United States v. Rodriguez, No. 16-10017 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit reversed defendant's conviction for transporting an illegal alien for financial gain. The panel held that the district court's instruction to the jurors defining "reckless disregard" was incorrect where, even assuming the jury instruction required that defendant be aware of facts from which the inference of the risk at issue could be drawn, it plainly did not require that defendant actually draw the inference. In other words, defendant was subjectively aware of the risk. The panel reasoned that this was not the proper case in which to conduct a harmless error review. The panel also held that the district court improperly admitted the passenger's videotaped deposition, because the government made an insufficient showing that the passenger was "unavailable," where the government's efforts to secure his presence were not reasonable.
Court Description: Criminal Law. The panel reversed a conviction for transporting an illegal alien for financial gain in violation of 18 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). The panel rejected the government’s contention that the defendant failed to preserve the error in the district court’s jury instruction defining “reckless disregard.” The panel held that the jury instruction was flawed because even assuming that the instruction required that the defendant be aware of facts from which the inference of the risk at issue could be drawn, it plainly did not require that the defendant actually draw the inference – i.e., that she was subjectively aware of the risk. The panel concluded that this is not a proper case in which to conduct a harmless error review because the government did not argue that any error in the instruction was harmless, the general verdict does not indicate upon which alternative theory of mens rea the jury relied, and the case is not extraordinary. The panel held that the admission of a passenger’s videotaped deposition violated the defendant’s Confrontation Clause rights because the government made an insufficient showing that the passenger was “unavailable,” where the government’s efforts to secure his presence were not reasonable. The panel rejected the
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