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 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

4 UNITED STATES V. RODRIGUEZ

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.

UNITED STATES V. RODRIGUEZ 5

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

6 UNITED STATES V. RODRIGUEZ

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.

UNITED STATES V. RODRIGUEZ 7

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

8 UNITED STATES V. RODRIGUEZ

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

UNITED STATES V. RODRIGUEZ 9

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.”

10 UNITED STATES V. RODRIGUEZ

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 the

following grounds:

Recklessness is an awareness of risk and a

conscious disregard of the awareness. The

Court’s proposed instruction does not state

the necessary awareness of risk. It just says

if there is a substantial and [un]justifiable

risk. It doesn’t link the existence of a risk to

awareness of the same.

The prosecutor suggested the court replace “deliberate

indifference to the” with “knowledge of,” and Rodriguez’s

counsel agreed to that change. However, Rodriguez’s

counsel then repeated a request for an instruction requiring

“conscious disregard of the risk of which one has

knowledge.” The district court announced, “I’m going to

make the modification agreed to by the parties,” but

UNITED STATES V. RODRIGUEZ 11

“decline[d] to read the second sentence” of Rodriguez’s

proposed instruction, and did not make any other change.

Consequently, the definition of “reckless disregard”

presented to the jury was the following:

Reckless disregard is defined as knowledge

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.

b. Preservation of error

We reject the government’s contention that Rodriguez

failed to preserve the error in the “reckless disregard”

instruction. In Black v. United States, 561 U.S. 465 (2010),

the Supreme Court explained,

[T]he Criminal Rules . . . are informative on

objections to instructions. Rule 30(d)

“clarifies what . . . counsel must do to

preserve a claim of error regarding an

instruction.” The Rule provides: “A party

who objects to any portion of the instructions

or to a failure to give a requested instruction

must inform the court of the specific

objection and the grounds for the objection

before the jury retires to deliberate.”

Id. at 473 (first quoting Fed. R. Crim P. advisory

committee’s note to 2002 amendment, then quoting Fed. R.

Crim. P. 30(d)). We have held that an error is preserved

when the substance of the objection was “patently” clear,

even if defense counsel did not use the precise terms used on

12 UNITED STATES V. RODRIGUEZ

appeal. United States v. Ward, 747 F.3d 1184, 1189 (9th Cir.

2014).

Here, Rodriguez did not state her objection to the district

court’s instruction on “reckless disregard” in terms of

“negligence” or reiterate her request to distinguish “reckless

disregard” from “negligence.” Nevertheless, she did make

patently clear that the substance of her objection was the

failure of the district court’s instruction to require awareness

of the risk, not merely knowledge of facts reasonably

indicating the risk. Id. After the district court indicated it

would replace “deliberate indifference to the” with

“knowledge of,” Rodriguez’s counsel specifically repeated a

request for an instruction requiring “conscious disregard of

the risk of which one has knowledge.” This statement was

sufficient to inform the court of the specific objection and

the grounds for it, so the error was preserved. See Black,

561 U.S. at 473.

c. Misstatement of the law

Rodriguez argues the instruction misstates the law, so

our review is de novo. United States v. Kleinman, 859 F.3d

825, 835 (9th Cir. 2017). We have explained,

A district court’s formulation of jury

instructions must adequately cover the

applicable law and must not be misleading.

We review the instructions as a whole when

determining if there was instructional error.

United States v. Ubaldo, 859 F.3d 690, 705 (9th Cir. 2017),

cert. denied, No. 17-6884, 2018 WL 311758 (U.S. Jan. 8,

2018). The district court’s reliance on the comment to the

pertinent model instruction was understandable.

Nevertheless, its instruction on “reckless disregard,”

UNITED STATES V. RODRIGUEZ 13

examined as a whole, does not correctly cover the applicable

law and is misleading. Id.

i. The Farmer definition

First, the Supreme Court has made plain that criminal

recklessness generally requires that “a person disregards a

risk of harm of which he is aware.” Farmer, 511 U.S. at 837

(citing, inter alia, Model Penal Code § 2.02(2)(c)); 1 accord

Voisine v. United States, 136 S. Ct. 2272, 2278 (2016).

Thus, the defendant “must both be aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer,

511 U.S. at 837 (emphasis added). In other words, the

standard requires that the defendant “was subjectively aware

of the risk.” Id. at 829.

The instruction, here, was contrary to Farmer. First, the

instruction states that “[r]eckless disregard is defined as

knowledge of facts” from which an inference of risk could

1

Model Penal Code § 2.02(2) identifies and defines four mentes

reae for criminal culpability: (a) purposely; (b) knowingly;

(c) recklessly; and (d) negligently. It defines “recklessly” as follows:

A person acts recklessly with respect to a material

element of an offense when he consciously disregards

a substantial and unjustifiable risk that the material

element exists or will result from his conduct. The risk

must be of such a nature and degree that, considering

the nature and purpose of the actor’s conduct and the

circumstances known to him, its disregard involves a

gross deviation from the standard of conduct that a

law-abiding person would observe in the actor’s

situation.

Model Penal Code § 2.02(2)(c).

14 UNITED STATES V. RODRIGUEZ

be drawn, but does not meet the requirement in Farmer that

the defendant “must . . . be aware of facts” from which the

inference could be drawn. Id. at 837. The district court may

have intended the instruction to require the appropriate mens

rea—the defendant’s subjective knowledge of the facts—

because the definition the court gave relates to the third

element of the “Alien—Illegal Transportation” instruction,

which states, “the defendant knew or acted in reckless

disregard of the fact that Enrique Martinez-Arguelles was

not lawfully in the United States.” Nevertheless, that

implication is far from obvious here, because the definition

of “reckless disregard” is set off in a separate instruction,

which does not explicitly require Rodriguez herself to have

knowledge of the facts at issue. As a separate instruction, it

is ambiguous whether the “knowledge of facts” at issue is

the defendant’s subjective knowledge of the facts or a

reasonable person’s, for example.

Even assuming that the district court’s “reckless

disregard” instruction required that Rodriguez be aware of

facts from which the inference of the risk at issue could be

drawn, it plainly did not require that she actually draw the

inference, id., i.e., it did not require that she was subjectively

aware of the risk, id. at 829. We are unable to follow or

accept the government’s semantic gymnastics, which

somehow lead it to conclude that an instruction requiring the

defendant to have “knowledge of facts which, if considered

and weighed in a reasonable manner, indicate[d] a

substantial and unjustifiable risk,” required that a defendant

knew of a substantial and unjustifiable risk that his conduct

was criminal, as required by Farmer. Id. at 837. In our view,

this language plainly does not require that Rodriguez was

actually aware of the risk, only that she have been aware of

facts from which an inference of risk might reasonably be

drawn.

UNITED STATES V. RODRIGUEZ 15

We recognize that the decision in Farmer did not

address, specifically, the meaning of “reckless disregard” in

8 U.S.C. § 1324(a)(1)(A)(ii), nor have we ever done so.

Nevertheless, we have recognized the general applicability

of the definition of “recklessness” in Farmer to other

criminal charges.

For example, in United States v. Rodriguez, 790 F.3d 951

(9th Cir. 2015), we turned to Farmer and the Model Penal

Code to determine the meaning of “reckless disregard” in the

case of a criminal statute requiring proof of a willful attempt

to interfere with the operator of an aircraft, with either the

intent to endanger others or reckless disregard for human

life. Id. at 953 (describing a violation of 18 U.S.C.

§ 32(a)(5) and (8)). As we explained,

A reckless disregard for the safety of human

life has both a subjective and an objective

component. First, the defendant must be

aware of the risk his conduct created (here,

that the laser had the ability to blind or

distract a pilot enough to cause a crash). As

the Supreme Court recognized in Farmer v.

Brennan, “[t]he criminal law[ ] [ ] generally

permits a finding of recklessness only when a

person disregards a risk of harm of which he

is aware.”

Second, the risk must be “‘of such a nature

and degree that, considering the nature and

purpose of the actor’s conduct and the

circumstances known to him, its disregard

involves a gross deviation from the standard

of conduct that a law-abiding person would

observe in the actor’s situation.’” To put it

16 UNITED STATES V. RODRIGUEZ

succinctly, a defendant acts recklessly when

he “deliberately disregard[s] a substantial and

unjustifiable risk . . . of which [he is] aware.”

Id. at 958 (alterations in original) (emphasis added)

(citations omitted). Thus, we reiterated the subjective

requirement that the defendant must be aware of the risk his

conduct created, although the nature of the risk is measured

by an objective standard, that is, “its disregard involves a

gross deviation from the standard of conduct that a law-

abiding person would observe in the actor’s situation.” Id.

(quoting United States v. Albers, 226 F.3d 989, 995 (9th Cir.

2000)).

Similarly, in Albers, we considered the meaning of

“recklessly” in the definition of disorderly conduct in

36 C.F.R. § 2.34(a)(4). 226 F.3d at 995. We explained,

The Supreme Court has, moreover, explained

that the criminal law generally permits a

finding of recklessness only when persons

disregard a risk of harm of which they are

aware. We thus conclude that the relevant

inquiry in finding recklessness here is

whether the defendants deliberately

disregarded a substantial and unjustifiable

risk of creating a hazardous or physically

offensive condition of which they were aware.

Id. (emphasis added). Moreover, in our en banc decision in

United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en

banc), we explained “[a] reckless defendant is one who

merely knew of a substantial and unjustifiable risk that his

conduct was criminal.” Id. at 918 n.4 (emphasis added).

UNITED STATES V. RODRIGUEZ 17

Thus, a correct definition of “reckless disregard,”

consistent with Supreme Court and Ninth Circuit law, would

include “[the defendant’s] disregard[] [of] a risk of harm of

which [the defendant] is aware.” Farmer, 511 U.S. at 8372

2

The Seventh Circuit also used the definition of “recklessness” in

Farmer and Model Penal Code § 2.02(2)(c) to determine the meaning of

the term for purposes of the federal criminal contempt statute, 18 U.S.C.

§ 401(3). United States v. Mottweiler, 82 F.3d 769, 771 (7th Cir. 1996).

Likewise, that court used this definition for “recklessness” for purposes

of 29 U.S.C. § 666, which imposes criminal penalties for disregard of

safety rules. United States v. Ladish Malting Co., 135 F.3d 484, 488 (7th

Cir. 1998). And Courts of Appeals have embraced an “awareness of

risk” requirement for “recklessness,” citing either Farmer, § 2.02(2)(c),

or both, in the context of determining whether state criminal offenses

satisfy the requirements of federal laws or sentencing provisions. See,

e.g., Coelho v. Sessions, 864 F.3d 56, 61 (1st Cir. 2017) (noting the

departure from the classic definition of recklessness in § 2.02(2)(c) in the

Massachusetts statute defining assault and battery with a dangerous

weapon in determining whether or not that offense was a crime involving

moral turpitude within the meaning of the Immigration and Nationality

Act, 8 U.S.C. § 1229b(b)(1)); United States v. Trinidad-Aquino,

259 F.3d 1140, 1146 (9th Cir. 2001) (using § 2.02(2)(c) to determine

whether a California conviction for driving under the influence of

alcohol with injury to another constitutes a “crime of violence” as

defined by 18 U.S.C. § 16, and expressly citing Farmer and Albers for

the requirement of awareness of risk). Furthermore, U.S.S.G. § 2A1.4,

cmt. 1, defines “reckless” as “refer[ring] to a situation in which the

defendant was aware of the risk created by his conduct.” U.S.

Sentencing Guidelines Manual § 2A1.4 cmt.1 (U.S. Sentencing Comm’n

2015); see, e.g., United States v. Carr, 303 F.3d 539, 546 (4th Cir. 2002)

(noting that this is the “standard definition,” citing § 2.02(2)(c)); United

States v. Coleman, 664 F.3d 1047, 1051 (6th Cir. 2012) (concluding that

a U.S.S.G. § 3A1.2(c)(1) enhancement requires “recklessness” using the

common law definition in Farmer); United States v. Peterson, 629 F.3d

432, 436 (4th Cir. 2011) (determining that generic “manslaughter,” as

used in U.S.S.G. § 4B1.2(a), cmt. 1, encompasses “reckless” conduct as

defined by § 2.02(2)(c)); United States v. McCord, Inc., 143 F.3d 1095,

1098 (8th Cir. 1998) (concluding that “reckless” within the meaning of

18 UNITED STATES V. RODRIGUEZ

The instruction in Rodriguez’s case should have stated

something along the lines of the following, with italics

representing additions to the wording actually used:

The defendant acted with reckless disregard

if the defendant 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 the defendant knew of that

risk.

ii. The definition in the Model commentary

We are not persuaded to reach a different conclusion

either by the two cases cited in the comment to § 9.2 of the

Model Criminal Jury Instructions for the Ninth Circuit or by

subsequent decisions of other Circuit Courts of Appeals

considering the meaning of “reckless disregard” within

8 U.S.C. § 1324(a)(1)(A)(ii). The more recent of the

decisions cited in the comment, United States v. Zlatogur,

271 F.3d 1025 (11th Cir. 2001), simply cites the earlier one,

United States v. Uresti-Hernandez, 968 F.2d 1042 (10th Cir.

1992), as follows:

As we have not approved a definition for the

term [“reckless disregard”] as it is used under

Section 1324, the district court adopted the

U.S.S.G. § 2F1.1(b)(4)(A) was the meaning under Farmer and

§ 2.02(2)(c)).

3

There may be other appropriate formulations, but we offer this as

an example of one that would satisfy Farmer.

UNITED STATES V. RODRIGUEZ 19

following definition approved by the Tenth

Circuit:

[“]The phrase [‘]“reckless disregard of the

fact,[’]” as it has been used from time to time

in these instructions, means deliberate

indifference to facts which, if considered and

weighed in a reasonable manner, indicate the

highest probability that the alleged aliens

were in fact aliens and were in the United

States unlawfully.[”]

We find that this instruction, defining an

element of the offense, fairly and accurately

stated the law and was therefore proper.

Zlatogur, 271 F.3d at 1029 (quoting Uresti-Hernandez,

968 F.2d at 1046). To the extent this decision addressed any

alleged flaw in the instruction, it was simply to adopt the

conclusion of the Tenth Circuit that the instruction was not

a “deliberate ignorance” instruction. Id. at 1029 n.3. Thus,

this adoption of the Tenth Circuit formulation involved no

independent analysis, let alone any analysis of the

instruction in light of Farmer.

The formulation in the Tenth Circuit case should have

been suspect, in the first place, because it antedated Farmer.

Furthermore, the challenge to the instruction in that case was

reviewed only for plain error, because there had been no

objection. Uresti-Hernandez, 968 F.2d at 1046. The

challenge was also that the instruction was an improper

“deliberate ignorance” instruction, not that it failed to

require awareness of risk. Id. at 1046–47. Finally, the court

found no plain error, because “the direct evidence of Mr.

Uresti’s actual knowledge of the aliens’ illegal status was

20 UNITED STATES V. RODRIGUEZ

overwhelming.” Id. at 1047. Thus, this decision provided

no analysis of the issue now before us.

Subsequent reiterations of this definition of “reckless

disregard” within the meaning of § 1324(a) by the Eleventh,

Tenth, and Eighth Circuits are equally unpersuasive. See,

e.g., United States v. Kalu, 791 F.3d 1194, 1209 & n.20

(10th Cir. 2015) (reiterating that the only mentes reae under

§ 1324(a)(1)(A)(ii) are “knowledge or reckless disregard,”

but then embracing the faulty instruction); United States v.

Kendrick, 682 F.3d 974, 984 (11th Cir. 2012) (continuing to

define “reckless disregard” with the faulty instruction);

United States v. Garcia-Gonon, 433 F.3d 587, 591 (8th Cir.

2006) (finding no abuse of discretion in the district court’s

use of the Eleventh Circuit model). None of these decisions

addresses the correctness of the definition in light of Farmer

or on any other reasoned basis, despite failure of the

definition to require awareness of risk.

In short, the jury instruction at issue here was flawed.

d. Propriety of harmless error review

Absent waiver, “[e]ven if we determine an instruction

was erroneous or failed to clear up confusion, we must still

review whether the error was harmless.” United States v.

Castillo-Mendez, 868 F.3d 830, 835 (9th Cir. 2017).

However, we conclude that this is not a proper case in which

to conduct a harmless error review, for several reasons.

i. Waiver by the government

The first reason is that the government did not argue that

any error in the instruction defining “reckless disregard” was

harmless. We have stated,

UNITED STATES V. RODRIGUEZ 21

As a general and consistent rule, “when the

government fails to argue harmlessness, we

deem the issue waived and do not consider

the harmlessness of any errors we find.” This

is true even when the government “mentions”

that harmless error applies in its brief but fails

to advance a developed theory about how the

errors were harmless, as well as when the

government makes no argument whatsoever

as to harmlessness in its brief.

United States v. Murguia-Rodriguez, 815 F.3d 566, 572–73

(9th Cir. 2016) (citations omitted).

Not only do we have a “general and consistent rule”

against addressing harmlessness when the government has

waived it, there are good policy reasons not to do so. These

reasons include the difficulty of determining the effect of the

error, particularly if it occurs at a critical point or on a critical

issue in the case; our reluctance to expand the doctrine of

harmlessness; and our concern not to “encourage the

government’s laxness and failure to follow this court’s clear,

applicable precedent.” Id. at 573. Indeed, considering

harmless error where the government has failed to raise it

smacks of “‘unfairly tilt[ing] the scales of justice . . . [in the

government’s favor] by constructing [its] best arguments for

it without providing the defendant with a chance to

respond.’” United States v. Kloehn, 620 F.3d 1122, 1130

(9th Cir. 2010) (alterations in original) (quoting United

States v. Gonzalez-Flores, 418 F.3d 1093, 1101 (9th Cir.

2005)). If any party in federal litigation is in a superior

position to raise harmless error, it is the United States of

America, the most long-standing and frequent litigant in our

federal courts.

22 UNITED STATES V. RODRIGUEZ

ii. The effect of the general verdict

Another reason we should not conduct a harmlessness

review, when the government has waived the issue, is that

“[g]eneral verdicts . . . which permit a jury to convict based

on different possible theories—without specifying the

theory that forms the basis of the verdict—can complicate

this analysis.” Babb v. Lozowsky, 719 F.3d 1019, 1033 (9th

Cir. 2013), overruling on other grounds recognized by

Moore v. Helling, 763 F.3d 1011 (9th Cir. 2014). Indeed,

“[a] conviction based on a general verdict is subject to

challenge if the jury was instructed on alternative theories of

guilt and may have relied on an invalid one.” Hedgpeth v.

Pulido, 555 U.S. 57, 58 (2008). Here, § 1324(a)(1) provides

alternative mentes reae for guilt, either “knowledge” or

“reckless disregard,” the latter improperly defined in the

instructions in this case, and the verdict does not indicate

which theory the jury relied on.

iii. This case is not “extraordinary”

Notwithstanding our “general and consistent rule” to

consider harmlessness waived when the government does

not argue it, “[w]e have discretion to consider the issue of

harmlessness nostra sponte in ‘extraordinary cases.’”

Murguia-Rodriguez, 815 F.3d at 573 (quoting Gonzalez-

Flores, 418 F.3d at 1100–01); Kloehn, 620 F.3d at 1130. We

have explained,

[W]e recognize that no interest is served—

and substantial time and resources are

wasted—by reversal in those unusual cases in

which the harmlessness of any error is clear

beyond serious debate and further

proceedings are certain to replicate the

original result. Fortunately, our precedents do

UNITED STATES V. RODRIGUEZ 23

not foreclose the position that an appellate

court’s sua sponte consideration of harmless

error is appropriate on occasions of this type.

Gonzalez-Flores, 418 F.3d at 1100; accord United States v.

Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en banc)

(“[W]e can ‘make an exception to waiver . . . in the

exceptional case in which review is necessary to prevent a

miscarriage of justice or to preserve the integrity of the

judicial process.’” (quoting Ruiz v. Affinity Logistics Corp.,

667 F.3d 1318, 1322 (9th Cir. 2012))). More specifically,

when we decide whether to consider harmlessness, despite

the government’s waiver, we consider three factors:

“(1) ‘the length and complexity of the record,’ (2) ‘whether

the harmlessness of an error is certain or debatable,’ and

(3) ‘the futility and costliness of reversal and further

litigation.’” United States v. Brooks, 772 F.3d 1161, 1171

(9th Cir. 2014) (quoting Gonzalez-Flores, 418 F.3d at 1101);

Kloehn, 620 F.3d at 1130; Gonzalez-Flores, 418 F.3d at

1100–01 4

The record in this case may not be unduly large, but it is

large enough to “render the harmlessness inquiry a

‘burdensome’ one.” Kloehn, 620 F.3d at 1130 (quoting

Gonzalez-Flores, 418 F.3d at 1100). More importantly, we

4

Other Circuit Courts of Appeals also consider these three factors

when deciding whether or not to consider the harmlessness of an

instructional error, notwithstanding the government’s failure to argue

harmlessness. See, e.g., Mollett v. Mullin, 348 F.3d 902, 920 (10th Cir.

2003); United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991);

see also United States v. Cacioppo, 460 F.3d 1012, 1025–26 (8th Cir.

2006) (considering whether the evidence against the defendant was so

overwhelming that the error was harmless, but cautioning that, when the

government waives the issue, the court must “err on the side of the

criminal defendant”).

24 UNITED STATES V. RODRIGUEZ

have emphasized that “‘[t]he second factor—the court’s

certainty as to the harmlessness of the error—is of particular

importance,’ and sua sponte recognition ‘is appropriate only

where the harmlessness of the error is not reasonably

debatable.’” Brooks, 772 F.3d at 1171 (quoting Gonzalez-

Flores, 418 F.3d at 1101). Thus, “[i]f the harmlessness of

the error is at all debatable, prudence and fairness to the

defendant counsel against deeming that error harmless

without the benefit of the parties’ debate.” Gonzalez-Flores,

418 F.3d at 1101; accord Kloehn, 620 F.3d at 1130 (“[W]e

have stated that our nostra sponte consideration of

harmlessness is not appropriate if ‘the case is at all close.’”

(quoting Gonzalez-Flores, 418 F.3d at 1101)).

Here, the harmlessness of the error is, at the very least,

“debatable”; consequently, we are not convinced of the

futility of reversal and further litigation. See Brooks,

772 F.3d at 1171. We cannot assume that the jurors

necessarily found that Rodriguez knew that the border

crossing card was not her passenger’s. The jurors could

reasonably have credited the passenger’s testimony that he

did not think Rodriguez knew that he had entered the United

States illegally or, at least, that he did not know if she knew,

as well as his testimony that he thought three Border Patrol

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. Under a proper instruction, requiring proof that

Rodriguez was subjectively aware of the risk that her

passenger was in the United States illegally, a jury could

quite reasonably have acquitted Rodriguez.

The prejudicial effect is all the more debateable here,

because Rodriguez’s mens rea was the hotly-contested,

central issue in the case. Castillo-Mendez, 868 F.3d at 840

(finding prejudice where the erroneously stated element was

UNITED STATES V. RODRIGUEZ 25

the central contested element in the case); United States v.

Conti, 804 F.3d 977, 981 (9th Cir. 2015) (explaining that an

erroneous instruction was harmless beyond a reasonable

doubt when it was both uncontested and supported by

overwhelming evidence). Indeed, the prosecutor repeatedly

argued Rodriguez had unreasonably disregarded facts

indicating her passenger was in the United States illegally,

thus urging the jurors to rely on the erroneous part of the

instruction.

Here, considering harmless error is clearly not

“necessary to prevent a miscarriage of justice or to preserve

the integrity of the judicial process.” Dreyer, 804 F.3d at

1277 (quoting Ruiz, 667 F.3d at 1322) (internal quotation

marks omitted). Thus, because we decline to nostra sponte

reach harmlessness, Rodriguez’s conviction for transporting

an illegal alien under 8 U.S.C. § 1324(a)(1)(A)(ii) must be

reversed on the basis of the erroneous instruction, standing

alone. It follows that her conviction under 8 U.S.C.

§ 1324(a)(1)(B)(i) must also be reversed, because this

section punishes violations of § 1324(a)(1)(A)(ii), among

others, when undertaken “for the purpose of commercial

advantage or private financial gain.” Because some of the

other issues Rodriguez raises “will likely arise in the event

of a retrial, we address them now in the interest of judicial

economy.” United States v. Alvirez, 831 F.3d 1115, 1118

(9th Cir. 2016).

2. Admission of the passenger’s videotaped deposition

Rodriguez argues the prosecutor’s showing of

“unavailability” of Mr. Martinez-Arguelles, the illegal alien

she was convicted of transporting, was insufficient to admit

his videotaped deposition at trial. The government argues

the prosecutor made reasonable efforts to obtain Mr.

26 UNITED STATES V. RODRIGUEZ

Martinez-Arguelles’s presence to testify while respecting his

attorney-client relationship.

a. Additional factual background

At the conclusion of Mr. Martinez-Arguelles’s

videotaped deposition, which was taken prior to his

deportation, he agreed to the prosecutor’s request to make

sure he gave his lawyer all of his contact information, so he

could be contacted when he was back in Mexico. Neither

party asked Mr. Martinez-Arguelles on the record what his

address or contact information was. At a hearing during

Rodriguez’s first trial, outside the presence of the jury, Mr.

Martinez-Arguelles’s counsel testified Mr. Martinez-

Arguelles had not, in fact, given him his address, adding that

he might not have had the chance to do so before he was

deported. At a hearing during Rodriguez’s second trial, also

outside the presence of the jury, the prosecutor stated Mr.

Martinez-Arguelles’s attorney had represented to the

prosecutor that he had “fallen out of touch” with his client.

The prosecutor believed he could not contact Mr. Martinez-

Arguelles directly, because he was represented by counsel,

so prior to both trials, the prosecutor wrote letters to Mr.

Martinez-Arguelles, in care of his attorney. The attorney

responded in both instances that he was out of contact with

Mr. Martinez-Arguelles, but would preserve the letters.

The government had in its possession Mr. Martinez-

Arguelles’s identification card, which showed his address in

Mexico. The prosecutor did not provide that address to Mr.

Martinez-Arguelles’s attorney, however.

UNITED STATES V. RODRIGUEZ 27

b. Confrontation Clause requirements

i. The applicable standards

Section 1324(d) authorizes use at trial of the videotaped

deposition of a witness to a § 1324(a) violation “who has

been deported or otherwise expelled from the United States,

or is otherwise unable to testify.” 8 U.S.C. § 1324(d).

Nevertheless, “good faith efforts to procure witnesses [are]

still required” to comport with the Confrontation Clause to

the Sixth Amendment. United States v. Santos-Pinon,

146 F.3d 734, 736 (9th Cir. 1998). “The Sixth Amendment

requires ‘good-faith efforts undertaken prior to trial to locate

and present th[e] witness.’” Jackson v. Brown, 513 F.3d

1057, 1084 (9th Cir. 2008) (alterations in original) (quoting

Ohio v. Roberts, 448 U.S. 56, 74 (1980)). We review de

novo whether the Confrontation Clause was complied with.

United States v. Macias, 789 F.3d 1011, 1017 (9th Cir.

2015).

ii. Application of the standards

In Jackson, a case involving a state prisoner’s petition

for federal habeas corpus relief pursuant to 28 U.S.C.

§ 2254, an investigator employed by the state of California

to locate two witnesses did nothing to locate one of the

witnesses until several weeks into the defendant’s trial and,

instead, relied exclusively on a Los Angeles police officer

who had been in contact with the witness and had

volunteered to contact him again. 513 F.3d at 1084. We

held that the investigator’s involvement with other matters

was no excuse for the government’s failure to engage in

good-faith efforts to find the witness, and the reasonableness

of the investigator’s reliance on the police officer was

irrelevant, because the investigator and the police officer

28 UNITED STATES V. RODRIGUEZ

were both state agents responsible for performing good-faith

efforts to find the witness. Id.

Similarly, here, the prosecutor failed to take good-faith,

available measures to locate Mr. Martinez-Arguelles. The

prosecutor did not share the address from the border crossing

card with that attorney. Nor, apparently, did the prosecutor

ever ask whether Mr. Martinez-Arguelles was still

represented by counsel at all, a question that could have

informed whether it would have been ethically appropriate

for the prosecutor to attempt to contact him directly. Cf.

United States v. Pena-Gutierrez, 222 F.3d 1080, 1088 (9th

Cir. 2000) (holding that, where the government had a

witness’s address in Mexico, and asserted no basis for

believing that the witness would not respond to a request to

return to the United States to testify, “the government’s

failure to make any effort to contact [the witness] when it

had his address in hand was per se unreasonable”). Going

through the motions of writing a letter to Mr. Martinez-

Arguelles in care of his attorney, when the prosecutor

already knew that Mr. Martinez-Arguelles’s attorney did not

have his address, was not a reasonable or good-faith effort.

Cf. id.

The government does not attempt to demonstrate any

reason for believing that Mr. Martinez-Arguelles would not

return to the United States to testify, if asked to do so and if

his expenses were paid. See id. And doubts that the address

in the government’s possession was sufficient for a request

to be delivered are no excuse for not attempting to contact

Mr. Martinez-Arguelles at that address.

Thus, admission of Mr. Martinez-Arguelles’s videotaped

deposition violated Rodriguez’s Confrontation Clause

rights.

UNITED STATES V. RODRIGUEZ 29

3. Admission of Rodriguez’s prior conviction

Next, Rodriguez challenges evidence of her prior

conviction.

a. Additional factual background

In 2005, Rodriguez was convicted pursuant to 18 U.S.C.

§ 371 of conspiracy to commit fraud and misuse of visas,

permits, and other documents in violation of 18 U.S.C.

§ 1546(a). Rodriguez’s prior conviction involved fraudulent

use of Immigration and Naturalization Alien Documentation

Identification Telecommunication (“ADIT”) stamps,

obtained by Rodriguez, to smuggle Chinese aliens into the

United States through Mexico. The district court admitted

the prior conviction pursuant to Rule 404(b) of the Federal

Rules of Evidence.

Rodriguez argues this prior offense was too dissimilar to

the charged offense to show “knowledge,” rather than

criminal propensity, pursuant to Rule 404(b). The

government argues that the evidence was proper to show that

Rodriguez knew that Mr. Martinez-Arguelles was in the

country illegally.

b. Analysis

“Evidentiary rulings admitting evidence of other acts

under Federal Rule of Evidence 404(b) are reviewed for an

abuse of discretion, but whether the evidence of other acts is

relevant to the crime charged is reviewed de novo.” United

States v. Livingston, 725 F.3d 1141, 1148 (9th Cir. 2013)

(quoting United States v. Castillo, 181 F.3d 1129, 1134 (9th

Cir. 1999)) (internal quotation marks omitted). As we have

explained, to be admissible pursuant to Rule 404(b),

30 UNITED STATES V. RODRIGUEZ

[t]he government must show that “(1) the

evidence tends to prove a material point;

(2) the other act is not too remote in time;

(3) the evidence is sufficient to support a

finding that defendant committed the other

act; and (4) (in certain cases) the act is similar

to the offense charged.” “[T]he probative

value of the evidence must not be

‘substantially outweighed by the danger of

unfair prejudice.’”

United States v. Lloyd, 807 F.3d 1128, 1157–58 (9th Cir.

2015) (alteration in original) (citations omitted).

When Rule 404(b) evidence is offered to prove

knowledge, as it was here, the “similarity” requirement does

not require that the prior bad act be precisely the same as the

charged act, “as long as the prior act was one which would

tend to make the existence of the defendant’s knowledge

more probable than it would be without the evidence.”

United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir.

2014) (quoting United States v. Fuchs, 218 F.3d 957, 965

(9th Cir. 2000)) (internal quotation marks omitted). Thus,

where the defendant’s knowledge is contested, we have

“emphasized that the government must prove a logical

connection between the knowledge gained as a result of the

commission of the prior act and the knowledge at issue in the

charged act.” United States v. Ramos-Atondo, 732 F.3d

1113, 1123 (9th Cir. 2013) (quoting United States v.

Mayans, 17 F.3d 1174, 1181–82 (9th Cir. 1994)) (internal

quotation marks omitted). This logical connection must be

“supported by some propensity-free chain of reasoning.”

United States v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014)

(en banc).

UNITED STATES V. RODRIGUEZ 31

We conclude the government established the logical

connection between the 2005 conviction and the charged

offense. Id. Someone’s use of fraudulent immigration

stamps is admittedly different in some respects from an

imposter’s use of another person’s border crossing card.

Nevertheless, the prior offense was sufficiently similar to

provide a “logical connection” between knowledge that

aliens enter the United States using false documents and

knowledge that the alien’s border crossing card might not be

real or might not belong to him. See Ramos-Atondo,

732 F.3d at 1123.

Rodriguez does not dispute that the other requirements

for admitting this Rule 404(b) evidence were satisfied, and

we conclude that they were. See, e.g., Lloyd, 807 F.3d at

1157–58. What she does argue is that evidence of her 2005

conviction was more prejudicial than probative, so that it

should have been excluded pursuant to Rule 403. Id. (noting

that, to be admissible, the probative value of Rule 404(b)

evidence must not be substantially outweighed by the danger

of unfair prejudice). Rodriguez argues that the prior

conviction evidence was only marginally probative, while

the risk of prejudice was great. We disagree. First, we

conclude the evidence was substantially probative, not

merely marginally so, for the reasons stated above. Second,

the district court gave an adequate limiting instruction to

reduce the danger of unfair prejudice. Ramos-Atondo,

732 F.3d at 1124 (holding that a limiting instruction

minimized the “practical prejudice” of Rule 404(b)

evidence).

The evidence was properly admitted.

32 UNITED STATES V. RODRIGUEZ

4. Other alleged errors

Rodriguez also argues the cumulative effect of the

district court’s trial errors deprived her of a fair trial. We

will not consider the cumulative effect of alleged errors,

because at least one error requires reversal. See United

States v. Cazares, 788 F.3d 956, 990 (9th Cir. 2015)

(considering the cumulative effect of multiple trial errors

when no single error in isolation was sufficient to warrant

reversal).

Rodriguez also challenges her conviction because a juror

was improperly dismissed and the Allen charge the district

court gave the deadlocked jury was coercive. Because these

two alleged errors are not likely to arise again on any retrial,

we will not address them. See Alvirez, 831 F.3d at 1118

(addressing additional issues after finding one ground for

reversal, because they were likely to arise again in the event

of a retrial). We also decline to address Rodriguez’s

challenge to an enhancement to her sentence, given that we

are reversing her conviction. See United States v. Bland,

908 F.2d 471, 472 (9th Cir. 1990) (“We do not reach

[defendant’s] arguments regarding the legality of his

sentence because we conclude that his conviction should be

reversed and he should be granted a new trial.”).

III. CONCLUSION

Rodriguez is entitled to reversal on the basis of two of

her challenges to her convictions. The district court’s

instruction to the jurors defining “reckless disregard” was

incorrect. The district court also improperly admitted the

passenger’s videotaped deposition, because the government

made an insufficient showing that the passenger was

UNITED STATES V. RODRIGUEZ 33

“unavailable,” where the government’s efforts to secure his

presence were not reasonable.

REVERSED.