United States v. Roger Smith, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2021
• Docket: 20-10301
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10301

Plaintiff-Appellee, D.C. Nos. 4:19-cr-02866-RCC-EJM-1 v. 4:19-cr-02866-RCC-EJM

ROGER EVERETT SMITH III, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Submitted June 15, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.

Roger Everett Smith III appeals his convictions and sentence for transporting

aliens for profit. 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1. We review de novo the district court’s denial of a motion to acquit on

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). grounds of insufficient evidence. United States v. Sandoval-Gonzalez, 642 F.3d 717,

727 (9th Cir. 2011). “We must determine whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Id. (quotations

omitted).

A reasonable jury could have convicted Smith for transporting aliens for

profit. The government presented sufficient evidence that Smith’s passengers were

aliens, including that they were Mexican citizens who lacked immigration status or

permission to enter the United States. Contrary to Smith’s argument on appeal, the

government was not required to ask the passengers more direct questions about

whether they were American citizens to prove that they were not.

A reasonable jury could also conclude that Smith had the requisite mens rea.

The government was required to show that Smith knew, or recklessly disregarded,

the fact that the aliens were in the United States illegally. 8 U.S.C.

§ 1324(a)(1)(A)(ii); United States v. Rodriguez, 880 F.3d 1151, 1158 (9th Cir. 2018).

This required the government to show that Smith (1) “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 (2) “knew of that risk.” Rodriguez, 880 F.3d at 1162

(emphases omitted).

2 Smith was instructed by a person he did not know near the border to transport

four unknown individuals who did not know English. The directions he was given

took him into a remote desert location. He then was instructed by an unknown caller

to avoid a checkpoint and drive into New Mexico before returning to Phoenix, a long

detour in the opposite direction, all for a promised payment of $3,400. A jury could

conclude that these facts presented a “substantial and unjustifiable risk” that the

passengers were aliens, and that Smith knew of this risk. Id.

2. Smith next argues that the government violated the Confrontation

Clause by removing the passengers to Mexico before trial, and that the district court

should have granted a new trial for this reason. We “review claimed violations of

the [C]onfrontation [C]lause de novo.” United States v. Orellana-Blanco, 294 F.3d

1143, 1148 (9th Cir. 2002). The denial of a motion for a new trial is reviewed for

abuse of discretion. United States v. Mack, 362 F.3d 597, 600 (9th Cir. 2004).

Smith’s arguments are unavailing. The videotaped depositions of Smith’s

passengers were admissible under 8 U.S.C. § 1324(d). Despite having the

opportunity, Smith failed to object to the release of those witnesses and did not

oppose the government’s motion to do so. He cannot now complain about the

government’s release of those witnesses. See United States v. Santos-Pinon, 146

F.3d 734, 736 (9th Cir. 1998). Nor did the government fail to make “good faith

efforts” to procure the witnesses’ attendance at trial, Rodriguez, 880 F.3d at 1166,

3 because the government sent letters to the witnesses’ attorney in English and Spanish

requesting their presence at trial and offered to pay for their travel expenses.

3. We review for clear error the district court’s denial of a two-level

adjustment for acceptance of responsibility. United States v. Rodriguez, 851 F.3d

931, 949 (9th Cir. 2017); see also U.S. Sent’g Guidelines Manual § 3E1.1(a) (U.S.

Sent’g Comm’n 2018). The district court’s decision “is entitled to great deference

on review because of the sentencing judge’s unique position to evaluate a

defendant’s acceptance of responsibility.” Rodriguez, 851 F.3d at 949 (quotations

The district court did not clearly err here. Smith’s primary theory of the case,

at trial and on appeal, has been that he lacked the necessary mens rea. The district

court could conclude that this defense “was inconsistent with accepting

responsibility.” United States v. Doe, 778 F.3d 814, 827 (9th Cir. 2015); see also

United States v. Burrows, 36 F.3d 875, 883 (9th Cir. 1994) (“The fact that [a

defendant] freely admitted committing the actus reus of the crime does not change

the fact that he maintained even after trial that he had a complete defense based on

his purported lack of mens rea.”).

AFFIRMED.