In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3628

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN JOSE SILVA,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:02 cr 55-02—Rudy Lozano, Judge.

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ARGUED MAY 17, 2004—DECIDED AUGUST 18, 2004

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Before POSNER, EASTERBROOK, and MANION, Circuit

Judges.

EASTERBROOK, Circuit Judge. Juan Silva was the subject

of an extensive undercover operation that included a

confidential informant, ground and aerial surveillance, and

tape-recorded conversations. A jury convicted Silva of

conspiracy and possession with intent to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C.

§1952. Sentenced to 121 months’ imprisonment, he argues

on appeal that he was convicted on the basis of hearsay and

is entitled to a new trial.

A few examples of the evidence to which he objected will

suffice. Agent Zamora, who coordinated the operation for
2 No. 03-3628

the Drug Enforcement Administration, testified at trial to

conversations conducted between the DEA’s confidential informant (whose identity remained secret and who therefore

did not testify) and an alleged supplier, regarding a future

sale of methamphetamine. Zamora testified that he heard

the supplier (who likewise did not testify) use the name

“Juan” several times during the conversations and that the

informant spoke on several occasions of “this individual

named Juan [who] indicated that he was going to be making

the delivery.” Other testimony elicited from Zamora and

another agent concerned the attempted delivery of a sample

of Silva’s wares and conversations between Silva and the

informant, plus the informant’s observations.

The district judge overruled hearsay objections and instructed the jury that the evidence was “not being offered

for the truth of the matter.” That’s surprising, for the evidence directly inculpated Silva. See Fed. R. Evid. 801(c).

Perhaps its admission could have been justified under the

co-conspirator exception to the hearsay rule. See Fed. R. Evid.

801(d)(2)(E). Yet this is not what the prosecutor contended,

and the judge did not find that the speakers were Silva’s

confederates and that the declarations had been in furtherance of a joint enterprise. See Fed. R. Evid. 401; United States

v. Ferra, 900 F.2d 1057, 1059-60 (7th Cir. 1990).

So to what issue other than truth might the testimony have

been relevant? The prosecutor contends that most of the

statements were admissible to show “the actions taken by

[each] witness”. Allowing agents to narrate the course of

their investigations, and thus spread before juries damning

information that is not subject to cross-examination, would

go far toward abrogating the defendant’s rights under the

sixth amendment and the hearsay rule. This court has warned

against the potential for abuse when police testify to the

out-of-court statements of a confidential informant. See

United States v. Lovelace, 123 F.3d 650 (7th Cir. 1997). See

also McCormick on Evidence §249 (5th ed. 1999). There are

no doubt times when the testimony regarding a tip from an
No. 03-3628 3

informant is relevant. If a jury would not otherwise understand why an investigation targeted a particular defendant,

the testimony could dispel an accusation that the officers

were officious intermeddlers staking out Silva for nefarious

purposes. No such argument was made in this case, however, and no other explanation was given why the testimony

would be relevant. Under the prosecution’s theory, every

time a person says to the police “X committed the crime,”

the statement (including all corroborating details) would be

admissible to show why the police investigated X. That

would eviscerate the constitutional right to confront and

cross-examine one’s accusers. See Crawford v. Washington,

124 S. Ct. 1354 (2004).

Here’s another illustration. Police officer Jocson testified

about a traffic stop of Luis Madrid for speeding. Silva was

a passenger in this car. Jocson, who was unaware when he

stopped Madrid’s car that both Silva and Madrid were the

targets of a federal investigation, testified that a search of

the car turned up a few bundles of cash totaling $16,000

and “some plant-like materials consistent with cannabis”.

He continued: “At that time I called a crime scene technician

to do a vacuum sweep of the trunk area to try to retrieve

some of this plant like material, which we later tested as

positive for cannabis.” The court overruled Silva’s objections

and instructed the jury that the positive test—of which

Jocson had no first-hand knowledge—was “not being offered

for the truth of the matter, but for the actions taken by this

officer only.”

In what way could test results have explained Jocson’s

actions, let alone been relevant to the charges for which

Silva was on trial? Jocson did not find methamphetamine.

He was not aware of the federal investigation, and the lab

tests, which post-dated the traffic stop, could not have “explained” any of Jocson’s actions on the scene. Silva was not

charged with any offense related to marijuana, and none of

the serial numbers on the bills matched the serial numbers

from the cash that had been used in the monitored metham-
4 No. 03-3628

phetamine transaction. So the evidence about events during

and after the traffic stop either was irrelevant or was being

used to show that Silva had a propensity for drug dealing. See

United States v. Beasley, 809 F.2d 1273 (7th Cir. 1987). The

latter explanation seems superior: when the prosecutor asked

Jocson what he thought the cash revealed, Jocson replied

that he thought it “was the result of drug smuggling acts,

which would essentially be proceeds from narcotics transactions.”

Perhaps all of this could be dismissed as harmless. The

record has plenty of admissible evidence, and the judge did

tell the jury that the contested evidence had not been admitted for a substantive use. Come the closing argument,

however, the prosecutor explicitly used some of the hearsay

as evidence of Silva’s guilt. Defense counsel objected to the

violation of the court’s rulings that the evidence was not to

be used to show Silva’s culpability. Instead of sustaining

the objection and giving a curative instruction, see Jones v.

Lincoln Electric Co., 188 F.3d 709 (7th Cir. 1999), the judge

told the jury:

The jury will determine what the evidence shows and

why it was admitted. If it was admitted for a different purpose, they will make that decision. I ruled on

all of that. They heard the evidence. And if the evidence was not admitted for that purpose, they will

so take it into account.

What was the jury to make of this? It left the prosecutor’s

transgressions without correction. Inviting a jury to decide

for itself what evidence to use and how to use it amounts to

abdication by the district judge. The subject before the court

was not merely “what the evidence shows” (a perfectly

acceptable question for the jury) but also whether the evidence

was admissible for the purpose for which the prosecutor was

using it. Bourjaily v. United States, 483 U.S. 171, 175 (1987).

When the prosecutor violated the limitations on the evi-
No. 03-3628 5

dence’s use, the judge had to set things straight. This he

failed to do; instead of enforcing his rulings, he abandoned

them and deferred to the prosecutor and the jurors.

Silva’s brief complained at length about the closing argument and the judge’s failure to stop the prosecutor in his

tracks. The brief for the United States, by contrast, ignored

the subject. The prosecutor has not attempted to justify the

closing argument or the judge’s perplexing instruction. And

by ignoring the subject the United States has forfeited any

opportunity to contend that the error was harmless. We

decline to exercise our discretion to invoke the harmless- error

doctrine on our own. See United States v. Giovannetti, 928

F.2d 225, 226-27 (7th Cir. 1991); United States v. Pryce, 938

F.2d 1343 (D.C. Cir. 1991). Far too much use was made of

hearsay in this trial. Silva is entitled to another.

REVERSED AND REMANDED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-18-04