189 F.3d 895 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JERRY WAYNE MAYFIELD, Defendant-Appellant.
No. 98-50100
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted June 7, 1999--Pasadena, CaliforniaDecided August 26, 1999

[Copyrighted Material Omitted]
Michael Tanaka, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.
Orly Degani, Assistant United States Attorney, Los Angeles,  California, for the plaintiff-appellee.
Appeal from the United States District Court  for the Central District of California; James M. Ideman, District Judge, Presiding.  D.C. No. CR-00269-JMI-01.
Before: Dorothy W. Nelson, Stephen Reinhardt, and  Stephen S. Trott, Circuit Judges.
D.W. NELSON, Circuit Judge:

OVERVIEW

1
Jerry Wayne Mayfield appeals his conviction, after a joint  jury trial with codefendant Manyale Gilbert, for possession  with intent to distribute cocaine in violation of 21 U.S.C.  S 841(a)(1). Mayfield argues that the district court abused its  discretion by refusing to sever the trials despite Gilbert's  mutually exclusive defense and prejudicial evidence that was  improperly elicited by Gilbert's counsel. Although the district  court's initial denial of Mayfield's severance motion was  understandable, based on pretrial representations made by the  government about the evidence that would be admitted, the  district court abused its discretion when at trial it gave Gilbert's counsel free rein to introduce evidence against Mayfield and act as a second prosecutor. Gilbert's counsel's trial  tactics necessitated severance or some alternative means of  mitigating the substantial risk of prejudice. We thus reverse  and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

2
On March 10, 1997, Los Angeles Police and FBI agents  executed a search warrant at 2073 E. 102nd Street, Unit 495  in the Jordan Downs Projects in Los Angeles ("the  apartment"). The officers surrounded the apartment, knocked,  announced their presence, and waited 20 to 50 seconds before  forcing their way in. LAPD Detective Brian Agnew entered  and proceeded to the kitchen where he found Gilbert sitting  in a chair at a table and holding an infant in one arm. Agnew  testified that he observed Gilbert moving what appeared to be  rock cocaine off a cutting board that was on the table.


3
LAPD Detective James Jimenez was one of the officers  assigned to the rear door. While at the back door, he testified  that he looked through a screen door and saw Gilbert and  Mayfield sitting at a kitchen table. When Agnew began  knocking, Jimenez said he saw Mayfield stand up and leave  the apartment through the rear door. LAPD Officer Christian  Mrakich also testified that he saw Mayfield come out of the  apartment through the rear door.


4
The police arrested Mayfield outside the back door of the  apartment. Officer Mrakich asked Mayfield if he had any  keys, and Mayfield responded that he did not. A pat-down  search of Mayfield revealed keys that fit the locks to the front  and rear security doors of the apartment. The search also  revealed $1,929 in cash and a pager.


5
On the kitchen table inside the apartment, the officers discovered several clear plastic sandwich baggies, some containing pieces of rock cocaine, a razor blade, a triple-beam scale,  a cutting board, and a shoe box containing a larger quantity  of rock cocaine. Gilbert's fingerprint was found on the scale.  Additionally, the officers found in the kitchen a pyrex beaker  with a stir stick inside and a four-month-oldphone bill  addressed to Gilbert at the apartment.


6
After the police obtained the search warrant, Gilbert was  detained and made the following statement, O.K., The guy outside is Jerry Mayfield and he is the main man. I sell for him but you can't tell him or no one. They will kill me for sure. I ain't going to sign nothin [sic]. I don't know where [sic] gets the keys. I know he got a delivery today. I can't tell you no more.


7
Gilbert and Mayfield were both indicted for one count of  possession with the intent to distribute approximately 552.8  grams of cocaine base in violation of 21 U.S.C.S 841(a)(1).  They were tried jointly. Before trial, the Government indicated in its exhibit list that it intended to offer this statement  of codefendant Gilbert during the joint trial. Mayfield  objected to the admission of this hearsay statement, arguing  that he could not receive a fair trial because he would not be able to cross-examine the declarant, Gilbert. Mayfield pointed  out that if the trials were severed, the statements would only  be admissible in his trial if Gilbert testified personally, thus  allowing Mayfield the opportunity to cross-examine him. If  the court chose to allow the statements, however, Mayfield  requested that his name be redacted and that a proper limiting  instruction be given.


8
The district court admitted the statements but agreed that  Mayfield's name should be removed and instructed the Government to "clean up" the statements. On direct examination,  the Government elicited from the police officer that Gilbert  had stated, "that he was helping an individual in the sales of  cocaine." On cross-examination, however, Gilbert's attorney  questioned the officer further about Gilbert's statements:


9
Q. Did Mr. Gilbert say -- after further questioning, did Mr. Gilbert say a person was the "main man"?


10
A. Yes.


11
Q. Did Mr. Gilbert use the words "main man"?


12
A. Yes.


13
Q. Did Mr. Gilbert say, "I sell for him, but you can't tell him or no one. They will kill me for sure"?


14
A. Yes.


15
Q. Did Mr. Gilbert indicate to you that he would not sign anything?


16
A. Yes, he refused to sign -- well, he didn't refuse to sign originally. But in the statement you just read regarding killing him, yes, he refused to sign that.


17
Q. Did Mr. Gilbert indicate that anybody had gotten a delivery that day?


18
A. Yes.


19
Q. Did Mr. Gilbert say that he personally had gotten a delivery that day or that another person had gotten a delivery that day?


20
A. I believe it was another person, not Mr. Gilbert himself.


21
Q. Did -- in the portion of the statement,"I sell for him, but you can't tell him or no one. They will kill me for sure," did Mr. Gilbert indicate with any more specificity as to when he sold for the "him"?


22
A. No.


23
Q. Did Mr. Gilbert indicate if he had sold for him on one occasion or more than one occasion?


24
A. No, he did not specify.


25
Id. at 204-05. The court never gave a limiting instruction telling the jury to consider the statements only as they applied to Gilbert.


26
The parties also agreed pretrial not to present any evidence  concerning the confidential informant upon whose information the search warrant was based. During a hearing, at which  Gilbert's attorney was present, the district court clarified to  the Government that "[p]robable cause will not be an issue for  the jury. The jury shouldn't hear anything about the basis for  the search warrant. All the jury will know is that the officers had a search warrantand they had executed it, right?" Yet, at trial, Gilbert's counsel again flouted the district court's pretrial decision and elicited testimony that a "reliable" confidential informant told the police officer that Mayfield was in the apartment when a drug shipment arrived, that Mayfield, but  not Gilbert, was listed as a "primary suspect " on the search  warrant, but that Gilbert was not listed at all, and that the  police officer recognized Mayfield. After Mayfield's counsel  objected and moved for a mistrial, the district court gave a  limiting instruction that the police officer's testimony should  be considered only as it related to the officer's state of mind  when he executed the warrant and not for its truth.


27
Mayfield's attorney made and renewed the motion to sever  the trials at least six times before, during, and following the  trial. During a hearing regarding the post-trial severance motion, Mayfield's attorney argued that aspects of Gilbert's  confession that were brought out at trial by Gilbert's counsel  violated his Sixth Amendment Confrontation Clause rights.  On October 1, 1997, the jury returned guilty verdicts against  both defendants. Mayfield was sentenced to 360 months  imprisonment and a ten-year supervised release. Gilbert was  sentenced to 240 months imprisonment and a ten-year supervised release.

STANDARD OF REVIEW

28
A district court's denial of a motion for severance is  reviewed for abuse of discretion. See United States v. Heuer,  4 F.3d 723, 733 (9th Cir. 1993). "The test for abuse of discretion by the district court is whether the joint trial was so manifestly prejudicial as to require the trial judge to exercise his  discretion in just one way, by ordering a separate trial."  United States v. Baker, 10 F.3d 1374, 1387 (9th Cir. 1993)  (internal quotations and citations omitted). We have held that  severance should be granted when the defendant "shows that  the core of the co-defendant's defense is so irreconcilable  with the core of his own defense that the acceptance of the codefendant's theory by the jury precludes acquittal of the  defendant." United States v. Throckmorton, 87 F.3d 1069,  1072 (9th Cir. 1996).


29
Alleged violations of the Confrontation Clause are  reviewed de novo. See United States v. Yazzie , 59 F.3d 807,  812 (9th Cir. 1995).

I. Mutually Exclusive Defense

30
Federal Rule of Criminal Procedure 8(b) permits the  joinder of defendants who allegedly committed the same  crime. Although joinder is generally favored because it promotes efficiency, see United States v. Tootick , 952 F.2d 1080,  1078 (9th Cir. 1991), Rule 14 provides that the trials may be  severed when it is apparent that a joint trial would cause prejudice. The Supreme Court has held that "when defendants  have been properly joined under Rule 8(b), a district court  should grant severance under Rule 14 only if there is serious  risk that a joint trial would prejudice a specific trial right of  one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United  States, 506 U.S. 534, 539 (1993). Mayfield has shown both  that he was denied a specific trial right and that Gilbert's  mutually exclusive defense prevented the jury from making a  reliable judgment about his guilt or innocence.


31
First, Gilbert's mutually exclusive defense prevented  the jury from making a reliable judgment about Mayfield's  guilt. "Mere inconsistency in defense positions is insufficient"  to warrant severance. Tootick, 952 F.2d at 1081. However, the  "probability of reversible prejudice increases as the defenses  move beyond the merely inconsistent to the antagonistic." Id.;  Zafiro, 506 U.S. at 542 (Stevens, J., concurring in the judgment). When defendants present mutually exclusive defenses, the jury often cannot "assess the guilt or innocence of the defendantson an individual and independent basis. " Tootick,  952 F.2d at 1082. "Defendants who accuse each other bring  the effect of a second prosecutor into the case with respect to  their codefendant . . . [c]ross examination of the government's  witnesses becomes an opportunity to emphasize the exclusive  guilt of the other defendant . . . [c]losing arguments allow a  final opening for codefendant's counsel to portray the other  defendant as the sole perpetrator of the crime." Id.


32
In short, the situation envisioned by Tootick is precisely  what happened here. Gilbert's counsel used every opportunity  to introduce impermissible evidence against Mayfield, and her  closing argument barely even addressed the government's  evidence against her client and instead focused on convincing  the jury that Mayfield was the guilty party, not her client.


33
Gilbert's defense and Mayfield's defense were mutually  exclusive because "the core of the co-defendant's defense is  so irreconcilable with the core of [Mayfield's ] own defense  that the acceptance of the co-defendant's theory by the jury  precludes acquittal of the defendant." United States v.  Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996). The government claims that Gilbert's defense was that he was simply  present in the apartment and that presence is not enough to  sustain a conviction. Judge Trott, in dissent, also puts forth  this argument. Tellingly, neither can find any support in the  record for this assertion.


34
Moreover, the evidence at trial precluded a mere pres- ence defense by Gilbert. Much more than Mayfield, he was  linked to both the apartment and the drugs that were found in  the apartment. First of all, Gilbert's redacted confession stated  that he "sell[s] for an individual," and this confession was  admitted in evidence. The government fails to explain how, in  light of this unchallenged confession, the jury reasonably  could have concluded that Gilbert was merely present in the  apartment and not involved in the drug transaction. Second,  a police officer testified that Gilbert was handling and  attempting to hide the drugs on the table. Third, only Gilbert's  fingerprints were found on the drug paraphernalia. Fourth,  although both men had keys to the apartment building, there  was evidence indicating that Gilbert actually lived there. The  apartment was rented in his girlfriend's name, he was there  babysitting their child, and the police found a phone bill with  Gilbert's name on it. This evidence, which established that  Gilbert had significant ties to the apartment and was actively  involved in the drug transaction, necessitated Gilbert's  attempt to pin the blame on Mayfield. In fact, in the words of  Gilbert's counsel, "[o]ur defense is that the drugs -- Mayfield  purchased the drugs, and he owns the drugs, and they're his  drugs; and as long as Mayfield is there, Gilbert doesn't really  have physical control over the drugs."1  Although the government asserts that "it was conceivable that the cocaine  belonged to some third party," the record demonstrates that  that was not Gilbert's defense, and in fact there was no evidence to support such a defense. It is beyond dispute that, if  the jury accepted Gilbert's defense, which was that Mayfield  was the drug ringleader who had control over the drugs, it necessarily had to convict Mayfield.

II. Denial of Confrontation Clause rights

35
Second, Mayfield has shown that the joint trial  "compromise[d] a specific trial right," the right to confront  witnessesagainst him. Zafiro, 506 U.S. at 539. Mayfield was  denied his Sixth Amendment right to confront witnesses  against him when the district court allowed a police officer's  inculpatory testimony about a "reliable" police informant and  when Gilbert's out-of-court confession was introduced against  Mayfield. Mayfield was denied the right to cross-examine  both witnesses. "The right to cross-examine one's accusers is  fundamental in our system of justice. Cross-examination is  the principal means by which the believability of a witness  and the truth of his testimony are tested." United States v. Marsh, 144 F.3d 1229, 1240 (9th Cir. 1998). Confrontation  Clause violations can require a court to sever trials. See  Zafiro, 506 U.S. at 539; United States v. Gillam, 167 F.3d  1273, 1276-77 (9th Cir. 1999); United States v. Sherlock, 962  F.2d 1349, 1362 (9th Cir. 1989).

A. Informant's statements

36
Mayfield argues that his inability to challenge the statements of a confidential informant who implicated him violated his Confrontation Clause rights. Prior to the start of the  trial, Mayfield's attorney and the Government agreed not to  present any evidence concerning the confidential informant or  the information he furnished to the police, which provided the  basis for the search warrant. During cross-examination of the  police officer, however, Gilbert's counsel elicited additional  facts regarding the basis on which the search warrant was  obtained that were irrelevant and that prejudiced Mayfield.  This questioning established that (1) according to a "reliable"  informant, Mayfield was at the apartment when a drug delivery arrived; (2) Mayfield was listed as a "primary suspect" on  the search warrant, but Gilbert was not listed at all; and (3)  the police officer who obtained the warrant knew Mayfield  from previous encounters. Mayfield objected to this line of  questioning, and the district court gave a limiting instruction  that the police officer's testimony should be considered only  as it related to the officer's state of mind when he executed  the warrant and not for its truth. However, the validity of the  warrant and the timing of the search were not issues in the  case; nor was the officer's state of mind. Rather than striking the objectionable statements entirely, the district court admitted them for no apparent purpose.2 Even if this erroneously  admitted testimony would not have warranted severance on its  own, we have no doubt that the combination of the informant's statements, the admission of Gilbert's out-of-court  confession (which we address next), and Gilbert's counsel's  inflammatory closing argument warranted severance.

B. Gilbert's confession

37
In addition to the informant's prejudicial statements, the  district court allowed a police officer to recount the confession that Gilbert gave soon after being arrested. The original  confession stated that Mayfield was the "main man " for  whom Gilbert sold drugs. In his statement, Gilbert also urged  the police not to tell Mayfield because he would "kill me for  sure." The statement was redacted to omit Mayfield's name  and to say that Gilbert sold drugs for "an individual." Because  Gilbert could not be compelled to take the stand at his own  trial, the introduction of Gilbert's confession through theofficer precluded Mayfield from confronting his accuser.


38
In Bruton v. United States, 391 U.S. 123 (1968), the  Supreme Court held that, "the substantial risk that the jury,  despite [jury] instructions to the contrary, looked to the  incriminating extrajudicial statements in determining petitioner's guilt, admission of [the] confession in this joint trial violated petitioner's right of cross-examination secured by the  Confrontation Clause of the Sixth Amendment." Id. at 126.  Recently, the Supreme Court established that even statements  that do not explicitly name a codefendant are forbidden if they  are redacted in such a way as to make the naming of the codefendant obvious to the jury. See Gray v. Maryland, 118 S. Ct.  1151, 1155 (1998).


39
We think that the impermissible inference that Gilbert  named Mayfield as the drug ringleader was unavoidable, if  not on its face, then certainly in the context of the previously  admitted evidence at trial. Although the redacted confession  originally referred to "an individual," the testimony elicited  by Gilbert established that Gilbert referred to "the main man,"  meaning the "individual" was a male and was the drug ringleader. In addition, prior to the admission of the confession,  the jurors had already improperly heard that Mayfield was a  "primary suspect" on the search warrant, but Gilbert was not listed, that a "reliable" informant told police that Mayfield  was at the apartment when a drug delivery arrived, and that  the police officer who obtained the warrant was familiar with  Mayfield. This evidence reinforced what was already fairly  obvious from the confession itself: Mayfield was the "main  man." As we stated in United States v. Peterson, 140 F.3d 819  (9th Cir. 1998), the "codefendant was pointing an accusatory  finger at someone and it was not difficult for the jury to determine that that person was the other defendant on trial." Id. at  822.


40
Further aggravating the prejudice, Gilbert's counsel  argued in her closing that Mayfield was the "main man," who  by virtue of his status as the drug ringleader had sole control  of the drugs and who threatened Gilbert into not testifying.


41
Although she assiduously avoided actually naming Mayfield,  her repeated references to him could not have been more blatant. Only a truly dense juror would not have recognized that  Gilbert's counsel devoted her entire closing to discussing the  "main man" because Mayfield was the main man and because  this inference was necessary to her defense that "when the  owner of the drugs is present with his drugs, he shared physical control with no one. Although Gilbert was present, as long  as the other was present, he was the one -- he was the boss,  and he was the one who made the decisions about what would  happen with the drugs in this case." Mayfield, of course, was  the only person physically present in the room with Gilbert,  and we have no doubt that the jury realized this.


42
The government relies on the Supreme Court's decision in Richardson v. Marsh, 481 U.S. 200 (1986), for support. However, Richardson is distinguishable on several  grounds. First, unlike in Richardson, the testimony upon  which the impermissible inference was based was admitted  before the confession, so the risk should have been apparent  to the district court. Second, unlike in Richardson, Mayfield  did not trigger the inference by choosing to testify. In  Richardson, the defendant would have suffered no prejudice  if she had not chosen to take the stand. See id.  at 208. Third,  and most importantly, there was no limiting instruction given  here. The entire focus of the Supreme Court's analysis has  been whether a constitutional violation occurred despite the  court's limiting instruction and the accompanying presumption that juries follow such instructions. See, e.g., Bruton, 391  U.S. at 126. In this case, Mayfield requested a limiting instruction,yet the district court failed to give one.3 Thus,  there was no safeguard to protect Mayfield from the prejudice  flowing from Gilbert's accusation. This fact alone makes the present case considerably different than Richardson.

C. Zafiro

43
We also reject the government's argument that the Supreme  Court's decision in Zafiro precludes our decision. The government reads Zafiro too broadly. Because the parties vigorously dispute the import of Zafiro, we find it necessary to  examine Zafiro's facts and holding in some detail. The question presented in Zafiro was "whether Rule 14 requires severance as a matter of law when codefendants present`mutually  antagonistic defenses.' " 506 U.S. at 535. The Zafiro Court  held that "when defendants have been properly joined under  Rule 8(b), a district court should grant severance under Rule  14 only if there is a serious risk that a joint trial would prejudice a specific trial right of one of the defendants, or prevent  the jury from making a reliable judgment about guilt or  innocence." Id. at 539. The Court then immediately stated that  "[s]uch a risk might occur when evidence that the jury should  not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a  codefendant." Id. The Court declined to adopt the "bright-line  rule" urged by the petitioners that would have "mandat[ed]  severance whenever codefendants have conflicting defenses."  Id. at 538. When defenses merely "conflict " or are "mutually  antagonistic," the Zafiro Court found, jury instructions or  other measures employed by the district court will often be  sufficient to avoid any risk of prejudice. See id. at 535, 38, 41.


44
Zafiro's rule that severance is generally not required when  there are conflicting defenses is wholly consistent with Ninth  Circuit law. We have often refused to hold that a district court abused its discretion despite a degree of conflict between  defenses. See, e.g., Sherlock, 962 F.2d at 1363 (defenses  "were not so irreconcilable as to be mutually exclusive"). At  the same time, we have recognized that sometimes defenses  can rise to the level of being "mutually exclusive." See id.4 As we stated in Sherlock, "[a]ntagonism between defenses is  insufficient; the defenses must be antagonistic to the point of  being irreconcilable and mutually exclusive." Id. Even then,  this circuit prior to Zafiro "declin[ed] to adopt a per se rule  against joinder." Tootick, 952 F.2d at 1083. Instead,  "defendants must demonstrate that clear and manifest prejudice did in fact occur." Id. Thus, contrary to the government's  argument, Zafiro's holding that mere conflict between  defenses does not require severance as a matter of law did not  alter the standard by which we review severance decisions in  this circuit.


45
Zafiro also does not require us to affirm because the facts  here are significantly different, and because we find that clear  and manifest prejudice did indeed occur. The petitioners in  Zafiro were four individuals charged with distributing illegal  drugs. Two individuals, Garcia and Soto, were observed placing a large box in Soto's car and driving to Zafiro's apartment. See 506 U.S. at 535. When theywere approached by  government agents, Garcia and Soto dropped the box outside  the apartment and ran into the apartment. See id. at 535-36.  The agents followed them inside and found several pounds of  various drugs and a suitcase full of cash in the apartment. See  id. at 536. They also discovered that the dropped box contained 55 pounds of cocaine. See id.


46
At trial, all of the petitioners' defenses were that they personally knew nothing about the drugs and were innocent  bystanders. See id. Soto and Zafiro testified accordingly. See  id. None of the petitioners testified that a codefendant was  responsible for the drugs, although one did indicate that a  codefendant had control over the box. See id.  Similarly, no  out-of-court confessions were admitted that indicated that any  of the codefendants were guilty. The only directly accusatory  statement was made by Garcia's lawyer, who argued that Garcia was unaware of the box's contents, and the box belonged  to Soto. See id.5 This argument, however, was unsupported by  any evidence. The jury could have reasonably concluded that  Soto and Garcia were ignorant of the box's contents.


47
The Supreme Court held that these facts were insufficient  to require severance. Importantly, the Court stated:"[w]e note  that petitioners do not articulate any specific instances of prejudice. Instead they contend that the very nature of their  defenses, without more, prejudiced them." Id.  at 539-40.  Given the petitioners' failure to articulate how the joint trial  harmed them, the Zafiro Court doubted that there was any real  risk of prejudice. It nonetheless concluded that "even if there  were some risk of prejudice, here it is of the type that can be  cured with proper jury instructions." Id. at 540. The district  court's jury instructions that "opening and closing arguments  are not evidence" and that the jury must "give separate consideration to each individual defendant and to each separate  charge against him . . . sufficed to cure any possibility of  prejudice." Id. at 541. However, the Court noted that the  degree of prejudice and, consequently, the adequacy of limiting instructions will vary from case to case. "The risk of prejudice will vary with the facts of each case, and the district  courts may find prejudice in situations not discussed here.  When the risk of prejudice is high, a district court is more  likely to determine that separate trials are necessary, but . . .  less drastic measures, such as limiting instructions, often will  suffice to cure any prejudice." Id. at 539.


48
The holding in Zafiro simply rejects a per se rule requiring reversal based solely upon mutually antagonistic defenses and  acknowledges a range of circumstances in which, as here,  severance may be required because the inconsistent defenses  suggest a heightened risk of prejudice. Specifically, the Zafiro  Court held that a jury may be prevented from making a reliable judgment "when evidence that the jury should not consider against a defendant and that would not be admissible if  a defendant were tried alone is admitted against a codefendant  . . . . Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant might also present a risk of prejudice." 506 U.S. at 539.


49
Because Zafiro dealt with the unusual situation in which  the petitioners contended that the very nature of their  defenses, without more, prejudiced them, and in which they  pointed to neither specific instances of prejudice, nor specific  circumstances that would suggest a heightened risk of prejudice, it does not preclude reversal in Mayfield's case. In fact,  it would seem to require it. In this case,Gilbert's counsel used  every opportunity to introduce impermissible evidence against  Mayfield -- evidence that could not have been admitted  against Mayfield had he been tried separately. Moreover,  Mayfield was denied his Sixth Amendment right to confront  witnesses against him when the district court allowed a police  officer's inculpatory testimony about what a police informant told him. Those statements established that Mayfield was a  `primary suspect;' that the police knew him from previous  encounters; and that, according to this `reliable' informant, he  was at the apartment when a drug delivery arrived. Mayfield's  Sixth Amendment rights were further violated by the introduction of Gilbert's out-of-court confession against him,  albeit in redacted form, and the subsequent testimony elicited  by Gilbert's counsel. These are precisely the sort of circumstances that the Zafiro Court envisioned would require severance because of the heightened risk of serious prejudice.


50
Although the Zafiro Court acknowledged that, even when  there is a serious risk of prejudice, "less drastic measures,  such as limiting instructions, often will suffice to cure any  [such] risk . . . ," id. the jury instructions in this case did not.  Unlike in Zafiro, in this case, there was actual evidence indicating Mayfield's guilt that was erroneously admitted. Gilbert's counsel's closing argument also served to reinforce the  erroneously admitted evidence and inferences that never  should have been put before the jury in the first place. Under  these circumstances, we cannot blithely assume that the  court's general jury instructions, which included the warning  that counsels' arguments are not evidence, were sufficient to  ensure that the jury ignored the prejudicial evidence introduced by Gilbert's counsel as well as her forceful closing  argument. "[T]here are some contexts in which the risk that  the jury will not, or cannot, follow instructions is so great, and  the consequences of failure so vital to the defendant, that the  practical and human limitations of the jury system cannot be  ignored." Bruton, 391 U.S. at 135; Zafiro, 506 U.S. at 544  (Stevens, J., concurring in the judgment).


51
Our conclusion is buttressed by other decisions in this circuit. In both Tootick and Sherlock, we held that the standard  use of jury instructions was inadequate because the district  court erred in not reiterating its earlier instructions. See  Tootick, 952 F.2d at 1083; Sherlock, 962 F.2d at 1362. "The  judge must actively supervise the trial and, if necessary, reiterate instructions in the wake of prejudicial events." Tootick,  952 F.2d at 1085. In Tootick, we reversed a conviction even  though counsels' arguments were scarcely supported by the  evidence. The prejudice in Tootick arose largely from counsel's improper arguments, even though "very few of the  explicit and detailed allegations in Tootick's opening statement were substantiated with evidence at trial." Id. at 1084.  Tootick thus demonstrates that, in some situations, counsel's  arguments may be so blatantly prejudicial that reversal is warranted even if they are not supported by sizeable evidence.  However, we need not rely solely on the prejudicial nature of  the closing argument because Gilbert's counsel's closing was  in fact based on evidence. In fact, to the extent that her argument was not based on innuendo, it was based exclusively on  evidence that never should have been admitted. This reliance  on erroneously admitted evidence compounded the constitutional violations. See Peterson, 140 F.3d at 822. The district  court should have sternly admonished the jury immediately  after Gilbert's inflammatory closing argument.


52
The prejudice that occurred arose from the interplay  between the informant's statement, Gilbert's out-of-court confession, and Gilbert's counsel's closing argument. Cf.  Sherlock, 962 F.2d at 1362 (prosecutor's improper use of testimony to bolster the case against Sherlock in closing argument "significantly prejudiced Sherlock"). Moreover, she also  used the informant'ssilence to corroborate Gilbert's confession, arguing:


53
Now looking at this from the Government's point of view, what a wonderful witness [the informant] would be. That person has information as to what was going on in that unit shortly before the warrant was served. But that person is not here, and even the powerful U.S. Government can't protect that person. The reason why that person is not here is a safety concern. Additionally, according to Officer Faris, .. . Mr. Gilbert said that he had sold drugs for the main man. But he can't reveal that person's name and he can't sign anything because he would be killed for sure.6


54
As indicated by Tootick and Sherlock, the district court  had a duty to police the tactics of Gilbert's counsel, whose  goal was to secure an acquittal for her client by proving Mayfield's guilt. See Tootick, 952 F.2d at 1083 ("Counsel was  given virtually uncontrolled leave to portray [his codefendant]  as the sole guilty party."). Mayfield objected on severance  grounds at several points prior to, during, and post-trial.7 Even  the government recognized the risk of prejudice and accordingly objected to some of Gilbert's counsel's tactics out of a  fear of "run[ning] into mistrial territory. " Under these circumstances, the district court abused its discretion by failing to  sever or use more rigorous and timely jury instructions to mitigate the prejudice.

III. Harmless Error

55
In light of our finding that the failure to sever the trials  actually prejudiced Mayfield and denied him a fair trial, we  see no need in asking whether the error was harmless. Since  Zafiro, our severance cases generally have framed the inquiry  as whether there was prejudice and whether that prejudice  was in turn cured by appropriate jury instructions, but have  not applied a separate harmless error inquiry. See, e .g.,  United States v. Cruz, 127 F.3d 791, 798-800 (9th Cir. 1997);  United States v. Baker, 10 F.3d 1374, 1386-88 (9th Cir.  1993); United States v. Arias-Villanueva, 998 F.2d 1491,  1506-08 (9th Cir. 1993). Judge Trott's dissent, however, con- tends that the failure to sever was harmless. We think it is  clear that our holding that Mayfield has shown "clear, manifest, or undue prejudice resulting from a joint trial," AriasVillanueva, 998 F.2d at 1506, necessarily means that the error  was not harmless. Nonetheless, we assume that harmless error  analysis applies and conclude that the error was not harmless  "beyond a reasonable doubt." Peterson, 140 F.3d at 822.  "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 the crossexamination, and of course, the overall strength of the prosecution's case." Id. (internal quotation marks and citation omitted).


56
These factors weigh in favor of the conclusion that the error  was not harmless. In particular, the evidence was not cumulative.See Gillam, 167 F.3d at 1277 (error was harmless  because it was "merely cumulative of other overwhelming  and essentially uncontroverted evidence properly admitted").  If not for the informant's testimony and Gilbert's confession,  the jury would have had no basis for concluding that Mayfield  was the "main man." Similarly, Mayfield's purported threats  to kill the informant and Gilbert were not mentioned by any  other witnesses.


57
As for the strength of the government's case, the properly  admitted evidence against Mayfield merely established that he  was present in a apartment where drugs were found and that  he had cash and a pager. Although these facts are not inconsistent with the conclusion that Mayfield possessed the drugs  with the intent to sell them, an at least equally likely inference  that the jury reasonably could have drawn was that Mayfield  was a friend of Gilbert's merely passing through. There was  conflicting testimony about whether Mayfield was walking by  the apartment when the police accosted him or whether he ran  out the back door of the apartment. Mayfield denied that he  was in the apartment. Even assuming that the jury believed  the police officers' testimony that Mayfield was in the apartment and fled out the back door, Mayfield's lie about being  in the apartment may indicate no more than that he did not  want it known that he was consorting with a drug dealer. Simply put, there is no "overwhelming" evidence indicating that  Mayfield was in control of the drugs or even involved in the  transaction. See Marsh, 144 F.3d at 1240 (despite government's "strong case" and a "not very plausible defense," error  was not harmless).


58
Indeed, given Gilbert's more extensive ties to the apartment  and police testimony that only Gilbert was seen handling and  disposing of the drugs and only Gilbert's fingerprints were  found on the drug paraphernalia, the jury easily could have  concluded that Gilbert was the "main man," and Mayfield was  merely present. These facts, which made it more likely that  Gilbert would be convicted at the outset, inspired Gilbert's  counsel to shift the blame to Mayfield by any means possible.  This is a situation in which "the prosecutor's own case in  chief [was] marginal and the decisive evidence of guilt [was]  left to be provided by a codefendant." Zafiro , 506 U.S. at 543  (Stevens, J., concurring in the judgment). The error was not  harmless.

CONCLUSION

59
For the foregoing reasons, we REVERSE Mayfield's conviction and REMAND for a new trial.8



Notes:


1
 The fact that this statement was made in camera is of no relevance. Gilbert's counsel's actions before the jury were wholly consistent with her in  camera admission. Her admission merely confirms what is apparent from  reading the entire record. It also supports our conclusion that the district  court abused its discretion. Gilbert's counsel frankly told the district court  that her defense was to prosecute Mayfield, which should have put the district court on notice that it was required to grant Mayfield's severance  motions or employ other means of stemming the prejudice flowing from  Gilbert's mutually exclusive defense.


2
 Striking the statement would have been a more effective means of  eliminating prejudice than allowing the jurors to consider the statement for  a limited, but irrelevant, purpose and expecting them to compartmentalize  their consideration. The district court itself characterized this task as  "mental gymnastics." Judge Trott's dissent relies on the presumption that  juries follow their instructions. Yet the Supreme Court has often recognized, in its Confrontation Clause cases, that there are certain circumstances in which there is a substantial risk that juries will not follow their  instructions. See Bruton v. United States, 391 U.S. 123, 135 (1968); Gray  v. Maryland, 118 S. Ct. 1151, 1154 (1998).


3
 We reject Judge Trott's argument that Mayfield waived the issue by  not raising it twice. As we stated in United States v. Marsh, 144 F.3d  1229, 1240 (9th Cir. 1998), a defendant need not raise an issue when it  would be a "vain act."


4
 The use of the term mutually exclusive does not mean that we must  reverse both Mayfield's and Gilbert's convictions for the failure to sever.  The nature of their defenses and the Bruton error prejudiced only Mayfield. See Sherlock, 962 F.2d at 1352 (reversing Sherlock's conviction for  failure to sever because he was prejudiced by Bruton error but affirming  his codefendant's conviction because he was not denied a fair trial). Thus,  we affirm Gilbert's conviction in a separate memorandum disposition.


5
 Martinez' lawyer did argue that Zafiro may have been involved in a  drug conspiracy, but Martinez was unaware of it. See id. However, Zafiro  did not appeal the denial of severance; thus her claim was not "properly before [the] Court." Id. at 537.


6
 Gilbert's counsel's inflammatory comments did not end there. She continued: "Mr. Gilbert cannot and will not be a snitch. He -- a snitch in Jordan Downs will be killed, plain and simple. It's chilling and frightening,  but that is the truth. In this case, the silence is screaming the truth at you."


7
 We disagree with Judge Trott's claim that Mayfield forfeited any right  to raise Bruton error. First, we are reversing for failure to sever, not on the  basis of the Bruton errors alone. Second, Mayfield objected vigorously on  severance grounds throughout the trial. Specifically, Mayfield alerted the  court to the Bruton issue before trial and after trial in his motion for a new  trial based on the failure to sever. Finally, even if we agreed that plain  error review applies, we disagree with Judge Trott's reliance on United  States v. Wallace, 848 F.2d 1464 (9th Cir. 1988), for the proposition that  we may not consider the cumulative effect of errors that were not properly  preserved. Wallace clearly is to the contrary. See id. at 1476 n.21 ("[We]  may consider [unpreserved errors] on cumulative error review.").


8
 Given our conclusion, we need not address Mayfield's additional arguments for reversal.


TROTT, J., dissenting:

60
I respectfully dissent from the majority's decision to  reverse Mayfield's conviction and remand for a new trial. The  district court neutralized the erroneous admission of the confidential informant's statements with a limiting instruction.  Mayfield forfeited any claim of error under Bruton v. United  States, 391 U.S. 123 (1968). Gilbert and Mayfield did apparently seek to point the finger at each other during the trial, but  their defenses did not qualify as mutually exclusive under  Zafiro v. United States, 506 U.S. 534 (1993). Most importantly, however, if any error did occur in trying Gilbert and  Mayfield together, the overwhelming individualized evidence  against Mayfield renders that error harmless beyond a reasonable doubt. I would affirm the district court's refusal to grant a new trial.


61
* The confidential informant's statement was hearsay and  had the potential to prejudice Mayfield. Recognizing this danger, the district court properly sanitized the statement through  a limiting instruction:  [Y]ou are instructed that you're not to consider the information the informant said about Mayfield for the truth of the matter, but you're only to consider it as it gave the officer the reason to conduct the search  at that particular time.


62
Reliance on the jury is a central tenet of our criminal justice  system, and the law is clear that we assume the jury's ability  to follow limiting instructions. Ortiz-Sandoval v. Gomez, 81  F.3d 891, 899-900 (9th Cir. 1996) (citing Zafiro , 506 U.S. at  540). The majority simply bypasses this principle when relying on the hearsay testimony to grant a new trial.

II

63
Although a pretrial motion raised the Bruton concern  regarding Gilbert's confession, Mayfield conceded during  argument on his motion for a new trial that Gilbert's statement, as introduced, was properly redacted. Mayfield waived  the right to contest this issue on appeal. United States v.  Perez, 116 F.3d 840, 844-45 (9th Cir. 1997) (en banc); United  States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir. 1993) (holding that the defendant waived any claim of error in the failure  to give a jury instruction by saying he did not believe the  instruction was necessary).


64
Furthermore, Mayfield did not object to the admission of  Gilbert's statement at trial or renew his request for a limiting  instruction. Under these circumstances, we review the failure  to give a limiting instruction for plain error. See United States  v. Olano, 507 U.S. 725, 732 (1993). Because of his failure to  object, Mayfield must demonstrate that he was prejudiced by  the lack of a limiting instruction. Id. at 734. He makes no attempt to do so.


65
Because any Bruton error was not properly preserved for  appeal, we do not consider the possibility of error when asking whether the cumulative effect of many errors at trial prejudiced Mayfield. See United States v. Wallace , 848 F.2d  1464, 1476 n.21 (9th Cir. 1988) (citing United States v. Berry,  627 F.2d 193, 200 (9th Cir. 1980)). Relying on an unpreserved claim of error to conclude that Mayfield should have a  new trial takes the panel majority's opinion out of the realm  of the suspect into the realm of simply wrong.

III

66
Finally, although the majority believes Gilbert and Mayfield presented mutually exclusive defenses, we are bound by  the Supreme Court's decision in Zafiro to hold that they did  not. In Zafiro, each of two defendants claimed that a box full  of drugs belonged to the other, seeking acquittal by placing  the blame elsewhere. 506 U.S. at 536. Citing jury instructions  closely comparable to those that the district court gave in this  case, the Court held that any possibility of prejudice was  cured. Id. at 541.


67
The majority attempts to limit Zafiro by distinguishing  between "conflicting" and "mutually exclusive" defenses.  Ante at 903. However, the Supreme Court understood that  some conflicting defenses could rise to the level of being  mutually exclusive, clearly identifying our opinion in United  States v. Tootick, 952 F.2d 1078 (9th Cir. 1991), as a rare  example of irreconcilable defenses. Zafiro , 506 U.S. at 538;  see also United States v. Gillam, 167 F.3d 1273, 1276-77 (9th  Cir. 1999) (referring to the "extraordinary record" at issue in  Tootick). In Tootick, the victim had been injured in a violent  assault, and only the two co-defendants were implicated. 952  F.2d at 1081. Each sought to place blame on the other. Id. In  Zafiro and the case at bench, by contrast, the core of the  defenses was each individual's lack of culpability. Gilbert  argued that he was merely present in the apartment where the  drugs were found. Mayfield argued that he was not there and  that the drugs were not his, either. The jury could have  accepted both defenses.

Conclusion

68
The evidence was overwhelming with regard to Mayfield's  guilt. Three officers testified that he was present in the apartment, at the table with the drugs. Mayfield was apprehended  just after stepping outside the door and had nearly $2,000 in  cash in his pockets. Mayfield had keys to the apartment. Apart  from any claimed trial errors, this testimony presents an openand-shut case of possession with intent to distribute in violation of 21 U.S.C. S 841(a)(1) (1994). If there was error, it was  harmless beyond a reasonable doubt.


69
I respectfully dissent.

