                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 13-50211
               Plaintiff-Appellee,
                                                    D.C. No.
                    v.                         3:11-cr-04340-H-1

 JUAN MACIAS,
            Defendant-Appellant.                   OPINION


        Appeal from the United States District Court
          for the Southern District of California
         Marilyn L. Huff, District Judge, Presiding

                    Argued and Submitted
             July 10, 2014—Pasadena, California

                         Filed June 15, 2015

 Before: Fortunato P. Benavides,* Kim McLane Wardlaw,
          and Richard R. Clifton, Circuit Judges.

              Opinion by Judge Benavides;
Partial Concurrence and Partial Dissent by Judge Wardlaw




 *
   The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2                  UNITED STATES V. MACIAS

                           SUMMARY**


                           Criminal Law

    The panel affirmed the district court’s judgment in a case
in which the defendant was convicted of being a removed
alien found in the United States and making a false claim of
United States citizenship.

     The panel held that the district court’s admission of an
affidavit, signed by two border patrol agents, amending the
defendant’s delayed registration of birth violated the
Confrontation Clause because the affidavit constituted a
testimonial statement and the government failed to call the
agents to testify. The panel held that the admission
constituted plain error, but did not affect the outcome of the
trial and thus did not affect the defendant’s substantial rights.

    Because the panel concluded that the admission of the
affidavit was harmless, the panel did not address the merits of
the defendant’s evidentiary challenges to its admission.

    Rejecting the defendant’s contention that the prosecutor
drew an improper inference during closing argument by
claiming that the defendant’s delayed birth registration was
a “forgery,” the panel held that the argument that the
document is a fabrication is a reasonable inference from the
evidence, and that the prosecutor’s remarks during closing
argument do not constitute error, much less plain error.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. MACIAS                     3

    The panel held that the defendant failed to show the
multiple errors necessary to prevail on a claim of cumulative
error.

    Judge Wardlaw concurred in part and dissented in part.
She agreed with the majority’s holdings that the district court
violated the defendant’s Confrontation Clause rights by
admitting the amended delayed birth registration, which
contained testimonial statements, and that admission of the
document was error because the government failed to call the
two attesting agents to testify. She wrote that the majority
incorrectly reviews this error under the plain error standard,
disregarding the well-established principle that this court
reviews “de novo whether the admission of a document
violated a defendant’s Confrontation Clause rights.” She
wrote that under that standard the government cannot meet its
burden of proving that the Confrontation Clause error is
harmless beyond a reasonable doubt.


                         COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.

Laura Duffy, United States Attorney, Bruce Castetter,
Assistance United States Attorney, Chief, Appellate Section,
and Charlotte E. Kaiser (argued), Assistant United States
Attorney, San Diego, California, for Plaintiff-Appellee.
4                UNITED STATES V. MACIAS

                         OPINION

BENAVIDES, Circuit Judge:

    This is a direct criminal appeal from convictions for being
a removed alien found in the United States in violation of
8 U.S.C. § 1326 and for making a false claim of United States
citizenship in violation of 18 U.S.C. § 911. Finding no
reversible error, we affirm the district court’s judgment.

    I. FACTUAL AND PROCEDURAL HISTORY

       A. Charged Conduct

    On September 5, 2011, Defendant-Appellant Juan Macias
(“Macias”) was arrested for illegal re-entry near the Tecate,
California, Port of Entry. At approximately 4 o’clock in the
morning, a seismic sensor indicated movement. Border
Patrol Agent Russell Slingerland and two other agents
responded to the location of the sensor. Upon investigation,
they discovered Macias crouched behind boulders and brush
in a steep canyon. Macias initially told the agents that he had
no legal documents to be in the United States and that he
entered by “jumping the [border] fence.” Macias also told the
agents he was from Mexico. However, after Macias was
brought into custody, he agreed to speak to an agent without
an attorney and claimed under oath that he was born in
Riverside, California. He said his mother had told him that
he had been born in Riverside, but because he was born at
home she never “registered” his birth. He claimed that he had
a California birth certificate and was a United States citizen.
However, he did not have the birth certificate with him.
                 UNITED STATES V. MACIAS                     5

       B. First Trial

    On September 27, 2011, a federal grand jury returned a
two-count indictment, charging Macias with being a removed
alien in the United States in violation of 8 U.S.C. § 1326 and
with making a false claim of United States citizenship in
violation of 18 U.S.C. § 911. A jury trial began on June 5,
2012, and on June 8, the district court declared a mistrial due
to a hung jury. During the trial, Macias had submitted a
“delayed registration of birth” document issued by the State
of California, and it provided that he had been born in
Riverside, California. Macias had obtained this delayed
registration of birth document in 1998. After the mistrial,
two of the jurors told the prosecutors that they could not find
Macias guilty because there was no showing that Macias’s
delayed registration of birth document had been invalidated.

       C. Post-trial Investigation of Macias’s Birthplace

    Subsequently, at the request of the prosecutor, two border
patrol agents, Andrew Kahl and Brian Desrosiers, conducted
an investigation regarding Macias’s place of birth. The
agents interviewed Macias’s family members, including his
father, who told them Macias was born in Mexico, and not in
California. The interviews were conducted at Macias’s
parents’ home in Riverside, California.               Through
investigators with the State Department, the agents obtained
a birth certificate showing that Macias was born on October
31, 1960 in Yurecuaro, State of Michoacan, Mexico. That
certificate was dated November 7, 1960. Additionally, the
agents reviewed documents contained in the Macias family’s
immigration files. Macias’s parents’ applications for lawful
permanent residency provided that Macias had been born in
Mexico.
6               UNITED STATES V. MACIAS

    Based on the above information discovered through their
investigation, the agents concluded that Macias had been born
in Mexico and then attempted to correct the birthplace listed
on Macias’s delayed registration of birth. The State of
California has a procedure to amend a delayed registration of
birth. Two individuals with knowledge of the facts may
apply for an amendment if there is an error in the document.
Those two individuals must fill out a notarized sworn
statement and pay a fee. Agent Kahl filled out the form and
both Agents Kahl and Desrosiers signed the affidavit
amending Macias’s delayed registration of birth. The
amending affidavit provided that Macias’s birth actually
occurred in Yurecuaro, Michoacan, Mexico and not
Riverside, California. The agents mailed the affidavit to the
California Office of Vital Records, and it was attached to the
delayed registration of birth on file.

       D. Retrial

   The second jury trial began on July 17, 2012, and once
again, the central issue was whether Macias was born in
Mexico or in California. We now turn to the evidence
admitted at Macias’s retrial.

           1. Birth Documents

    Through the custodian of the California Office of Vital
Records, the government introduced Macias’s delayed
registration of birth and the amending affidavit that had been
executed by the border patrol agents. More specifically, the
evidence showed that in 1998, Macias, then age 37,
completed the application for a delayed registration of birth
and mailed it to the California Office of Vital Records. The
application contained the purported signatures of his mother,
                 UNITED STATES V. MACIAS                       7

Maria Macias (“Maria”), and a family friend, Ernestina
Guerrero (“Guerrero”). The application provided that
Guerrero was present at Macias’s birth on October 31, 1960,
at “home” in Riverside, California. To receive a delayed
registration of birth, the applicant must submit proof of his
place of birth. Macias submitted with his application a copy
of his daughter’s California birth certificate which listed her
father’s (Macias’s) birthplace as California. The California
Office of Vital Records issued the delayed registration of
birth with the above information and mailed it to Macias.

    As set forth previously, in 2012, the agents filed an
amending affidavit, which was attached to the delayed
registration of birth. Although the delayed registration of
birth was admitted at the first trial, the amending affidavit
was not in existence at the time of the first trial. At the time
the government introduced into evidence the delayed
registration of birth with the attached amending affidavit, the
two agents who signed the affidavit had not testified.
However, defense counsel subsequently called Agent Kahl,
and he testified with respect to their investigation of Macias’s
birthplace and the execution of the amending affidavit.

     The government also introduced a copy of the previously
mentioned Mexican birth certificate dated November 7, 1960,
which provided that Macias was born in Mexico on October
31, 1960. Macias’s father, Felipe Macias, Sr. (“Felipe”), had
signed this birth certificate, and there were two witnesses
listed on it. This birth certificate had not been submitted at
the first trial. Felipe testified that Macias was born in
Yurecuaro, Michoacan, Mexico, and that he was present at
Macias’s birth. Eight days after the birth, he and Maria took
Macias to the civil registry and obtained this birth certificate.
He further testified that Maria, who could not read or write,
8                   UNITED STATES V. MACIAS

did not sign the certificate but did place her fingerprint on it.
The birth certificate also contained Felipe’s and Macias’s
fingerprints.1 Consistent with this evidence, one of Macias’s
older brothers, Gil Macias, testified that Macias was born in
Yurecuaro, Michoacan, Mexico.

             2. Parents’ Immigration Files

    In 1987, Felipe and Maria applied for lawful permanent
residency in the United States. Their applications asked
whether their children were United States citizens, and they
checked the box “No” for all their children, including Macias.
The applications provided that all their children were born in
Mexico. The parents were granted lawful permanent
residency and moved the family to Riverside, California.

             3. Macias’s Immigration File

    Border Patrol Agent Kara Reale testified with respect to
the contents of Macias’s immigration file. Macias had been
deported to Mexico many times prior to this trial. Macias
was first deported to Mexico in 1981, at the age of 21.
During those proceedings, Macias requested to be returned to
Mexico, stating that he was a citizen of Mexico.

   In 1988 and 1989, Macias was again deported to Mexico
based on his admissions during deportation proceedings. An
audio recording of the 1988 hearing was played for the jury.

   In 1992, during a deportation hearing, he initially claimed
he was a citizen of Mexico and not the United States,

 1
   The record shows that the government had the fingerprints on this birth
certificate tested but the results were inconclusive.
                 UNITED STATES V. MACIAS                     9

asserting that his father had told him he was born in Mexico.
However, he also stated that his mother’s friend had told him
he was born in Riverside. The immigration judge offered him
an opportunity to present evidence, and Macias responded
that he “will fix that when [he] arrive[s] in Mexico.” The
judge then ordered Macias to be deported to Mexico. An
audio recording of this hearing was played for the jury.

    In 1994, during a deportation hearing, Macias was asked
if he was a citizen of the United States and he responded
negatively. He responded affirmatively when asked whether
he was a native and citizen of Mexico. An audio recording of
this hearing was played for the jury. In July of 1998, Macias
was once again deported to Mexico, after stating that he was
born in Mexico.

    Macias’s immigration file also contained statements
during deportation proceedings in 1997, 1998, and 2004, in
which Macias admitted that he was born in Mexico and was
a citizen of Mexico. Additionally, the government admitted
warrants of removal demonstrating that Macias had been
removed from the United States to Mexico in July 1998,
November 2001, and September 2004. In November 2004,
two months after the last removal proceedings, Macias told an
immigration judge that he was a citizen of the United States.
When the immigration judge asked him about his extensive
deportation history, Macias responded that he had been lying
about being born in Mexico. Macias told the judge that he
did not discover that he was born in the United States until he
was about 18 years old. The judge ordered Macias to be
deported.     Subsequently, in February 2011, during
deportation proceedings, Macias was deported after admitting
he was born in Mexico.
10               UNITED STATES V. MACIAS

           4. Instant Offenses

    As previously set forth, on September 5, 2011, Agent
Slingerland apprehended Macias near the Tecate, California,
Port of Entry. Macias was hiding behind boulders and brush
in a steep canyon. Macias initially stated that he had no legal
documents to be in the United States and admitted that he was
from Mexico. However, once Macias was in custody, he
claimed under oath that he was born in Riverside, California,
but that his mother had not “registered” his birth in California
because he had been born at home. He also claimed that he
had a California birth certificate and was a citizen of the
United States. This conduct forms the basis of the instant
convictions for being a removed alien found in the United
States and for making a false claim of United States
citizenship. 8 U.S.C. § 1326 and 18 U.S.C. § 911.

           5. Verdict

    On July 19, 2012, the jury returned a verdict of guilty on
the two counts. On May 13, 2013, the district court sentenced
Macias to a 46-month sentence as to the illegal re-entry
conviction and a 36-month sentence as to the false claim
conviction, with the sentences running concurrently. Macias
now appeals his convictions.

     II. ANALYSIS

       A. Confrontation Clause Violation

    Macias contends that the district court’s admission of the
border patrol agents’ amending affidavit, which was attached
to his delayed registration of birth, violated his rights under
the Sixth Amendment’s Confrontation Clause.                The
                    UNITED STATES V. MACIAS                            11

Confrontation Clause guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const.
Amend. VI. The Confrontation “Clause forbids ‘admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.’” Ocampo v.
Vail, 649 F.3d 1098, 1107 (9th Cir. 2011) (quoting Crawford
v. Washington, 541 U.S. 36, 53–54 (2004)). In the case at
bar, the government does not claim that the witnesses were
unavailable or that Macias had a prior opportunity to cross
examine them. Thus, the dispute is whether the affidavit
constituted a testimonial statement.

     Generally, we review de novo alleged violations of the
Confrontation Clause. United States v. Bustamante, 687 F.3d
1190, 1193 (9th Cir. 2012). Here, however, although Macias
objected to the admission of the amending affidavit, he did
not object on the basis of a violation of the Confrontation
Clause. In his motion in limine filed just prior to the instant
trial, Macias argued that the government should be precluded
from introducing the border patrol agents’ amending affidavit
based on, among other things, hearsay, lack of personal
knowledge, and impermissible vouching.2 Because Macias


 2
    Although Macias raised a Confrontation Clause argument with respect
to documents contained in the immigration files, he did not raise this
argument in his challenge to the amending affidavit. We note that the
government, in response to Macias’s Confrontation Clause argument as
to the immigration documents, asserted that if Macias was permitted to
introduce the delayed registration of birth without the testimony of the
affiants (his mother and Guerrero), then the government should be allowed
to introduce the immigration documents. The district court interpreted the
government’s argument to be that if the Confrontation Clause did not
preclude the admission of the delayed registration of birth, then it should
12                   UNITED STATES V. MACIAS

failed to preserve the argument by making a Confrontation
Clause objection, this issue should be reviewed for plain
error. United States v. Anekwu, 695 F.3d 967, 972–73 (9th
Cir. 2012) (reviewing Confrontation Clause argument for
plain error). To show plain error, Macias must demonstrate:
(1) error; (2) that is clear or obvious; (3) that affects the
defendant’s substantial rights; and (4) that “the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 973 (internal quotation marks and
citation omitted).3




not preclude the immigration documents. However, we do not believe that
the district court interpreted the government’s argument as actually raising
a Confrontation Clause violation with respect to the amending affidavit.
Cf. United States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012)
(explaining that a brief statement by the prosecutor that the admission of
records does not violate the Confrontation Clause “does not substitute for
a timely and specific Confrontation Clause objection” from the defendant).
Moreover, the record makes clear that the only Confrontation Clause
objection was to the mother’s immigration files because the parties were
initially disputing whether Macias’s mother was unavailable to testify and
not whether the border patrol agents were unavailable to testify. Macias
does not challenge the admission of the documents in the immigration file
on appeal.
     3
        Our dissenting colleague suggests that we must address the
Confrontation Clause claim on the merits because the government has
waived any waiver argument it may have had by failing to assert it. The
“waiver of waiver” doctrine is, however—like waiver generally—a
discretionary doctrine. See Ruiz v. Affinity Logistics Corp., 667 F.3d
1318, 1322 (9th Cir. 2012) (“[T]he rule of waiver is a discretionary one.”)
(citation and internal quotation marks omitted). Which standard of review
to apply is a pure issue of law, id., and, exercising our discretion, we apply
the plain error standard of review notwithstanding the government’s
failure to argue that it should apply.
                 UNITED STATES V. MACIAS                    13

           1. Error

    We must first determine whether the district court erred
in admitting the amending affidavit. Under Crawford, we
address whether the amending affidavit constitutes a
testimonial statement. 541 U.S. at 53–54. In Crawford, the
Supreme Court gave examples of what constituted testimonial
statements:

       [E]x parte in-court testimony or its functional
       equivalent—that is, material such as
       affidavits, custodial examinations, prior
       testimony that the defendant was unable to
       cross-examine, or similar pretrial statements
       that declarants would reasonably expect to be
       used prosecutorially; extrajudicial statements
       . . . contained in formalized testimonial
       materials, such as affidavits, depositions, prior
       testimony, or confessions; statements that
       were made under circumstances which would
       lead an objective witness reasonably to
       believe that the statement would be available
       for use at a later trial.

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

    Relying on Melendez-Diaz v. Massachusetts, 557 U.S.
305 (2009), Macias contends that the amending affidavit was
testimonial and therefore the government had the burden of
calling the agents when it admitted the affidavit. We have
recognized that Melendez-Diaz “stand[s] for the proposition
that ‘[a] document created solely for an ‘evidentiary purpose,’
. . . made in aid of a police investigation, ranks as
testimonial.’” Anekwu, 695 F.3d at 974 (quoting Bullcoming
14               UNITED STATES V. MACIAS

v. New Mexico, 131 S. Ct. 2705, 2717 (2011)) (elipsis and
brackets in original). Here, the border patrol agents created
the affidavit amending Macias’s delayed registration of birth
at the behest of the prosecutor after the first trial resulted in
a hung jury. After the mistrial, two of the jurors indicated
that they had a problem with the delayed registration of birth
document because it had not been invalidated. Thus, it is
clear that an objective witness would reasonably believe that
the agents’ amending affidavit was made for use at a later
trial to invalidate Macias’s delayed registration of birth.
Crawford, 541 U.S. at 51–52. And, indeed, it was used at
Macias’s second trial for that purpose. Thus, the amending
affidavit constituted a testimonial statement made by the
agents.

    Further, in Melendez-Diaz, the Supreme Court explained
that the “Confrontation Clause imposes a burden on the
prosecution to present its witnesses, not on the defendant to
bring those adverse witnesses into court.” 557 U.S. at 324.
The Court opined that the Confrontation Clause’s “value to
the defendant is not replaced by a system in which the
prosecution presents its evidence via ex parte affidavits and
waits for the defendant to subpoena the affiants if he
chooses.” Id. at 324–25. Thus, the Supreme Court has made
clear that the government has the burden of calling witnesses
and allowing the defendant to confront them through cross
examination. Because the amending affidavit constituted a
testimonial statement and the government failed to call the
agents to testify, the admission of the affidavit into evidence
was error.
                 UNITED STATES V. MACIAS                       15

            2. Plain Error

    We next determine whether the error was plain. Macias
relies on this Court’s decision in Bustamante, 687 F.3d at
1190. In that case, the issue before this Court was also
whether the criminal defendant had been born in the United
States. The government introduced a typewritten document
that was labeled as a “copy” of Bustamante’s Philippine birth
certificate. Id. at 1192. The document had been obtained by
the government during its previous investigation into whether
Bustamante was a United States citizen. Id. The document
was neither a photocopy nor a duplicate. Id. It provided:
“This is to certify that according to the record of births in this
office, the following is the copy of the birth certificate of:
Napoleon Bustamante.” Id. The document then transcribed
information from the office’s birth records, stating that
Bustamante was born in the City of Bacolod on February 1,
1939. Id. The document also provided that it was issued in
1975, and was signed by a civil registrar. Id.

     Bustamante objected, arguing that it was inadmissible
under Crawford. Id. at 1193. The district court disagreed and
admitted the document. Id. This Court concluded that the
document was a testimonial statement. Id. at 1194. Although
labeled as a copy, it was an “affidavit testifying to the
contents of the birth records . . . and is functionally identical
to [the] live, in-court testimony that an employee of the Civil
Registrar’s office might have provided.” Id. (citation and
internal quotation marks omitted). Moreover, the document
was created for the investigation into Bustamante’s
citizenship and “made under circumstances which would lead
an objective witness reasonably to believe that the statement
would be available for use at a later trial.” Id. This Court
made clear that its holding did not impugn the “general
16                  UNITED STATES V. MACIAS

proposition that birth certificates, and official duplicates of
them, are ordinary public records ‘created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial.’” Id. (quoting
Melendez-Diaz, 557 U.S. at 324). In contrast, the document
at issue did not merely authenticate an “existing
non-testimonial record;” instead, a new record was created
for the purpose of generating evidence against Bustamante.
Id. Accordingly, the admission of the document without
allowing an opportunity for cross examination violated the
Sixth Amendment’s Confrontation Clause. Id.

    Likewise, in the instant case, the amending affidavit
essentially testified regarding the results of the border patrol
agents’ investigation regarding the place of Macias’s birth.
The amending affidavit was created during an investigation
of Macias’s citizenship and with the intent to use it at
Macias’s second trial. The amending affidavit was created
“for the purpose of providing evidence against” Macias. Id.
Following this Court’s opinion in Bustamante, we are
convinced that the admission of the amending affidavit was
clear or obvious error. Thus, the admission constitutes plain
error.4

              3. Substantial Rights

   The next question is whether the admission of the
amending affidavit affected Macias’s substantial rights.
Ordinarily, an error has affected an appellant’s substantial


  4
    We recognize that the instant trial took place prior to the issuance of
the Bustamante opinion. Nonetheless, the Supreme Court has held that an
error is plain if it is contrary to the law at the time of appeal. Henderson
v. United States, __ U.S. __, 133 S. Ct. 1121, 1130–31 (2013).
                 UNITED STATES V. MACIAS                    17

rights when the error “affected the outcome of the district
court proceedings.” United States v. Lopez, 762 F.3d 852,
863 (9th Cir. 2014). Ultimately, we conclude that the
admission of the affidavit did not affect the outcome of the
proceedings in light of (1) Agent Kahl’s testimony at trial
explaining the agents’ investigation that culminated in their
execution of the amending affidavit and (2) the overwhelming
evidence that Macias was born in Mexico.

     As previously explained, because the amending affidavit
was testimonial, Macias had the right to confront the affiants,
Border Patrol Agents Kahl and Desrosiers. The district court
admitted the affidavit attached to the delayed registration of
birth during the government’s case-in-chief prior to Macias
having the opportunity to confront either witness. However,
during the presentation of his defense, Macias called Agent
Kahl and questioned him regarding his role in executing the
amending affidavit. Thus, Macias was able to belatedly
confront Agent Kahl. Indeed, when the prosecutor objected
to Macias’s questioning as leading, defense counsel
responded that he was “calling an opponent party witness.
It’s an adverse witness. I’m permitted to cross.” The district
court overruled the objection as to leading and allowed
Macias to ask the leading question. Thus, Macias was
allowed to cross examine Agent Kahl in front of the jury.

    Although Macias was able to confront Agent Kahl, Agent
Desrosiers did not testify. However, there is no indication
that Agent Desrosiers’s testimony would be anything but
cumulative of Agent Kahl’s testimony. Agent Kahl testified
that the prosecutor requested assistance in investigating
Macias’s citizenship and nationality. Agents Kahl and
Desrosiers together went to the home of Macias’s parents and
interviewed the family. Both agents reviewed documents
18                   UNITED STATES V. MACIAS

from the family’s immigrations files. Additionally, Agent
Kahl testified that the State Department investigators located
Macias’s Mexican birth certificate. Based on the agents’
interviews with Macias’s family, their review of the
documents in the family’s immigration files and Macias’s
Mexican birth certificate, the agents concluded that Macias
was born in Mexico. Agent Kahl then executed the affidavit
amending Macias’s delayed registration of birth. The
amending affidavit provides that Macias was born in Mexico
and not in Riverside, California. The affidavit further states
as follows: “Mexican birth certificate has been obtained by
U.S. Government. Father Felipe Guzman Macias confirms
son born in Mexico. Father[’s] and Mother’s alien
registration files show Johnny Chaboya Macias [was] born in
Mexico.” As such, the amending affidavit itself provides the
source of the information that the agents relied upon in
coming to their conclusion that Macias was born in Mexico.5
Significantly, Macias’s father testified at trial that Macias was
born in Mexico, and the documentary evidence cited by the
agents in the affidavit was before the jury. As such, the jury
had before it admissible evidence explaining the agents’
stated reasons for executing the amending affidavit.

    In determining whether the failure to confront Agent
Desrosier and the belated confrontation of Agent Kahl
affected the outcome of Macias’s trial, it is important to keep
in mind what was actually contested at trial. Although
Macias objected to the admission of the Mexican birth


 5
   Both agents signed the affidavit stating that they certified under penalty
of perjury that they had personal knowledge of the facts in the affidavit.
Agent Kahl testified that although he was not present at Macias’s birth, he
conducted an investigation and believed that he did “have personal
knowledge as to [Macias’s] place of birth.”
                 UNITED STATES V. MACIAS                      19

certificate as “not certified,” Macias did not dispute that his
father had obtained the birth certificate. Indeed, Macias
called an immigration lawyer to testify that it was common
for Mexican parents to register their children in Mexico even
if the child had been born in the United States. The
immigration lawyer explained that parents would register the
child in Mexico so that the child could obtain an education
and other benefits that are given to Mexican citizens. During
closing argument, defense counsel stated that it is “very
common” for a child to be “born in the United States but to
be registered in Mexico, because a baby unregistered in
Mexico can’t be vaccinated, can’t go to school, can’t get
healthcare and can’t enjoy the legal and social benefits
without that registration.” Accordingly, Macias did not
actually dispute the fact that Macias’s father obtained the
Mexican birth certificate.

     Additionally, in his brief, Macias admits that his parents
listed his birthplace as Mexico on their applications for lawful
permanent residency. Macias also admits that he has been
“deported on numerous occasions beginning in 1981” and
that he claimed to be a citizen of Mexico during some of
those deportation proceedings.

    Attempting to show harm, Macias argues that the
principal difference between the first trial and the second trial
is the introduction of the amending affidavit. Macias is
correct that the amending affidavit was only admitted at the
retrial. Likewise, the Mexican birth certificate was only
admitted at the retrial, and Macias fails to recognize the
importance of that document. The importance of the Mexican
birth certificate is magnified when, at trial, the defense
essentially admitted that his father registered him when he
was barely a week old in Yurecuaro, which is over 1,500
20                  UNITED STATES V. MACIAS

miles from Riverside, California.6 The importance of the
Mexican birth certificate is further magnified by the
testimony of the custodian of the delayed registration of birth.
The custodian testified that if her office had been provided
with either Macias’s Mexican birth certificate or his
deportation orders, it would not have issued him a delayed
registration of birth. Macias does not dispute the validity of
the Mexican birth certificate or the deportation orders. Thus,
the custodian’s testimony that these documents would have
precluded the issuance of Macias’s delayed registration of
birth essentially eviscerates his defense.

    To summarize, the following evidence admitted at trial
convinces us that the Confrontation Clause violation did not
affect the outcome of the trial and thus did not affect
Macias’s substantial rights. Macias’s father testified that he
was present at Macias’s birth in Mexico. His father also
confirmed the authenticity of the Mexican birth certificate,
which was obtained when Macias was one week old. Macias
admitted that he was a citizen of Mexico in deportation
proceedings that occurred both before and after he obtained
the delayed registration of birth. With respect to Macias’s
delayed registration of birth document, neither affiant
testified. Moreover, Macias’s mother’s application for
residency provided that Macias was born in Mexico, which
conflicts with the birthplace listed in the delayed registration
of birth document. With respect to the amending affidavit, as
set forth above, Macias was able to cross examine one of the
agents as to the agents’ joint investigation and the evidence


 6
   We may take judicial notice of the distance between the two locations.
See Cervantes v. United States, 263 F.2d 800, 804 n.5 (9th Cir. 1959)
(noting that “we take judicial notice of the fact that San Clemente is more
than seventy miles from the nearest port of entry from Mexico”).
                   UNITED STATES V. MACIAS                           21

they relied upon to execute the amending affidavit. Under
those circumstances, we are convinced that the error did not
affect the outcome of the trial. Macias has not shown that his
substantial rights were affected.7

         B. Evidentiary Challenges to Amending Affidavit

    Macias raises four more arguments challenging the
admission of the same amending affidavit discussed above.
More specifically, Macias contends that the amending
affidavit should have been excluded because: (1) it
constituted inadmissible hearsay; (2) its probative value was
substantially outweighed by a danger of unfair prejudice;
(3) its affiants lacked personal knowledge; and (4) it was an
improper attempt to have one witness testify as to another
witness’s credibility. Unlike Macias’s Confrontation Clause
argument, these four evidentiary objections are preserved for
appeal.

    Where there has been a nonconstitutional error, we must
reverse “unless there is a ‘fair assurance’ of harmlessness or,
stated otherwise, unless it is more probable than not that the
error did not materially affect the verdict.” United States v.
Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc)
(quoting United States v. Crosby, 75 F.3d 1343, 1349 (9th
Cir. 1996)). In the preceding discussion at II.A.3, supra, we
concluded that the admission of the affidavit did not affect
the outcome of the proceedings. We recognize that the
preceding discussion involved a different assignment of the


 7
   Because the error did not affect Macias’s substantial rights, we need
not reach the fourth prong of the plain error test, which is whether the
“error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Anekwu, 695 F.3d at 973.
22                UNITED STATES V. MACIAS

burden of proof with respect to whether the verdict was
affected. In the preceding discussion, under the plain error
standard, Macias had the burden of showing that the verdict
was affected.       For these four preserved evidentiary
challenges, the government has the burden of showing that
the verdict was not affected by the affidavit. We conclude
that based on the same evidence and reasons set forth in our
discussion in II.A.3, supra, the government has shouldered its
burden of demonstrating that it is more probable than not that
the error did not materially affect the verdict. Because we
conclude that the admission of this affidavit is harmless error,
we need not address the merits of these evidentiary
objections. See United States v. Bishop, 1 F.3d 910, 911 (9th
Cir. 1993) (explaining that the Court need not reach the
merits of the claim that the evidence was inadmissible
because any error was harmless).

        C. Prosecutorial Misconduct

    Macias contends that the prosecutor drew an improper
inference in closing argument by claiming that Macias’s
delayed birth registration was a “forgery.” Macias recognizes
that because defense counsel failed to object to the argument,
the claim is reviewed for plain error. To show plain error,
Macias must demonstrate that: (1) there was error; (2) the
error was plain; and (3) the error affected substantial rights.
United States v. Geston, 299 F.3d 1130, 1134–35 (9th Cir.
2002); Olano, 507 U.S. at 730–32. “Under this standard, a
conviction can be reversed only if, viewed in the context of
the entire trial, the impropriety seriously affected the fairness,
integrity, or public reputation of judicial proceedings, or
where failing to reverse a conviction would result in a
miscarriage of justice.” Geston, 299 F.3d at 1135 (internal
quotation marks and citation omitted).
                 UNITED STATES V. MACIAS                     23

    Referring to the delayed birth registration during closing
argument, the prosecutor called the document a “complete
fabrication.” He further asserted that “[i]t wasn’t the mom
who signed it. This is a forgery in and of itself.” He further
argued that Macias’s mother would have signed it “Maria
Chaboya” as opposed to “Maria Macias.” He then stated that
“[w]hat probably happened here—and I wasn’t there. None
of us were there. What probably happened is the Defendant
decided he’s going to fill this form out and he puts a signature
down there.”

    In response to the prosecutor’s forgery accusation,
defense counsel explained during closing argument that
Macias’s mother’s full name was “Maria Chaboya de
Macias” and invited the jury to compare Maria’s signature on
the delayed registration of birth with her signature on the
application for lawful permanent residency. Defense counsel
argued that the name “‘Maria’ looks exactly the same in both
of the applications.”

    “Prosecutors have considerable leeway to strike hard
blows based on the evidence and all reasonable inferences
from the evidence.” United States v. Sullivan, 522 F.3d 967,
982 (9th Cir. 2008) (citation and internal quotation marks
omitted); cf. United States v. Necoechea, 986 F.2d 1273, 1276
(9th Cir. 1993) (explaining that prosecutors may argue in
closing argument that one side is lying if the argument is
based on reasonable inferences).

    The principal issue in this case is whether Macias was
born in the United States. The theory of the government’s
case was that the delayed registration of birth was obtained by
fraud. During closing argument, the prosecutor relied heavily
on the Mexican birth certificate, arguing that the certificate
24                  UNITED STATES V. MACIAS

“in and of itself is conclusive” as to Macias’s place of birth.
The prosecutor also emphasized that the only trial witness
who was present at Macias’s birth was Felipe, who testified
that it took place in Mexico. Additionally, Macias’s older
brother Gil testified that Macias was born in Mexico. The
prosecutor then pointed out that during a previous deportation
proceeding Macias had claimed that a family friend told him
he was born in Riverside, California. However, during the
instant deportation proceedings, Macias changed his story by
claiming that it was his mother who told him that he was born
in Riverside. Further, although Macias claimed to have
learned of his true birthplace when he was 18 years old, he
did not obtain the delayed birth registration until
approximately 20 years later—after several deportations.
Additionally, Macias made numerous sworn statements
during immigration proceedings that he was born in Mexico
and was a Mexican national.

    The prosecutor attacked the validity of the delayed
registration of birth by stating that Maria could neither read
nor write.8 He also pointed out that the State of California
does not verify signatures on the delayed registrations of
birth.

    The evidence before the jury made it abundantly clear that
the issue was whether Macias was born in the United States
and that the prosecutor’s position was that the Mexican birth
certificate was genuine. The evidence demonstrated that it
was Macias who obtained the delayed birth registration.



 8
   Felipe had testified that Maria could neither read nor write. Likewise,
during his post-arrest interview, Macias stated under oath that his mother
“didn’t know how to read or write.”
                 UNITED STATES V. MACIAS                     25

Thus, the inference that can be drawn from the evidence is
that Macias falsely procured the delayed birth registration.

    Although there is no direct evidence that it was actually
Macias who signed his mother’s name on the delayed
registration of birth, there is strong evidence demonstrating
that Macias was born in Mexico, including the Mexican birth
certificate, the immigration files, and Macias’s father’s and
brother’s testimonies. We conclude that the argument that
the document is a fabrication is a reasonable inference from
the evidence. Sullivan, 522 F.3d at 982. Accordingly, the
prosecutor’s remarks during his closing argument do not
constitute error, much less plain error.

       D. Cumulative Error

     Finally, Macias contends that the combined effect of the
above-discussed alleged errors rendered his trial
fundamentally unfair. “In some cases, although no single
trial error examined in isolation is sufficiently prejudicial to
warrant reversal, the cumulative effect of multiple errors may
still prejudice a defendant.” United States v. Frederick,
78 F.3d 1370, 1381 (9th Cir. 1996). If the “government’s
case is weak, a defendant is more likely to be prejudiced by
the effect of cumulative errors.” Id.

    As set forth previously, we hold that the admission of the
amending affidavit did violate the Confrontation Clause, but
that it did not constitute plain error that affected Macias’s
substantial rights. With respect to the nonconstitutional
challenges to the amending affidavit, we explained above that
any error is harmless. Although Macias challenges the
admission of the amending affidavit on numerous grounds, it
is an admission of a single document. Further, the
26              UNITED STATES V. MACIAS

prosecutor’s remarks did not constitute an error. Macias has
failed to show the multiple errors necessary to prevail on a
claim of cumulative error.

     III.   CONCLUSION

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



WARDLAW, Circuit Judge, concurring in part and dissenting
in part:

    I agree with the majority that the district court violated
Macias’s Confrontation Clause rights by admitting the
Amended Delayed Birth Registration, which contained the
Border Patrol agents’ testimonial statements that Macias was
born in Mexico. The majority also correctly holds that the
district court’s admission of the document where the
government failed to call the two attesting Border Patrol
agents to testify at Macias’s trial was error. However, the
majority incorrectly reviews this error under the plain error
standard, concluding that although the error was “plain,” it
did not affect Macias’s substantial rights. The majority
disregards the well-established principle that we “review de
novo whether the admission of a document violated a
defendant’s Confrontation Clause rights.” United States v.
Bustamante, 687 F.3d 1190, 1193 (9th Cir. 2012). Under that
standard, “[t]he government bears the burden of proving that
a Confrontation Clause error is harmless beyond a reasonable
doubt.” Id. at 1195. The government cannot meet that
burden here.
                  UNITED STATES V. MACIAS                      27

                               A.

    Macias’s opening brief argues that the standard of review
of the Confrontation Clause error is “de novo” review. The
government’s answering brief agrees: It states that “[t]his
court reviews ‘[t]he district court’s resolution of
Confrontation Clause claims’ de novo,” citing United States
v. Berry, 683 F.3d 1015, 1020 (9th Cir. 2012) (“The district
court’s resolution of Confrontation Clause claims is reviewed
de novo.”). The government further agrees that it bears the
burden of proving that the error was harmless beyond a
reasonable doubt, citing United States v. Tuyet Thi-Bach
Nguyen, 565 F.3d 668, 675 (9th Cir. 2009) (“The prosecution
bears the burden of proving the error was harmless beyond a
reasonable doubt.”). The answering brief then addresses the
merits of Macias’s Confrontation Clause claim for the next
five pages.

    This is classic “waiver of waiver.”             Where the
government elects to address an unpreserved claim on the
merits rather than to argue that the defendant waived the
claim by failing to object on that basis in the trial court, it is
deemed to waive the waiver. In United States v. Doe, 53 F.3d
1081 (9th Cir. 1995), for example, the government, as here,
failed to argue waiver in its briefs or at oral argument, but
instead urged us to reach the merits of the claim. We
concluded that the “government ha[d] ‘waived’ any waiver
argument it may have had.” Id. at 1083. Citing Oklahoma
City v. Tuttle, 471 U.S. 808, 815–16 (1985), we reasoned that
“[w]aiver does not divest the Court of jurisdiction it
otherwise enjoys.” Rather, “[w]aiver is a creature of judicial
policy, informed in this purely federal context by concerns of
fairness, finality, and economy.” Id. at 1082. Similarly, in
Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2009), the
28                   UNITED STATES V. MACIAS

plaintiff did not argue waiver, in the sense of failing to
preserve an objection, but addressed the question of qualified
immunity on the merits. We held that “[i]t is well-established
that a party can waive waiver implicitly by failing to assert
it,” and that the plaintiff “waived the defendants’ waiver by
addressing the claim on the merits without also making a
waiver argument.” Id. at 1068 (internal quotation marks
omitted); see also Graham-Sult v. Clainos, 756 F.3d 724, 747
n.16 (9th Cir. 2013) (“[Defendants] did not raise [a defense]
in their motions or replies in the district court. However,
Plaintiffs have not argued that [Defendants] waived this
argument, and have therefore waived the opportunity to
object on that ground.”); United States v. Garcia-Lopez,
309 F.3d 1121, 1123 (9th Cir. 2002) (“[T]he government can
‘waive waiver’ implicitly by failing to assert it[.]”); United
States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) (“This
court will not address waiver if not raised by the opposing
party.”); United States v. Lewis, 787 F.2d 1318, 1323 n.6 (9th
Cir.) amended by 798 F.2d 1250 (9th Cir. 1986) (refusing to
address the government’s waiver argument, raised for the first
time in its petition for rehearing, because the government had
failed to argue waiver in its briefs or at oral argument).

    Given that the government elected to argue the
Confrontation Clause issue on the merits, and the novel and
fairly egregious circumstances by which the inadmissible
evidence was created, we not only can, but should, address
the Confrontation Clause claim on its merits.1 The


 1
   The majority articulates no reason for exercising its discretion to ignore
the government’s waiver of the plain error standard of review and its
express reliance on the de novo review standard. Indeed, there is no
reason why our court should not exercise its discretion to address the
merits of Macias’s Confrontation Clause objection here, and every reason
                     UNITED STATES V. MACIAS                              29

Confrontation Clause is a “bedrock procedural guarantee,”
Crawford v. Washington, 541 U.S. 36, 42 (2004), which
courts should make every effort to preserve.2

    The government admits it created the Amended Delayed
Birth Registration to bolster its case against Macias. At
Macias’s first trial on these charges, the court admitted
Macias’s Delayed Birth Registration. A Border Patrol agent,
Joel Mata, Jr., testified that he had attempted to “cancel”
Macias’s Delayed Birth Registration by stamping the word


why it should. We have found three exceptions to the waiver rule even
where the “waiver” has not been waived: “(1) [] the exceptional case in
which review is necessary to prevent a miscarriage of justice or to
preserve the integrity of the judicial process, (2) when a new issue arises
while appeal is pending because of a change in the law, and (3) when the
issue presented is purely one of law and either does not depend on the
factual record developed below, or the pertinent record has been fully
developed.” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1323 (9th
Cir. 2012) (internal quotation marks omitted). Deciding the Confrontation
Clause issue here is necessary “to preserve the integrity of the judicial
process.” Whether the admission of the Amended Delayed Birth
Registration violated the Confrontation Clause is a purely legal question.
And, because the issue was addressed by both parties on the merits,
neither is prejudiced by our addressing it. See Ackerman v. W. Elec. Co.,
860 F.2d 1514, 1517 (9th Cir. 1988) (addressing a waived issue on the
merits, stating “[t]he issue has been thoroughly briefed and argued here,
and [appellant] has not objected to our consideration of it,” and concluding
that, “[b]ecause the issue is one of law and there is no deficiency in the
record relating to it, we exercise our discretion to entertain the question”).
  2
     Addressing the hearsay rule embedded in the Confrontation Clause,
Chief Justice Marshall wrote, “I know of no principle in the preservation
of which all are more concerned. I know none, by undermining which,
life, liberty and property, might be more endangered. It is therefore
incumbent on courts to be watchful of every inroad on a principle so truly
important.” United States v. Burr, 25 F.Cas. 187, 193 (No. 14,694) (CC
Va. 1807) (Marshall, C. J.). So too here.
30                   UNITED STATES V. MACIAS

“Canceled” on a copy of it and submitting it to the California
Department of Vital Records (the “Vital Records
Department”).3 The government then called a representative
from the Vital Records Department, which had rejected the
purported “cancellation,” who explained that the Delayed
Birth Registration could be changed only by amendment.
The first jury hung and the court declared a mistrial. The
prosecution then spoke to several jurors who revealed that the
two jurors responsible for hanging the jury believed that the
government should have followed the procedures outlined by
the Vital Records Department’s representative; that is, that
the government should have sought an amendment to
Macias’s Delayed Birth Registration.

    Before the second trial, at the prosecutor’s direction, two
other Border Patrol agents, whom the government did not call
to testify at the second trial, Brian Desrosiers and Andrew
Kahl, generated the Amended Delayed Birth Registration by
submitting an affidavit attesting that Macias was born in
Mexico, not Riverside.4 The affidavit listed evidence the


 3
   Mata also testified at the first trial that Macias admitted to him that he
was a citizen of Mexico, and that he previously had personally removed
Macias to Mexico. Evidently, Mata’s testimony was insufficient to
establish Macias’s Mexican citizenship.
     4
     The agents certified “under penalty of perjury” in the Amended
Delayed Birth Registration that they had “personal knowledge” of the
facts and information they used to amend the birth certificate, including
the location of Macias’s birth. The agents did not have personal
knowledge that Macias was born in Yurecuaro, Mexico, so they not only
ginned up the evidence; they fudged in doing so. See United States v.
Lopez, 762 F.3d 852, 863 (9th Cir. 2014) (“Personal knowledge means
knowledge produced by the direct involvement of the senses.”). The
Assistant U.S. Attorney frankly acknowledged that the agents submitted
the affidavit at her direction; we must presume she understands the legal
                    UNITED STATES V. MACIAS                            31

prosecution planned to (and did) introduce at the second trial
as the “reason for correction” or “amendment” of the Delayed
Birth Registration. Thus, the government fabricated the very
evidence—the Amended Delayed Birth Registration—it
thought it would need to secure Macias’s conviction the
second time around.

                                    B.

    The government argues that it was not a violation of
Macias’s Confrontation Clause rights to admit the Amended
Delayed Birth Registration on several bases, none of which
is availing.5 First, the government argues that there was no
Confrontation Clause violation because the Amended
Delayed Birth Registration, once filed, became part of
Macias’s Delayed Birth Registration. Citing Crawford, the
government agrees that testimonial evidence may not be
presented at trial unless the defendant has the opportunity to
cross-examine the witness. See 541 U.S. at 59 (“Testimonial
statements of witnesses absent from trial have been admitted
only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.”).
The government, however, argues that the Amended Delayed
Birth Registration is non-testimonial. Relying on our
decision in United States v. Bahena-Cardenas, 411 F.3d 1067
(9th Cir. 2005), for the proposition that birth certificates are


meaning of “personal knowledge,” and that she was aware that the agents
lacked personal knowledge of the circumstances of Macias’s birth.
 5
   There were a host of other problems with the Amended Delayed Birth
Registration raised by Macias in his motion in limine. Macias argued that
the Amended Delayed Birth Registration was hearsay, that the agents
lacked personal knowledge of the facts to which they attested, and that the
statements constituted impermissible prosecutorial vouching.
32               UNITED STATES V. MACIAS

non-testimonial, see id. at 1075 (holding that a “warrant of
deportation is no different than a birth certificate or any other
public record which constitutes the routine cataloguing of an
unambiguous factual matter”), the government asserts that the
Amended Delayed Birth Registration is part of Macias’s birth
record and that it is, for that reason, non-testimonial.

    The government’s position is formalistic: it hinges on the
label “birth certificate,” without analyzing whether the
relevant statements were made under circumstances in which
an objective witness would be reasonably led to believe that
they would be used in future litigation. See Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 309–10 (2009) (one
formulation of “the class of testimonial statements covered by
the Confrontation Clause” is “‘statements that were made
under circumstances which would lead an objective witness
reasonably to believe that the statement would be available
for use at a later trial.’” (quoting Crawford, 541 U.S. at 52)).
The Amended Delayed Birth Registration was clearly not the
routine, objective, cataloguing of a particular factual matter
contemplated in Bahena-Cardenas, but was, instead a
document prepared at the prosecutor’s behest “in anticipation
of litigation.” 411 F.3d at 1075. Though birth certificates
routinely catalogue unambiguous factual matters in general,
the Amended Delayed Birth Registration did not. Instead, it
captured two Border Patrol agents’ conclusions on a
particular factual matter—the location of Macias’s birth—
after their review of certain evidence. Thus, even if the
Amended Delayed Birth Registration is properly considered
part of Macias’s birth certificate, it remains testimonial in
nature.

   Second, the government asserts that there was no
Confrontation Clause violation because California
                 UNITED STATES V. MACIAS                      33

Department of Public Health section chief Karen Roth
testified during Macias’s second trial. Roth was called to—
and did—testify that the Amended Delayed Birth Registration
is part of Macias’s official birth record. The government
argues that because Roth so testified at trial, Macias’s
argument that a Confrontation Clause violation occurred is
“illusory.” That Roth testified is entirely irrelevant, however:
the testimonial statements in the Amended Delayed Birth
Registration were made by Agents Kahl and Desrosiers, not
Roth. Roth’s general testimony regarding the effect of the
agents’ amendment on Macias’s birth record does nothing to
remedy the government’s failure to call the actual
affiants—Agents Kahl and Desrosiers—to the stand during
the second trial.

    Third, the government argues that if the Amended
Delayed Birth Registration is testimonial then, “under
Macias’ very own reasoning,” so is the Delayed Birth
Registration. The government contends that, like the
Amended Delayed Birth Registration, the Delayed Birth
Registration contains Macias’s “self-serving” statement as to
his birthplace, along with the signatures of two other
individuals who attested to their presence at Macias’s birth.
The government argues that, under Crawford, an objective
witness would reasonably be led to believe the Delayed Birth
Registration might be used in future litigation. This argument
is a non-sequitur, however. Only Macias, and not the
government, has a constitutional right to confront the
witnesses against him. See U.S. CONST. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.”) (emphasis
added); Crawford, 541 U.S. at 59 (“Testimonial statements of
witnesses absent from trial have been admitted only where
the declarant is unavailable, and only where the defendant has
34               UNITED STATES V. MACIAS

had a prior opportunity to cross-examine.”) (emphasis added).
Thus, even if Macias’s Delayed Birth Registration is
testimonial, its admission does not violate the Confrontation
Clause.

                              C.

     The government cannot show that the admission of the
Amended Delayed Birth Certificate was “harmless beyond a
reasonable doubt.” Tuyet Thi-Bach Nguyen, 565 F.3d at 675.
The jury hung at the first trial, and the material difference
between the two trials was the admission of the Amended
Delayed Birth Registration. Thus, its admission cannot be
harmless beyond a reasonable doubt. See United States v.
Geston, 299 F.3d 1130, 1136 (9th Cir. 2002) (“[Defendant’s]
first trial, which did not include the improper questioning,
resulted in a mistrial, with the jury unable to reach a verdict.
This circumstance leads us to conclude that the improper
questioning impacted [Defendant’s] due process rights.”);
United States v. Thompson, 37 F.3d 450, 454 (9th Cir. 1994)
(emphasizing that the hung jury after the first trial was
“persuasive evidence that the district court’s error [in the
second trial] affected the verdict,” and declining to find
harmless error); United States v. Schuler, 813 F.2d 978, 982
(9th Cir. 1987) (“Moreover, particularly in view of the prior
hung jury, we conclude that the error [at the defendant’s
second trial] was not harmless beyond a reasonable doubt.”).
Indeed, a comparison of the two trials reveals that
substantially similar evidence was presented at each: at both
trials, Macias’s father, Felipe, testified that Macias was born
in Mexico; at both trials, Macias’s Delayed Birth Registration
was presented, along with his parents’ applications for lawful
permanent residency, in which Macias was listed as having
been born in Mexico; and, at both trials, Macias’s deportation
                 UNITED STATES V. MACIAS                      35

history was presented, with particular emphasis on the
number of times that, during those proceedings, he claimed
to have been born in Mexico. The material difference
between the first and second trials was the admission of the
Amended Delayed Birth Registration—a literally new piece
of evidence created to secure Macias’s conviction.

    The government argues that there was a litany of
differences between the two trials. These included, according
to the government, the decision to call certain new witnesses,
including Macias’s brother Gil Macias, and not call others,
specifically Mata. But the decision not to call Mata, whose
testimony was obviously not credited by the jury at Macias’s
first trial, is not one which shows the harmlessness of the
admission of the Amended Delayed Birth Registration. And
Gil Macias’s testimony was of little help to the government,
as he testified that he was unable to remember Macias’s birth.
The government also points to the alteration of its exhibit list,
including the decision to present recordings from Macias’s
removal hearings before the Immigration Judge, and to the
fact that the jury received a new instruction at the conclusion
of the second trial. But the government never explains why
any of these differences prove the improper admission of the
Amended Delayed Birth Registration harmless beyond a
reasonable doubt.

    Nor is there any basis to conclude beyond a reasonable
doubt that the admission of Macias’s Mexican birth
certificate, rather than the erroneous admission of the
Amended Delayed Birth Registration, was responsible for the
change in outcome from Macias’s first trial to the second. In
fact, expert testimony proffered at Macias’s second trial
demonstrated that the existence of a Mexican birth certificate
is not determinative of an individual’s birthplace: Alejandro
36                 UNITED STATES V. MACIAS

Osuna, a professor of law in Mexico, testified that it was
common practice at the time of Macias’s birth for Mexican
parents of children born in the United States to register their
children’s birth in Mexico as well. Osuna testified that
obtaining a Mexican birth certificate was critical to the
child’s access to education, health, and even property
ownership in Mexico. Osuna’s testimony thus demonstrated
the relative insignificance of Macias’s Mexican birth
certificate to the determination of his citizenship.

    Consideration of other factors under the harmless error
analysis similarly points to the conclusion that the
Confrontation Clause error was not harmless beyond a
reasonable doubt. See Tuyet Thi-Bach Nguyen, 565 F.3d at
675 (“‘Whether an error is harmless depends on a variety of
factors, including whether the testimony was cumulative, the
presence or absence of [evidence] corroborating or
contradicting the testimony on material points, the extent of
cross-examination, and of course, the overall strength of the
prosecution’s case.’” (quoting United States v. Mayfield,
189 F.3d 895, 906 (9th Cir. 1999))). The Amended Delayed
Birth Registration was not cumulative, as no other evidence
was offered to amend Macias’s Delayed Birth Registration,
or to alter its significance. And while certain corroborating
evidence, cited by the agents in the Amended Delayed Birth
Registration as the basis for the amendment, was presented at
the second trial,6 such evidence did not purport to amend the
birth certificate. Furthermore, no cross-examination of Agent


 6
    This evidence, as the majority points out, included the government’s
acquisition of Macias’s Mexican birth certificate, Macias’s father’s
statement that Macias was born in Mexico, and Macias’s parents’
applications for lawful permanent residency stating that Macias was born
in Mexico.
                UNITED STATES V. MACIAS                    37

Kahl or Agent Desroiers occurred. That Macias called Agent
Kahl to the stand and was permitted, on direct examination,
to ask him certain leading questions does not render Macias’s
inability to cross-examine both agents harmless.

    Furthermore, the Amended Delayed Birth Registration
was critical to the prosecution’s case. See id.; see also
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (stating
that “the importance of the witness’ testimony in the
prosecution’s case” is one factor to be considered in
determining whether a Confrontation Clause error is
harmless). The government relied heavily on the Amended
Delayed Birth Registration in its case-in-chief, asking Roth
a series of questions about its significance to the Delayed
Birth Registration. The government stressed that the Delayed
Birth Registration was now a “two-page document” that had
been amended pursuant to procedures developed by the state
of California, and which reflected that Macias was “born at
a home in Michoacan, Mexico.” In its closing argument, the
government repeated its refrain, urging that “[w]e need to be
clear that the document on record with the State of California
as we sit here today has two pages.” Then, almost
defensively, the government argued that Agents Kahl and
Desrosiers did “exactly what the representative from the State
of California suggested happen,” when they amended
Macias’s Delayed Birth Registration.

    The Amended Delayed Birth Registration purported to
show that Macias’s Delayed Birth Registration—the strongest
piece of evidence in his favor—had been amended to reflect
that his actual birthplace was Mexico, not California. To
highlight, as the majority does, the mere strength of the
evidence supporting the government’s case at the second trial
misses the mark, because there was equally strong evidence,
38               UNITED STATES V. MACIAS

presented by the government at the first trial, that Macias was
born in Mexico. And we know that the evidence in the first
trial was countered by evidence of sufficient strength to
create a reasonable doubt in the minds of two jurors. The
admission of the Amended Delayed Birth Registration at the
second trial in violation of the Confrontation Clause negated
the strength of the defense evidence, resulting in a conviction.
The government cannot demonstrate that the Crawford error
was harmless beyond a reasonable doubt. Thus, the judgment
of conviction should be reversed, not affirmed.
