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Ninth Circuit Reverses Conviction for Transporting an Illegal Alien Due to Improper Jury Instruction

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit reversed a defendant’s conviction for transporting an illegal alien for financial gain because the district court improperly instructed the jury on the mens rea element of the crime. The January 30, 2018, opinion sent the case back to the district court for retrial.

Lidia Rodriguez, a U.S. citizen, was arrested at the Arizona/Mexico border crossing after U.S. Border Patrol agents determined that her passenger, Enrique Martinez-Arguelles, was an illegal alien in possession of a fraudulent border-crossing card.

Investigators believed that Rodriguez was paid to smuggle Martinez-Arguelles into the country, so they charged her with violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (B)(i).

The crime Rodriguez was charged with imposes criminal liability on “[a]ny person who . . . knowingly 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,” and provides for increased penalties if “the offense was done for the purpose of commercial advantage or private financial gain.” At trial, the parties disagreed over what definition of “reckless disregard” should be given to the jury.

After weighing the arguments, the district court instructed the jury that
“[r]eckless disregard is defined as knowledge of facts which, if considered and weighed in a reasonable manner, indicate a substantial and unjustified risk that the alleged alien was in fact an alien and was in the United States unlawfully.”

Rodriguez objected, arguing that this instruction did not require the jury to find that she actually knew of the risk that Martinez-Arguelles was not lawfully in the United States. The district court judge overruled the objection, and Rodriguez was convicted. She appealed, and the Ninth Circuit reversed.

The Court concluded that the instruction was improper because “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 v. Brennan, 511 U.S. 825 (1994).

The instruction did not require the jury to find that Rodriguez was aware of the risk, only that she was aware of the facts from which an inference of the risk at issue could be drawn. A proper instruction under Farmer would require the jury to find that she actually drew such an inference.

As such, a correct definition of “reckless disregard” would need to include Rodriguez’s disregard of a risk of harm of which she was aware. The Court gave an example of the kind of language that would satisfy Farmer:

“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.”

Typically, when an appellate court determines that a jury instruction was erroneous, it must still review whether the error was harmless. Here, however, the Court did not undertake such a review. Instead, it reversed the conviction without consideration of the error’s harm. The Court gave several reasons for taking this unusual step

First, the government failed to argue that the error was harmless. In failing to make this elementary argument, the government waived harmless error review. The Court was not inclined to let this mistake slide, because “[i]f 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.”

The Court also refused to engage in harmless-error analysis because the conviction was based on a general verdict. As such, it would not be possible to determine under which theory the jury convicted Rodriguez. And finally, the Court reasoned that while it has the power to consider the issue of harmless error nostra sponte in “extraordinary cases,” where, for instance, reversal and remand would only lead to the same result, this was not one of those cases. Under a proper instruction, said the Court, “a jury could quite reasonably have acquitted Rodriguez.”

Accordingly, the Court reversed the conviction and remanded for a new trial. See: United States v. Rodriguez, 880 F.3d 1151 (9th Cir. 2018). 

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