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United States v. Rodriguez

United States Court of Appeals, Ninth Circuit

January 30, 2018

United States of America, Plaintiff-Appellee
v.
Lidia Rodriguez, Defendant-Appellant.

          Argued and Submitted September 12, 2017

         Appeal from the United States District Court for the District No. 4:14-cr-00131-JGZ-BGM-1 of Arizona Jennifer G. Zipps, District Judge, Presiding

          M. Edith Cunningham (argued), Assistant Federal Public Defender, and Jon M. Sands, Federal Public Defender, Office of the Federal Public Defender, Tucson, Arizona, for Defendant-Appellant.

          Robert L. Miskell (argued), Assistant U.S. Attorney, and Elizabeth A. Strange Acting United States Attorney, United States Attorney's Office, Tucson, Arizona, for Plaintiff-Appellee.

          Before: Alex Kozinski [*] and Michelle T. Friedland, Circuit Judges, and Mark W. Bennett, [**] District Judge.

         SUMMARY [***]

         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 defendant's contention that the district court improperly admitted evidence of her prior conviction.

          OPINION

          BENNETT, District Judge:

         Lidia Rodriguez appeals her conviction and sentence for transporting an illegal alien for financial gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). She was arrested at a Border Patrol checkpoint on I-19 between Nogales and Tucson, Arizona, after the passenger in her vehicle admitted the B1/B2 border crossing card he showed to Border Patrol agents did not belong to him.

         Rodriguez seeks reversal of her conviction and remand for a new trial-which would be her third on this charge- on several grounds. First, she contends a jury instruction incorrectly defined "reckless disregard." She also contends, among other things, that the prosecutor's showing of "unavailability" of her passenger was insufficient to admit his videotaped deposition at trial and that her prior conviction was improperly admitted.

         We reverse.

         I. INTRODUCTION

         A. Factual Background

         Lidia Rodriguez lives in Rio Rico, Arizona, which is just north of Nogales. The parties agree that, on December 17, 2013, Rodriguez picked up a young man, as arranged, at a parking lot in Nogales, asked to see his border crossing card, which identified him as Jorge Miranda Bueno, then put the card on the seat beside her. In a videotaped deposition, taken on January 24, 2014, before his deportation, her passenger testified about how he had obtained a ride with Rodriguez. He had been making his third attempt to enter the United States, after he had been sent back to Mexico on two previous tries. He had made arrangements to pay a man he knew only as "Pecos" $4, 000 to help him, if he successfully crossed into the United States. Pecos told him to go to the McDonald's after crossing into Nogales, where a man with a black and gray cap would pick him up. When he got to the McDonald's, the man in the cap arrived and, without discussion, drove him to a house, left him in the car for a couple of hours, then returned with a border crossing card with a photograph that the man said looked like him, and told him to learn the name very well. The man then took him to a parking lot, where Rodriguez picked him up. Rodriguez spoke with the man in the cap, but the passenger did not hear what was said. Rodriguez asked to see the passenger's border crossing card, told the passenger he should not get nervous, and gave him a cell phone to use to play games. The passenger testified he understood they were going to Tucson.

          Although Rodriguez did not testify, other witnesses' trial testimony showed that, when Rodriguez and her passenger arrived at the primary inspection area of the Border Patrol checkpoint on I-19, about 41 kilometers north of Nogales, Border Patrol Agent Luis Perez stopped their vehicle. Agent Perez asked Rodriguez if she was a U.S. citizen; she said she was and produced a U.S. passport card. Her passenger did not respond when asked the same question. Agent Perez thought the passenger looked ill at ease and was wearing a new shirt. Agent Perez explained that illegal aliens frequently changed out of the clothing they had worn to cross through the desert to try to blend in better. Rodriguez handed Agent Perez the border crossing card, which she said was the young man's. At some point, Rodriguez told Agent Perez that she was going to Tucson to shop. Agent Perez did not believe that the border crossing card showed Rodriguez's passenger, so he directed her vehicle to secondary inspection.

         At secondary inspection, in answer to Border Patrol Agent Oscar Hidalgo's questions, Rodriguez repeated that she was a U.S. citizen. When Agent Hidalgo asked the passenger about his citizenship, the passenger handed him the border crossing card. Agent Hidalgo directed the passenger to sit on a bench, some 20 or 30 feet away from Rodriguez's vehicle, so he could continue questioning him. The passenger told Agent Hidalgo he had walked over the border that morning with the border crossing card to go shopping in the United States. Agent Hidalgo testified that, at some point during his questioning of the passenger, Rodriguez yelled from her vehicle, "We're going shopping, " but that information was not in his report of the incident.

         The passenger testified in his later videotaped deposition that he had not made any plans with Rodriguez to go shopping prior to the interactions with the officers. The passenger further testified that he thought three agents examined the border crossing card, that one thought the photograph on it looked like him, one didn't, and a third wasn't sure.

         Agent Hidalgo testified that he did not think the photograph looked like the passenger. Agent Hidalgo called a dispatcher who reported back that the border crossing card had not been used since June. When Agent Hidalgo asked the passenger if he had any other identification, the passenger showed Agent Hidalgo his completely empty wallet. Agent Hidalgo thought going shopping with an empty wallet was unusual. A weapons search produced an identification card in the name of Enrique Martinez-Arguelles from underneath the passenger's sock. At that point, the passenger admitted he was not the person in the photograph on the border crossing card, but was Martinez-Arguelles, and he was detained. Rodriguez was also arrested.

         B. Procedural Background

         On the order of a magistrate judge, Mr. Martinez-Arguelles's deposition was taken on January 24, 2014, prior to his deportation, before the prosecutor and Rodriguez's then-defense counsel. The videotaped deposition was introduced, over Rodriguez's objection, during her first trial, in September 2014. Rodriguez also testified at her first trial and, because she did, the jury learned that she had a prior conviction for conspiracy to commit fraud. Rodriguez was convicted, but the district judge granted her a new trial, because her counsel had suffered medical problems that had undermined the effectiveness of his representation.

          At Rodriguez's second trial, in July 2015, which is the one at issue in this appeal, Mr. Martinez-Arguelles's videotaped deposition was again introduced into evidence over Rodriguez's objection. Agents Perez and Hidalgo testified as described above. An expert for the prosecution and an expert for the defense testified about smuggling along the border. Rodriguez did not testify, but her husband did. Rodriguez also presented the testimony of a neuro-optometric specialist that Rodriguez has marked visual disabilities that can create blurred vision, double vision, and transposition, resulting in difficulties interpreting and processing information. That evidence was offered to explain why Rodriguez might not have recognized that the passenger was not the person shown on the border crossing card he gave her. Because Rodriguez argued at trial that Border Patrol agents have special training to detect imposters using documents of others, the prosecution was allowed to introduce evidence of Rodriguez's prior conspiracy conviction involving fraudulent use of immigration stamps to show her knowledge that aliens use false or fraudulent documents to enter the United States.

         At the end of their first day of deliberations, the jurors indicated they were at an impasse, so the district judge gave an Allen charge, based on the Ninth Circuit model. This reminded the jurors that they had "a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each [could] do so without violating [his or her] individual judgment and conscience, " and instructed the jurors to "decide the case for [themselves]" but to "not hesitate to reexamine [their] own views." The judge then sent the jury back for further deliberations. After receiving a note and questioning jurors, the district court removed one juror on the prosecution's motion, joined by Rodriguez, and replaced that juror with an alternate. The jury convicted Rodriguez of transporting an illegal alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and for doing so for financial gain in violation of § 1324(a)(1)(B)(i) less than two hours later.

         At sentencing, in January 2016, the district court applied a two-level enhancement, pursuant to the U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2L1.1(b)(3), for committing the charged offense after a prior conviction for a felony "immigration and naturalization offense." Rodriguez was sentenced to twelve months and one day.

         Rodriguez appeals her conviction and sentence. She was granted release pending appeal.

         II. LEGAL ANALYSIS

         As mentioned at the outset of this opinion, Rodriguez challenges her conviction on several grounds and her sentence on one ground. We will consider in turn Rodriguez's asserted grounds for relief.

         A. Challenges To The Conviction

         1. The "reckless disregard" instruction

         Rodriguez's first challenge to her conviction is that the district court gave an incorrect definition of "reckless disregard" in its instructions. She argues the district court's definition did not require awareness of risk, only unreasonable failure to recognize risk, contrary to Farmer v. Brennan, 511 U.S. 825 (1994). See id. at 837. To put it another way, she contends the instruction permitted a guilty verdict based on mere failure to perceive a risk, which reflects negligence, not recklessness. The government argues the error was not preserved because Rodriguez did not object at trial to the instruction defining "reckless disregard" as defining "negligence, " so review is only for plain error. The government further argues that, whatever the standard of review, the instruction was correct.

         a. Additional factual background

         The statute under which Rodriguez was charged imposes criminal penalties on "[a]ny person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law." 8 U.S.C. § 1324(a)(1)(A)(ii) (emphasis added). It provides increased penalties if "the offense was done for the purpose of commercial advantage or private financial gain." 8 U.S.C. § 1324(a)(1)(B)(i).

         Rodriguez asked the district court to give the following instruction defining "reckless disregard":

A person acts in reckless disregard with respect to a circumstance when a person is aware of and consciously disregards a substantial and unjustifiable risk that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

         This instruction is drawn from the Model Penal Code § 2.02(2)(c). Rodriguez also requested an instruction that negligence or mistake is insufficient to establish "reckless disregard."

          The district court, however, initially proposed the following instruction on "reckless disregard":

Reckless disregard is defined as deliberate indifference to the facts which, if considered and weighed in a reasonable manner, indicate a substantial and unjustifiable risk that the alleged alien was in fact an alien and was in the United States unlawfully.

         The Model Criminal Jury Instruction for the Ninth Circuit on a § 1324(a)(1)(A)(ii) offense, § 9.2, does not define "reckless disregard, " so the district court understandably based this instruction on a comment to that model instruction, which indicated that this definition was derived from decisions of the Tenth and Eleventh Circuits.

         Rodriguez objected to this instruction, inter alia, on ...


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