                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                           File Name: 04a0365p.06

                        UNITED STATES COURTS OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                             X
                                        Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                              -
                                                              -
                                                              -
                                                                  No. 03-5226
             v.
                                                              ,
                                                               >
 RODRIGO MACIAS,                                              -
                                    Defendant-Appellant. -
                                                             N
                              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


       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.

     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.
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 cross-
examine 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 non-
testifying 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 cross-
examining 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 non-
testifying 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 cross-
examination 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.
