                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                            No. 13-50033
                  Plaintiff-Appellee,
                                                        D.C. No.
                       v.                            3:11-cr-01451-
                                                        MMA-1
 ARTURO ESPARZA,
              Defendant-Appellant.                      OPINION


         Appeal from the United States District Court
            for the Southern District of California
         Michael M. Anello, District Judge, Presiding

                  Argued and Submitted
          November 18, 2014—Pasadena, California

                        Filed June 29, 2015

  Before: Mary M. Schroeder and Jacqueline H. Nguyen,
    Circuit Judges, and Jack Zouhary, District Judge. *

                    Opinion by Judge Nguyen




 *
   The Honorable Jack Zouhary, District Judge for the U.S. District Court
for the Northern District of Ohio, sitting by designation.
2                  UNITED STATES V. ESPARZA

                          SUMMARY **



                          Criminal Law

    The panel vacated a conviction for importing marijuana
and remanded, in a case in which the defendant attempted to
enter the United States, driving a car that had multiple
packages of marijuana hidden in the gas tank and dashboard.

    The only contested issue at trial was the defendant’s
knowledge, and specifically who owned the car. At the time
of the defendant’s arrest, Diana Hernandez was the car’s
registered owner.

    The panel held that Hernandez’s statement to the
Department of Motor Vehicles – that she had sold the car to
the defendant six days before the defendant’s arrest – was
testimonial, and that because the defendant was not given an
opportunity to confront her as a witness, the government’s
use of the hearsay statement violated the defendant’s rights
under the Confrontation Clause. The panel concluded that
the admission of Hernandez’s statement, which the
government used as proof that the defendant owned the car
and therefore knew about the hidden drugs, was not harmless
beyond a reasonable doubt.




 **
    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. ESPARZA                     3

                         COUNSEL

Kent D. Young (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, and D. Benjamin Holley (argued),
Assistant United States Attorney, San Diego, California, for
Plaintiff-Appellee.



                          OPINION

NGUYEN, Circuit Judge:

    Arturo Esparza appeals his conviction for importing
marijuana in violation of 21 U.S.C. §§ 952 and 960. On
February 19, 2011, Esparza attempted to enter the United
States, driving a car that had multiple packages of marijuana
hidden in the gas tank and dashboard. At trial, the only
contested issue was the critical fact of Esparza’s knowledge,
and specifically who actually owned the car he was driving.

    At the time of Esparza’s arrest, Diana Hernandez was the
car’s registered owner. The government did not call
Hernandez as a witness. Instead, the government relied on
two hearsay documents containing Hernandez’s statement
that she had sold the car to Esparza six days before his arrest.
Hernandez made this statement to the California Department
of Motor Vehicles (“DMV”) only after she was notified by
law enforcement that her car had been seized for smuggling
drugs. The government used Hernandez’s statement as
proof that Esparza actually owned the car, and therefore
4               UNITED STATES V. ESPARZA

knew about the hidden drugs. Esparza, on the other hand,
claimed that he borrowed the car from a friend to visit his
children and attend their soccer game. At the time of his
arrest, Esparza’s children lived in San Diego, California,
with his mother, while he lived just across the border in
Tijuana, Mexico.

    The question that we must decide is whether the
government’s use of Hernandez’s hearsay statement violated
the Confrontation Clause.         We hold that because
Hernandez’s statement was “testimonial,” see Crawford v.
Washington, 541 U.S. 36 (2004), Esparza had the right to
confront her as a witness. His rights were violated because
he was not given an opportunity to do so. We also conclude
that the admission of Hernandez’s statement was not
harmless beyond a reasonable doubt, and thus we vacate
Esparza’s conviction and remand.

                                I

                                A

    In 2010, Esparza moved with his family from California
to Tijuana, Mexico, just south of the border. Shortly after
the move, he separated from his girlfriend and the mother of
their two children. Esparza then sent his children to live with
his mother in San Diego, California.

    On February 19, 2011, Esparza drove a 1999 Chevy
Lumina to the San Ysidro port of entry, which lies at the
border between Tijuana and San Diego. At the border
checkpoint, a U.S. Customs and Border Protection (“CBP”)
narcotics dog alerted to the car’s gas tank. When questioned,
Esparza claimed that the car belonged to a friend named
Julio. However, the CBP officer noticed that the registration
                 UNITED STATES V. ESPARZA                       5

document given to him by Esparza showed that the
registered owner was Diana Hernandez, a resident of
California, not a person named Julio. Officers searched the
car and found multiple packages containing over 50
kilograms of marijuana hidden in the gas tank and the
dashboard.

    Five days after Esparza’s arrest, on February 24, 2011,
CBP sent Hernandez a written Notice of Seizure, informing
her that the government had seized the Chevy Lumina
registered in her name on February 19, 2011 at San Ysidro
“because it . . . transported, concealed, or facilitated the sale,
receipt, possession, or importation of 50.12 kgs marijuana”
in violation of four federal criminal statutes. The Notice
further stated, “If you no longer own or hold an interest in
the seized property, please return this notice to our office and
provide the name and address of the party that currently
owns the property.”

    On March 21, 2011, about four weeks after Hernandez
received the Notice of Seizure, she sent the DMV a Notice
of Transfer/Release of Liability form, which is a standard
DMV form that owners file to notify the DMV of a vehicle
sale. This form also transfers liability for traffic violations
and civil litigation from a car’s seller to its new owner. The
form that Hernandez sent to the DMV contains her signed
statement that she sold the Lumina to “Arturo Esparza” on
February 13, 2011—six days before Esparza’s arrest.

    On April 15, 2011, Esparza was indicted on one count of
knowingly importing marijuana in violation of 21 U.S.C.
§§ 956 and 960. Prior to trial, Esparza moved to exclude the
Notice of Transfer/Release of Liability form and a printout
of information stored in DMV computers concerning the
Chevy Lumina (the “DMV Printout”). Similar to the Notice
6               UNITED STATES V. ESPARZA

of Transfer/Release of Liability form, the DMV Printout
reflects Hernandez’s out-of-court statement that she sold the
Chevy Lumina to Esparza on February 13, 2011. During two
pretrial hearings, Esparza argued that the two documents
should be excluded on the grounds that Hernandez’s
statement was inadmissible hearsay, and its admission
would violate the Confrontation Clause. In response, the
government said that Hernandez would testify during trial,
and thus there was no right to confrontation concern. The
district court’s analysis then focused mainly on whether a
hearsay exception applied, and did not address the Sixth
Amendment objection. After concluding that several
hearsay exceptions applied to Hernandez’s statement, the
district court ruled that the documents were admissible.

                                B

    In July 2012, the district court presided over a three-day
jury trial. On the second day, the government informed the
court that it had decided not to call Hernandez as a witness,
even though she was on the government’s witness list and at
the courthouse. The government then called Department of
Homeland Security (“DHS”) Special Agent Dina Glaze, who
testified at length about Hernandez’s hearsay statement that
she had sold the car to Esparza, as reflected on the DMV
Printout, which the court admitted over Esparza’s renewed
objection. Agent Glaze testified that the DMV Printout
reflected the recording of Hernandez’s Notice of
Transfer/Release of Liability form, which meant that “the
ownership of the vehicle” changed from Hernandez to
Esparza—i.e., that Esparza owned the car.

    Esparza did not testify, but called four witnesses in the
defense case. The first was Hernandez’s ex-boyfriend,
Felipe Sanchez Escobedo (“Sanchez”), who testified that he
                UNITED STATES V. ESPARZA                   7

did not know Esparza. Sanchez explained that in January
2011, his ex-girlfriend Hernandez gave him her Chevy
Lumina to sell. Around February 2011, he sold the car to a
man named Ricardo Dominguez Morales (“Dominguez”),
who was a friend of Sanchez’s boss. On the day of the sale,
Sanchez did not have the car’s title with him, so he arranged
to have Dominguez return the next day to pick up the title.
However, Dominguez, who took possession of the car on the
day of the sale, never returned for the title.

    Three weeks after the sale, Sanchez received a call from
Hernandez, who was very upset. (Agents had seized the car
and arrested Esparza in the interim.) Concerned that
Hernandez “was going to be in trouble” because of Esparza’s
arrest, Sanchez went to Dominguez’s house to confront him
and force him to “assume responsibility for the car.” After
the confrontation, Dominguez gave Sanchez documents
relating to the sale of the car, including a Notice of
Transfer/Release of Liability form that was partially filled
out to indicate that Hernandez sold the car to “Arturo
Esparza.” Dominguez’s name does not appear anywhere on
the form. In turn, Sanchez gave the form to Hernandez, who
presumably signed it and sent it in to the DMV. On cross-
examination, the government attempted to impeach Sanchez
with the Notice of Transfer/Release of Liability form signed
by Hernandez. However, Sanchez repeatedly insisted that
he sold the car to Dominguez, not Esparza, contrary to what
the form reflects.

    The defense also called as a witness DHS Special Agent
Jeffrey Richardson. Agent Richardson testified that on July
7, 2011, as part of the government’s continuing investigation
after Esparza’s arrest, he interviewed Hernandez, the
registered owner of the car. During the interview,
Hernandez admitted to Agent Richardson that she did not
8               UNITED STATES V. ESPARZA

personally sell her car, but instead gave it to her ex-
boyfriend, Sanchez, who sold it for her in January 2011.
Hernandez later faxed to Agent Richardson a photocopy of
the Notice of Transfer/Release of Liability form that she had
sent to the DMV, along with a photocopy of Esparza’s
driver’s license. Agent Richardson also testified that
Esparza’s seized cell phone contained text messages from
“Lulu,” who he determined to be the same person as
Dominguez. This testimony confirmed that Esparza and
Dominguez in fact knew one another. Esparza’s remaining
witnesses were his mother and ex-girlfriend, who both
testified that he had never owned a car. Esparza’s mother
stated that he often crossed the border on foot and she would
pick him up in her car on the U.S. side. Esparza’s ex-
girlfriend also testified that in 2010, she introduced Esparza
to Dominguez, who was known to her as both “Julio” and
“Lulu.”

    During closing arguments, the only element in dispute
was Esparza’s knowledge of the drugs. The government’s
argument relied in large part on the fact that “it was the
defendant’s vehicle,” as shown in the DMV documents
containing Hernandez’s statement that she sold the car to
Esparza. Esparza’s counsel, on the other hand, argued that
he was an unwitting drug courier framed by Dominguez,
who lent him the car. The defense asserted that after
Dominguez learned of Esparza’s arrest, Dominguez
provided Sanchez with documents, including a Notice of
Transfer/Release of Liability that already had Esparza’s
name filled out as the buyer. Sanchez then gave those
documents to Hernandez, who, in turn, sent the Notice of
Transfer/Release of Liability to the DMV. In its rebuttal
argument, the government repeated its claim that Esparza
bought the car a few days before his arrest. The government
                UNITED STATES V. ESPARZA                     9

attacked the credibility of Esparza’s witnesses, and reiterated
that, “[a]gain, this defendant bought this vehicle. . . . He
made a choice to enter that port of entry knowing he had
drugs, hoping he would make it through.”

   The jury convicted Esparza. The district court sentenced
him to 24 months of custody, followed by three years of
supervised release. Esparza timely appealed.

                                II

   Esparza argues that the admission of the documents
containing    Hernandez’s      statement    violated    the
Confrontation Clause of the Sixth Amendment. We review
whether a defendant’s rights under the Confrontation Clause
were violated de novo. United States v. Matus-Zayas, 655
F.3d 1092, 1098 (9th Cir. 2011).

                                A

    The Confrontation Clause states that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” In Crawford v.
Washington, the Supreme Court abrogated decades of
Confrontation Clause jurisprudence, which had allowed the
admission of an unavailable witness’s out-of-court statement
so long as it “falls under a ‘firmly rooted hearsay exception’”
or bears ‘particularized guarantees of trustworthiness.’” 541
U.S. 36, 60, 62–69 (2004) (quoting Ohio v. Roberts, 448
U.S. 56, 66 (1980)). Instead, the Supreme Court held that a
hearsay testimonial statement of a witness who does not
appear at trial may never be used unless “the [witness] is
unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Id. at 59. As the Court
explained, the “bedrock procedural guarantee” of the
10              UNITED STATES V. ESPARZA

Confrontation Clause “commands, not that evidence be
reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination.” Id.
at 42, 61.

    While Crawford declined to provide a comprehensive
definition of “testimonial,” see id. at 68, the Court stated
“[v]arious formulations of [the] core class of ‘testimonial’
statements:”

       ex 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, ellipsis, and citations
omitted). The Court thus held that defendant Crawford’s
right of confrontation was violated when the state court
admitted his wife Sylvia’s statements in response to police
interrogation, and she did not testify at trial. Id. at 40–42,
65–69. The Court found Sylvia’s statements to be
testimonial, because she made them “while in police
custody, herself a potential suspect in the case.” Id. at 65–
69.
                UNITED STATES V. ESPARZA                    11

    In a number of cases following Crawford, the Supreme
Court provided further guidance on the parameters of
testimonial evidence. For example, in Davis v. Washington,
the Court held that statements made during a 911 call were
nontestimonial because the “circumstances objectively
indicat[e] that the primary purpose of the interrogation [was]
to enable police assistance to meet an ongoing emergency.”
547 U.S. 813, 822, 827–28 (2006); see also Ohio v. Clark,
576 U.S. —, 2015 WL 2473372, at *6 (2015) (holding that
a child’s statements to teachers concerning his abuse by the
defendant were not testimonial because the primary purpose
of the conversation was to “identify[] and end[] the threat”
of violence during “an ongoing emergency”); Michigan v.
Bryant, 562 U.S. 344, 361 (2011) (stating that “the prospect
of fabrication in statements given for the primary purpose of
resolving [an] emergency is presumably significantly
diminished”). In contrast, statements made to the police
during an interview at a witness’s home about a domestic
violence incident were testimonial. Davis, 547 U.S. at 829–
30. There was no ongoing emergency, and “the primary
purpose of the interrogation [was] to establish or prove past
events potentially relevant to later criminal prosecution.” Id.
at 822, 829–30; see also United States v. Brooks, 772 F.3d
1161, 1169–70 (9th Cir. 2014) (holding that responses to a
U.S. Postal Inspector’s questions were testimonial because
“a reasonable person would have understood the primary
purpose to be investigative”).

    The Supreme Court has also emphasized that
Confrontation Clause analysis does not turn on the
statement’s reliability, but rather on whether the out-of-court
statement was “functionally identical to live, in-court
testimony.” Melendez-Diaz v. Massachusetts, 557 U.S. 305,
310–11, 317–18 (2009). Thus, the Court held in Melendez-
12               UNITED STATES V. ESPARZA

Diaz that a forensic analyst’s certificates of analysis attesting
to the results of drug tests were testimonial, and the
defendant had the right to confront the analyst conducting
the examination. Id. at 310–11. The Court rejected the
government’s argument that the certificates were akin to
business or public records, explaining that such “records are
generally admissible absent confrontation not because they
qualify under an exception to the hearsay rules, but
because—having been created for the administration of an
entity’s affairs and not for the purpose of establishing or
proving some fact at trial—they are not testimonial.” Id. at
324; see also United States v. Bustamante, 687 F.3d 1190,
1194 (9th Cir. 2012) (holding that a document created by a
public official relating to person’s birth was testimonial, and
distinguishable from ordinary public records, because the
official created it at the request of law enforcement for use
in an ongoing criminal investigation).

                                 B

    Turning to Hernandez’s statement, we easily conclude
that it was testimonial. Prior to sending the Notice of
Transfer/Release of Liability to the DMV, Hernandez was
notified by CBP that her car had been seized because it was
used to smuggle more than 50 kilograms of marijuana.
Hernandez then called her ex-boyfriend Sanchez, upset that
she was still the registered owner. Sanchez, in turn,
confronted the man to whom he sold the car, Dominguez,
and later received from Dominguez a DMV Notice of
Transfer/Release of Liability form that indicated the car was
sold to “Arturo Esparza.” Upon receiving this Notice form
from Sanchez, Hernandez signed it and sent it to the DMV,
despite having no personal knowledge of who actually
bought her car.
                UNITED STATES V. ESPARZA                    13

    At the time that Hernandez made her statement that she
sold the car to Esparza, she had a strong incentive to lie. As
the registered owner of a car that had hidden compartments
used to smuggle drugs, Hernandez faced potential criminal
exposure. She knew of the ongoing investigation and made
her statement “under circumstances which would lead an
objective witness reasonably to believe that the statement
would be available for use at a later trial.” Crawford, 541
U.S. at 52, 65 (internal quotation marks omitted); cf. United
States v. Marguet-Pillado, 560 F.3d 1078, 1085 (9th Cir.
2009) (finding that a declarant’s expectation that her
statement may be used in a future trial is a key factor in
determining whether hearsay is testimonial). Hernandez was
essentially testifying as a witness who bore testimony
against Esparza for purposes of the Sixth Amendment. See
Crawford, 541 U.S. at 65–69. Additionally, Hernandez was
available. Indeed, prior to trial, the government stated to the
district court that it would call her as a witness. She was on
the government’s witness list, and was present in the
courthouse on the second day of trial. Yet, the government
elected not to call her, instead using the DMV documents as
“weaker substitute[s] for [her] live testimony.” Davis, 547
U.S. at 828 (quoting United States v. Inadi, 475 U.S. 387,
394 (1986)).

    Relying mainly on United States v. Morales, 720 F.3d
1194 (9th Cir. 2013), and United States v. Berry, 683 F.3d
1015 (9th Cir. 2012), the government argues that
Hernandez’s statement was nontestimonial because the two
documents reflecting her statement were public records
created for the administration of the DMV’s affairs. In
Morales, we held that DHS field encounter forms prepared
by CBP agents at the time that they arrested aliens were not
testimonial. 720 F.3d at 1200–01. Comparing the
14              UNITED STATES V. ESPARZA

documents to business and public records, we concluded
their primary purpose was “administrative, not for use as
evidence at a future criminal trial.” Id. In Berry, we
similarly held that Social Security application documents
were not testimonial when introduced in a later criminal
prosecution for Social Security fraud because, again
comparing the documents to business and public records, the
application was prepared by a Social Security employee “as
part of a routine administrative process,” and not in
connection with a criminal investigation. 683 F.3d at 1022–
23.

    In contrast, Hernandez’s statement was not created for
the routine administration of the DMV’s affairs. Of course,
we recognize that the DMV does, as part of its administrative
functions, maintain records of the sale and transfer of
registered vehicles. But, unlike in Berry and Morales,
Hernandez was not an agency employee who prepared or
maintained documents as part of her official duties. Nor was
she a private citizen who, in the course of a routine sale,
simply notified the DMV of the transfer of her car. Instead,
her car had already been seized for serious criminal
violations, and she sent the transfer form to the DMV only
after receiving a Notice of Seizure from CBP. That her
statement is contained in documents that might otherwise
qualify under a hearsay exception for public records makes
no difference to our analysis. See Crawford, 541 U.S. at 61
(stating that “we do not think the Framers meant to leave the
Sixth Amendment’s protection to the vagaries of the rules of
evidence”). We therefore hold that the admission of
Hernandez’s statement contained in the Notice of
Transfer/Release of Liability and the DMV Printout violated
Esparza’s rights under the Confrontation Clause.
                UNITED STATES V. ESPARZA                  15

                               C

    The government argues that, even if admission of
Hernandez’s statement violated the Confrontation Clause,
the error was harmless. The government bears the burden of
proving that the error was harmless beyond a reasonable
doubt, see Bustamante, 687 F.3d at 1195, and we assess this
issue by considering “the importance of the witness’
testimony in the prosecution’s case, whether the testimony
was cumulative, . . . and, of course, the overall strength of
the prosecution’s case,” Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986). Even when the government’s case is
“strong,” a Confrontation Clause violation is not harmless
where the erroneously admitted evidence could have
“significantly altered the evidentiary picture.” Bustamante,
687 F.3d at 1195.

    Here, the question of who owned the car was critical
because the only disputed element was Esparza’s
knowledge. The government used Hernandez’s statement in
its case-in-chief, when DHS Special Agent Glaze testified
that the DMV Printout showed that Esparza owned the car
that was used to smuggle the drugs. The government also
used Hernandez’s statement to impeach defense witness
Sanchez, introducing the DMV Notice of Transfer/Release
of Liability during his cross-examination. Finally, during
closing, the prosecution relied heavily on both documents to
argue that Esparza was the car’s true owner and, therefore,
must have known of the hidden drugs. In other words, the
government used Hernandez’s statement as “an out-of-court
substitute for trial testimony.” See Bryant, 562 U.S. at 358.

    Contrary to the government’s argument, we do not find
Hernandez’s statement to be merely cumulative of other
evidence indicative of Esparza’s knowledge.          The
16              UNITED STATES V. ESPARZA

government relies on the fact that there was other proof that
arguably showed Esparza’s knowledge—namely, the fact
that he drove the same car across the border on one other
occasion, that the car had only one gallon of gas, and that the
heating and air conditioning unit did not work properly.
Nevertheless, the ownership of the car went to the heart of
Esparza’s defense that he borrowed it on the day of his arrest,
and both sides argued vigorously regarding the car’s actual
ownership. Had Hernandez testified, Esparza could have
directly challenged her statement that she sold her car to him,
rather than Dominguez. Instead, the government used
Hernandez’s hearsay statement to gut Esparza’s claim that
he was an unknowing courier who borrowed the car from
Dominguez, the real buyer of the car from Hernandez. The
government’s heavy reliance on Hernandez’s statement
shows that it was “very important to the prosecution’s case,”
and the statement’s admission “may have significantly
altered the evidentiary picture.” Bustamante, 687 F.3d at
1195. Therefore, the violation of Esparza’s Confrontation
Clause rights was not harmless.

                              ***

    We vacate Esparza’s conviction and remand. We need
not address Esparza’s remaining arguments on appeal.

     VACATED AND REMANDED.
