US v. Rodriguez, No. 16-10017 (1-30-18)(Bennett w/Kozinski & Friedland). 

This is an Az FPD case. In the 9th's reversal of an alien smuggling conviction, there are two important issues: (1) a bad jury instruction for "reckless disregard"; and (2) a confrontation clause violation in the video deposition as the government failed to make a sufficient showing of unavailability. The 9th found that the jury instruction defining "reckless disregard" was flawed. The instruction may have required the defendant to be aware of facts to draw an inference, but it plainly did not require that the defendant actually draw the inference.  This was key under the facts of this case. The 9th rejected the government's waiver arguments, concluding too that the government waived any harmless-error review by failing to argue it.  Second, the 9th held that the government violated the Confrontation Clause by failing to demonstrate that a deported witness was unavailable to testify when the government did not make reasonable efforts to secure the witness's presence at trial.  The government did not act in good faith.  The government knew that the witness's counsel had lost contact with the witness.  Yet, the government possessed the witness's identification card, with his address, and could have taken steps to contact him, or provide the information to the witness's counsel or defendant. The government further did not show that the witness would not have returned.

Congrats to Edie Cunningham, AFPD Az  (Tucson).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/30/16-10017.pdf