U.S. v. BRIGGS No. 12-50058.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMAH YARKPAZUAH BRIGGS, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Filed April 25, 2013.
Before: WARDLAW and GOULD, Circuit Judges, and WOLF, Senior District Judge.
NOT FOR PUBLICATION
Jamah Briggs appeals his conviction for conspiracy to bring an undocumented alien into the United States in violation of 18 U.S.C. § 371 and for transporting an undocumented alien within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). We have jurisdiction under 28 U.S.C. § 1291, and we reverse Briggs's conviction, vacate his sentence, and remand.
The government concedes that the district court's decision to admit into evidence deposition testimony by the alien whom Briggs was accused of smuggling, without first making the predicate finding that the witness was unavailable, violated the Confrontation Clause and the Federal Rules of Evidence. This error was not "harmless beyond a reasonable doubt," United States v. Pena-Gutierrez,
We also conclude that, on the record developed in the district court, the government failed to meet its burden to prove that "under the totality of the facts and circumstances known to the arresting officer[s], a prudent person would have concluded that there was a fair probability that [Briggs] had committed a crime" at the time of his arrest. United States v. Struckman,
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