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.