C.J.L.G., a minor v. Jefferson B. SESSIONS III, Attorney General
No. 16-73801
United States Court of Appeals, Ninth Circuit
January 30, 2018
880 F.3d 1122
We further hold that the IJ was not required to advise C.J. of a separate state court process that could ultimately form the predicate for C.J.’s application for SIJ status with the IJ. The IJ is only required to advise an alien of relief for which he is “apparent[ly] eligib[le].” Because C.J.’s claimed relief—SIJ status—depends on a state court making certain findings before an IJ may grant him such relief—something that has not occurred here—C.J. is not “apparent[ly] eligib[le]” for SIJ status.
Finally, we decline to reverse the Board’s denial of C.J.’s asylum, withholding of removal, and CAT claims, because substantial evidence supports the Board’s determination that he is ineligible for any such relief.
PETITION FOR REVIEW DENIED.
OWENS, Circuit Judge, concurring:
I concur in the majority opinion and its narrow scope. It holds that the Due Process Clause does not mandate government-funded counsel for C.J.L.G., an accompanied minor. The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer. See, e.g., Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31-32, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (holding that whether the Due Process Clause requires the appointment of counsel is considered on a case-by-case basis); J.E.F.M. v. Lynch, 837 F.3d 1026, 1039-41 (9th Cir. 2016) (McKeown, J., joined by M. Smith, J., specially concurring) (outlining unique challenges that unaccompanied minors in immigration proceedings confront).
UNITED STATES of America, Plaintiff-Appellee, v. Lidia RODRIGUEZ, Defendant-Appellant.
No. 16-10017
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 12, 2017, San Francisco, California. Filed January 30, 2018
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.
OPINION
BENNETT, District Judge:
Lidia Rodriguez appeals her conviction and sentence for transporting an illegal alien for financial gain in violation of
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 ner-
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 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
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, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). 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 “negli-
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.”
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
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
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 “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
[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
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, 138 S.Ct. 704, 199 L.Ed.2d 577 (2018). The district court’s reliance on the comment to the pertinent model instruction was understandable. Nevertheless, its instruction on “reckless disregard,” 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,
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 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.
We recognize that the decision in Farmer did not address, specifically, the meaning of “reckless disregard” in
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
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 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) (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
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).
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
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.3
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
As we have not approved a definition for the term [“reckless disregard”] as it is used under Section 1324, the district court adopted the 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 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
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,
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 longstanding and frequent litigant in our federal courts.
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).
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 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 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 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
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 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
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. 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
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.
b. Confrontation Clause requirements
i. The applicable standards
ii. Application of the standards
In Jackson, a case involving a state prisoner’s petition for federal habeas corpus relief pursuant to
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
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.
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
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),
[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.”
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.
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 pas-
REVERSED.
Mary M. MAYOTTE, Plaintiff-Appellant, v. U.S. BANK NATIONAL ASSOCIATION, As Trustee FOR STRUCTURED ASSET INVESTMENT LOAN TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-4; Wells Fargo Bank N.A.; America’s Servicing Company, and All Persons or Entities Claiming any Legal or Equitable Right, Title, Estate, Lien or Interest in the Property Described in this Complaint Adverse to Plaintiff’s Title, or any Cloud upon Plaintiff’s Title Thereto; Debra Johnson, Public Trustee, Defendants-Appellees.
No. 16-1252
United States Court of Appeals, Tenth Circuit.
Filed January 23, 2018