In United States v. Rodriguez, --- F.3d ---, No. 16-10017 (9th Cir. 2018), the Court vacated the defendant's alien smuggling conviction.
The basic facts were that the defendant picked up an undocumented person inside the United States. Much of the case turned on whether she should have known he was not the person pictured on the border crossing card in his possession.
There is lots of good stuff in the opinion.
The main issue was the district court's erroneous instruction on reckless disregard.
First, the Court rejected the government's plain error argument: "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 appeal."
Second, the Court rejected "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."
To this end, the Court explained, "that criminal
recklessness generally requires . . . . the defendant 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.”
The Court further explained, "[t]he 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."
The Court also included a helpful discussion on harmless error review, noting that the government waived the claim: "[a]nother 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.”
Finally, on the issue n of the material witness's videotaped testimony, the Court held its admission 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.
