NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-10301 Plaintiff-Appellee, D.C. Nos. 4:19-cr-02866-RCC-EJM-1 v. 4:19-cr-02866-RCC-EJM ROGER EVERETT SMITH III, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding Submitted June 15, 2021** San Francisco, California Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges. Roger Everett Smith III appeals his convictions and sentence for transporting aliens for profit. 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1. We review de novo the district court’s denial of a motion to acquit on * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). grounds of insufficient evidence. United States v. Sandoval-Gonzalez, 642 F.3d 717, 727 (9th Cir. 2011). “We must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotations omitted). A reasonable jury could have convicted Smith for transporting aliens for profit. The government presented sufficient evidence that Smith’s passengers were aliens, including that they were Mexican citizens who lacked immigration status or permission to enter the United States. Contrary to Smith’s argument on appeal, the government was not required to ask the passengers more direct questions about whether they were American citizens to prove that they were not. A reasonable jury could also conclude that Smith had the requisite mens rea. The government was required to show that Smith knew, or recklessly disregarded, the fact that the aliens were in the United States illegally. 8 U.S.C. § 1324(a)(1)(A)(ii); United States v. Rodriguez, 880 F.3d 1151, 1158 (9th Cir. 2018). This required the government to show that Smith (1) “knew of 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,” and (2) “knew of that risk.” Rodriguez, 880 F.3d at 1162 (emphases omitted). 2 Smith was instructed by a person he did not know near the border to transport four unknown individuals who did not know English. The directions he was given took him into a remote desert location. He then was instructed by an unknown caller to avoid a checkpoint and drive into New Mexico before returning to Phoenix, a long detour in the opposite direction, all for a promised payment of $3,400. A jury could conclude that these facts presented a “substantial and unjustifiable risk” that the passengers were aliens, and that Smith knew of this risk. Id. 2. Smith next argues that the government violated the Confrontation Clause by removing …
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