                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-3628
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

JUAN JOSE SILVA,
                                          Defendant-Appellant.

                         ____________
       Appeal from the United States District Court for the
        Northern District of Indiana, Hammond Division.
           No. 2:02 cr 55-02—Rudy Lozano, Judge.
                         ____________
     ARGUED MAY 17, 2004—DECIDED AUGUST 18, 2004
                     ____________



 Before POSNER, EASTERBROOK, and MANION, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Juan Silva was the subject
of an extensive undercover operation that included a
confidential informant, ground and aerial surveillance, and
tape-recorded conversations. A jury convicted Silva of
conspiracy and possession with intent to distribute meth-
amphetamine. See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C.
§1952. Sentenced to 121 months’ imprisonment, he argues
on appeal that he was convicted on the basis of hearsay and
is entitled to a new trial.
  A few examples of the evidence to which he objected will
suffice. Agent Zamora, who coordinated the operation for
2                                                 No. 03-3628

the Drug Enforcement Administration, testified at trial to
conversations conducted between the DEA’s confidential in-
formant (whose identity remained secret and who therefore
did not testify) and an alleged supplier, regarding a future
sale of methamphetamine. Zamora testified that he heard
the supplier (who likewise did not testify) use the name
“Juan” several times during the conversations and that the
informant spoke on several occasions of “this individual
named Juan [who] indicated that he was going to be making
the delivery.” Other testimony elicited from Zamora and
another agent concerned the attempted delivery of a sample
of Silva’s wares and conversations between Silva and the
informant, plus the informant’s observations.
  The district judge overruled hearsay objections and in-
structed the jury that the evidence was “not being offered
for the truth of the matter.” That’s surprising, for the evi-
dence directly inculpated Silva. See Fed. R. Evid. 801(c).
Perhaps its admission could have been justified under the
co-conspirator exception to the hearsay rule. See Fed. R. Evid.
801(d)(2)(E). Yet this is not what the prosecutor contended,
and the judge did not find that the speakers were Silva’s
confederates and that the declarations had been in further-
ance of a joint enterprise. See Fed. R. Evid. 401; United States
v. Ferra, 900 F.2d 1057, 1059-60 (7th Cir. 1990).
  So to what issue other than truth might the testimony have
been relevant? The prosecutor contends that most of the
statements were admissible to show “the actions taken by
[each] witness”. Allowing agents to narrate the course of
their investigations, and thus spread before juries damning
information that is not subject to cross-examination, would
go far toward abrogating the defendant’s rights under the
sixth amendment and the hearsay rule. This court has warned
against the potential for abuse when police testify to the
out-of-court statements of a confidential informant. See
United States v. Lovelace, 123 F.3d 650 (7th Cir. 1997). See
also McCormick on Evidence §249 (5th ed. 1999). There are
no doubt times when the testimony regarding a tip from an
No. 03-3628                                                 3

informant is relevant. If a jury would not otherwise under-
stand why an investigation targeted a particular defendant,
the testimony could dispel an accusation that the officers
were officious intermeddlers staking out Silva for nefarious
purposes. No such argument was made in this case, how-
ever, and no other explanation was given why the testimony
would be relevant. Under the prosecution’s theory, every
time a person says to the police “X committed the crime,”
the statement (including all corroborating details) would be
admissible to show why the police investigated X. That
would eviscerate the constitutional right to confront and
cross-examine one’s accusers. See Crawford v. Washington,
124 S. Ct. 1354 (2004).
  Here’s another illustration. Police officer Jocson testified
about a traffic stop of Luis Madrid for speeding. Silva was
a passenger in this car. Jocson, who was unaware when he
stopped Madrid’s car that both Silva and Madrid were the
targets of a federal investigation, testified that a search of
the car turned up a few bundles of cash totaling $16,000
and “some plant-like materials consistent with cannabis”.
He continued: “At that time I called a crime scene technician
to do a vacuum sweep of the trunk area to try to retrieve
some of this plant like material, which we later tested as
positive for cannabis.” The court overruled Silva’s objections
and instructed the jury that the positive test—of which
Jocson had no first-hand knowledge—was “not being offered
for the truth of the matter, but for the actions taken by this
officer only.”
  In what way could test results have explained Jocson’s
actions, let alone been relevant to the charges for which
Silva was on trial? Jocson did not find methamphetamine.
He was not aware of the federal investigation, and the lab
tests, which post-dated the traffic stop, could not have “ex-
plained” any of Jocson’s actions on the scene. Silva was not
charged with any offense related to marijuana, and none of
the serial numbers on the bills matched the serial numbers
from the cash that had been used in the monitored metham-
4                                                No. 03-3628

phetamine transaction. So the evidence about events during
and after the traffic stop either was irrelevant or was being
used to show that Silva had a propensity for drug dealing. See
United States v. Beasley, 809 F.2d 1273 (7th Cir. 1987). The
latter explanation seems superior: when the prosecutor asked
Jocson what he thought the cash revealed, Jocson replied
that he thought it “was the result of drug smuggling acts,
which would essentially be proceeds from narcotics transac-
tions.”
  Perhaps all of this could be dismissed as harmless. The
record has plenty of admissible evidence, and the judge did
tell the jury that the contested evidence had not been ad-
mitted for a substantive use. Come the closing argument,
however, the prosecutor explicitly used some of the hearsay
as evidence of Silva’s guilt. Defense counsel objected to the
violation of the court’s rulings that the evidence was not to
be used to show Silva’s culpability. Instead of sustaining
the objection and giving a curative instruction, see Jones v.
Lincoln Electric Co., 188 F.3d 709 (7th Cir. 1999), the judge
told the jury:
    The jury will determine what the evidence shows and
    why it was admitted. If it was admitted for a differ-
    ent purpose, they will make that decision. I ruled on
    all of that. They heard the evidence. And if the evi-
    dence was not admitted for that purpose, they will
    so take it into account.
What was the jury to make of this? It left the prosecutor’s
transgressions without correction. Inviting a jury to decide
for itself what evidence to use and how to use it amounts to
abdication by the district judge. The subject before the court
was not merely “what the evidence shows” (a perfectly
acceptable question for the jury) but also whether the evidence
was admissible for the purpose for which the prosecutor was
using it. Bourjaily v. United States, 483 U.S. 171, 175 (1987).
When the prosecutor violated the limitations on the evi-
No. 03-3628                                                   5

dence’s use, the judge had to set things straight. This he
failed to do; instead of enforcing his rulings, he abandoned
them and deferred to the prosecutor and the jurors.
  Silva’s brief complained at length about the closing argu-
ment and the judge’s failure to stop the prosecutor in his
tracks. The brief for the United States, by contrast, ignored
the subject. The prosecutor has not attempted to justify the
closing argument or the judge’s perplexing instruction. And
by ignoring the subject the United States has forfeited any
opportunity to contend that the error was harmless. We
decline to exercise our discretion to invoke the harmless- error
doctrine on our own. See United States v. Giovannetti, 928
F.2d 225, 226-27 (7th Cir. 1991); United States v. Pryce, 938
F.2d 1343 (D.C. Cir. 1991). Far too much use was made of
hearsay in this trial. Silva is entitled to another.
                                   REVERSED AND REMANDED

A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                    USCA-02-C-0072—8-18-04
