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Pursuant to Sixth Circuit Rule 206

File Name: 04a0365p.06

UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RODRIGO MACIAS,

Defendant-Appellant.

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No. 03-5226

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 00-00049—John G. Heyburn II, Chief District Judge.

Argued: June 10, 2004

Decided and Filed: October 26, 2004 

Before: KEITH, CLAY, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Samuel Manly, LAW OFFICES OF SAMUEL MANLY, Louisville, Kentucky, for Appellant.

Terry M. Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.

ON BRIEF: Samuel Manly, LAW OFFICES OF SAMUEL MANLY, Louisville, Kentucky, for Appellant.

Terry M. Cushing, Amy M. Sullivan, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky,

for Appellee.

CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. GIBBONS, J. (p. 11),

delivered a separate concurring opinion.

_________________

OPINION _________________

CLAY, Circuit Judge. Defendant Rodrigo Macias appeals his convictions for conspiracy to possess

with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and

attempting to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. Macias argues that the district court abused its discretion when it denied his

motion for a mistrial based on the alleged violation of his right of confrontation that occurred when an

inculpatory statement of a non-testifying co-conspirator was introduced at trial. For the reasons that follow,

we REVERSE Macias’ convictions and REMAND for a new trial.

1
No. 03-5226 United States v. Macias Page 2

I.

A. Substantive Facts

On March 20, 2000, officers with the Louisville and Jefferson County Metro Narcotics Task Force

received information that a Hispanic male from California was registered as a guest at a Red Roof Inn in

Louisville, Kentucky and was involved in “suspicious activity.” Later that same day, Metro Narcotics

Detectives went to the Red Roof Inn and knocked on the door to Room 337, where the suspect was

reportedly staying. A Hispanic male, later identified as Leonel Amar, answered the door. The detectives

identified themselves and explained the nature of their visit. They requested and received permission to

enter the room. They asked whether there were any illegal drugs in the room, and Amar said that there were

not. Amar further stated that he was the only person staying in the room. When the detectives asked if they

could search the room for illegal drugs, Amar responded, “Yeah - I just came to visit my cousin.” 

The detectives noticed that Amar was standing in front of a chest of drawers and began to move

toward it. Amar moved out of the way and, as one of the detectives opened a drawer, but before the contents

became visible, Amar stated, “They didn’t clean very well – that’s not mine!” Inside the drawer, the

detectives found a plastic bag containing several suspected cocaine “pellets” (approximately 650 grams),

a digital scale, a plastic Ziploc-brand bag containing powdered laundry detergent, and a Ziploc bag

containing latex gloves. Subsequent laboratory analysis confirmed that the pellets were cocaine

hydrochloride, with a net weight of 633.4 grams at 65% purity.

At that point, the detectives placed Amar under arrest and advised him of his Miranda rights. After

acknowledging that he understood his rights, he volunteered that he was waiting for someone to pick up the

cocaine. During questioning, he stated that a Hispanic male known to him only as “Jose” was the source.

Amar said that he had met Jose in Louisville during a previous visit in December, 1999, doing construction

work. He said that Jose employed a friend of his known as “Manuel” in an illegal drug transaction, and he

recalled that he had recently seen Jose in Mexico City, during which time Jose had asked him to come to

Louisville to assist in illegal drug activity. Amar added that Jose had purchased an airline ticket from

Mexico to Louisville for him and subsequently picked him up at the airport when he arrived in Louisville

and drove him to the Red Roof Inn. Amar stated that Jose gave him the plastic bag containing the cocaine,

along with other items and $100 in U.S. currency to rent the room. He added that Jose had told him to

secure the bag in the room and would call him before sending someone over to retrieve the bag.

While the detectives were questioning Amar, there was a knock at the door. When the detectives

opened the door, Defendant Macias and Frederico Lopez were standing outside. Lopez was holding a box

of food. Upon seeing the detectives, Lopez began to walk away, but was directed to stop due to the ongoing

criminal investigation. Macias remained in the doorway. 

Macias initially told one of the detectives that he had come to the motel to visit the lounge. After

another detective reported that the motel has no lounge, Macias changed his story and said that he had come

to bring food to Amar, whom he reportedly had met in Mexico. The first detective to speak with Macias

interrogated him in English for about a minute, and Macias responded to the detective’s questions in fluent

English. When this detective started asking Macias about the drugs that were seized in the motel room,

Macias indicated that he no longer spoke English, even though Macias was born in Los Angeles, California,

was educated in the California public school system, and resided in Los Angeles. Macias was then read his

Miranda rights, and a detective fluent in Spanish was summoned to question him. 

During questioning, Macias acknowledged that Amar had called him to the room and told him to

bring the laundry detergent and gloves. Macias said that he had met Amar once in Mexico, and besides

Amar calling him to deliver food, that was the extent of their association. Macias consented to a search of

his residence at 1216 Quest Drive, Apartment 3.
No. 03-5226 United States v. Macias Page 3

1

According to the testimony of a narcotics officer, laundry detergent is used to mask the smell of drugs from a canine search.

He further testified that rubber gloves are used to repackage drugs without leaving fingerprints on the product.

Macias had two cellular telephones with him and told the detectives that one of the phones belonged

to a man known as “Lupe” or “Guadalupe,” for whom he worked on a construction crew. He provided a

description of Lupe that was similar to Amar’s description of the “Jose,” who allegedly was the source of

the cocaine found in the motel room. He also had $2,399 in cash on him, and maintained that this money

was from the sale of his car to Austin Torres. Torres, however, actually had acquired title to the car five

weeks earlier.

During the course of the investigation, the detectives searched a car at the motel. Macias’

companion, Frederico Lopez, initially claimed that the car was his and gave consent to search. It was later

shown that the car was registered to Macias. The detectives discovered two Western Union receipts

identifying the sender as Amar with the address of 2601 Buechel Bank Road. In the trunk, the detectives

found laundry detergent in a Ziploc bag and rubber gloves.1

Later, during the evening, detectives searched Macias’ apartment and found several Ziploc bags in

the kitchen area that matched the bags found in Amar’s motel room, along with an empty box of powdered

laundry detergent, a set of digital scales, and two other sets of scales. Inside a bedroom, they located ledgers

consistent with those found in the possession of drug traffickers, showing names of individuals and money

amounts totaling over $100,000. Detectives also found inside the residence a telephone bill that Macias

maintained was his. It was later determined that the telephone was registered to Amar. They also found

a map detailing the location of the Red Roof Inn on Preston Highway and a copy of an American Airlines

electronic ticket issued to Amar for a round-trip flight from Mexico City to Louisville on January 18, 2000,

with a return flight to Mexico City on January 21, 2000.

In the course of the search, a man, later identified as Jesus Ferrer, entered Macias’ residence carrying

a cereal box, which was found to contain $18,350. Both Ferrer and another man accompanying him (later

identified as Jose Smith) were taken into custody.

Based on the cellular telephone records retrieved from Macias’ residence and the descriptions the

detectives had previously been provided, the detectives visited the residence of J. Guadalupe Torres at 2106

Buechel Bank Road, Apartment 25. When Torres arrived back at the apartment, he consented to a search

in which detectives found several pellets of cocaine similar to the cocaine pellets found at the Red Roof Inn,

as well as additional quantities of cocaine found in plastic bundles.

B. Procedural History

On May 20, 2002, a jury convicted Macias of conspiracy to possess with intent to distribute 500

grams or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and attempting to possess with

intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

The district court sentenced Macias to 65 months’ imprisonment and four years’ supervised release. Macias

was tried jointly with Ferrer, but the jury was unable to return a verdict against Ferrer. Two other alleged

co-conspirators, Amar and Torres, pleaded guilty prior to trial.

On the second day of Macias and Ferrer’s trial, Ferrer’s attorney conducted a cross-examination of

Metro Narcotics Detective Brian Nunn, who had testified as a government witness. Ferrer’s attorney sought

permission from the district court to play an audio tape recording of Nunn’s state court grand jury testimony

from December, 2001, in order to impeach Nunn’s trial testimony about Ferrer’s arrival at Macias’

apartment. When the court agreed, the following exchange took place between Macias’ attorney (Mr.

Simon), Ferrer’s attorney (Mr. Williams), and the court.

MR. WILLIAMS: ... I’m going to play the tape.
No. 03-5226 United States v. Macias Page 4

THE COURT: Okay. That’s fine.

MR. SIMON: May I ask because I haven’t heard the tape, does it mention my client at all?

MR. WILLIAMS: No. I mean, I don’t know.

MR. SIMON: That’s the only concern I have. I mean, if he wants to impeach the officer on

something dealing with Mr. Ferrer, that’s none of my business. But on the other hand, I do

want to make sure that there’s nothing that would be prejudicial to Mr. Macias.

THE COURT: Oh, yeah. Okay. Then we’ll see you back here at 12:45....

The court then took a one hour lunch recess.

After the recess, the court reconvened, and Ferrer’s attorney continued his cross-examination of

Detective Nunn. The court asked Ferrer’s attorney if he was about to play a tape of Nunn’s grand jury

testimony, and Ferrer’s attorney answered affirmatively. He then played the following excerpt from Nunn’s

grand jury testimony:

UNIDENTIFIED FEMALE VOICE: This is the case of the Commonwealth v. Jesus

(inaudible) Ferrer, possession of cocaine. Would you please state your name and where you

work?

DETECTIVE NUNN: Brian Nunn, employed by the Louisville Police Department,

assigned in the Metro Narcotics Unit.

UNIDENTIFIED FEMALE VOICE: And please tell us what happened that led to

the defendant being charged, this offense.

* * * *

DETECTIVE NUNN: Just to avoid confusion, I’ll refer to [the] other two subjects

as subjects one and two. We had received information that subject one was at the Red Roof

Inn on Preston Highway here in Louisville, Kentucky in possession of illegal narcotics.

Based on the information in the investigation we did, we conducted a search of his room and

recovered approximately 600 grams, over two thirds of a kilo of cocaine. He immediately

began cooperating with us and said that he had came [sic] from El Paso, Texas with cocaine

and had been paid by subject two to bring it here to Louisville and that subject two was

supposed to pick it up from him at the hotel.

We stayed at the hotel as subject two eventually arrived. Based on our investigation,

subject two was also placed under arrest and we obtained a consent to search for his

residence located on Quest Drive here in the Lynnview section of Jefferson County. While

we were conducting that search, at approximately 9:00 p.m., Mr. Ferrer came to the rear door

of that apartment, knocked, and came in. He was carrying a grocery bag. Inside the grocery

bag was a box of cereal. The cereal box had a small amount of cereal in it and at the bottom

of it was over $18,000 in currency.

Because Nunn’s testimony referred to subject two’s residence being located on Quest Drive, which

is where Macias’ apartment is located, Nunn’s reference to subject two was a reference to Macias. Amar,

however, never told police that Macias had paid him to bring cocaine to Louisville or that Macias was

supposed to pick up the cocaine from the motel. Thus, Nunn attributed an inculpatory statement to Amar

concerning Macias that Amar never in fact made.
No. 03-5226 United States v. Macias Page 5

After the tape was played, Macias’ attorney moved for a mistrial, arguing, “I asked Mr. Williams

[Ferrer’s attorney] is there anything on that tape that would incriminate my client. He said no. I haven’t

heard it before. I don’t have access to the grand jury, state grand jury proceedings involving his client.”

Macias’ attorney argued that the statement was inadmissible hearsay. 

The court did not rule on Macias’ motion immediately. The parties subsequently discussed the issue

several more times. At one point, the court raised the prospect of admonishing the jury about Nunn’s

testimony, but expressed concern that such an instruction would draw too much attention to the testimony.

The court offered to instruct the jury that Nunn’s statement on the tape was “flat out mistaken,” “did not

occur,” and “was a misstatement by the officer.” Macias’ attorney responded that the statement was so

prejudicial that no admonition could cure the problem. The court admitted the tape into evidence for the

limited purpose of allowing the court reporter to transcribe its contents. The tape, however, was not

available to jurors during their deliberations. 

Eventually, the court denied Macias’ motion for a mistrial. The court reasoned that the tape did not

refer to Macias by name, only as “suspect two”; it was a reference heard only on the tape, which was

difficult to hear; and the attorneys would not be permitted to refer to the tape during closing arguments. The

judge opted not to instruct the jury about ignoring Nunn’s reference to subject two, explaining, “because

I thought it was fleeting enough and possibly not well heard enough, I elected that the better course was

simply to not say anything, and with the thought that after a few days it would be completely forgotten,

which I can’t vouch was absolutely going to be the case, but I suspect it’s going to be the case.” 

II.

We review a district court’s denial of a motion for mistrial for an abuse of discretion. United States

v. Atisha, 804 F.2d 920, 926 (6th Cir. 1986). For the reasons that follow, we hold that the district court

abused its discretion in not granting a mistrial based on the violation of Macias’ Sixth Amendment right to

confront a witness against him.

The Confrontation Clause of the Sixth Amendment, made applicable to the States by the Fourteenth

Amendment, guarantees the right of a criminal defendant “to be confronted with the witnesses against him.”

U.S. CONST. amend. VI; see also Pointer v. Texas, 380 U.S. 400, 406 (1965) (holding that the right of

confrontation applies to state court proceedings). “The right of confrontation includes the right to crossexamine witnesses.” Richardson v. Marsh, 481 U.S. 200, 206 (1987) (citing Pointer, 380 U.S. at 404, 406-

07). “Therefore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted

against the other unless the confessing defendant takes the stand.” Id. 

The notion that the admission of inculpatory statements of a non-testifying witness are grounds for

a mistrial originated in Douglas v. Alabama, 380 U.S. 415 (1965). There, the petitioner, Jesse Douglas, and

another individual, Loyd, were tried separately on charges of assault with intent to commit murder. Loyd

was tried first and found guilty. Loyd was called as a witness at Douglas’ trial, but because Loyd planned

to appeal his conviction, he asserted his privilege against self-incrimination and refused to answer any

questions. The trial judge rejected Loyd’s assertion of the privilege and ordered him to answer the

questions, but he still refused. In response, the judge permitted the prosecutor (“the Solicitor”) to treat Loyd

as a hostile witness and to ask him leading questions. As described by the Court:

The Solicitor then produced a document said to be a confession signed by Loyd. Under the

guise of cross-examination to refresh Loyd's recollection, the Solicitor purported to read

from the document, pausing after every few sentences to ask Loyd, in the presence of the

jury, 'Did you make that statement?' Each time, Loyd asserted the privilege and refused to

answer, but the Solicitor continued this form of questioning until the entire document had

been read. [footnote omitted] The Solicitor then called three law enforcement officers who
No. 03-5226 United States v. Macias Page 6

identified the document as embodying a confession made and signed by Loyd. Although

marked as an exhibit for identification, the document was not offered in evidence.

Id. at 416-17.

The Court held that Douglas’ “inability to cross-examine Loyd as to the alleged confession plainly

denied him the right of cross-examination secured by the Confrontation Clause.” Id. at 419. It was

significant for the Court that Loyd’s alleged statement about Douglas was “the only direct evidence” that

Douglas had committed the crime by firing a shotgun. Id. Further, Loyd’s description of the circumstances

surrounding the shooting “formed a crucial link in the proof both of petitioner’s act and of the requisite

intent to murder.” Id. As a result, the admission of the out-of-court statements, without the opportunity for

cross-examination, “unfairly prejudiced the defendant.” Id. at 420. 

Three years after Douglas, the Supreme Court decided Bruton v. United States, 391 U.S. 123 (1968).

The petitioner, George Bruton, and his co-defendant, James Evans, were tried jointly and convicted of

armed postal robbery. At trial, a postal inspector testified that Evans had confessed to him that Evans and

petitioner committed the armed robbery. Id. at 124. The judge instructed the jury that “although Evans’

confession was competent evidence against Evans, it was inadmissible hearsay against petitioner and

therefore had to be disregarded in determining petitioner’s guilt or innocence.” Id. at 125. The Court held,

however, that because of the substantial risk that the jury “looked to the incriminating extrajudicial

statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated

petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” Id.

at 126. The Court commented that “Evans’ confession added substantial, perhaps even critical, weight to

the Government’s case in a form not subject to cross-examination, since Evans did not take the stand.

Petitioner thus was denied his constitutional right of confrontation.” Id. at 127-28. 

In 1987, the Supreme Court decided Richardson v. Marsh, supra, which limited the application of

Bruton. In that case, Clarissa Marsh and Benjamin Williams were charged with murder, robbery and

assault, and were tried jointly. At trial, Williams’ written confession was admitted over objection. Williams

did not testify. The confession had been redacted to omit all reference to Marsh. Williams’ confession

described a conversation he had with the third accomplice (not Marsh) as they drove to the victim’s house,

during which that accomplice said that he would have to kill the victims after robbing them. No mention

was made of Marsh or anyone else being in the car. The jury was admonished not to use the confession in

any way against Marsh. Marsh’s subsequent testimony indicated that she had been in the car with Williams

and the third accomplice, but that she had not heard the conversation due to the volume of the radio,

insisting that she had not intended to rob or kill anyone. During closing arguments, the prosecutor linked

Marsh to the portion of Williams’ confession describing his conversation with the third accomplice in the

car.

The Court described its holding in Bruton as follows: “We held that a defendant is deprived of his

Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying

codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only

against the codefendant.” Richardson, 481 U.S. at 207 (emphasis added). The Court noted that in Bruton

“the codefendant's confession ‘expressly implicat[ed]’ the defendant as his accomplice” and proved to be

“‘powerfully incriminating.’” Id. at 208 (quoting Bruton, 391 U.S. at 124 n.1, 135). By contrast, in Marsh’s

case, Williams’ confession “was not incriminating on its face, and became so only when linked with

evidence introduced later at trial (the defendant’s own testimony).” Id. The Court reasoned that, unlike a

Bruton-type case, where the jury cannot be trusted to follow a judicial instruction to ignore an inculpatory

statement of a non-testifying accomplice, such a concern is less valid “[w]here the necessity of such linkage

is involved,” as in Marsh’s case. Id. Thus, the Court held that “the Confrontation Clause is not violated

by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as

here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her

existence.” Id. at 211.
No. 03-5226 United States v. Macias Page 7

In Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court answered a question left open in

Richardson – the “admissibility of a confession in which the defendant’s name has been replaced with a

symbol or neutral pronoun.” Richardson, 481 U.S. at 211 n.5. In Gray, the prosecution redacted the nontestifying co-defendant’s (Anthony Bell) confession by substituting for the defendant’s name in the

confession a blank place or the word “deleted.” Immediately after a police detective read the confession

into evidence, the prosecutor asked, “[A]fter [Bell] gave you that information, you subsequently were able

to arrest Mr. Kevin Gray; is that correct?” The officer responded, “That’s correct.” The trial judge

instructed the jury that Bell’s statement was evidence only against Bell and should not be used as evidence

against Gray. Gray, 523 U.S. at 189-90.

The Court distinguished Gray’s case from the facts in Richardson on the ground that the confession

“refer[red] directly to the ‘existence’ of the nonconfessing defendant,” simply replacing the nonconfessing

defendant’s name with a kind of symbol (the word “deleted” or a blank space). Id. at 192. The Court found

that “considered as a class, redactions that replace a proper name with an obvious blank, the word ‘delete,’

a symbol, or similarly notify the jury that a name has been deleted are similar enough to Bruton’s unredacted

confessions as to warrant the same legal results.” Id. at 195. By contrast, in Richardson, the admitted

statements “did not refer directly to the defendant himself [sic] and ... became incriminating ‘only when

linked with evidence introduced later at trial.’” Id. at 196 (quoting Richardson, 481 U.S. at 208).

Statements like those admitted in Gray’s trial, despite the redactions, “obviously refer directly to someone,

often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately,

even were the confession the very first item introduced at trial.” Id. Moreover, a confession containing

blanks ‘facially incriminat[es]’ the codefendant.” Id.

Based on the foregoing precedent, we hold that Nunn’s testimony about co-conspirator Amar’s

alleged statement about Macias triggered Macias’ constitutional right to confrontation. The government’s

case against Macias was based entirely on circumstantial evidence, primarily the following: (1) Macias

showed up at the motel room where detectives had discovered over 600 grams of cocaine and where the

suspect in the room (Amar) had told them that the ringleader of the investigation (Torres) would be sending

someone over to pick up the drugs; (2) Macias initially lied to detectives about his reason for visiting the

hotel; (3) Macias lied to detectives about the extent of his relationship and contacts with Amar; (4) Macias

appeared to feign the inability to speak English when detectives began to ask him about drugs found in the

motel room; (5) Macias had a cellular telephone with him that belonged to Torres, the source of the cocaine;

(6) Macias had $2,399 in cash on him that supposedly came from the sale of his car five weeks earlier; (7)

a search of Macias’ car revealed two Western Union receipts from Amar and laundry detergent and latex

gloves in Ziploc bags, matching the items found with the drugs in Amar’s hotel room; (8) a search of

Macias’ apartment uncovered Ziploc bags in the kitchen area that matched the bags found in Amar’s motel

room; an empty box of powdered laundry detergent, a set of digital scales and two other sets of scales;

ledgers consistent with those found in the possession of drug traffickers, showing names of individuals and

money amounts totaling over $100,000; a telephone bill of a phone registered to Amar; a map detailing the

location of the Red Roof Inn where the drugs were found; and a copy of an airline ticket issued to Amar for

a round-trip flight from Mexico City to Louisville; and (9) while searching Macias’ apartment, Macias’

codefendant entered the apartment with a cereal box containing $18,350. 

This evidence was certainly sufficient for a jury to have found Macias guilty of conspiracy to possess

with intent to distribute 500 grams or more of cocaine and attempt to possess such amounts of cocaine. The

evidence, however, was not so overwhelming that Amar’s alleged statements did not add significant weight

to the government’s case: Macias had not confessed to these crimes and there was no physical evidence

directly linking Macias to the cocaine; thus, the jury had to draw an inference to connect the laundry

detergent, latex gloves and Ziploc bags (perfectly legal items) to similar items in Amar’s possession. The

jury was required to infer that Macias was part of the drug conspiracy by virtue of his contacts with Amar

and Torres (e.g., the cellular telephone, telephone bills and the airline ticket); the presence of cash on his

person; and a drug ledger, scales and Ziploc bags in his apartment and his car. No doubt, the government

presented a strong case against Macias, but it was not open and shut. As a consequence, Officer Nunn’s
No. 03-5226 United States v. Macias Page 8

testimony about Amar’s alleged statement that “subject two” (i.e., Macias) had paid him to bring cocaine

to Louisville and that Macias was supposed to pick up the cocaine from the motel transformed the

government’s case into a direct evidence case. Amar (through the testimony of Nunn) directly linked

Macias to the drug conspiracy, rendering it largely unnecessary for the jury to infer Macias’ involvement

in the conspiracy based on the circumstantial evidence. 

In this sense, Macias’ situation is comparable to Douglas, where the Court found an extrajudicial

statement to be unfairly prejudicial to the defendant because it was “the only direct” evidence that the

defendant had committed the crime and “formed a crucial link” in the proof both of defendant’s act and of

the requisite intent. See Douglas, 380 U.S. at 419. It also is comparable to Bruton, where the Court found

the extrajudicial statement had “added substantial, perhaps even critical, weight to the Government’s case

in a form not subject to cross- examination,” and therefore denied the defendant his constitutional right of

confrontation. See Bruton, 391 U.S. at 127-28. 

We do not believe the facts of this case are governed by Richardson. There, the extrajudicial

confession “was not incriminating on its face, and became so only when linked with evidence introduced

later at trial (the defendant’s own testimony).” Richardson, 481 U.S. at 208. Before its presentation to the

jury, the confession in Richardson purged any reference not only to the defendant, but also to her very

presence at the scene where the incriminating statements were made. Id. at 203. The only way the jury

could connect the defendant to the scene was through her subsequent testimony that she had been at the

scene. In Macias’ situation, however, Amar’s alleged inculpatory statement (as presented by Nunn)

referred directly to “subject two,” who resides on Quest Drive. Although the statement did not name Macias

directly, the description of subject two was sufficiently specific that it could have referred only to Macias.

Thus, the statement was incriminating on its face.

The government argues that there is no Confrontation Clause issue because the United States did

not proffer Amar’s statement. Rather, his co-defendant did. This fact is irrelevant. None of the language

in the principal Supreme Court cases addressing the issue (Douglas, Bruton, Richardson, and Gray) suggests

that the source of the extrajudicial statement is material, unless the defendant himself introduced the

statement at trial or somehow invited the introduction of that statement.

The government further argues that there is no Confrontation Clause issue because the non-testifying

accomplice, Amar, did not actually make the statement that was introduced at Macias’ trial. According to

the government, Detective Nunn “turned Amar’s statement into a Bruton-type statement by misquoting him

during his grand jury testimony,” but that “Bruton only applies to a non-testifying codefendant’s

extrajudicial statement that implicates the defendant.” Br. for the United States at 19-20. The government

argues that “the damage done (if any) by the erroneous statement could have been rectified by crossexamining the detective.” Id. at 20.

The Supreme Court rejected this very argument in Douglas. In that case, someone other than the

defendant’s accomplice – the prosecutor – had effectively testified against the defendant by reading the nontestifying accomplice’s written confession in open court. Douglas, 380 U.S. at 416-17, 419 (“Although the

Solicitor's reading of Loyd’s alleged statement, and Loyd’s refusals to answer, were not technically

testimony, the Solicitor’s reading may well have been the equivalent in the jury’s mind of testimony that

Loyd in fact made the statement[.]”) Three officers then authenticated the written confession. Id. at 417.

The Court held that the opportunity to cross-examine the three officers was no substitute for crossexamination of Loyd. Id. at 419-20. Because the officers’ testimony “tended to show only that Loyd made

the confession, cross-examination of them as to its genuineness could not substitute for cross-examination

of Loyd to test the truth of the statement itself.” Id. at 420 (citations omitted). “[E]ffective confrontation

of Loyd was possible only if Loyd affirmed the statement as his.” Id. In Macias’ case, Nunn stood in a

similar position as the three officers in Douglas. He testified about a statement that Macias’ accomplice,

Amar, supposedly made, but only cross-examination of Amar could test the truth of the statement itself.
No. 03-5226 United States v. Macias Page 9

This Court also rejected the government’s argument in United States v. Marks, 585 F.2d 164 (6th

Cir. 1978). At Stanley Marks’ trial for transporting obscene materials in interstate commerce, government

attorney Louis DeFalaise read into evidence the prior recorded grand jury testimony he had obtained from

a codefendant, Guy Weir. The grand jury testimony not only authenticated certain business records, but also

indicated that Marks had booked the allegedly obscene movies at a theater. This testimony directly

implicated Marks by name and was the only evidence linking him to the operation of the theater and

showing the interstate commerce element of the offense. The Court held:

The government argues that the purposes of cross-examination were served here by the

defense attorneys’ ability to question Mr. DeFalaise, who read the transcript and had done

most of the interrogation before the grand jury. Clearly it was Weir’s credibility, not

DeFalaise’s, which was in issue. Cross-examination of DeFalaise could not substitute for

confronting Weir.

Id. at 169. Similarly, in Macias’ case, the issue was not the credibility of Nunn’s testimony about Amar’s

purported inculpatory statement, but Macias’ right to confront Amar, whom Nunn had transformed into an

accuser through his false testimony. We hold that the admission of Detective Nunn’s grand jury testimony

about Amar’s alleged inculpatory statement ran afoul of Macias’ confrontation clause rights under Bruton

and similar cases. 

“The mere finding of a violation of the Bruton rule in the course of the trial, however, does not

automatically require reversal of the ensuing criminal conviction.” Schneble v. Florida, 405 U.S. 427, 430

(1972). “In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial

effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable

doubt that the improper use of the admission was harmless error.” Id. “[U]nless there is a reasonable

possibility that the improperly admitted evidence contributed to the conviction, reversal is not required.”

Id. at 432 (citing Chapman v. California, 386 U.S. 18, 24 (1967)) 

In Schneble, the Supreme Court held that the Bruton violation was harmless error because an average

jury would not have found the prosecution’s case “significantly less persuasive” had the extrajudicial

statement been excluded. Id. The independent evidence of guilt was overwhelming, and the admitted

statement at most tended to corroborate certain details of the defendant’s comprehensive confession. Id.

at 431. By contrast, in Marks, this Court found no harmless error because the “government’s case was

largely based upon circumstantial evidence.” Marks, 585 F.2d at 169. “There was no direct evidence of

a common plan [other than] through the testimony of a former co-conspirator.” Id. The Court found that

there was “a reasonable possibility that this evidence would have persuaded an otherwise uncertain jury to

convict.” Id. at 170.

As discussed above, the government’s case against Macias was based solely on circumstantial

evidence. The statements imputed to Amar – that Macias had paid him to bring cocaine to Louisville and

that Macias was supposed to pick up the cocaine from the motel – made the government’s case against

Macias significantly more persuasive because they directly linked Macias to the drug conspiracy. Unlike

in Schneble, the independent evidence of guilt was not overwhelming. Rather, like Marks, the case against

Macias was based on circumstantial evidence, giving rise to a reasonable possibility that the statements

attributed to Amar may have persuaded an otherwise uncertain jury to convict. The district court certainly

made no findings that would detract from this conclusion, instead relying on its suspicion and hope that the

jury probably did not pay much attention to Nunn’s tape-recorded statement. It would be inappropriate to

override Macias’ confrontation rights based on such conjecture.

The government also argues that Macias waived his right to raise the Bruton issue because his

attorney invited the improper testimony from Nunn. “‘The doctrine of ‘invited error’ refers to the principle

that a party may not complain on appeal of errors that he himself invited or provoked the court or the
No. 03-5226 United States v. Macias Page 10

opposite party to commit.’” United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993) (quoting Harvis v.

Roadway Express, Inc., 923 F.2d 59, 60 (6th Cir.1991) (citation omitted in Harvis)). 

The record shows that Macias’ attorney was aware of the very real possibility that Nunn’s grand jury

testimony about Amar’s extrajudicial statement referred to Macias and might implicate him. The trial

transcript shows that Macias’ attorney asked the attorney for his co-defendant, Ferrer, who had sought to

introduce the statement, whether the tape referred to Macias. Ferrer’s attorney responded, “No. I mean,

I don’t know.” Thus, Macias was on notice that the tape might refer to him. There was a one hour recess

before the tape was played before the jury. Macias, however, never listened to the tape in the interim, nor

did he ask the court for time to review it. Arguably, Macias acquiesced in the presentation of this testimony,

making him responsible for any alleged Bruton violation. Cf. Marks, 585 F.2d at 169 (holding that the

defendant did not invite Bruton violation because he had no reason to believe that the non-testifying

witness’ grand jury testimony would be introduced at trial and his attorney had “moved to have the entire

transcript excluded, to require the giving of a limiting instruction, and to prevent the witness from reading

the inculpatory portions of the transcript”).

Although the government’s waiver argument has superficial appeal, courts typically have found

invited error in the Bruton context where the defendant, or his attorney, has taken an affirmative action to

invite the error, such as by introducing the extrajudicial statement at trial or by stipulating to such

statement’s admissibility. E.g., United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003) (holding

that defendant’s attorney invited the admission of the taped extrajudicial statements; “by affirmatively

agreeing to the playing of the tapes, Jernigan effectively caused, i.e., invited, any Bruton error that resulted

from the jury’s hearing them”). Here, however, Macias’ attorney took no such affirmative step. Rather,

he merely failed to listen to the tape in advance and determine whether it referred to his client. This passive

error may be explained by the equivocal “No/I don’t know” answer provided by Ferrer’s attorney when

Macias’ attorney asked about whether the content referred to his client. Given the important constitutional

right at issue, we hold that the invited error doctrine should not apply where neither Macias, nor his

attorney, were on sufficient notice that an extrajudicial, inculpatory statement was likely to be introduced

at trial. Because Macias did alert the district court to the potential for a Bruton violation, it was incumbent

on the court to listen to the tape prior to permitting its introduction. Of course, an attorney cannot simply

“stick his head in the sand” and ignore the very real possibility of a Bruton violation. But here, the fact that

Macias had no idea before trial that such a statement might be introduced, combined with Ferrer’s attorney’s

equivocal answer, raises significant doubt about whether Macias had sufficient notice of this possibility.

Last, we hold that Macias did not invite the Bruton violation by rejecting the district court’s offer

to admonish the jury about Nunn’s testimony. Because Detective Nunn’s statements were so prejudicial

to Macias’ defense, an admonition would have been useless.

III.

For all the foregoing reasons, Macias’ convictions must be REVERSED and this case

REMANDED for a new trial.
No. 03-5226 United States v. Macias Page 11

____________________

CONCURRENCE ____________________

JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur and make two observations. First,

because the testimony given by Detective Nunn about Amar’s statement was untrue, this case does not fit

neatly into the Bruton line of authorities. Even if we applied some other analytical framework to the issue

of admissibility of the testimony, however, the result is clear. Admission of an inculpatory statement that

was never made can hardly be said to jeopardize a defendant’s rights less than admission of one that was

made.

Second, in concluding that the error in admitting the tape was not harmless, it is of particular

importance that the tape was a portion of Nunn’s sworn state grand jury testimony. The jury, which had

no basis for knowing that the testimony was false, would likely believe that such a statement, made by a

law enforcement officer testifying under oath, was entirely truthful. Moreover, the statement clearly refers

to Macias, although it does not use his name. For these reasons, the error was not harmless in my view,

despite the quite substantial circumstantial evidence of guilt.