumulative

error.

Judge Wardlaw concurred in part and dissented in part. 

She agreed with the majority’s holdings that the district court

violated the defendant’s Confrontation Clause rights by

admitting the amended delayed birth registration, which

contained testimonial statements, and that admission of the

document was error because the government failed to call the

two attesting agents to testify. She wrote that the majority

incorrectly reviews this error under the plain error standard,

disregarding the well-established principle that this court

reviews “de novo whether the admission of a document

violated a defendant’s Confrontation Clause rights.” She

wrote that under that standard the government cannot meet its

burden of proving that the Confrontation Clause error is

harmless beyond a reasonable doubt. 

COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego, Inc.,

San Diego, California, for Defendant-Appellant.

Laura Duffy, United States Attorney, Bruce Castetter,

Assistance United States Attorney, Chief, Appellate Section,

and Charlotte E. Kaiser (argued), Assistant United States

Attorney, San Diego, California, for Plaintiff-Appellee.
4 UNITED STATES V. MACIAS

OPINION

BENAVIDES, Circuit Judge:

This is a direct criminal appeal from convictions for being

a removed alien found in the United States in violation of

8 U.S.C. § 1326 and for making a false claim of United States

citizenship in violation of 18 U.S.C. § 911. Finding no

reversible error, we affirm the district court’s judgment.

I. FACTUAL AND PROCEDURAL HISTORY

A. Charged Conduct

On September 5, 2011, Defendant-Appellant Juan Macias

(“Macias”) was arrested for illegal re-entry near the Tecate,

California, Port of Entry. At approximately 4 o’clock in the

morning, a seismic sensor indicated movement. Border

Patrol Agent Russell Slingerland and two other agents

responded to the location of the sensor. Upon investigation,

they discovered Macias crouched behind boulders and brush

in a steep canyon. Macias initially told the agents that he had

no legal documents to be in the United States and that he

entered by “jumping the [border] fence.” Macias also told the

agents he was from Mexico. However, after Macias was

brought into custody, he agreed to speak to an agent without

an attorney and claimed under oath that he was born in

Riverside, California. He said his mother had told him that

he had been born in Riverside, but because he was born at

home she never “registered” his birth. He claimed that he had

a California birth certificate and was a United States citizen. 

However, he did not have the birth certificate with him.
UNITED STATES V. MACIAS 5

B. First Trial

On September 27, 2011, a federal grand jury returned a

two-count indictment, charging Macias with being a removed

alien in the United States in violation of 8 U.S.C. § 1326 and

with making a false claim of United States citizenship in

violation of 18 U.S.C. § 911. A jury trial began on June 5,

2012, and on June 8, the district court declared a mistrial due

to a hung jury. During the trial, Macias had submitted a

“delayed registration of birth” document issued by the State

of California, and it provided that he had been born in

Riverside, California. Macias had obtained this delayed

registration of birth document in 1998. After the mistrial,

two of the jurors told the prosecutors that they could not find

Macias guilty because there was no showing that Macias’s

delayed registration of birth document had been invalidated.

C. Post-trial Investigation of Macias’s Birthplace

Subsequently, at the request of the prosecutor, two border

patrol agents, Andrew Kahl and Brian Desrosiers, conducted

an investigation regarding Macias’s place of birth. The

agents interviewed Macias’s family members, including his

father, who told them Macias was born in Mexico, and not in

California. The interviews were conducted at Macias’s

parents’ home in Riverside, California. Through

investigators with the State Department, the agents obtained

a birth certificate showing that Macias was born on October

31, 1960 in Yurecuaro, State of Michoacan, Mexico. That

certificate was dated November 7, 1960. Additionally, the

agents reviewed documents contained in the Macias family’s

immigration files. Macias’s parents’ applications for lawful

permanent residency provided that Macias had been born in

Mexico.
6 UNITED STATES V. MACIAS

Based on the above information discovered through their

investigation, the agents concluded that Macias had been born

in Mexico and then attempted to correct the birthplace listed

on Macias’s delayed registration of birth. The State of

California has a procedure to amend a delayed registration of

birth. Two individuals with knowledge of the facts may

apply for an amendment if there is an error in the document. 

Those two individuals must fill out a notarized sworn

statement and pay a fee. Agent Kahl filled out the form and

both Agents Kahl and Desrosiers signed the affidavit

amending Macias’s delayed registration of birth. The

amending affidavit provided that Macias’s birth actually

occurred in Yurecuaro, Michoacan, Mexico and not

Riverside, California. The agents mailed the affidavit to the

California Office of Vital Records, and it was attached to the

delayed registration of birth on file.

D. Retrial

The second jury trial began on July 17, 2012, and once

again, the central issue was whether Macias was born in

Mexico or in California. We now turn to the evidence

admitted at Macias’s retrial.

1. Birth Documents

Through the custodian of the California Office of Vital

Records, the government introduced Macias’s delayed

registration of birth and the amending affidavit that had been

executed by the border patrol agents. More specifically, the

evidence showed that in 1998, Macias, then age 37,

completed the application for a delayed registration of birth

and mailed it to the California Office of Vital Records. The

application contained the purported signatures of his mother,
UNITED STATES V. MACIAS 7

Maria Macias (“Maria”), and a family friend, Ernestina

Guerrero (“Guerrero”). The application provided that

Guerrero was present at Macias’s birth on October 31, 1960,

at “home” in Riverside, California. To receive a delayed

registration of birth, the applicant must submit proof of his

place of birth. Macias submitted with his application a copy

of his daughter’s California birth certificate which listed her

father’s (Macias’s) birthplace as California. The California

Office of Vital Records issued the delayed registration of

birth with the above information and mailed it to Macias.

As set forth previously, in 2012, the agents filed an

amending affidavit, which was attached to the delayed

registration of birth. Although the delayed registration of

birth was admitted at the first trial, the amending affidavit

was not in existence at the time of the first trial. At the time

the government introduced into evidence the delayed

registration of birth with the attached amending affidavit, the

two agents who signed the affidavit had not testified. 

However, defense counsel subsequently called Agent Kahl,

and he testified with respect to their investigation of Macias’s

birthplace and the execution of the amending affidavit.

The government also introduced a copy of the previously

mentioned Mexican birth certificate dated November 7, 1960,

which provided that Macias was born in Mexico on October

31, 1960. Macias’s father, Felipe Macias, Sr. (“Felipe”), had

signed this birth certificate, and there were two witnesses

listed on it. This birth certificate had not been submitted at

the first trial. Felipe testified that Macias was born in

Yurecuaro, Michoacan, Mexico, and that he was present at

Macias’s birth. Eight days after the birth, he and Maria took

Macias to the civil registry and obtained this birth certificate. 

He further testified that Maria, who could not read or write,
8 UNITED STATES V. MACIAS

did not sign the certificate but did place her fingerprint on it. 

The birth certificate also contained Felipe’s and Macias’s

fingerprints.1 Consistent with this evidence, one of Macias’s

older brothers, Gil Macias, testified that Macias was born in

Yurecuaro, Michoacan, Mexico.

2. Parents’ Immigration Files

In 1987, Felipe and Maria applied for lawful permanent

residency in the United States. Their applications asked

whether their children were United States citizens, and they

checked the box “No” for all their children, including Macias. 

The applications provided that all their children were born in

Mexico. The parents were granted lawful permanent

residency and moved the family to Riverside, California.

3. Macias’s Immigration File

Border Patrol Agent Kara Reale testified with respect to

the contents of Macias’s immigration file. Macias had been

deported to Mexico many times prior to this trial. Macias

was first deported to Mexico in 1981, at the age of 21. 

During those proceedings, Macias requested to be returned to

Mexico, stating that he was a citizen of Mexico.

In 1988 and 1989, Macias was again deported to Mexico

based on his admissions during deportation proceedings. An

audio recording of the 1988 hearing was played for the jury.

In 1992, during a deportation hearing, he initially claimed

he was a citizen of Mexico and not the United States,

1 The record shows that the government had the fingerprints on this birth

certificate tested but the results were inconclusive.
UNITED STATES V. MACIAS 9

asserting that his father had told him he was born in Mexico. 

However, he also stated that his mother’s friend had told him

he was born in Riverside. The immigration judge offered him

an opportunity to present evidence, and Macias responded

that he “will fix that when [he] arrive[s] in Mexico.” The

judge then ordered Macias to be deported to Mexico. An

audio recording of this hearing was played for the jury.

In 1994, during a deportation hearing, Macias was asked

if he was a citizen of the United States and he responded

negatively. He responded affirmatively when asked whether

he was a native and citizen of Mexico. An audio recording of

this hearing was played for the jury. In July of 1998, Macias

was once again deported to Mexico, after stating that he was

born in Mexico.

Macias’s immigration file also contained statements

during deportation proceedings in 1997, 1998, and 2004, in

which Macias admitted that he was born in Mexico and was

a citizen of Mexico. Additionally, the government admitted

warrants of removal demonstrating that Macias had been

removed from the United States to Mexico in July 1998,

November 2001, and September 2004. In November 2004,

two months after the last removal proceedings, Macias told an

immigration judge that he was a citizen of the United States. 

When the immigration judge asked him about his extensive

deportation history, Macias responded that he had been lying

about being born in Mexico. Macias told the judge that he

did not discover that he was born in the United States until he

was about 18 years old. The judge ordered Macias to be

deported. Subsequently, in February 2011, during

deportation proceedings, Macias was deported after admitting

he was born in Mexico.
10 UNITED STATES V. MACIAS

4. Instant Offenses

As previously set forth, on September 5, 2011, Agent

Slingerland apprehended Macias near the Tecate, California,

Port of Entry. Macias was hiding behind boulders and brush

in a steep canyon. Macias initially stated that he had no legal

documents to be in the United States and admitted that he was

from Mexico. However, once Macias was in custody, he

claimed under oath that he was born in Riverside, California,

but that his mother had not “registered” his birth in California

because he had been born at home. He also claimed that he

had a California birth certificate and was a citizen of the

United States. This conduct forms the basis of the instant

convictions for being a removed alien found in the United

States and for making a false claim of United States

citizenship. 8 U.S.C. § 1326 and 18 U.S.C. § 911.

5. Verdict

On July 19, 2012, the jury returned a verdict of guilty on

the two counts. On May 13, 2013, the district court sentenced

Macias to a 46-month sentence as to the illegal re-entry

conviction and a 36-month sentence as to the false claim

conviction, with the sentences running concurrently. Macias

now appeals his convictions.

II. ANALYSIS

A. Confrontation Clause Violation

Macias contends that the district court’s admission of the

border patrol agents’ amending affidavit, which was attached

to his delayed registration of birth, violated his rights under

the Sixth Amendment’s Confrontation Clause. The
UNITED STATES V. MACIAS 11

Confrontation Clause guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const.

Amend. VI. The Confrontation “Clause forbids ‘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.’” Ocampo v.

Vail, 649 F.3d 1098, 1107 (9th Cir. 2011) (quoting Crawford

v. Washington, 541 U.S. 36, 53–54 (2004)). In the case at

bar, the government does not claim that the witnesses were

unavailable or that Macias had a prior opportunity to cross

examine them. Thus, the dispute is whether the affidavit

constituted a testimonial statement.

Generally, we review de novo alleged violations of the

Confrontation Clause. United States v. Bustamante, 687 F.3d

1190, 1193 (9th Cir. 2012). Here, however, although Macias

objected to the admission of the amending affidavit, he did

not object on the basis of a violation of the Confrontation

Clause. In his motion in limine filed just prior to the instant

trial, Macias argued that the government should be precluded

from introducing the border patrol agents’ amending affidavit

based on, among other things, hearsay, lack of personal

knowledge, and impermissible vouching.

2 Because Macias

2 Although Macias raised a Confrontation Clause argument with respect

to documents contained in the immigration files, he did not raise this

argument in his challenge to the amending affidavit. We note that the

government, in response to Macias’s Confrontation Clause argument as

to the immigration documents, asserted that if Macias was permitted to

introduce the delayed registration of birth without the testimony of the

affiants (his mother and Guerrero), then the government should be allowed

to introduce the immigration documents. The district court interpreted the

government’s argument to be that if the Confrontation Clause did not

preclude the admission of the delayed registration of birth, then it should
12 UNITED STATES V. MACIAS

failed to preserve the argument by making a Confrontation

Clause objection, this issue should be reviewed for plain

error. United States v. Anekwu, 695 F.3d 967, 972–73 (9th

Cir. 2012) (reviewing Confrontation Clause argument for

plain error). To show plain error, Macias must demonstrate: 

(1) error; (2) that is clear or obvious; (3) that affects the

defendant’s substantial rights; and (4) that “the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” Id. at 973 (internal quotation marks and

citation omitted).3

not preclude the immigration documents. However, we do not believe that

the district court interpreted the government’s argument as actually raising

a Confrontation Clause violation with respect to the amending affidavit. 

Cf. United States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012)

(explaining that a brief statement by the prosecutor that the admission of

records does not violate the Confrontation Clause “does not substitute for

a timely and specific ConfrontationClause objection” fromthe defendant). 

Moreover, the record makes clear that the only Confrontation Clause

objection was to the mother’s immigration files because the parties were

initially disputing whether Macias’s mother was unavailable to testify and

not whether the border patrol agents were unavailable to testify. Macias

does not challenge the admission of the documents in the immigration file

on appeal.

3 Our dissenting colleague suggests that we must address the

Confrontation Clause claim on the merits because the government has

waived any waiver argument it may have had by failing to assert it. The

“waiver of waiver” doctrine is, however—like waiver generally—a

discretionary doctrine. See Ruiz v. Affinity Logistics Corp., 667 F.3d

1318, 1322 (9th Cir. 2012) (“[T]he rule of waiver is a discretionary one.”)

(citation and internal quotation marks omitted). Which standard ofreview

to apply is a pure issue of law, id., and, exercising our discretion, we apply

the plain error standard of review notwithstanding the government’s

failure to argue that it should apply.
UNITED STATES V. MACIAS 13

1. Error

We must first determine whether the district court erred

in admitting the amending affidavit. Under Crawford, we

address whether the amending affidavit constitutes a

testimonial statement. 541 U.S. at 53–54. In Crawford, the

Supreme Court gave examples ofwhat constituted testimonial

statements:

[E]x parte in-court testimony or its functional

equivalent—that is, material such as

affidavits, custodial examinations, prior

testimony that the defendant was unable to

cross-examine, or similar pretrial statements

that declarants would reasonably expect to be

used prosecutorially; extrajudicial statements

. . . contained in formalized testimonial

materials, such as affidavits, depositions, prior

testimony, or confessions; statements that

were made under circumstances which would

lead an objective witness reasonably to

believe that the statement would be available

for use at a later trial.

Id. at 51–52 (internal quotation marks and citations omitted).

Relying on Melendez-Diaz v. Massachusetts, 557 U.S.

305 (2009), Macias contends that the amending affidavit was

testimonial and therefore the government had the burden of

calling the agents when it admitted the affidavit. We have

recognized that Melendez-Diaz “stand[s] for the proposition

that ‘[a] document created solely for an ‘evidentiarypurpose,’

. . . made in aid of a police investigation, ranks as

testimonial.’” Anekwu, 695 F.3d at 974 (quoting Bullcoming
14 UNITED STATES V. MACIAS

v. New Mexico, 131 S. Ct. 2705, 2717 (2011)) (elipsis and

brackets in original). Here, the border patrol agents created

the affidavit amending Macias’s delayed registration of birth

at the behest of the prosecutor after the first trial resulted in

a hung jury. After the mistrial, two of the jurors indicated

that they had a problem with the delayed registration of birth

document because it had not been invalidated. Thus, it is

clear that an objective witness would reasonably believe that

the agents’ amending affidavit was made for use at a later

trial to invalidate Macias’s delayed registration of birth. 

Crawford, 541 U.S. at 51–52. And, indeed, it was used at

Macias’s second trial for that purpose. Thus, the amending

affidavit constituted a testimonial statement made by the

agents.

Further, in Melendez-Diaz, the Supreme Court explained

that the “Confrontation Clause imposes a burden on the

prosecution to present its witnesses, not on the defendant to

bring those adverse witnesses into court.” 557 U.S. at 324. 

The Court opined that the Confrontation Clause’s “value to

the defendant is not replaced by a system in which the

prosecution presents its evidence via ex parte affidavits and

waits for the defendant to subpoena the affiants if he

chooses.” Id. at 324–25. Thus, the Supreme Court has made

clear that the government has the burden of calling witnesses

and allowing the defendant to confront them through cross

examination. Because the amending affidavit constituted a

testimonial statement and the government failed to call the

agents to testify, the admission of the affidavit into evidence

was error.
UNITED STATES V. MACIAS 15

2. Plain Error

We next determine whether the error was plain. Macias

relies on this Court’s decision in Bustamante, 687 F.3d at

1190. In that case, the issue before this Court was also

whether the criminal defendant had been born in the United

States. The government introduced a typewritten document

that was labeled as a “copy” of Bustamante’s Philippine birth

certificate. Id. at 1192. The document had been obtained by

the government during its previous investigation into whether

Bustamante was a United States citizen. Id. The document

was neither a photocopy nor a duplicate. Id. It provided:

“This is to certify that according to the record of births in this

office, the following is the copy of the birth certificate of: 

Napoleon Bustamante.” Id. The document then transcribed

information from the office’s birth records, stating that

Bustamante was born in the City of Bacolod on February 1,

1939. Id. The document also provided that it was issued in

1975, and was signed by a civil registrar. Id.

Bustamante objected, arguing that it was inadmissible

under Crawford. Id. at 1193. The district court disagreed and

admitted the document. Id. This Court concluded that the

document was a testimonial statement. Id. at 1194. Although

labeled as a copy, it was an “affidavit testifying to the

contents of the birth records . . . and is functionally identical

to [the] live, in-court testimony that an employee of the Civil

Registrar’s office might have provided.” Id. (citation and

internal quotation marks omitted). Moreover, the document

was created for the investigation into Bustamante’s

citizenship and “made under circumstances which would lead

an objective witness reasonably to believe that the statement

would be available for use at a later trial.” Id. This Court

made clear that its holding did not impugn the “general
16 UNITED STATES V. MACIAS

proposition that birth certificates, and official duplicates of

them, are ordinary public records ‘created for the

administration of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial.’” Id. (quoting

Melendez-Diaz, 557 U.S. at 324). In contrast, the document

at issue did not merely authenticate an “existing

non-testimonial record;” instead, a new record was created

for the purpose of generating evidence against Bustamante. 

Id. Accordingly, the admission of the document without

allowing an opportunity for cross examination violated the

Sixth Amendment’s Confrontation Clause. Id.

Likewise, in the instant case, the amending affidavit

essentially testified regarding the results of the border patrol

agents’ investigation regarding the place of Macias’s birth. 

The amending affidavit was created during an investigation

of Macias’s citizenship and with the intent to use it at

Macias’s second trial. The amending affidavit was created

“for the purpose of providing evidence against” Macias. Id. 

Following this Court’s opinion in Bustamante, we are

convinced that the admission of the amending affidavit was

clear or obvious error. Thus, the admission constitutes plain

error.4

3. Substantial Rights

The next question is whether the admission of the

amending affidavit affected Macias’s substantial rights. 

Ordinarily, an error has affected an appellant’s substantial

4 We recognize that the instant trial took place prior to the issuance of

the Bustamante opinion. Nonetheless, the Supreme Court has held that an

error is plain if it is contrary to the law at the time of appeal. Henderson

v. United States, __ U.S. __, 133 S. Ct. 1121, 1130–31 (2013).
UNITED STATES V. MACIAS 17

rights when the error “affected the outcome of the district

court proceedings.” United States v. Lopez, 762 F.3d 852,

863 (9th Cir. 2014). Ultimately, we conclude that the

admission of the affidavit did not affect the outcome of the

proceedings in light of (1) Agent Kahl’s testimony at trial

explaining the agents’ investigation that culminated in their

execution of the amending affidavit and (2) the overwhelming

evidence that Macias was born in Mexico.

As previously explained, because the amending affidavit

was testimonial, Macias had the right to confront the affiants,

Border Patrol Agents Kahl and Desrosiers. The district court

admitted the affidavit attached to the delayed registration of

birth during the government’s case-in-chief prior to Macias

having the opportunity to confront either witness. However,

during the presentation of his defense, Macias called Agent

Kahl and questioned him regarding his role in executing the

amending affidavit. Thus, Macias was able to belatedly

confront Agent Kahl. Indeed, when the prosecutor objected

to Macias’s questioning as leading, defense counsel

responded that he was “calling an opponent party witness. 

It’s an adverse witness. I’m permitted to cross.” The district

court overruled the objection as to leading and allowed

Macias to ask the leading question. Thus, Macias was

allowed to cross examine Agent Kahl in front of the jury.

Although Macias was able to confront Agent Kahl, Agent

Desrosiers did not testify. However, there is no indication

that Agent Desrosiers’s testimony would be anything but

cumulative of Agent Kahl’s testimony. Agent Kahl testified

that the prosecutor requested assistance in investigating

Macias’s citizenship and nationality. Agents Kahl and

Desrosiers together went to the home of Macias’s parents and

interviewed the family. Both agents reviewed documents
18 UNITED STATES V. MACIAS

from the family’s immigrations files. Additionally, Agent

Kahl testified that the State Department investigators located

Macias’s Mexican birth certificate. Based on the agents’

interviews with Macias’s family, their review of the

documents in the family’s immigration files and Macias’s

Mexican birth certificate, the agents concluded that Macias

was born in Mexico. Agent Kahl then executed the affidavit

amending Macias’s delayed registration of birth. The

amending affidavit provides that Macias was born in Mexico

and not in Riverside, California. The affidavit further states

as follows: “Mexican birth certificate has been obtained by

U.S. Government. Father Felipe Guzman Macias confirms

son born in Mexico. Father[’s] and Mother’s alien

registration files show JohnnyChaboya Macias [was] born in

Mexico.” As such, the amending affidavit itself provides the

source of the information that the agents relied upon in

coming to their conclusion that Macias was born in Mexico.5

Significantly, Macias’s father testified at trial that Macias was

born in Mexico, and the documentary evidence cited by the

agents in the affidavit was before the jury. As such, the jury

had before it admissible evidence explaining the agents’

stated reasons for executing the amending affidavit.

In determining whether the failure to confront Agent

Desrosier and the belated confrontation of Agent Kahl

affected the outcome of Macias’s trial, it is important to keep

in mind what was actually contested at trial. Although

Macias objected to the admission of the Mexican birth

5 Both agents signed the affidavit stating that they certified under penalty

of perjury that they had personal knowledge of the facts in the affidavit. 

Agent Kahl testified that although he was not present at Macias’s birth, he

conducted an investigation and believed that he did “have personal

knowledge as to [Macias’s] place of birth.”
UNITED STATES V. MACIAS 19

certificate as “not certified,” Macias did not dispute that his

father had obtained the birth certificate. Indeed, Macias

called an immigration lawyer to testify that it was common

for Mexican parents to register their children in Mexico even

if the child had been born in the United States. The

immigration lawyer explained that parents would register the

child in Mexico so that the child could obtain an education

and other benefits that are given to Mexican citizens. During

closing argument, defense counsel stated that it is “very

common” for a child to be “born in the United States but to

be registered in Mexico, because a baby unregistered in

Mexico can’t be vaccinated, can’t go to school, can’t get

healthcare and can’t enjoy the legal and social benefits

without that registration.” Accordingly, Macias did not

actually dispute the fact that Macias’s father obtained the

Mexican birth certificate.

Additionally, in his brief, Macias admits that his parents

listed his birthplace as Mexico on their applications for lawful

permanent residency. Macias also admits that he has been

“deported on numerous occasions beginning in 1981” and

that he claimed to be a citizen of Mexico during some of

those deportation proceedings.

Attempting to show harm, Macias argues that the

principal difference between the first trial and the second trial

is the introduction of the amending affidavit. Macias is

correct that the amending affidavit was only admitted at the

retrial. Likewise, the Mexican birth certificate was only

admitted at the retrial, and Macias fails to recognize the

importance of that document. The importance of the Mexican

birth certificate is magnified when, at trial, the defense

essentially admitted that his father registered him when he

was barely a week old in Yurecuaro, which is over 1,500
20 UNITED STATES V. MACIAS

miles from Riverside, California.6 The importance of the

Mexican birth certificate is further magnified by the

testimony of the custodian of the delayed registration of birth. 

The custodian testified that if her office had been provided

with either Macias’s Mexican birth certificate or his

deportation orders, it would not have issued him a delayed

registration of birth. Macias does not dispute the validity of

the Mexican birth certificate or the deportation orders. Thus,

the custodian’s testimony that these documents would have

precluded the issuance of Macias’s delayed registration of

birth essentially eviscerates his defense.

To summarize, the following evidence admitted at trial

convinces us that the Confrontation Clause violation did not

affect the outcome of the trial and thus did not affect

Macias’s substantial rights. Macias’s father testified that he

was present at Macias’s birth in Mexico. His father also

confirmed the authenticity of the Mexican birth certificate,

which was obtained when Macias was one week old. Macias

admitted that he was a citizen of Mexico in deportation

proceedings that occurred both before and after he obtained

the delayed registration of birth. With respect to Macias’s

delayed registration of birth document, neither affiant

testified. Moreover, Macias’s mother’s application for

residency provided that Macias was born in Mexico, which

conflicts with the birthplace listed in the delayed registration

of birth document. With respect to the amending affidavit, as

set forth above, Macias was able to cross examine one of the

agents as to the agents’ joint investigation and the evidence

6 We may take judicial notice of the distance between the two locations. 

See Cervantes v. United States, 263 F.2d 800, 804 n.5 (9th Cir. 1959)

(noting that “we take judicial notice of the fact that San Clemente is more

than seventy miles from the nearest port of entry from Mexico”).
UNITED STATES V. MACIAS 21

they relied upon to execute the amending affidavit. Under

those circumstances, we are convinced that the error did not

affect the outcome of the trial. Macias has not shown that his

substantial rights were affected.7

B. Evidentiary Challenges to Amending Affidavit

Macias raises four more arguments challenging the

admission of the same amending affidavit discussed above. 

More specifically, Macias contends that the amending

affidavit should have been excluded because: (1) it

constituted inadmissible hearsay; (2) its probative value was

substantially outweighed by a danger of unfair prejudice;

(3) its affiants lacked personal knowledge; and (4) it was an

improper attempt to have one witness testify as to another

witness’s credibility. Unlike Macias’s Confrontation Clause

argument, these four evidentiary objections are preserved for

appeal.

Where there has been a nonconstitutional error, we must

reverse “unless there is a ‘fair assurance’ of harmlessness or,

stated otherwise, unless it is more probable than not that the

error did not materially affect the verdict.” United States v.

Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc)

(quoting United States v. Crosby, 75 F.3d 1343, 1349 (9th

Cir. 1996)). In the preceding discussion at II.A.3, supra, we

concluded that the admission of the affidavit did not affect

the outcome of the proceedings. We recognize that the

preceding discussion involved a different assignment of the

7 Because the error did not affect Macias’s substantial rights, we need

not reach the fourth prong of the plain error test, which is whether the

“error seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Anekwu, 695 F.3d at 973.
22 UNITED STATES V. MACIAS

burden of proof with respect to whether the verdict was

affected. In the preceding discussion, under the plain error

standard, Macias had the burden of showing that the verdict

was affected. For these four preserved evidentiary

challenges, the government has the burden of showing that

the verdict was not affected by the affidavit. We conclude

that based on the same evidence and reasons set forth in our

discussion in II.A.3, supra, the government has shouldered its

burden of demonstrating that it is more probable than not that

the error did not materially affect the verdict. Because we

conclude that the admission of this affidavit is harmless error,

we need not address the merits of these evidentiary

objections. See United States v. Bishop, 1 F.3d 910, 911 (9th

Cir. 1993) (explaining that the Court need not reach the

merits of the claim that the evidence was inadmissible

because any error was harmless).

C. Prosecutorial Misconduct

Macias contends that the prosecutor drew an improper

inference in closing argument by claiming that Macias’s

delayed birth registration was a “forgery.” Macias recognizes

that because defense counsel failed to object to the argument,

the claim is reviewed for plain error. To show plain error,

Macias must demonstrate that: (1) there was error; (2) the

error was plain; and (3) the error affected substantial rights. 

United States v. Geston, 299 F.3d 1130, 1134–35 (9th Cir.

2002); Olano, 507 U.S. at 730–32. “Under this standard, a

conviction can be reversed only if, viewed in the context of

the entire trial, the impropriety seriously affected the fairness,

integrity, or public reputation of judicial proceedings, or

where failing to reverse a conviction would result in a

miscarriage of justice.” Geston, 299 F.3d at 1135 (internal

quotation marks and citation omitted).
UNITED STATES V. MACIAS 23

Referring to the delayed birth registration during closing

argument, the prosecutor called the document a “complete

fabrication.” He further asserted that “[i]t wasn’t the mom

who signed it. This is a forgery in and of itself.” He further

argued that Macias’s mother would have signed it “Maria

Chaboya” as opposed to “Maria Macias.” He then stated that

“[w]hat probably happened here—and I wasn’t there. None

of us were there. What probably happened is the Defendant

decided he’s going to fill this form out and he puts a signature

down there.”

In response to the prosecutor’s forgery accusation,

defense counsel explained during closing argument that

Macias’s mother’s full name was “Maria Chaboya de

Macias” and invited the jury to compare Maria’s signature on

the delayed registration of birth with her signature on the

application for lawful permanent residency. Defense counsel

argued that the name “‘Maria’ looks exactly the same in both

of the applications.”

“Prosecutors have considerable leeway to strike hard

blows based on the evidence and all reasonable inferences

from the evidence.” United States v. Sullivan, 522 F.3d 967,

982 (9th Cir. 2008) (citation and internal quotation marks

omitted); cf. United States v. Necoechea, 986 F.2d 1273, 1276

(9th Cir. 1993) (explaining that prosecutors may argue in

closing argument that one side is lying if the argument is

based on reasonable inferences).

The principal issue in this case is whether Macias was

born in the United States. The theory of the government’s

case was that the delayed registration of birth was obtained by

fraud. During closing argument, the prosecutor relied heavily

on the Mexican birth certificate, arguing that the certificate
24 UNITED STATES V. MACIAS

“in and of itself is conclusive” as to Macias’s place of birth. 

The prosecutor also emphasized that the only trial witness

who was present at Macias’s birth was Felipe, who testified

that it took place in Mexico. Additionally, Macias’s older

brother Gil testified that Macias was born in Mexico. The

prosecutor then pointed out that during a previous deportation

proceeding Macias had claimed that a family friend told him

he was born in Riverside, California. However, during the

instant deportation proceedings, Macias changed his story by

claiming that it was his mother who told him that he was born

in Riverside. Further, although Macias claimed to have

learned of his true birthplace when he was 18 years old, he

did not obtain the delayed birth registration until

approximately 20 years later—after several deportations. 

Additionally, Macias made numerous sworn statements

during immigration proceedings that he was born in Mexico

and was a Mexican national.

The prosecutor attacked the validity of the delayed

registration of birth by stating that Maria could neither read

nor write.8 He also pointed out that the State of California

does not verify signatures on the delayed registrations of

birth.

The evidence before the jurymade it abundantly clear that

the issue was whether Macias was born in the United States

and that the prosecutor’s position was that the Mexican birth

certificate was genuine. The evidence demonstrated that it

was Macias who obtained the delayed birth registration. 

8 Felipe had testified that Maria could neither read nor write. Likewise,

during his post-arrest interview, Macias stated under oath that his mother

“didn’t know how to read or write.”
UNITED STATES V. MACIAS 25

Thus, the inference that can be drawn from the evidence is

that Macias falsely procured the delayed birth registration.

Although there is no direct evidence that it was actually

Macias who signed his mother’s name on the delayed

registration of birth, there is strong evidence demonstrating

that Macias was born in Mexico, including the Mexican birth

certificate, the immigration files, and Macias’s father’s and

brother’s testimonies. We conclude that the argument that

the document is a fabrication is a reasonable inference from

the evidence. Sullivan, 522 F.3d at 982. Accordingly, the

prosecutor’s remarks during his closing argument do not

constitute error, much less plain error.

D. Cumulative Error

Finally, Macias contends that the combined effect of the

above-discussed alleged errors rendered his trial

fundamentally unfair. “In some cases, although no single

trial error examined in isolation is sufficiently prejudicial to

warrant reversal, the cumulative effect of multiple errors may

still prejudice a defendant.” United States v. Frederick,

78 F.3d 1370, 1381 (9th Cir. 1996). If the “government’s

case is weak, a defendant is more likely to be prejudiced by

the effect of cumulative errors.” Id.

As set forth previously, we hold that the admission of the

amending affidavit did violate the Confrontation Clause, but

that it did not constitute plain error that affected Macias’s

substantial rights. With respect to the nonconstitutional

challenges to the amending affidavit, we explained above that

any error is harmless. Although Macias challenges the

admission of the amending affidavit on numerous grounds, it

is an admission of a single document. Further, the
26 UNITED STATES V. MACIAS

prosecutor’s remarks did not constitute an error. Macias has

failed to show the multiple errors necessary to prevail on a

claim of cumulative error.

III. CONCLUSION

For the above reasons, the district court’s judgment is

AFFIRMED.

WARDLAW, Circuit Judge, concurring in part and dissenting

in part:

I agree with the majority that the district court violated

Macias’s Confrontation Clause rights by admitting the

Amended Delayed Birth Registration, which contained the

Border Patrol agents’ testimonial statements that Macias was

born in Mexico. The majority also correctly holds that the

district court’s admission of the document where the

government failed to call the two attesting Border Patrol

agents to testify at Macias’s trial was error. However, the

majority incorrectly reviews this error under the plain error

standard, concluding that although the error was “plain,” it

did not affect Macias’s substantial rights. The majority

disregards the well-established principle that we “review de

novo whether the admission of a document violated a

defendant’s Confrontation Clause rights.” United States v.

Bustamante, 687 F.3d 1190, 1193 (9th Cir. 2012). Under that

standard, “[t]he government bears the burden of proving that

a Confrontation Clause error is harmless beyond a reasonable

doubt.” Id. at 1195. The government cannot meet that

burden here.
UNITED STATES V. MACIAS 27

A.

Macias’s opening brief argues that the standard of review

of the Confrontation Clause error is “de novo” review. The

government’s answering brief agrees: It states that “[t]his

court reviews ‘[t]he district court’s resolution of

Confrontation Clause claims’ de novo,” citing United States

v. Berry, 683 F.3d 1015, 1020 (9th Cir. 2012) (“The district

court’s resolution of Confrontation Clause claims is reviewed

de novo.”). The government further agrees that it bears the

burden of proving that the error was harmless beyond a

reasonable doubt, citing United States v. Tuyet Thi-Bach

Nguyen, 565 F.3d 668, 675 (9th Cir. 2009) (“The prosecution

bears the burden of proving the error was harmless beyond a

reasonable doubt.”). The answering brief then addresses the

merits of Macias’s Confrontation Clause claim for the next

five pages.

This is classic “waiver of waiver.” Where the

government elects to address an unpreserved claim on the

merits rather than to argue that the defendant waived the

claim by failing to object on that basis in the trial court, it is

deemed to waive the waiver. In United States v. Doe, 53 F.3d

1081 (9th Cir. 1995), for example, the government, as here,

failed to argue waiver in its briefs or at oral argument, but

instead urged us to reach the merits of the claim. We

concluded that the “government ha[d] ‘waived’ any waiver

argument it may have had.” Id. at 1083. Citing Oklahoma

City v. Tuttle, 471 U.S. 808, 815–16 (1985), we reasoned that

“[w]aiver does not divest the Court of jurisdiction it

otherwise enjoys.” Rather, “[w]aiver is a creature of judicial

policy, informed in this purely federal context by concerns of

fairness, finality, and economy.” Id. at 1082. Similarly, in

Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2009), the
28 UNITED STATES V. MACIAS

plaintiff did not argue waiver, in the sense of failing to

preserve an objection, but addressed the question of qualified

immunity on the merits. We held that “[i]t is well-established

that a party can waive waiver implicitly by failing to assert

it,” and that the plaintiff “waived the defendants’ waiver by

addressing the claim on the merits without also making a

waiver argument.” Id. at 1068 (internal quotation marks

omitted); see also Graham-Sult v. Clainos, 756 F.3d 724, 747

n.16 (9th Cir. 2013) (“[Defendants] did not raise [a defense]

in their motions or replies in the district court. However,

Plaintiffs have not argued that [Defendants] waived this

argument, and have therefore waived the opportunity to

object on that ground.”); United States v. Garcia-Lopez,

309 F.3d 1121, 1123 (9th Cir. 2002) (“[T]he government can

‘waive waiver’ implicitly by failing to assert it[.]”); United

States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) (“This

court will not address waiver if not raised by the opposing

party.”); United States v. Lewis, 787 F.2d 1318, 1323 n.6 (9th

Cir.) amended by 798 F.2d 1250 (9th Cir. 1986) (refusing to

address the government’s waiver argument, raised for the first

time in its petition for rehearing, because the government had

failed to argue waiver in its briefs or at oral argument).

Given that the government elected to argue the

Confrontation Clause issue on the merits, and the novel and

fairly egregious circumstances by which the inadmissible

evidence was created, we not only can, but should, address

the Confrontation Clause claim on its merits.1 The

1 The majority articulates no reason for exercising its discretion to ignore

the government’s waiver of the plain error standard of review and its

express reliance on the de novo review standard. Indeed, there is no

reason why our court should not exercise its discretion to address the

merits of Macias’s Confrontation Clause objection here, and every reason
UNITED STATES V. MACIAS 29

Confrontation Clause is a “bedrock procedural guarantee,”

Crawford v. Washington, 541 U.S. 36, 42 (2004), which

courts should make every effort to preserve.2

The government admits it created the Amended Delayed

Birth Registration to bolster its case against Macias. At

Macias’s first trial on these charges, the court admitted

Macias’s Delayed Birth Registration. A Border Patrol agent,

Joel Mata, Jr., testified that he had attempted to “cancel”

Macias’s Delayed Birth Registration by stamping the word

why it should. We have found three exceptions to the waiver rule even

where the “waiver” has not been waived: “(1) [] the exceptional case in

which review is necessary to prevent a miscarriage of justice or to

preserve the integrity of the judicial process, (2) when a new issue arises

while appeal is pending because of a change in the law, and (3) when the

issue presented is purely one of law and either does not depend on the

factual record developed below, or the pertinent record has been fully

developed.” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1323 (9th

Cir. 2012) (internal quotationmarks omitted). Deciding the Confrontation

Clause issue here is necessary “to preserve the integrity of the judicial

process.” Whether the admission of the Amended Delayed Birth

Registration violated the Confrontation Clause is a purely legal question. 

And, because the issue was addressed by both parties on the merits,

neither is prejudiced by our addressing it. See Ackerman v. W. Elec. Co.,

860 F.2d 1514, 1517 (9th Cir. 1988) (addressing a waived issue on the

merits, stating “[t]he issue has been thoroughly briefed and argued here,

and [appellant] has not objected to our consideration ofit,” and concluding

that, “[b]ecause the issue is one of law and there is no deficiency in the

record relating to it, we exercise our discretion to entertain the question”).

2 Addressing the hearsay rule embedded in the Confrontation Clause,

Chief Justice Marshall wrote, “I know of no principle in the preservation

of which all are more concerned. I know none, by undermining which,

life, liberty and property, might be more endangered. It is therefore

incumbent on courts to be watchful of every inroad on a principle so truly

important.” United States v. Burr, 25 F.Cas. 187, 193 (No. 14,694) (CC

Va. 1807) (Marshall, C. J.). So too here.
30 UNITED STATES V. MACIAS

“Canceled” on a copy of it and submitting it to the California

Department of Vital Records (the “Vital Records

Department”).3 The government then called a representative

from the Vital Records Department, which had rejected the

purported “cancellation,” who explained that the Delayed

Birth Registration could be changed only by amendment. 

The first jury hung and the court declared a mistrial. The

prosecution then spoke to several jurors who revealed that the

two jurors responsible for hanging the jury believed that the

government should have followed the procedures outlined by

the Vital Records Department’s representative; that is, that

the government should have sought an amendment to

Macias’s Delayed Birth Registration.

Before the second trial, at the prosecutor’s direction, two

otherBorder Patrol agents, whom the government did not call

to testify at the second trial, Brian Desrosiers and Andrew

Kahl, generated the Amended Delayed Birth Registration by

submitting an affidavit attesting that Macias was born in

Mexico, not Riverside.4 The affidavit listed evidence the

3 Mata also testified at the first trial that Macias admitted to him that he

was a citizen of Mexico, and that he previously had personally removed

Macias to Mexico. Evidently, Mata’s testimony was insufficient to

establish Macias’s Mexican citizenship.

4 The agents certified “under penalty of perjury” in the Amended

Delayed Birth Registration that they had “personal knowledge” of the

facts and information they used to amend the birth certificate, including

the location of Macias’s birth. The agents did not have personal

knowledge that Macias was born in Yurecuaro, Mexico, so they not only

ginned up the evidence; they fudged in doing so. See United States v.

Lopez, 762 F.3d 852, 863 (9th Cir. 2014) (“Personal knowledge means

knowledge produced by the direct involvement of the senses.”). The

Assistant U.S. Attorney frankly acknowledged that the agents submitted

the affidavit at her direction; we must presume she understands the legal
UNITED STATES V. MACIAS 31

prosecution planned to (and did) introduce at the second trial

as the “reason for correction” or “amendment” of the Delayed

Birth Registration. Thus, the government fabricated the very

evidence—the Amended Delayed Birth Registration—it

thought it would need to secure Macias’s conviction the

second time around.

B.

The government argues that it was not a violation of

Macias’s Confrontation Clause rights to admit the Amended

Delayed Birth Registration on several bases, none of which

is availing.

5 First, the government argues that there was no

Confrontation Clause violation because the Amended

Delayed Birth Registration, once filed, became part of

Macias’s Delayed Birth Registration. Citing Crawford, the

government agrees that testimonial evidence may not be

presented at trial unless the defendant has the opportunity to

cross-examine the witness. See 541 U.S. at 59 (“Testimonial

statements of witnesses absent from trial have been admitted

only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine.”). 

The government, however, argues that the Amended Delayed

Birth Registration is non-testimonial. Relying on our

decision in United States v. Bahena-Cardenas, 411 F.3d 1067

(9th Cir. 2005), for the proposition that birth certificates are

meaning of “personal knowledge,” and that she was aware that the agents

lacked personal knowledge of the circumstances of Macias’s birth.

5 There were a host of other problems with the Amended Delayed Birth

Registration raised by Macias in his motion in limine. Macias argued that

the Amended Delayed Birth Registration was hearsay, that the agents

lacked personal knowledge of the facts to which they attested, and that the

statements constituted impermissible prosecutorial vouching.
32 UNITED STATES V. MACIAS

non-testimonial, see id. at 1075 (holding that a “warrant of

deportation is no different than a birth certificate or any other

public record which constitutes the routine cataloguing of an

unambiguous factual matter”), the government asserts that the

Amended Delayed Birth Registration is part of Macias’s birth

record and that it is, for that reason, non-testimonial.

The government’s position is formalistic: it hinges on the

label “birth certificate,” without analyzing whether the

relevant statements were made under circumstances in which

an objective witness would be reasonably led to believe that

they would be used in future litigation. See Melendez-Diaz

v. Massachusetts, 557 U.S. 305, 309–10 (2009) (one

formulation of “the class of testimonial statements covered by

the Confrontation Clause” is “‘statements that were made

under circumstances which would lead an objective witness

reasonably to believe that the statement would be available

for use at a later trial.’” (quoting Crawford, 541 U.S. at 52)). 

The Amended Delayed Birth Registration was clearly not the

routine, objective, cataloguing of a particular factual matter

contemplated in Bahena-Cardenas, but was, instead a

document prepared at the prosecutor’s behest “in anticipation

of litigation.” 411 F.3d at 1075. Though birth certificates

routinely catalogue unambiguous factual matters in general,

the Amended Delayed Birth Registration did not. Instead, it

captured two Border Patrol agents’ conclusions on a

particular factual matter—the location of Macias’s birth—

after their review of certain evidence. Thus, even if the

Amended Delayed Birth Registration is properly considered

part of Macias’s birth certificate, it remains testimonial in

nature.

Second, the government asserts that there was no

Confrontation Clause violation because California
UNITED STATES V. MACIAS 33

Department of Public Health section chief Karen Roth

testified during Macias’s second trial. Roth was called to—

and did—testifythat the AmendedDelayed Birth Registration

is part of Macias’s official birth record. The government

argues that because Roth so testified at trial, Macias’s

argument that a Confrontation Clause violation occurred is

“illusory.” That Roth testified is entirely irrelevant, however:

the testimonial statements in the Amended Delayed Birth

Registration were made by Agents Kahl and Desrosiers, not

Roth. Roth’s general testimony regarding the effect of the

agents’ amendment on Macias’s birth record does nothing to

remedy the government’s failure to call the actual

affiants—Agents Kahl and Desrosiers—to the stand during

the second trial.

Third, the government argues that if the Amended

Delayed Birth Registration is testimonial then, “under

Macias’ very own reasoning,” so is the Delayed Birth

Registration. The government contends that, like the

Amended Delayed Birth Registration, the Delayed Birth

Registration contains Macias’s “self-serving” statement as to

his birthplace, along with the signatures of two other

individuals who attested to their presence at Macias’s birth. 

The government argues that, under Crawford, an objective

witness would reasonably be led to believe the Delayed Birth

Registration might be used in future litigation. This argument

is a non-sequitur, however. Only Macias, and not the

government, has a constitutional right to confront the

witnesses against him. See U.S. CONST. amend. VI (“In all

criminal prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him.”) (emphasis

added); Crawford, 541 U.S. at 59 (“Testimonial statements of

witnesses absent from trial have been admitted only where

the declarant is unavailable, and onlywhere the defendant has
34 UNITED STATES V. MACIAS

had a prior opportunityto cross-examine.”) (emphasis added). 

Thus, even if Macias’s Delayed Birth Registration is

testimonial, its admission does not violate the Confrontation

Clause.

C.

The government cannot show that the admission of the

Amended Delayed Birth Certificate was “harmless beyond a

reasonable doubt.” Tuyet Thi-Bach Nguyen, 565 F.3d at 675. 

The jury hung at the first trial, and the material difference

between the two trials was the admission of the Amended

Delayed Birth Registration. Thus, its admission cannot be

harmless beyond a reasonable doubt. See United States v.

Geston, 299 F.3d 1130, 1136 (9th Cir. 2002) (“[Defendant’s]

first trial, which did not include the improper questioning,

resulted in a mistrial, with the jury unable to reach a verdict. 

This circumstance leads us to conclude that the improper

questioning impacted [Defendant’s] due process rights.”);

United States v. Thompson, 37 F.3d 450, 454 (9th Cir. 1994)

(emphasizing that the hung jury after the first trial was

“persuasive evidence that the district court’s error [in the

second trial] affected the verdict,” and declining to find

harmless error); United States v. Schuler, 813 F.2d 978, 982

(9th Cir. 1987) (“Moreover, particularly in view of the prior

hung jury, we conclude that the error [at the defendant’s

second trial] was not harmless beyond a reasonable doubt.”). 

Indeed, a comparison of the two trials reveals that

substantially similar evidence was presented at each: at both

trials, Macias’s father, Felipe, testified that Macias was born

in Mexico; at both trials, Macias’s Delayed Birth Registration

was presented, along with his parents’ applications for lawful

permanent residency, in which Macias was listed as having

been born in Mexico; and, at both trials, Macias’s deportation
UNITED STATES V. MACIAS 35

history was presented, with particular emphasis on the

number of times that, during those proceedings, he claimed

to have been born in Mexico. The material difference

between the first and second trials was the admission of the

Amended Delayed Birth Registration—a literally new piece

of evidence created to secure Macias’s conviction.

The government argues that there was a litany of

differences between the two trials. These included, according

to the government, the decision to call certain new witnesses,

including Macias’s brother Gil Macias, and not call others,

specifically Mata. But the decision not to call Mata, whose

testimony was obviously not credited by the jury at Macias’s

first trial, is not one which shows the harmlessness of the

admission of the Amended Delayed Birth Registration. And

Gil Macias’s testimony was of little help to the government,

as he testified that he was unable to remember Macias’s birth. 

The government also points to the alteration of its exhibit list,

including the decision to present recordings from Macias’s

removal hearings before the Immigration Judge, and to the

fact that the jury received a new instruction at the conclusion

of the second trial. But the government never explains why

any of these differences prove the improper admission of the

Amended Delayed Birth Registration harmless beyond a

reasonable doubt.

Nor is there any basis to conclude beyond a reasonable

doubt that the admission of Macias’s Mexican birth

certificate, rather than the erroneous admission of the

Amended Delayed Birth Registration, was responsible for the

change in outcome from Macias’s first trial to the second. In

fact, expert testimony proffered at Macias’s second trial

demonstrated that the existence of a Mexican birth certificate

is not determinative of an individual’s birthplace: Alejandro
36 UNITED STATES V. MACIAS

Osuna, a professor of law in Mexico, testified that it was

common practice at the time of Macias’s birth for Mexican

parents of children born in the United States to register their

children’s birth in Mexico as well. Osuna testified that

obtaining a Mexican birth certificate was critical to the

child’s access to education, health, and even property

ownership in Mexico. Osuna’s testimony thus demonstrated

the relative insignificance of Macias’s Mexican birth

certificate to the determination of his citizenship.

Consideration of other factors under the harmless error

analysis similarly points to the conclusion that the

Confrontation Clause error was not harmless beyond a

reasonable doubt. See Tuyet Thi-Bach Nguyen, 565 F.3d at

675 (“‘Whether an error is harmless depends on a variety of

factors, including whether the testimony was cumulative, the

presence or absence of [evidence] corroborating or

contradicting the testimony on material points, the extent of

cross-examination, and of course, the overall strength of the

prosecution’s case.’” (quoting United States v. Mayfield,

189 F.3d 895, 906 (9th Cir. 1999))). The Amended Delayed

Birth Registration was not cumulative, as no other evidence

was offered to amend Macias’s Delayed Birth Registration,

or to alter its significance. And while certain corroborating

evidence, cited by the agents in the Amended Delayed Birth

Registration as the basis for the amendment, was presented at

the second trial,6

such evidence did not purport to amend the

birth certificate. Furthermore, no cross-examination of Agent

6 This evidence, as the majority points out, included the government’s

acquisition of Macias’s Mexican birth certificate, Macias’s father’s

statement that Macias was born in Mexico, and Macias’s parents’

applications for lawful permanent residency stating that Macias was born

in Mexico.
UNITED STATES V. MACIAS 37

Kahl or Agent Desroiers occurred. That Macias called Agent

Kahl to the stand and was permitted, on direct examination,

to ask him certain leading questions does not render Macias’s

inability to cross-examine both agents harmless.

Furthermore, the Amended Delayed Birth Registration

was critical to the prosecution’s case. See id.; see also

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (stating

that “the importance of the witness’ testimony in the

prosecution’s case” is one factor to be considered in

determining whether a Confrontation Clause error is

harmless). The government relied heavily on the Amended

Delayed Birth Registration in its case-in-chief, asking Roth

a series of questions about its significance to the Delayed

Birth Registration. The government stressed that the Delayed

Birth Registration was now a “two-page document” that had

been amended pursuant to procedures developed by the state

of California, and which reflected that Macias was “born at

a home in Michoacan, Mexico.” In its closing argument, the

government repeated its refrain, urging that “[w]e need to be

clear that the document on record with the State of California

as we sit here today has two pages.” Then, almost

defensively, the government argued that Agents Kahl and

Desrosiers did “exactlywhat the representative from the State

of California suggested happen,” when they amended

Macias’s Delayed Birth Registration.

The Amended Delayed Birth Registration purported to

show that Macias’sDelayedBirth Registration—the strongest

piece of evidence in his favor—had been amended to reflect

that his actual birthplace was Mexico, not California. To

highlight, as the majority does, the mere strength of the

evidence supporting the government’s case at the second trial

misses the mark, because there was equally strong evidence,
38 UNITED STATES V. MACIAS

presented by the government at the first trial, that Macias was

born in Mexico. And we know that the evidence in the first

trial was countered by evidence of sufficient strength to

create a reasonable doubt in the minds of two jurors. The

admission of the Amended Delayed Birth Registration at the

second trial in violation of the Confrontation Clause negated

the strength of the defense evidence, resulting in a conviction. 

The government cannot demonstrate that the Crawford error

was harmless beyond a reasonable doubt. Thus, the judgment

of conviction should be reversed, not affirmed.