F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , P laintiff-Appellee

,

v.

J U A N M A C I A S ,

Defendant-Appellant

. No. 13-50211

D.C. No. 3:11-cr-04340-H-1

OPI NI ON

A ppeal from the United States District Court for the Southern District of California Marily n L

. Huff, District J udg e, Presiding

Arg ued and Submitted J uly 10, 2014—Pasadena, California

F iled J une 15, 2015

B efore: F ortunato P. B enavides, * Kim McL ane W ardlaw,

a nd Richard R. Clifton, Circuit J udg es.

Opinion by

J udg e B enavides; Partial Concurrence and Partial Dissent by J udg e W a

rdlaw

* T h e Ho n o rab l e F o r t u n a to P

. B en av id es, Sen io r Circu it J u d g e f o r th e U.S. Co u rt o f

A p peals f o r th e Fif th Circu it, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. M A C I A S 2

SUMMARY * *

Crim inal Law

The p anel a ffirmed the district court’s judg ment in a case in which the defendant was convicted o f bein g a r e m oved alien found in the United States a n d making a false claim o f United States citiz e nship.

The p anel held that the district court’s admission of an affidavit, s i g ned by two border p atrol ag ents, amending the defendant’s d elay ed reg istration of birth v iolated the Confrontation Clause because th e a ffidavit constituted a te s t imonial statement and the g overnment failed to c all the
ag ents to testify

. The panel h eld t h a t t he admission constituted plain error, b u t did not affect the outcome of the trial and thus did not affect the d efendant’s substantial rig hts.

B e cause the panel concluded that the admission of the affidavit was h armless, the panel did not address the merits o f the defendant’s evidentiary challeng es to its admission.

Rejec t i n g the defendant’s contention that the p rosecutor drew an improper inference during closing arg u ment b y claiming that the d e f

e n d ant’s d elay e d birth reg istration was

a “ forg ery ,” the panel held that the arg ument that the document i s a fabrication is a reasonable inference from the evidence, a

nd that the prosecutor’s r e m a rks during closing
arg ument do not constitute error, much less plain error.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M A C I A S 3

The panel held that t h e d ef e ndant failed to show the multiple errors necessary to prevail on a claim of c umulative

error.

J ud g e W a rdlaw concurred in p art and dissented in part. She ag reed with the majority ’s holding s that the district court violated the defendant’s Confrontatio n C lause rig hts b y admitting the amended delay ed birth reg ist ra t ion, which contained tes t i m o nial statements, and that admission of the document w as error because the g overnment failed to call the
two a ttesting ag ents to testify

. She wrote that t h e majority in c orrectly reviews this error under the p lain e rror standard, d isreg arding the well-established p rinciple that this court reviews “ d e n ovo whether the a dmission of a document violated a d efendant’s Confrontati o n Clause rig hts.” She
wrote that under that standard the g overnment cannot meet its burden of proving that the Confro n t a t ion Clause error is harmless bey ond a reasonable doubt.

COUNSEL

Kara Hartz ler (arg

ued), F ederal Defenders of San Dieg o, I n c., San Dieg o, California, for Defendant-Appellant.

L aura D uffy

, Unite d States Attorney
, B ruce Castetter, Assistance U nited States Attorney
, Chief, Appellate Section,

a n d Charlotte E. Kaiser ( a r g ued), Assistant United Sta t e s Attorney , San Dieg o, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

. M A C I A S 4

OP INION

B ENAVI DES, Circuit J udg e:

This is a d irect criminal appeal from convictions for being

a removed alien found in the United States in violat i on o f 8 U.S.C. § 1326 and for making a false claim of United States citiz e n s h ip in violation of 18 U.S.C. § 911. F inding no reversible error, we affirm the district court’s judg ment.

I

. F ACTUAL AND PROCEDURAL HI STORY

A. Charg ed Conduct

On September 5, 2 0 1 1
, Defendant-Appellant J uan Macias (“Macias”) w as a r r ested for illeg al r e-entry near the Tecate, California, Port of Entry . At approx imately 4 o’clock in the morning

, a seismic sensor indicated movement. Bo r der P at r ol Ag ent Russell Sling erland and two other ag ents responded to the location of the sensor. Upon investig ation, they discovered Macias crouched behind boulders and brush in a steep cany on. Macias initially told the ag ents that he h ad

no leg a l documents to be in the United Sta t e s a n d that he entered by “jumping the [ border] fence.” Macias also told the
age n t s he was from Mex ico. However, after Macias was broug ht into custody

, he a g reed to speak to an ag ent without

an attorney and claimed under oath that he was bo rn in Ri v e r s i d e , California. He said h is mother had told him that he had been b orn in Riverside, but because he wa s b o r n at home she never “reg istered” h is birth. He claimed that he h ad

a California birth certificate and was a United States citiz en. However, he did not have the birth certificate with him.U N I T E D S T A T E S V

. M A C I A S 5

B

. F irst Trial

On September 27, 2011, a federal g rand jury returned a two-count indictment, charg ing Macias w ith being a removed alien in the United States in violation of 8 U.S.C. § 1326 a nd with making a false claim o f U nited States citiz enship in violation of 18 U.S.C. § 911. A jury trial bega n on J une 5, 2012, and on J une 8, the district court declared a mistrial d ue to a hung jury

. During the t r i a l

, Macias had submitted a “delay e d reg istration of b irth” document issued by the State of C a l ifornia, and it provided that he had been born in Riverside, Califor n i a. Macias had obtained this delay ed
reg istration o f b i r t h d o cument in 1998. After the mistrial,
two of the jurors told the prosecutors that they could not find Macias g uilty because there w as n o showing that Macias’s delay ed reg istration of birth document had been invalidated.

C. Post-trial I nvestig ation of Macias’s B irthplace

Subsequently

, at the request of the prosecutor, two border patrol ag ents, Andrew Kahl and B rian Desrosiers, conducted

an investig ation reg arding Macias’s place of bir t h

. The
ag ents interviewed Macias’s family members

, i n c luding his father, who told them Macias w as b orn in Mex ico, and not in California. The interviews were conducted at Macias’s parents’ h o m e i n Riverside, California. Throug h investig ators with the State Department, the ag ents obtained

a birth certificate showing that Macias was born on October 31, 1960 in Y u r e c u a ro, State of Michoacan, Mex ico. That certificate was dated N ovemb e r 7, 1960. A dditionally

, the
ag ents reviewed d o cuments contained in the Macias family ’s immig ration files. Macias’s parents’ applications for lawful
p ermanent r esidency provided that Macias had been bo r n i n Mex ico.U N I T E D S T A T E S V

. M A C I A S 6

B a sed o n the above information d iscovered throug h their investig ation, the ag ents concluded that Macias had been born in Mex ico and then attempted to correct the birthplace listed

on Macias’s delay ed reg istration of birth. The St a t e o f California has a procedure to amend a delay ed reg istration o f birth. T wo individuals with kno w l edg e of the facts may apply for an amendment if there is an error in the document. Those tw o i n dividuals must fill out a notariz ed sworn statement and pay a fee. Ag ent Kahl filled out the form and both Ag ents Kahl a n d Desrosiers sig ned the affidavit amending Macias’s d elay e d reg istration of birth. The amending affidavit p rovided that Macias’s birth actually

occur re d in Yurecuaro, Michoacan, Mex ico and not Riverside, California. The a g e n t s mailed the affidavit to the California Office of Vital Records, and it was attached to the delay ed reg istration of birth on file.

D. Retrial

T h e second jury trial beg an on J uly 17, 2012, and once ag ain, the c entral issue was w hether Macias was born in Mex ico or in California. W e n o w t urn to the evidence admitted at Macias’s retrial.

1. B irth Documents

Throug h the custodian of th e C a l i fornia Office of Vital Records, the g overnment introduced Mac ias’s delay ed
reg istration of birth a

nd the amending a f

fidavit that had been

ex e c uted by the b order patrol ag e n ts. More specifically

, the evidence showed t h a t in 1998, Macias, then ag e 37, completed the applicatio n for a d elay e d reg istration of birth and mailed it to the California Office of Vital Records. The application contained the purported sig natures of h is mother,U N I T E D S T A T E S V

. M A C I A S 7

Maria Macias (“Maria”), a nd a family friend, Ernestina Guerrer o (“Guerrero”). The application p rovided that Guerrero was present at Macias’s birth on October 3 1, 1960,
at “home” in Riverside, California. To receive a delay ed
reg istration of birth, the app l i ca n t must submit proof of his place of birth. Macias submitted with his application a copy of his daug hter’s California birth certificate which listed her father’s ( Macias’s) birthplace a s California. The California Office of Vital Records issued the delay ed reg istration o f birth with the above information and mailed it to Macias.

As set forth previously

, in 2012, the ag ents filed an amending affidavit, which was attached to the delay ed
reg istration of birth. Althoug h the delay e d reg istration o f birth w as admitted at t h e first trial, the amending affidavit
was not in ex istence at the time of the first trial. At the time
t he g overnment introduced into evidence the dela y e d
reg istration of birth with the attached amending affidavit, the
two ag ents who sig ned the affidavit had not tes t i fi ed. However, d e fense counsel subsequently call e d Ag ent K ahl, and he testified with respect to their investig ation of Macias’s birthplace and the ex ecution of the amending affidavit.

The g overnment also introduced a copy of the previously mentioned Mex ican b irth c ertificate dated November 7, 1960, which provided that Macias was born in Mex ico o n October 31, 1960. Macias’s father, F e lipe Macias, Sr. ( “F elipe”), h ad sig ned this bir t h certificate, and there were two w itnesses listed o n it. This birth c ertificate had not been submitted at the first trial. F elipe tes t i f i ed that Macias was born in Yurecuaro, Michoaca n , M ex ico, and that he was present at Macias’s birth. Eig ht d ay s after the b irth, he and Maria took Macias to the civil reg istry and obtained this birth certificate. He further testified that Maria, w ho could not read or write,U N I T E D S T A T E S V

. M A C I A S 8

did not sig n the certificate but did place her fing erprint on it. T h e birth certificate also c o ntained F elipe’s and Macias ’s fing erprints. 1 Consistent with this evidence, one of Macias’s older brothers, Gil Macias, testified that Macias was born in Yurecuaro, Michoacan, Mex ico.

2. Parents’ I mmig ration F iles

I n 1987, F elipe and Maria appli ed f or lawful p ermanent residency in the United State s

. T h eir applications asked whether their children were U n i ted States citiz ens, and they checked the b ox “No” f

or all their children, including Macias. The applications provided that all their children w ere born in Mex ico. The p arents were g ranted lawful p ermanent residency and moved the family to Riverside, California.

3. Macias’s I

mmig ration F ile

B o rder Patrol Ag ent Kara Reale testifie d w ith respect to the contents of Macias’s immig ration file. Macias had been deported to Mex ico many times p rior to this trial. Macias

wa s first deported to Mex ico in 1981, at the ag e of 21. During those proceeding s, Macias requested to be returned to Mex ico, stating that he was a citiz en of Mex ico.

I n 1988 and 1989, Macias was ag ain deported to Mex ico based on his admissions during deportation p roceeding s. An audio recording of the 1988 hearing was play ed for the jury

.

I n 1992, during a deportation hearing

, he initially claimed he was a citiz en of Mex ico and not the United States,

1 T h e reco rd sh o w s th at th e g o v ern m en t h ad th e f in g erp rin ts o n th is b irth certif icate tested b u t th e resu lts w ere in co n clu siv e.U N I T E D S T A T E S V

. M A C I A S 9

asserting that his father had told him he was born in Mex ico. However, he also stated that his mother’s friend had told him he was born in Riverside. The immig ration judg e offered him

an opportunity to present evidence, and Macias res p o nded that he “will fix that wh e n [ h e] arrive[ s] in Mex ico.” The judg e then ordered Macias to be d e ported to Mex ico. An audio recording

of this hearing was play ed for the jury

.

I n 1994, during a deportation hearing

, Macias was asked if h e w as a citiz en of the Un i t e d S t ates and he responded
neg atively

. He responded a ffirmatively when a sked whether he was a native and citiz en of Mex ico. An audio recording o f this hearing w as play ed for the jury

. I n J uly of 1998, Macias

was once ag ain deported to Mex ico, after stating that he was born in Mex ico.

Macias’s immig ration file also contained stateme n ts during deportation proceeding s in 1997, 1 9 9 8
, and 2004, in which Macias admitted that he was born in Mex ico and was a citiz en of Mex ico. Additionally , the g overnment admitted
warrant s o f r emoval demonstrating that Macias had been removed from t h e United States to Mex ico in J uly 1998, November 2001, and September 2004. I n N o v e mber 2004,
two months after the last removal proceeding s, Macias told an immig ration judg e that he w as a citiz en o f the United States. W h en the immig ration judg e asked him about his ex tensive deportation h istory

, Macias responded that he had b een ly ing about being born in Mex ico. M a c i as told the judg e that he did not discover that he was born in the United States until he

was about 18 y ears old. T h e judg e ordered M a c ias to be deported. Subsequently

, in F ebruary 2011, during deportation p roceeding s, Macias was deport e d a f t e r a dmitting he was born in Mex ico.U N I T E D S T A T E S V

. M A C I A S 10

4. I nstant Offenses

As previously set forth, on September 5, 2 011, Ag ent Sling erland a

pprehended Macias near the Tecate, California, Port of Entry

. Macias was hiding behind boulders and brush in a steep cany on. Macias initially stated that he had no leg al documents to be in the United States and admitted that he was from Mex i c o

. H owever, once Macias was in custody

, he claimed under oath that he was born in Riverside, California, but that his mother h ad not “reg istered” h is birth in California because he had been born at home. He also clai m e d t h a t he had a C alifornia birth certificate and w as a citiz en of the U n i ted States. This conduct f orms the basis of the instant convictions f

or being a r emoved a l i e n found in the United States and for maki n g a false claim of United States citiz enship. 8 U.S.C. § 1326 and 18 U.S.C. § 911.

5. Verdict

On J uly 19, 2012, the jury returned a verdict of g uilty on the two counts. On May 13, 2 013, the district court sentenced Macias to a 46-month sentence as to the illeg al r e-entry conviction and a 36-month sentence as to the false c l a i m conviction, with the sentences running concurrently

. Macias now appeals his convictions.

I I

. ANAL YSI S

A. Confrontation Clause Violation

Macias contends that the district court’s admission of the border patrol ag ents’ amending affidavit, which was a ttached
to his d elay ed reg istration of birth, v iolated his r ig hts under the Six th Amendment’s Confrontation Clause. TheU N I T E D S T A T E S V

. M A C I A S 11

Confron t a tion Clause g uarantees that “[ i] n a ll criminal prosecutions, the accused shall enjoy the rig ht

. . . to be confronted with the witnesses a g ainst him.” U. S

. C onst. Amend. VI

. The Confrontation “Clause forbids ‘admission o f testimonial statements o f a witness who did not appear at trial unless he was unavailable to testify

, a nd the d efendant h ad had a prior opportunity for cross-ex amination.’” Ocampo v. Vail

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

v. W a shington

, 5 41 U.S. 36, 53–54 ( 2004)). I n th e c a se at bar, the g overnment does not claim that the witn es s e s w e re unavail a ble or that Macias had a prior opportunity to cross

ex a mine them. Thus, the disput e is whether the affidavit constituted a testimonial statement.

Generally

, we revie w de novo a lleg ed violations of the Confrontation Clause. United States v. Bustamante
, 687 F .3d 1190, 1 193 (9th Cir. 2 012). Here, however, althoug h Macias objected to the admission of the amending aff i d a vit, he did
not object o n the b asis o f a violation o f t h e C o n frontation Clause. I n his motion in limine filed just prior to the instant trial, Macias arg ued that the g overnment should be precluded from introducing the border patrol ag ents’ amending affidavit based o n , a m ong other thing s, hearsay

, lack of personal knowledg e, and impermissible vouching

. 2 Because Macias

2 A lth o u g h Macias raised a Co n f ro n tatio n Clau se arg u m en t w ith resp ect to d ocu m en ts co n tain ed in th e im m ig ratio n f

iles, h e d id n o t raise th is
arg u m en t i n h is ch allen g e to th e am en d in g af f id av it. W e n ote th at th e g o v ern m en t, in resp o n s e t o Macias’ s Co n f ro n tatio n Clau se arg u

m en t as to th e i m m ig ratio n d o cu m en ts, asserted th at i f Macias w a s p e rm itted to in tro d u ce th e d elay ed r e g i stratio n o f b irth w ith o u t th e testim o n y o f th e af f ian ts (h is m o th er an d Gu errero ), t h en th e g o v ern m en t sh o u ld b e allo w ed
to in tro d u ce t

h e i m m ig ratio n d o cu

m en ts. T h e district co u rt in terp reted th e g o v ern m en t’ s arg u m en t t o b e th at if th e Co n f ro n tatio n Clau se d id n o t p reclu d e th e ad m issio n o f th e d elay ed reg istratio n o f b irth

, th en it sh ou ldU N I T E D S T A T E S V

. M A C I A S 12

failed to preserve t h e arg ument by making a Confrontation Clause objection, this issue should b e reviewed f or plain

e r ror. United States v. Anekwu

, 6 9 5 F .3d 967, 972–73 ( 9 t h Cir. 2012) (reviewing Confrontation Clause arg ument for plain error). T o show plain error, Macias must demonstrate: (1) error; (2) that is c l e a r o r obvious; (3) that affects the defendant’s substantial rig hts; and (4) that “the error seriously affects the f

airness, integ rity o r pub l i c reputation of judicial proceeding s.” Id. a t 973 ( internal quotation marks a nd citation omitted). 3

n o t p reclu d e th e im

m ig ratio n d o cu m en ts. H o w ev er, w e do n o t b eliev e th at th e d istrict co u rt in terp reted th e g o v ern m en t’ s arg u m en t as actu ally raisin g

a Co n f ro n tatio n Clau se v io latio n w ith resp ect to t h e a m en d in g af f id av it. Cf. Un i t e d S t a tes v. An ekwu

, 6 9 5 F.3 d 96 7
, 9 73 (9 th C ir. 20 1 2) (ex p lain in g th at a b rief

statem en t b y

th e p ro secu to r th at th e ad m issio n of

reco rd s do es n o t v io late th e Co n f ro n tatio n Clau se “ d o es n o t su b stitu te f or

a tim ely an d sp ecif

ic Co n f ro n tatio n Clau se o bj ectio n ” f r o m th e d ef

en d an t). M o r e o v er, th e reco rd m ak es clear th at th e o n ly Co n f ro n t atio n Clau se

o b j ectio n w as to th e m oth er’ s im

m ig ratio n f

iles b ecau se th e p arties w ere in itially d isp u tin g w

h eth er Macias’ s m o th er w as u n av ailab le t o testif

y an d

n o t w h eth er th e b o rd er p atro l ag en ts w ere u n av ailab le to testif y

. Macias d o es n o t ch allen g e th e ad m issio n o f th e d o cu m en ts in th e im m ig ratio n f

i le

o n ap p eal.

3 O u r d issen tin g co l leag u e su g g ests th at w e m u st ad d ress th e Co n f ro n tatio n Clau se claim o n t h e m e r i ts b ecau se th e g o v ern m en t h as

w aiv ed an y

w aiv er arg u m en t i t m ay h av e h ad b y f ailin g to assert it. T h e

“ w aiv er o f w aiv er” d o ctrin e is, h o w ev e r

— lik e w aiv er g en erally

— a d iscretio n ary d o ctrin e. S ee Ru iz v. Affin ity Lo g istics Co rp

. , 6 6 7 F.3 d 1 3 1 8
, 1 3 2 2 (9 th Cir. 2 0 1 2 ) (“ [T ]h e ru le o f w aiv er is a d iscretio n ary o n e.”) (citatio n an d in t ern al q u o tatio n m ark s o m itted ). W h ich stan d ard o f rev iew
to ap p ly is a pu re issu e o f law

, i d

., an d

, ex ercisin g o u r discretio n , w e ap p ly th e plain erro r stan d ard o f r e v i e w n o tw ith stan d in g th e g o v ern m en t’ s f ailu re to arg u e th at it sh o u l d ap p ly

.U N I T E D S T A T E S V

. M A C I A S 13

1. Error

W e must first determine whether the district co u rt erred in admitting the amending affidavit. Under Crawfo rd

, we address wheth e r t he amending a f fidavit constitutes a testimonial statement. 541 U.S. at 53–54. I n Crawford

, the Supreme Court g ave e xa

m p l e s o f w h a

t c onstituted testimonial
statements:

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

e q u i v a l e n t

— t h a t i s , m a t e r i a l s u c h a s affidavits, custodial ex a minations, p r ior
t e s timony that the defendant was unable t o

cross-ex amine, or similar pretrial stateme n t s that declarants would reasonably ex pect to be used prosecutorially ; ex trajudicial statements

. . . c ontained in formaliz ed testim o n ial

m a t e rials, such a s affidavits, depositions

, p r i o r testimony

, or con f

essions; statements that

were made u nder circumstances which would lead an objective witness reasonab l y to believe that the statement w ould be available for use at a later trial.

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

Rely ing on Melendez-Diaz v. Massachusetts

, 557 U.S. 305 ( 2009), Macias contends that the amending affidavit was testimonial and therefore the g o vernment had the burden o f calling t h e a ge n t s when it admitted the affidavit. W e have
recog niz ed that Melendez-Diaz “stand[ s] for the proposition that ‘[ a] document created solely for an ‘evidentiary purpose,’

. . . made in aid of a p o lice investig ation, ranks a s testimonial.’” A nekwu

, 695 F .3d at 974 ( quoting BullcomingU N I T E D S T A T E S V

. M A C I A S 14

v. New Mexico
, 131 S

. C t

. 2705, 2717 (2011)) (elipsis a nd brackets in orig inal). Here, t h e border patrol ag ents created the affidavit amending Macias’s delay ed reg istration o f birth
at t h e b e hest of the prosecutor after the first trial r esulted in

a hung jury

. After the mistri a l

, two of the jurors indicated that they had a problem w ith the delay ed reg istration o f birth d ocument because it had not been invalidated. Thus

, i t i s clear that an objective w itness would r easonably believe that the ag ents’ amending affidavit w as made for use a t a l a ter trial to i n v a l i date Macias’s delay ed reg istration o f birth. Crawford

, 5 41 U.S. at 51–52. An d

, indeed, it was used at Maci a s ’ s second trial for that purpose. Thus, the amending affidavit constituted a testimon ial statement made by the
ag ents.

F urther, in Melendez-Diaz

, the Supreme Court ex p lained that the “ Confrontation Clause im p o s es a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse w itnesses into court.” 557 U

. S

. at 324. The Court opined that the Confrontatio n C l ause’s “value to the def e n d ant is not replaced by a sy stem in which the prosecution presents its e vidence v i a ex parte affidavits a nd waits for the defenda n t t o subpoena the affiants if he chooses.” Id. at 324–25. Thus, the Supreme Court has made clear that the g overnment has the burden of calling w itnesses and a llowing the defendant to confront them t h r o u g h cross

ex a mination. B ecause the amending affidavit co n s tituted a testimonial sta t e ment and the g overnment failed to c all the
ag ents to testify

, the admission o f the affidavit into evidence

was error.U N I T E D S T A T E S V

. M A C I A S 15

2. Plain Error

W e nex t determine whether the error was pla in. Macias

r elies on this Court’s decision in Bustamante
, 687 F

. 3 d at 1190. I n that case, the i s s u e b efore this Court w as also whether the criminal defendant had been born in the United States. The g overnment in t ro d u ced a ty pewritten document that was labeled as a “copy ” of B ustamante’s Philippine birth certificate. Id

. at 1192. The document had been obtained b y the g overnment during its previous investig ation into whether B ustamante was a U nited States citiz e n. Id. The document

was n either a photocopy nor a duplicate. Id. I t p rovided: “This is to certify that according to the record of births in this office, the following is the copy of the birth certificate o f: Napoleon B ustamante.” Id . The document then transcribed information from the office’s birth records, stating that B ustamante was born in the City of Ba c o l od on F ebruary 1, 1939. Id. The document also provided that it was i ssued in 1975, and was sig n e d

by a civil reg istrar. Id.

B u stamante objected, arg uing that it was inadmissible under Crawford

. Id. a t 1 193. The d istrict court disag reed a nd admitted the document. I d. This C o u r

t concluded that the document was a testimonial statement. Id. at 1194. Althoug h labeled a s a copy , it was an “affidavit test i f y i n g to the
contents of the birth records . . . and is functionally identical
to [ the] live, in-court testimony that an employ e e o f the Civil Reg istrar’s off

i c e mig h t have provided.” Id

. (citation a nd internal quotation marks omitted). Moreover, the document

was created f

or the investig ation into B ustamante’s citiz enship and “made under circumstances which would lead

an objective witness reasonably to believe that the statement

w o u l d be available for use a t a later trial.” Id

. This Cour t made cl e a r t h a t its holding did not impug n the “ g eneralU N I T E D S T A T E S V

. M A C I A S 16

proposition that bir t h c e rtificates, and official duplicates o f them, are o rdinary public r ecord s ‘created for the administration of an entity ’s affairs and not for the purpose o f

es t a b l i s h i ng or proving some fact at trial.’” Id

. (quoting Melendez-Diaz , 557 U.S. at 324). I n contrast, the document
at issue did not merely auth e n ticate an “ex isting non-testimonial record;” instead, a new record was created for the p urpose of g enerating evidence a g ainst B us t amante. Id

. According ly

, the admission of the document w ithout allowing an opportunity for cross ex amination vi o lated the Six th Amendment’s Confrontation Clause. Id

.

L ikewise, in the instant c ase, the amending affidavit essentially testified reg arding the results of the border p atrol
ag ents’ i n v estig ation reg arding the place of Macias’s birth. The amending affidavit was created during a n i n vestig ation of Macias’s c itiz enship and with t h e intent to use it at Macias’s second trial. The a mending a ff idavit was created “for the purpose of providing evidence a g ainst” Macias. Id

. F ollowing this Court’s opinion in Bustamante
, w e a re convinced that the admission o f the a m e n d ing a ffidavit was clear o r obvious error. Thus, the admission constitutes plain

error. 4

3. Substantial Rig hts

The nex t question is whether the admission o f t he amending af

f i davit affected Macias’s substantial rig hts. Ordinarily

, an error has affected an a ppellant’s substant i al

4 W e r e co g n ize th at th e in stan t trial to o k p lace p rio r to t h e issu an ce of th e Bu sta ma n te o p in io n

. No n eth eless, t h e Su p rem e Co u

rt h as h eld th at an

erro r is p lain if it is co n trary to th e law

at th e tim e o f ap p eal. Hen d erso n v. Un ited S ta tes , _

_ U.S. _ _, 1 3 3 S. Ct. 1 12 1 , 1 1 3 0

– 3 1 (2 01 3 ).U N I T E D S T A T E S V

. M A C I A S 17

rig hts w hen the error “affected the o u t c o me of the district

c o u r t proceeding s.” United States v. Lopez
, 7 62 F .3d 85 2
, 863 (9th Cir. 2014). Ultimately

, we conclude that the ad m i s s i o n of the affidavit did not affect the o u tcome of the proceeding s in lig ht of (1) Ag ent Kahl’s testimony at trial

ex p laining the ag ents’ i nvestig ation that culminated in their

ex e c ution of the amending affidavit and ( 2) the o v erwhelming evidence that Macias was born in Mex ico.

As previously ex p lained, because the amending affidavit

was testimonial, Macias had the rig ht to c onfront the affiants, B order Patrol Ag ents Kahl and Desrosiers. The district court admitted the affidavit attached to the delay ed r eg istra t i o n o f b i rth during the g o vernment’s case-in-chief prior to Maci a s having the opportunity to confront either witness. However, during the presentation o f his d efense, Macias called Ag ent Kahl and questioned him reg arding his role in ex ecuting the amending affidavit. T hus, Macias was able to belatedly confront Ag ent Kahl. I ndeed, when the prosecutor objected
to Macias’s questioning as leading

, defense counsel responded that he was “calling an o ppone n t party witness. I t’s an adverse witness. I ’m permitted to cross.” The district
court o v e r r u led the objection as to leading and allowed Macias to ask the leading question. Thus, Mac i a s was allowed to cross ex amine Ag ent Kahl in front of the jury

. Althoug h Macias was able to confront Ag ent Kahl, Ag ent De s r o s i e rs did not testify

. However, there is n o indication that Ag ent Desrosiers’s testimony wou l d be any thing but cumulative of Ag ent Kahl’s testimony

. Ag ent Kahl testified that the prosecutor requested assistance in invest i gating Macias’s citiz enship and nationality

. Ag ents Kahl a nd Desrosiers tog ether went to the home of Macias’s parents a nd intervi e w e d the family

. B oth ag ents reviewed documentsU N I T E D S T A T E S V

. M A C I A S 18

from the family ’ s immig r ations files. Additionally

, Ag en t Kahl testified that the State Department investig ators located Macias’s Mex ican b irth c e r t ificate. B ased on the ag ents’ interviews w ith Macias’s family

, their review of the documents in the family ’s immig ration files and Macia s’s Mex ican birth certific at e , the a g ents concluded that Macias

was born in Mex ico. Ag e n t K ahl then ex ecuted the affidavit amending Macias’s d elay e d reg istration of birth. The amending a ffidavit provides that Macias was born in Mex ico and not in Riverside, California. The affidavit further states

as follows: “Mex ican birth c ertificate h as been obtained b y U .S. Government. F ather F elipe Guz man Macias confir m s

son born in Mex ico. F ather[ ’s] and Mother’s al i e n reg istration files show J ohnny Chaboy a Macias [ was] born in Mex ico.” As such, the amending affidavit itself provides the

source of the information that the ag e nts relied upon in coming to their conclusion that Macias was born in Mex ico. 5 Sig nificantly

, Macias’s father testified at trial that Macias was born in Mex ico, and the documentary ev i d e n ce cited b y the
ag ents in the affidavit was before the jury

. As such, the jury had before it admissible evidence ex plaining t h e ag ents’ stated reasons for ex ecuting the amending affidavit.

I n determining whether the failure to confront Ag ent Desrosier and the belated confrontation of Ag ent Kahl affected the outcome of Macias’s trial, it is important to keep in mind what was actually c ontested at trial. Althoug h Macias objected to the admission of the Mex ican birth

5 B o th ag en ts s ig n ed th e af f id av it statin g th at th ey certif ied u n d er p en alty

o f p erj u ry th at th ey h ad p erso n al k n o w l ed g e o f t

h e f acts in t h e a f

f id av it. A g en t K ah l testif

ied th at alth o u g h h e w as n o t p resen t at Macias’ s b irth

, h e

co n d u cted an in v estig atio n an d b eliev e d t ha t h e d id “ h av e p erso n al k n o w l ed g e as to [Macias’ s] p lace o f b i rth .”U N I T E D S T A T E S V

. M A C I A S 19

certificate as “not c e rtified,” Macias did not dispute that his f a ther had obtained the birth certificate. I ndeed, Maci a s called an immig r ation lawy e r to testify that it was common for Mex ican parents to reg ister their children in Mex ico even if the child had been b orn in the U n i t e d States. The immig ration lawy er e x plained that parents would reg ister the child in Mex ico so that the c hild could obtain an education and other benefits that a

r e g iven to Mex ican citiz ens. During closing arg ument, defense co u nsel stated that it is “very common” fo r a child to be “born in the United States b ut to be reg istered in Mex ico, because a baby unreg istered in Mex ico can’t be vaccinated, can ’ t go t o school, can’t g et healthcare and can’t e n

j o y the leg al and social benefits without that reg istration.” According ly

, Macias did not

a c tually dispute the fact that Macias’s father obtaine d t h e Mex ican birth certificate.

Additionally

, in his brief, Macias a dmits that his parents listed his birthplace as Mex ico on their applications f or lawful permanent residency

. Macias also admit s t h a t he has been “deport e d on numerous occasions beg inning in 1981” a nd that he claimed to be a citiz en of Mex ico during s o m e o f those deportation proceeding s.

Attempting to show harm, Maci as arg ues that the principal d ifference between the first trial and the second trial is the introduction of the amending affidavit. Macias is

co rr e ct that the amending a ffidavit was only admitted at the retrial. L ikewise, the Mex ic a n b i rth certificate was only admitted at the retrial, a n d M a c i as fails to recog niz e the importance of that document. The importance of the Mex ican birth certificate is mag ni fied when, at trial, the defense

e ssentially a dmitted that his father reg istered him w hen he

was bar ely a week old in Y urecuaro, which is over 1,500U N I T E D S T A T E S V

. M A C I A S 20

miles from Riverside, California. 6 The importance of the Mex ican b i r th certificate is further mag nified by the testimony of the custodian of the delay ed reg istration of birth. Th e custodian testified that if her office had been provided with either Macias’s Mex ican birth certificate o r his deportation orders, it would not have issued him a d e l ay ed
reg istration of birth. Macias does not dispute the v alidity of the Mex ican birth c e r

tificate o r the deportation orders. Thus, the custodian’s testimony that these documents would have precluded the issuance o f Macias’s delay ed reg is tration o f birth essentially

eviscerates his defense.

To su m m a riz e, the following evidence admitted at trial convinces us that the Confrontation Clause violation did not affect the outcome of t h e t ri al and thus did not affect Macias’s substantial rig hts. Macias’s father testified that he

was present at Macias’s birth in Mex i co

. His father also confirmed the authenticity of the Mex ican b irth cert ificate, which w as obtained when Macias was one week old. Macias admitted that he was a citiz e n of Mex ico in dep o r t ation proceeding s that occurred both b efor e a nd after he obtained the delay ed r eg istration of birt h

. W ith respect to Macias’s delay ed r eg istration of b irth document, neither affiant testified. Moreover, Macias’s mother’s application for

r e s i d ency p rovided that Macias was b orn in Mex ico, which conflicts w ith the birthplace listed in the delay ed reg istration of birth document. W ith respect to the amending affidavit, a s set forth above, Macias was a ble to cross ex amine one of the
ag ents as to the ag ents’ joint investig ation a n d the evidence

6 W e m ay tak e j u d i cial n o t ice of t h e d istan ce b etw een th e tw o lo catio n s. S ee Cerva n tes v. Un ited S ta tes , 2 6 3 F.2 d 8 0 0, 8 0 4 n .5 (9 t h Cir

. 1 9 5 9 ) (n o tin g t h at “ w e tak e j u d icial n o tice o f th e f act th at San Clem en te is m ore th an sev en ty m iles f ro m th e n earest p o rt o f

en try f ro m Mex ico ”).U N I T E D S T A T E S V

. M A C I A S 21

t h e y relied upon to e x ecute the amending affidavit. Unde r those circumstances, we are convinced that the error did not affect the outcome of the trial. Macias has not shown that his substantial rig h ts were affected. 7

B

. Evidentiary

Challeng es to Amending Affidavit

Macias raises f

o ur more arg uments c halleng ing the admission of the same amendi n g a f fidavit discussed above. More specificall y , Macias contends that the amending affidavit should have been e x c l u d ed because: (1) it constituted inadmissible hearsay ; ( 2) its probative value was substantially outweig hed by a dang er of unfair prejudice; (3) its a ffiants lacked pers o nal k n owledg e; and (4) it was an improper a ttempt to have one witness testif y as to another witness’s credibility

. Unlike Macias’s Confrontation Clause
arg ument, these four evidentiary objections are preserved for appeal.

W h ere there has b een a nonconstitutional error, we must

reverse “unless there is a ‘fair a ssurance’ of harmlessness or, stated otherwise, unless it is more probable than not that the

error did not materially a ffec t t h e verdict.” United States v

. Morales

, 1 08 F .3d 1031, 1040 ( 9 t h Cir. 1997) (en banc) (quoting United States v. Crosby

, 75 F .3d 13 4 3
, 1349 (9th Cir. 1996)). I n the preceding d iscussion at I I .A.3, supra , we conclud e d t h a t the admission of the affidavit did not affect th e outcome of the proceeding s. W e recog niz e that the preceding d i s c u ssion involved a different assig nment o f the

7 B ecau se th e erro r d id n o t af f ect Macias’ s s u

b stan t ial r i g ht s , w e n eed

n o t r e ach th e f

o u rth p ro n g o f th e p lain erro r test, w h i ch is w h eth er t h e

“ erro r serio u sly affe c t s t h e f airn ess, in t eg rity o r p u

b lic rep u t atio n of j u d icial p ro ceed in g s.” An ekwu , 6 95 F.3 d at 9 7 3

.U N I T E D S T A T E S V

. M A C I A S 22

burden o f p r oof with r espect to w hether the verdict was affected. I n the preceding d iscussion, under the p l a i n error standard, Macias had the burden of showing that the verdict

was affected. F or these four pr e s e r ved evidentiary challeng es, the g overnme n t h a s the burden of showing that the verdict was not af

fe c t e d by the affidavit. W e conclude that based on the same evidence and reasons set f orth in our discussion in I I .A.3, supra , the g o vernment has shouldered its burden of demonstrating that it is more probable than not that the error did not materially affect the v erdict. B ecause we conclude that the admission of this affidavit is harmless error,

we need not address the merits of the s e e videntiary objections. S

ee U nited States v. B ishop

, 1 F .3d 910, 9 11 (9th Cir. 1993) ( ex plaining t hat the Court need not reach the merits o f the claim t h at the evidence was inadmissible because any

error was harmless).

C. Prosecutorial Misconduct

Macias contends that t h e prosecutor drew a n improper inference in closing a

rg ument by claiming that Macia s ’s delay ed birth reg istration was a “forg ery .” Macias recog niz e s that b ecause defense c ounsel failed to object to the arg ument, the claim is reviewed fo r p l a i n error. To show plain error, Macias must demonstrate that: (1) t h e r e was error; (2) the

e r r or w as plain; and (3) the error affected substantial rig h t s

. United S tates v. Geston
, 299 F .3d 1130, 1134–3 5 ( 9 th Cir. 2002); Olano

, 507 U.S. at 730– 3 2

. “Under this standard, a conviction can be reversed only if, viewed in the contex t o f the e ntire trial, the impropriety seriously affected the fairness, integ r ity

, or public reputation of judicial proceeding s, o r

w here failing to reverse a conviction would result i n a miscarriag e of justice.” Geston
, 299 F. 3 d a t 1135 (internal quotation marks and citation omitted).U N I T E D S T A T E S V

. M A C I A S 23

Referring to the delay ed birth reg istration during closing
arg ument, the prosecutor called the document a “complete fabrication.” H e further asserted that “[ i] t wasn’t the mom who sig ned it. This is a forg ery in and of itself.” He further
arg ued that Macias’s mother w o u ld h ave sig ned it “Maria Chaboy a” as opposed to “Maria Macias.” He then stated that “[ w] hat p robably happened here—and I wasn’t there. None of us w ere there. W hat probably h appened is the Defendant decided he’s g oing to fill this form out and he puts a sig nature down there.”

I n response to the prosecutor’s fo r g ery accusation, defen s e counsel e x plained during closing arg ument that Macias’s mother’s f

u l l name was “Maria Chaboy a de Macias” and invited the jury to compare Maria’s sig nature on the delay ed reg istration of birth with her sig natur e o n the application for lawful permanent residency

. Defense counsel
arg ued that the name “ ‘ Maria’ looks ex actly the same in both of the applications.”

“Prosecutors have considerable le ew a y to strike hard blows based on the evidence and a ll reaso n a b l e inferences from the evidence.” U

nited States v. Sullivan

, 522 F

. 3d 967, 982 (9th Cir. 2008) (citation a n d i n ternal quotation marks omitted); cf. United States v. Necoechea

, 986 F .2d 1273, 1276 (9th Cir. 1993) (ex plaining that prosecutors may arg ue in closing a rg ument that one side i s l y ing if the arg ument is based on reasonable inferences).

The principal issue in this case is whether Macias was born in the United States. The theory o f the g overnment’s

case w as that the delay ed reg istration of birth w as obtained b y fraud. During closing arg ument, the prosecutor relied heavily

on the Mex ican birth certificate, a rg uing that the c e r tificateU N I T E D S T A T E S V

. M A C I A S 24

“in and of itself is conclusive” as to Macias’s place of birth. T he prosecutor also emphasiz ed that the only trial witne s s who was p resent at Macias’s b ir t h w a s F elipe, w h o testified that it took place in Mex ico

. A d d itionally

, Macias’s older brother G il testified that Macias was born in Mex ico. The prosecutor then pointed o u t that during a previous deportation proceeding Macias had claimed that a family friend told him he was born in Riverside, California. However, du ring the instant deportation proceeding s, Macias chang ed his story b y claiming that it was his mother who told him that he was born in Riverside. F urther, althoug h Macias claimed to have lear n e d of his true birthplace w hen he w as 1 8 y ears old, he did not obtain the delay ed b irth reg istration u n til
approx imately 20 y ears l a t er—after several deportations. Additionally

, Macias m a d e numerous sworn statements during immig ration proceeding s that he was born in Mex ico and was a Mex ican national.

The prosecutor a ttacked t h e v alidity of the delay ed
reg istration o f birth by stating that Maria could neit her read

nor write. 8 He also pointed out that the State o f California does not verify sig natures on the de lay ed reg istrations o f birth.

The evidence before the jury made it abundantly c lear that the issue was whether Macias was b o rn in the United States and that the prosecutor’s position was that the Mex ican birth certificate was ge n u ine. The evidence demonstrated that it

was Macias who obtained the delay ed b irth reg istration.

8 F elip e h ad testif

ied th at Maria co u ld n eith er read n o r w rite. L ik ew ise, d u rin g h is p o st- arrest in terv iew

, Macias stated u n d er o ath th at h is m o th er

“ did n ’ t k n o w h o w to read o r w

rite.”U N I T E D S T A T E S V

. M A C I A S 25

T h u s , the inference that can be drawn f rom the evidence i s that Macias falsely procured the delay e d birth reg istration.

Althoug h there is n o direct evidence that it w as actually Macias w ho sig ned his mothe r ’ s n a me on the delay ed
reg istration of birth, t h e re is strong evidence d emonstrating that Macias was b orn in Mex ico, including the Mex ican birth certifica t e, the immig ration files, a n d Macias’s father’s a

nd brother’s testimonies. W e conclude that the arg u m en t that the document is a fabrication is a r easonable inference from the e vi d e n c e

. Sullivan

, 522 F .3d at 982. According ly

, the
prosecu t or’s remarks during his closing arg ument do not constitute error, much less plain error.

D. Cumulative Error

F inally

, Macias contends that the combined effect of the

a b o v e

- d i s c u s s e d a l l e g e d e r r o r s r e n d e r e d h i s t r i a l fundamentally unfair. “I n some cases, althoug h no sing le trial erro r ex amined in isolation is sufficiently prejudicial to warrant reversal, the c u mulative effect of multiple errors may still prejudice a defendant.” Unite d S t a tes v. Frederick

, 78 F

. 3d 1370, 1381 (9th Cir. 1996). I f th e “ government’s

case is w eak, a defend a n t i s more likely to be prejudiced b y the effect of cumulative errors.” Id

.

As set f o rth previously

, we hold that the admission of the amending affidavit did violate the Confrontation Clause, but that it did n ot constitute plain error that a f fected Macias’s substantial r ig hts. W ith re s p e c t to the nonconstitutional challeng es to the amending affidavit, we e x plained above that
any error is harmless. Althou g h Macias challeng es the admission of the amending affidavit on numerous g rounds, it is an admissio n o f a single document. F urther, theU N I T E D S T A T E S V

. M A C I A S 26

prosecutor’s r emarks did not constitute an error. Macias has failed to sh o w the multiple errors necessary to prevail on a claim of cumulative error.

I I I

. CONCL USI ON

F or the above reasons, the district c o u rt’s judg ment is AF F IRMED

.

WARDL AW
, Circuit J udg e , concurring in part and d i s s e n t i n g in part:

I a g ree with the majority that the district court violated Macias’s Confrontation Clause rig hts by admitting the Amended Delay ed B irth Reg istration, which conta ined the B order Patrol ag ents’ testimonial statements that Macias was b o r n in Mex ico. The majority also c orrectly holds that t h e district c ourt’s admission of the d oc u m e n t where the
go v e rnment f

ailed to call the two attesting B o r d er Patr o l
ag ents to testify at Macias’s trial was error. H owever, the majority incorrectly reviews this error u n d e r the plain error standard, c oncluding that althoug h the error was “plain,” it di d not affect Macias’s substantial rig hts. The majority disreg ards the well-establi shed principle that we “review de

novo whether the admission of a document violated a defendant’s Confrontation Clau s e rig hts.” U nited States v

. Bustamante
, 687 F .3d 1190, 1 193 ( 9th Cir. 2012). Under that standard, “[ t] he g overnment bears the b urden of p roving that

a Confrontation Clause error is harmless bey o nd a reasonable doubt.” Id. at 1195. The g overnment c annot m e et t hat burden here.U N I T E D S T A T E S V

. M A C I A S 27

A.

Macias’s opening brief arg ues that the standard o f r eview of the Confrontation Clause e r r o r i s “de novo” review. The
g overnment’s answering br i e f a g rees: I t states that “ [ t] his
court r ev i e w s ‘ [ t ] h e d i s t r i c t c o urt’s r esolution o f Confrontation Clause claims’ d e novo,” citing United States

v. B erry , 6 83 F .3d 1015, 1020 (9th Cir. 20 1 2 ) ( “ The district court’s resolution of Confrontation Clause claims is reviewed de novo .”). The g overnment furt h er ag rees that it bears the burden of proving that the error was harmless b e y o nd a reasonable doubt, c i t i ng U nited States v. Tuyet Thi-Bach Nguyen
, 565 F .3d 668, 675 (9th Cir. 2009) (“The prosecution bears the b urden of proving the error was harmless b ey ond a reasonable doubt.”). The answering brief then addresses the merits of Macias’s Confrontation Clause cl aim for the nex t five pag es.

This is classic “ waiv er o f waiver.” W h ere the
g overnment elects to a ddress an unpreserve d cl a i m on the merits r ather than to a

r g ue that the def

e n d ant waived the claim by failing to object on that basis in the trial court, it is deemed to waive the waiver. I n United States v. Doe
, 53 F .3d 1081 (9th Cir. 1995), for e x a mple, the g overnment, as h ere, failed to ar gue waiver in its briefs or at oral arg ument, but instead u rg ed us to reach the merits of th e c l a i m. W e conclud e d that the “g overnment ha[ d] ‘waived’ any w aiver
arg ument it may have had.” Id. at 1 083. Citin g Ok l a h o ma City v. Tuttle

, 471 U .S. 808, 815–16 (1985), w e reasoned that “[ w] aiver d oes n o t divest the Court of jurisdiction it otherwise enjoy s.” Rather, “[ w] a iver is a creature of judicial policy

, informed in this purely f ederal contex t by c oncerns o f fairness, finality

, and economy .” Id. at 1082. Similarly

, in Norwood v. Vance
, 59 1 F

. 3d 1062 (9th Cir. 2009), theU N I T E D S T A T E S V

. M A C I A S 28

p l a i n t i ff did not arg ue w aiver, in the sense of failing t o preserve an objection, but a ddressed the question o f qualified immunity on the merits. We h eld that “ [ i] t is well-established that a party can waive waiver implici t l y b y failing to assert it,” and that the plaintiff “w a i v ed the defendants’ waiver b y

a d d r e ssing the claim o n the merits without also making a waiver arg ument.” 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 t h e d i s t r ict court. However, Plaintiffs have n o t a

r g u ed that [ Defendants] waived this

a r gu ment, and have therefore waived the opportunity t o object o n that g round

. ” ) ; United States v. Garcia-Lopez
, 309 F .3d 1 121, 1123 (9th Cir. 2002) (“[ T] he g overnment can ‘waive waiver’ implicitly by failing t o assert it[ .] ”); United States v. Schlesinger

, 49 F .3d 483, 485 (9th Cir. 1 994) (“This
court will not address waiver if not raised b y t h e o p p o s ing party .”); United States v. Lewis
, 7 87 F .2d 1318, 1323 n.6 (9th Cir.) amended by

798 F .2d 1250 (9th Cir. 1986) (refusing to address the g overnment’s w aiver arg ument, raised for the first time in its petition for rehearing

, because the g overnment h ad failed to arg

ue waiver in its briefs or at oral arg ument).

G iven that the g overnment elected to arg ue t h e Confrontation Clause iss u e on the merits, and the novel a nd fair l y eg reg ious circumstances by w hich the inadmissible evidence was created, we not o n l y c a n , but should, address the Confrontation Clause claim on its merits. 1 The

1 T h e m aj o rity articu lates n o reaso n f o r ex ercisin g its d iscretio n to ig n ore th e g o v ern m en t’ s w aiv er o f t h e p lai n e r r o r s tan d ard o f rev iew an d its

e x p ress relian ce o n th e de n o v o rev iew stan d ard

. In deed

, t h er e i s n o

reaso n w h y o u r co u rt sh o u ld n o t ex ercise its d iscretio n to ad d ress th e

m erits of Macias’ s Co n f

ro n tatio n Clau s e ob

j ectio n h ere, an d ev ery reaso nU N I T E D S T A T E S V

. M A C I A S 29

Confrontation Clause is a “bedrock p rocedural g uarantee,” Crawford v. W

ashington

, 541 U.S. 3 6, 42 (2004), which courts should make every effort to preserve. 2

The g overnment admits it created the Amended Delay ed B irth Reg istration to b olster its c a se ag ainst Macias. At Macias’s first trial on these charg es, the court admitted Macias’s Delay ed B irth Reg istration. A B order Patrol ag ent, J oel Mata, J r ., testified that he had attempted to “cancel” Macias’s Del a y e d B irth Reg istration by stamping the word

w h y it sh o u ld

. We h av e f

o u n d th ree ex cep tio n s to t h e w aiv er ru le ev en

w h e re th e “ w aiv er” h as n o t b een w aiv ed : “ (1 ) [] th e ex cep tio n al c a s e i n

w h ich rev iew is n ecessary to prev en t a m i scarriag e o f j u stice o r to p reserv e th e in t eg rity o f th e j u d icial pro cess, (2 ) w h en a n ew issu e arises

w h ile ap p eal is p en d in g becau se o f a ch an g e in th e law

, an d (3 ) w h en th e i s su e p resen t ed is p u rely o n e o f law an d eith er d o es n o t d ep en d o n t h e f actu al reco rd d ev e l o p ed b elo w , o r th e p ertin en t reco rd h as b een f u lly d ev elo ped .” Ru iz v. Affin ity Lo g istics Co rp

. , 6 67 F.3 d 1 3 18
, 1 3 2 3 (9 t h Cir. 2 01 2 ) (in tern al q u o tatio n m ark s o m itted ). Decid in g th e Co n f ro n tatio n Clau se issu e h ere is n ecessary “ to p reserv e th e in teg rity o f th e j u d icial
p ro cess.” W h eth er th e ad m issio n o f th e A m en d ed Delay ed B irth Reg istratio n v io l ated th e Co n f ro n tatio n Clau se is a p u

rely l eg al q u estio n

. A n d

, b ecau se th e issu e w as ad d ressed by b o t h p arties o n t h e m erits,

n eith er is p rej u d iced b y o u r ad d ressin g it. S ee Ackerma n v. W

. Elec. Co

. , 8 6 0 F.2 d 1 5 1 4, 1 5 1 7 (9 th C ir. 19 8 8 ) (ad d ressin g a w aiv ed issu e o n th e

m erits, statin g “ [t]h e issu e h as b een th o ro u g h l y b rief ed an d arg u ed h ere,

an d [ap p ellan t ] h as n o t o b

j ected to o u r co n sid eratio n o f it,” an d co n clu d in g t h a t, “ [b ]ecau se t

h e issu e i s o n e o f law an d th ere is n o def icien cy in th e

reco rd relatin g to it, w e ex ercise ou r d iscretio n to en tertain th e q u estio n ”).

2 A d dressin g t

h e h earsay ru l e e m

b e d d ed in t

h e Co n f ro n tatio n Clau se, Ch ief J u stice Marsh all w

ro te, “ I k n o w o f n o p rin cip le in t

h e preserv atio n

o f w h ich a l l a r e m o re co n cern ed

. I k n o w n o n e, b y u n d erm in in g w h ich

, lif e, lib erty an d p ro p erty , m i g h t b e m o r e en d an g ered

. It is th eref ore in cu m b en t on co u rts to b e w atch f u l o f ev ery in ro ad o n a p rin cip le s o tru ly im p o rtan t.” U

n i t ed S t a tes v. Bu rr , 2 5 F.Cas. 1 8 7, 1 9 3 (No

. 1 4 ,6 94 ) (CC Va. 1 8 07 ) (Marsh all, C. J .). So to o h ere.U N I T E D S T A T E S V

. M A C I A S 30

“Canceled” on a copy of it and submitting it to the California Department of Vi t a l Records (the “Vital Records Department”). 3 The g overnment then c a lled a representative from the Vital Records D e p artment, which had rejected the purported “cancellation,” who ex plained that the D ela y e d B irth Reg i s t ration could b e chang ed only by amendment. The first jury hung a n d the court declared a mistrial. The prosecution then spoke to several jurors who revealed that the
tw o jurors responsible for hang ing the jury believed that the
g overnment should have followed the procedures outlined b y the V ital Records Departmen t ’ s representative; that is, that the g overnment should have soug h t an a mendment to Macias’s Delay

ed B irth Reg istration.

B e fore the second trial, at the prosecutor’s direction, two other B order Patrol ag ents, whom the g overnment did not c all
to testify at the second trial, B r ian Desrosiers a n d Andrew Kahl, g e nerated the Amended Delay ed B irth Reg istration b y submitting an affidavit attesting that M a cias was born in Mex ico, not Riverside. 4 T h e affidavit l i s t e d evidence the

3 Mata also testif

ied at t h e f irst trial th at Macias ad m itted to h im th at h e

w as a citizen o f Mex ico

, an d th at h e p rev io u sly h ad p erso n a lly rem ov ed Macias to Mex ico

. Ev i d en t ly

, Mata’ s t e s t i m o n y w as in su f f icien t to estab lish Macias’ s Mex ican citizen sh ip

.

4 T h e ag en t s certif

i ed “ u n d er p en alty of p erj u ry ” in t h e A m en ded Delay ed B irth Reg i stratio n th at th e y h a d “ p erso n al k n o w led g e” o f th e f acts an d in f

orm atio n th ey u s ed to a m en d th e b irth certif icate, i n clu d in g th e lo catio n o f Macias’ s b i r t h. T h e ag en ts d id n o t h av e p erso n al k n o w l ed g e th at Macias w as b o rn in Yu recu aro , Mex ico

, so th ey n o t o n ly
g in n ed u p t h e ev id en ce; th ey f

u d g ed in d o in g so

. S

ee Un ited Sta tes v. Lo p ez , 76 2 F.3 d 8 5 2
, 8 6 3 (9 th Cir. 2 0 14 ) (“ P erso n al k n o w led g e m ean s k n o w led g e p ro d u ced b y th e d irect in v olv em en t o f th e sen ses.”). T h e A ssistan t U.S. A t t o r n ey f

ran k ly ack

n o w led g ed th at t

h e ag en ts su

b m i tted th e af f id av it at h er d irectio n ; w e m u st p resu m e sh e u n d erstan d s th e leg alU N I T E D S T A T E S V

. M A C I A S 31

prosecution p lanned to (and did) introduce at the second trial

as the “reason for correction” or “ amendment” o f the Delay ed B irth Reg istration. Thus, the g overnment fabricated the very evidence—the Amended Delay ed B irth Reg istration—it thoug ht it would need to se c u r e Macias’s conviction the second time around.

B

.

The g overnment a rg ues that it was not a v iolation o f Macias’s Confrontation Clause rig hts to admit the Amended Delay ed B irth Reg istration o n several bases, n o ne of which is a v a iling

. 5 Fi r s t, the g overnment arg ues that there was no Confrontatio n Clause violation b ecause the Amended Delay ed B irth Reg is t ration, once filed, became part o f Macias’s Delay ed B irth Reg istration. Citi n g Crawford

, the
g overnment a g rees that testimonia l evidence may not be presented at trial unless the defendant has the opportunity to

cross-ex amine the witness. See 541 U .S. at 59 (“Testimonial
statements of witnesses absent from trial have been admitted only where the declarant is unavaila b l e , a nd only where the defendant has had a prior opportunit y to cross-ex amine.”). The g o vernment, however, arg ues that the Amended Delay ed B irth Reg istration is non-testimonial. Rely ing on our decision in U

nited States v. Bahena-Cardenas

, 411 F .3d 1067 (9th Cir. 2 005), for the p r oposition that birth certificates a re

m ean in g o f “ p erso n al k

n o w led g e,” an d th at sh e w as aw are th at th e ag en ts lack ed p erso n al k

n o w led g e o f

th e circu m s tan ces o f

Macias’ s b irth

.

5 T h ere w ere a h o st o f o th er p ro b lem s w ith th e A m en d ed Delay ed B irth Reg istratio n raised b y Macias i n h is m o tio n in l im in e. Macias arg u ed th at t h e A m en d ed D elay ed B irth Reg istratio n w as h earsay , th at th e ag en ts lack ed p erso n al k

n o w led g e o f th e f

acts t o w h ich t h ey attested

, an d th at th e statem en ts co n s titu ted im perm issib le p ro secu to rial v o u ch in g

.U N I T E D S T A T E S V

. M A C I A S 32

non-testimonial, s e e id. at 1075 (holding that a “warrant o f deportation is n o different than a birth certificate or any other public record which c onstitutes the r outine catalog uing of an unambig uous factual matter”), the g ov e r n m e n t asserts that the Amended Delay e d B irth Reg istration is part of Macias’s birth record and that it is, for that reason, non-testimonial.

The g overnment’s position is formalistic: it hing es on the label “birth c ertificate,” without analy z ing whether the relevant statements were made under circumstances in which

an objective witness would be reasonably led to believe that they w o u l d be used in future litig ation. See Melendez-Diaz

v. Massachusetts

, 557 U.S. 305, 309–10 (2009) ( o ne formulation of “the class of testimonial statements covered b y the Confrontation Clause” i s “‘statements that w ere made under circumstances which w ould lea d a n objective witness reasonably to believe that the statement would b e a v a ilable for u se at a later trial.’” (quoting Crawford

, 541 U.S. at 52)). The Amended Delay ed B irth Reg istration was clearly n o t the routine, objective, catalog uing of a particular factua l m a t ter contemplated in Bahena-Cardenas

, but was, instead a document prepared at the prosecutor’s behest “in anticipation of litig ation.” 411 F .3d a t 1075. Thoug h b irth certificates routinely catalog ue unambiguous factual matters in g eneral, the Amended Delay ed B irth Reg istration did not. I nstead, it captured two Bo rd er Patrol a g ents’ conclusions on a particular factual matter—the location of Macias’s birth— after their review o f certain e v i d ence. Thus, e ven if the Amended D elay ed B irth Reg istration is properly considered part of Macias’s birth certificate, it re m a i ns testimonial in
nature.

S econd, the g overnment asserts that there was no C o n f r o n t a t i o n C l a u s e v i o l a t i o n b e c a u s e C a l i f o r n i aU N I T E D S T A T E S V

. M A C I A S 33

Department of Public H e a l th section chief Karen Roth testified during Macias’s second trial. Roth was called to— and did—testify that the Amende d D e l a y e d B irth Reg istration i s part of Macias’s o fficial birth record. The g overn m e n t

a rg ues that b ecause Roth so testified at trial, Macia s ’s
arg ument that a Confrontation Clause violation occur r ed is “illusory .” That Roth testified is entirely irrelevant, however: the testimonial statements in the Amended D elay ed B irth Reg istration were made by Age n t s Kahl and Desrosiers, not Roth. Rot h ’ s ge n e ral testimony r eg a rding the effect o f the
ag ents’ amendment on Macias’s birth record does nothing to remedy the g overnment’s failure t o call the actual affiants—Ag e n t s K ahl a

nd Desrosiers—to the stand during the second trial.

Third, the g ov e r n m ent arg ues that if the Amended Delay ed B irth Reg istration is tes t imonial then, “ under Macias’ v ery own reasoning ,” so is the Delay ed B irth R e gi s t ration. The g o vernment contends that, like the Amended De l a y ed B irth Reg istration, the Delay ed B irth Reg istration contains Macias’s “self-serving ” statement as to his birthplace, along with the sig natures of two other individuals who attested t o t h e i r presence at Macias’s birth. The g overnment arg ues that, under Crawford

, an objecti v e witness w ould reasonably b e led to believe the Delay ed B irth Reg istration mig h t b e used in future litig ation. This arg ument is a non-sequitur, h owever. Only Macias, and not the
g o v e rnment, has a constitutional r ig ht to confront the witnesses ag ainst h im. See U

. S

. C O N S T

. amend. VI (“I n all criminal prosecutions, the accused shall enjoy the rig h t

. . . to be confronted with the witnesses ag a inst him.”) (e mphasis added); Crawford

, 541 U.S. at 5 9 (“Testimonial statements o f

w i tnesses absent from trial have been admitted only wh e r e the declarant is unavailable, and only where the defendant hasU N I T E D S T A T E S V

. M A C I A S 34

h a d a p r ior opportunity to cross-ex amine.”) (emphasis adde d )

. Thus, even if Macias’s Delay ed Birth Reg istration is testimonial, its admission does not violate the Confrontation Clause.

C.

The g overnment cannot show that the admission o f the Amended Delay ed B irth Certificate was “harmless b ey ond a reasonable doubt.” Tuyet Thi-Bach Nguyen
, 565 F .3d at 675. The jury hung at the first trial, and the materia l difference between t h e two trials was the admission of the Amended Delay ed B irth Reg istration. Thus, its admiss i o n cannot be harmless bey ond a reasonable d oub t

. S e e United States v

. Geston
, 299 F .3d 1130, 1136 (9th Cir. 2 002) ( “[ Defendant’s] first trial, which did not include the improper questioning

, resulted in a mistrial, w ith the jury unable to reach a verdict. This circumstance leads us to c onclu d e t h at the improper questioning impacted [ Defendant’s] due p rocess rig h ts.”); United States v. Thompson

, 37 F .3d 450, 454 (9th Cir. 1 994) (emphasiz ing that the hung jury after th e first trial was “persuasive evidence that the di s t r i c t c ourt’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. 1 987) (“Moreover, particularly in view of the prior hung jury

, we conclude that the error [ at the d e fe n dant’s second trial] w as not harmless bey ond a reasonable doubt.”). I ndeed, a comparison o f the two trials r eveals that substantially

similar evidence was presented at e ach: at both trials, Macias’s father, F elipe, testified that Macias was born in Mex ico; at both trials, Macias’s Delay ed B irth Reg istration

was presented, along with his parents’ applications for lawful
p e rmanent residency

, in which Macias was listed as h a v i n g been born in Mex ico; and, at both trials, Macias’s deportationU N I T E D S T A T E S V

. M A C I A S 35

history was presented, with p a r ticular emphasis on the number of times that, d

uring those proceeding s, he claim ed
to have been bor n in Mex ico. The material difference be t w e e n the first and second trials was the admission of the Amended Delay ed B irth Reg istration—a literally new piece of evidence created

to secure Macias’s conviction.

The g overnment arg ues that there was a litany o f differences between the two trials. These included, according
to the g overnment, the decision to c all c e rtain new witnesses, includi ng Macias’s brother G il Macias, and not c all others, specifically Mata. B u t t h e d e cision not to call Mata, whose testimony was obviously not credited by the jury at Macias’s f i r s t trial, is not one which shows the harmlessness of t h e admission of the Amended Delay ed B irth Reg istration. A nd Gil Macias’s testimony

was of little help to the g overnment,

as h e testified that h e w as unable to remember Macias’s birth. The g o vernment also points to the a lteration of its e x hibit list, including the d ecision to present r ecor d i n g s from Macias’s removal hearing s b efore the I mmig ration J u d g e, and to the fact that the jury received a new instruction at the conclusion of the second trial. B ut the g o v e r n m e nt never ex p lains why
any of these differences prove the improper admission of the Amended Delay ed B irth Reg istration harmless bey ond a reasonable doubt.

Nor is there any b asis to c onclude bey ond a reaso nable doubt that the admissi on of Macias’s Mex ican birth certificate, rather than the e rroneou s a d m ission of the Amended Delay e d B irth Reg istration, w as responsible for the chang e in outcome from Macias’s first trial to the second. I n fact, e x pert testimony proffered at Macias’s second trial demonstrated that the ex istence of a Mex ican b irth certificate is not determinative of an individual’s birthplace: AlejandroU N I T E D S T A T E S V

. M A C I A S 36

O s u n a , a professor o f law in Mex ico, testified that it wa s

common p ractice at th e t ime of Macias’s birth for Mex ican parents of children born in the United States to reg ister their children’s birth in Mex i c o a s well. Osuna testified that obtaining a Mex ican birt h certificate was critical to the child’s ac c e s s to education, health, and even property ownership in Mex ico. Osuna’s testimony thus demonstrated the r elative insig nificance of Macias’s Mex ican birth certificate to the determination of his citiz enship.

Co n sideration of other factors under the harmless error analy sis similarly points to the concl u s i on that the Confrontation Clause error was n ot harmless bey on d a reasonable d oubt. See Tuyet Thi- B a c h Nguyen
, 565 F .3d at 675 ( “‘W hether an error is harmless depends on a v ariety o f factors, including whether the testimony was cumulative, the
presenc e or absence of [ evidence] corroborating o r

c o n t r adicting the testimony on material points, the ex tent of

cross-ex amination, and of course, the overall streng th of the prosecution’s case.’” (quoting United S t a tes v. Mayfield

, 189 F .3d 895, 906 (9th Cir. 1999))). T he Amended Delay ed B irth Reg istration was not cumula t i v e, as no other evidence

was offered to amend Macias’s Delay ed B irt h R eg istration,

or to a lter its si gnificance. A nd while c ertain corroborating evidence, cited by the a g ents in the Amended Delay ed B irth Reg istration as the basis f or the amendment, was presented at the second trial, 6 such evidence did not p urport to a mend the birth certificate. F urthermore, n o cross-ex amination of Ag ent

6 T h is ev id en ce, as th e m a j o r i ty p oin t s o u

t, in clu d ed th e g o v ern m en t’ s acq u isitio n o f Macias’ s Mex ican b irt h certif icate, Macias’ s f

ath er’ s statem en t th at Macias w as b o rn in Mex ico

, an d Macias’ s p aren ts’
ap p licatio n s f

or law f u l p erm an en t resid en cy statin g th at Macias w as b orn in Mex ico

.U N I T E D S T A T E S V

. M A C I A S 37

Kahl or Ag ent Desroiers occurred. T hat Macias called Ag ent Kahl to the stand a

n d was permitte d, on direct e x amination,
to ask him certain leading questions d oes not r ender Macias’s inability to cross-ex amine both ag ents harmless.

F urthermore, the Amended Delay ed B irth Reg istration

was critical to the prosecution’s case. See id. ; s ee also Delaware v

. Van Arsdall

, 475 U.S. 6 73, 684 ( 1986) ( s t ating that “the importa nce of the witness’ testimony in the prosecution’s case” is o n e factor to be considered in determining whether a C o n frontation Clause e rror is harmless). The g o v e r n ment relied heavily on the Amended Delay ed B irth Registration in its c a se-in-chief, asking Roth

a s e r i es of questions about its sig nificance to the Delay e d B irth Reg istration. The g overnment stressed that the Delay ed B irth Reg istration was now a “ two-pag e document” that h ad been amended pursuant to procedures developed b y the state of California, and which reflected that Macia s w a s “born at

a home in Michoacan, Mex ico.” I n its closing arg ument, the
g overnment repeated its r efrain, urg ing that “[ w] e need to be clear that the document on record with the State o f California

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

, the g overnment arg ued that Ag ents Kahl a nd Desrosiers did “ex actly what the representative from the State of California sug g ested hap p en ,” when they amended Macias’s Delay

ed B irth Reg istration.

The Amended D elay ed B irth Reg istration p urported to show that Ma c i a s ’ s D e l a

y e d B irth Reg istration—the strong e st piece of evidence in his favor—had been amended to reflect that his actual birthplace wa s M ex ico, not California. T o hig hlig ht, as the majority does, the mere streng th o f t he evidence supporting the g overnment’s case at the second trial misses the mark, because there was e q ually strong evidence,U N I T E D S T A T E S V

. M A C I A S 38

presented b y the g overnment at the first trial, that Macias was born in Mex ico. And w e know that the evidence in the first trial was countered by e v i d ence of sufficient streng th to create a reasonable d oubt in the minds of two jurors. The admission of the Amended Delay e d B irth Reg istration at the second trial in violation of the Confrontation Clause neg ated the streng th of the defense evidence, r esulting in a conviction. The g overnment cannot demonstrate that the Crawford error

was harmless bey ond a reasonable doubt. Thus, the judg ment of conviction should be reversed, not affirmed.