United States v. Lidia Rodriguez

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-10017 Plaintiff-Appellee, D.C. No. v. 4:14-cr-00131- JGZ-BGM-1 LIDIA RODRIGUEZ, Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding Argued and Submitted September 12, 2017 San Francisco, California Filed January 30, 2018 Before: Alex Kozinski * and Michelle T. Friedland, Circuit Judges, and Mark W. Bennett, ** District Judge. Opinion by Judge Bennett * Judge Kozinski retired before this opinion was finalized, but he had concurred in the result and the substance of everything contained herein. ** The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa, sitting by designation. 2 UNITED STATES V. RODRIGUEZ 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 *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. RODRIGUEZ 3 defendant’s contention that the district court improperly admitted evidence of her prior conviction. COUNSEL 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. 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 ...

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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals