On January 30, 2018, the Ninth Circuit reversed a conviction for transporting an illegal alien for financial gain in United States v. Rodriguez, No. 16-10017, because the district court improperly instructed on “reckless disregard.” Relying upon Supreme Court precedent, the court held that a defendant must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and she must also draw the inference. In other words, the standard requires that the defendant was subjectively aware of the risk. The district court’s instruction did not require that she actually draw the inference, i.e., “it did not require that she was subjectively aware of the risk.” The Ninth Circuit rejected decisions from the Eighth, Tenth, and Eleventh Circuits defining “reckless disregard”.
The court also held that the admission of the passenger’s videotaped deposition violated the defendant’s Confrontation Clause rights because the government failed to make a sufficient showing that the passenger was “unavailable.”