US v. Macias, No. 13-50211 (6-15-15)(Benavides [5th Cir] with Clifton; partial concurrence an partial dissent by Wardlaw).  This is a duel of competing birth certificates, and violation of the Confrontation Clause.  Unfortunately, for the defendant, the majority found no prejudice and affirmed the conviction.

The defendant was charged under 8 U.S.C. § 1326.  In the first trial, he submitted a 1998 California delayed registration birth certificate that stated he was born in the U.S.  After a mistrial, the government launched an investigation, and found evidence that he was born in Mexico.  The evidence included prior statements, proceedings, and interviews with family members.  The agents swore affidavits that amended the delayed registration of birth.  Thus, there were dueling certificates.  The affidavits on the amendment came in with the exhibit, and one of the agents did not testify.

The 9th held that there was a confrontation clause violation.  The affidavits were produced for litigation, and were testimonial.  However, the error was harmless given the other evidence of his birth in Mexico.

The 9th also found no prosecutorial misconduct in the closing arguments.

Wardlaw concurred with the finding of error, but dissented from the lack of prejudice.  She argued that the standard was not "plain error," because the government had waived objection; the standard should be "de novo."  The government could not prove the error was harmless under de novo.