dissenting:

I dissent. The majority opinion demonstrates the possibility of error that exists when a court injects into a case an issue that the parties did not raise, brief or argue at trial or on appeal. The majority concludes: that the judge committed “plain error” under the Confrontation Clause of the Sixth Amendment by admitting into evidence, over the objection of the appellant under Fed.R.Evid. 403, certain testimony of Special Agent Johnson; that the “plain error” was not “harmless beyond a reasonable doubt,” Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969); United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982); and that, therefore, reversal is required. The majority’s analysis does not support a reversal.

The majority describes the testimony of Agent Johnson as double hearsay — the appellant to Walker and Walker to Johnson. 1 The characterization is erroneous. The first-level statement contains two components: the accusatory statement by Simmons, and the appellant’s adoption of the statement by his silence. Neither of the components constitutes hearsay, and it is, therefore, incorrect to speak of Agent Johnson’s testimony as double hearsay.

Without first considering whether a Confrontation Clause analysis is appropriate for the first-level statement, the majority begins examining the first-level statement, for “necessity” and “reliability” under Ohio v. Roberts, 448 U.S. 56, 65 , 100 S.Ct. 2531, 2538 , 65 L.Ed.2d 597 (1980), and United States v. Fleishman, 684 F.2d 1329 (9th Cir.), cert. denied, - U.S. -, 103 S.Ct. *386 464 , 74 L.Ed.2d 614 (1982). Because the majority mixes together the two component statements in its analysis of the first-level statement, I cannot tell whether the majority is holding that the admission of Simmons’s statement, or of the appellant’s adoption of the statement, or of both in concert, violated the Confrontation Clause. 2 Whatever the majority’s intent, I disagree with its conclusion.

To the extent the majority decides that the admission of Simmons’s statement presents a problem under the Clause, the majority’s holding is directly at odds with part of the holding in United States v. Giese, 597 F.2d 1170 (9th Cir.), cert. denied, 444 U.S. 979 , 100 S.Ct. 480 , 62 L.Ed.2d 405 (1979). Giese holds inter alia, that statements like Simmons’s come in only to lay the foundation for showing the accused’s failure to deny the statements, and are not hearsay because they are not offered to prove the truth of the matter asserted. Id. at 1195 ; see Fed.R.Evid. 801(c). Under Giese , because Simmons’s statement was not offered for its truth, the appellant cannot have any constitutional right to cross-examine Simmons. 597 F.2d at 1105 ; see Anderson v. United States, 417 U.S. 211, 220 , 94 S.Ct. 2253, 2260 , 41 L.Ed.2d 21 (1974). Accordingly, the majority’s discussion whether or not Simmons was “available” for trial is irrelevant. Instead of assuming that Simmons was “unavailable” the majority should have followed Giese. 3

Because Giese undercuts any contention that Simmons’s statement could be the source of a Confrontation Clause problem, the problem, if one exists, would have to be in the admission of appellant’s own “statement by silence.” To the extent the majority raises this issue, it creates the odd situation of having the “declarant” object on hearsay grounds to the admission of his own statement. As the court stated in United States v. Evans, 572 F.2d 455 (5th Cir.), cert. denied, 439 U.S. 870 , 99 S.Ct. 200 , 58 L.Ed.2d 182 (1978), when faced with an appellant that raised the issue, “[tjhis is an ironic twist in that the rule against hearsay has as its primary purposes the protection of the right of litigants to confront witnesses against them and to test their credibility through cross-examination.” Id. at 487. As was stated in Evans , this “unique situation” should certainly color the court’s consideration of the issue. Id. at 488 (citing Fed.R.Evid. 102).

The Evans court found the answer to its problem in the principle, recognized also in this Circuit, that “[a]ny and all statements of an accused person, so far as are not excluded by the doctrine of confessions or by the privilege against self-incrimination, are usable against the accused as an admission, and are not hearsay.” Id. at 488 . 4 *387 See United States v. Weiner, 578 F.2d 757, 770 (9th Cir.), cert. denied, 439 U.S. 981 , 99 S.Ct. 568 , 58 L.Ed.2d 651 (1978).

The Evans principle may not completely solve the problem here, however, because the appellant’s admission was a special kind of admission: an adoptive admission under Fed.R.Evid. 801(d)(2)(B). The applicability of the Confrontation Clause to adoptive admissions has not been a common issue in the case law, but a number of courts have held that the admission of adoptive statements is proper and they have rejected Confrontation Clause arguments against the admission of this kind of statement (the same courts have recognized, however, that a defendant still can challenge the voluntariness of his ratification of the statement). See Poole v. Perini, 659 F.2d 730 (6th Cir.1981), cert. denied, 455 U.S. 910 , 102 S.Ct. 1259 , 71 L.Ed.2d 450 (1982) (see particularly the cases cited at 659 F.2d 733 and the accompanying discussion).

As the court in Perini states, “An adoptive [statement] avoids the confrontation problem because the words of the hearsay become the words of the defendant.” Other relevant case authority includes United States v. Lemonakis, 485 F.2d 941 (D.C.Cir.1973), ce rt. denied, 415 U.S. 989 , 94 S.Ct. 1586 , 39 L.Ed.2d 885 (1974) (court affirmed a trial judge’s admission into evidence of certain incriminating statements adopted by the appellant and stated that “the exclusionary principles embodied in the Confrontation Clause [do not] nullify the well-established reasons for making such admissions exceptions to the hearsay rule.” Id. at 949 (citations omitted)) 5 ; and United States v. Giese, 597 F.2d at 1197 (“Neither due process, fundamental fairness, nor any more explicit right contained in the Constitution is violated by the admission of the silence of a person, not in custody or under indictment [,] in the face of accusations of criminal behavior”). 6

The majority’s opinion does not make good law to the extent it concludes that the Confrontation Clause can be violated by the admission at trial against an accused of his own out-of-court adoptive statements. The accused will always be “available” at trial, and he can, if he chooses confront and rebut his out-of-court statements through his own direct testimony or through the introduction of other evidence. If he chooses not to do so, that is his right too. See United States v. Rylander, - U.S. -, 103 S.Ct. 1548, 1552 , 75 L.Ed.2d 521 (1983). Moreover, as the Perini decision and others recognize, an accused has every opportunity to interpose a proper objection and to make *388 the government prove to the court, preliminarily, and to the jury, ultimately, that the accused heard and understood the statement yet failed to deny it when a reasonable person would have done so.

Accordingly, I would conclude that neither Simmons’s statement nor the appellant’s adoptive admission properly could have been the basis of an objection under the Confrontation Clause. The majority does not reach any issue about the second-level statement on Agent Johnson’s testimony so I do not discuss it here. If this case is to be decided on the basis of the Confrontation Clause, I would require a re-briefing and oral argument. The majority-does not reach any of the other issues presented in the appeal, so it would be imprudent of me to address them here. For the reasons set forth above, I respectfully dissent.

. Walker was Simmons’s girlfriend, with whom Simmons lived at the time of the robbery, and she was interviewed by Agent Johnson on two occasions shortly after the robbery. At the time of the appellant’s trial, Walker had married Simmons.

. The majority looks to Simmons as the declarant to determine “necessity,” decides because of an inadequate record to assume that Simmons was “unavailable,” and on the strength of this assumption goes on to analyze “reliability.” The majority, however, switches its focus at this point to the appellant and the statement he made by silently adopting Simmons’s statement. The majority concludes that the record provides an inadequate foundation for the admission of the appellant’s “statement,” and is, therefore, “unreliable.” I have two comments. First, even if a Confrontation Clause analysis were appropriate, the majority’s discussion would be faulty because it looks to the “availability” of one declarant and the “reliability” of another. Second, any inadequacies in the trial record on this point are doubtless due to the appellant’s failure to object on hearsay or Confrontation Clause grounds to the testimony of Agent Johnson. The majority does not discuss whether the absence of a proper objection ought to have an impact on this appeal.

. In Giese, the court did not find any violation of the Confrontation Clause in the admission into evidence of the accusatory statement of a Mr. Brown, whose statement in turn contained an accusatory statement by a Mr. Severin that Brown was reporting to the appellant. The statements all came in as background for the appellant’s adoptive admission.

. Fed.R.Evid. 801(d) was amended to exclude admissions by a party opponent from the category of hearsay. As stated in the notes appended to the Rule, “[ajdmissions by a party opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule.” Fed.R.Evid. 801 advisory committee note to subdivision (d)(2) (citing Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence *387 265 (1962); and 4 Wigmore § 1048). See Graham, M. Handbook of Federal Evidence § 801.-15 (“While formerly considered an exception to the hearsay rule, in recognition of its position in the adversary system, Rule 801(d)(2) defines an admission by a party-opponent as not hearsay. Lack of opportunity to cross-examine is deprived of significance by the incongruity of the party objecting to his own statement on the ground that he was not subject to cross-examination by himself at the time." (Footnotes omitted).

. The Lemonakis case involved the admissibility of the taped conversation of the appellant and a co-defendant that included statements by the co-defendant that came in against the appellant as adoptive admissions. The case was decided at a time when admissions were treated as exceptions to the hearsay rule. The Lemonakis court noted, however, the pendency of the change in the Rules to exclude admissions by definition from the category of hearsay. Id. at 949, n. 10 . The Lemonakis court concluded, however, that even under the then-current state of affairs, the Confrontation Clause was not violated by the admission of adoptive statements.

. The appellant did not contend, specifically, in Giese that the admission into evidence of the appellant’s adoptive statements violated the Confrontation Clause. The appellant did make a Confrontation Clause argument against the admission of the statements of others that he was alleged to have adopted. The appellant also made a number of specific challenges to the admission of his own statements. The court conducted a very careful inquiry into all of these specific issues and could well have reviewed the adoptive admissions for a Confrontation Clause problem under the “plain error” rule if it felt such review was warranted. Based on the facts and legal issues in Giese , the court’s statement that the admission of the appellant’s silence did not violate any explicit right contained in the Constitution becomes persuasive, although not conclusive authority, on the issue presented here.