F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

F R A N C I S C O M U

N A T Y D I N G C O , Defendant-Appellant

. No. 17-10023

D.C. No. 1:15-cr-00018-RVM-2

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

L I L I Z H A

N G T Y D I

N G C O , Defendant-Appellant

. No. 17-10024

D.C. No. 1:15-cr-00018-RVM-1

OPI N I ON

Appeals from the United States District Court for the District of the Northern Mariana I slands Ramona V. Mang lona, Chief J u dg e, Presiding

Arg ued and Submitted October 16, 2018 San F rancisco, California

F iled November 27, 2018U N I T E D S T A T E S V

. T Y D I N G C O 2

B efore: Sidney

R. Thomas, Chief J udg e, Susan P. Graber, Circuit J udg e, and Robert S. L asnik, * District J udg e

.

Opinion by

J udg e Graber

SUMMARY * *

Crim inal Law

The p anel reversed L ili Ty ding co’s conviction f o r harboring an illeg al a lien, reversed F rancisco ( F rank) Ty ding co’s conviction for aiding a nd abetting the harboring
, and remanded for a new trial.

The p an e l held that the evidence—viewed in the lig ht
most favorable to the g overnment—is sufficient for a rational trier of fact to find that L ili harbored an illeg a l alien and that F rank had the specific intent to facilitate L ili’s commission o f that crime.

The panel h eld that the instruction defining “harbor” was

erroneous b e cause it did not requ i r e t h e j ury to find that the defendants intended to violate the law, and the error was not harmless.

* T h e Ho n o rab le Ro b ert S. L asn ik
, Un ited States District J u d g e f o r th e W estern District o f

W ash in g t o n , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co urt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. T Y D I N G C O 3

The panel held that the instr u ction defining “reckless disreg ard” was plainly erroneous b e c a u s e it did not require the jury to find that L i l i subjectively drew an inference that the alien was, in fact, an alien and w a s i n the United States unlawfully

. The panel h e l d that the instruction may have affected the outcome of the trial, a nd the error constit u tes a miscarriag e of just i c e , w arranting a new trial, because the jury could have convicted the defendants on an invalid leg al theory

.

COUNSEL

Steven P. Pix ley (a r gu ed), Saipan, Commonwealth of the No r t h e r n M a r i a n a I s l a nds, for Defendant-Appellant F r ancisco Muna Ty d ing co.

B ruce B e rline (arg

ued), B e rline & Associates L L C, Saipan, Commonwealt h o f the Northern Mariana I slands, for Defendant-Appellant L ili Z hang Ty d ing co.

Garth R. B acke (arg

ued), Assistant United S t a t es Attorney ; Sh a w n N

. Anderson, United States Attorney ; United States Attorney ’s Office, S a i pan, Commonwealth of the Northern Mariana I slands; for Plaintiff-Appellee.

OP INION

GRAB ER, Circuit J udg e:

Defendants L ili and F rancisco (“F r ank”) Ty ding co stand convicted, respectively
, of harb o ring an illeg al alien and o f aiding and abetting the h arboring
, in violation of 8 U .S.C.U N I T E D S T A T E S V

. T Y D I N G C O 4

§ 1324(a)(1)(A)(i i i )

. On appeal they arg ue, first, that the evidence was insufficient to suppo r t their convictions. W e disag ree and, therefor e , reach their additional arg uments concerning trial error. W e hold: (1) the instruction d efining “harbor” w as e rroneous because it did not require the jury to find that Defendants intended to v iolate the law, and the error

was not h armless; and (2) the instruction defin i n g “reckless disreg ard” was p l a i n l y erroneous because it did not require the jury to find that L ili su b j e ctively drew an inference that
t he alien was, in fact, a

n alien a nd was in the United S t at e s unlawfully ; the instruction may have affected the outcome o f th e t rial, and the error constitutes a miscarriag e of justice, warranting a new trial, because the jury could have convicted Defendants on a

n invalid leg al theory

. A ccording ly
, we reverse and remand.

F ACTUAL

AND PROCEDURAL

B ACKGROUND

I n September 2013, Defendants traveled from their home

on Saipan i n the Commonwealth of the Northern Mariana I slands (“CNMI ”) to China, L ili’s nat ive country , with their
two children. L ili is a leg al permanent resident of the United States throug h her ma r r i a ge to F rank. W hile in China, Defendants met X.N.’s father, w ho a sked Defendants to take 10-y ear-old X.N., a Chinese national, home with them to attend school in the United States. L ili contacted a friend o f hers who knew someone who had b roug ht a child t o the United States to study in the past, and the friend told L ili that it was possible to bring X.N. to the United States.

Def endants returned to the CNMI with X

. N. on S ep t ember 26, 2013. The CNMI has a “parole” prog r a m d esig ned to support its tourism industry

. Pursuant to this
prog r am, Chinese and Russian nationals may enter the CNMIU N I T E D S T A T E S V

. T Y D I N G C O 5

without a visa and s t a y f o r up to 4 5 day s. United States Customs and B order Pr o t ection (“CB P”) requires proof of a ticket booked on a ret u r n f lig ht within the 45-day w indow before an alien may

“parole in” to the CNMI

.

At immig ra t i o n control in the Saipan airport, CB P sent L ili and X.N. to “secondary processing ” for a more thoroug h investig ation because X.N. was a minor traveling without her parents. L ili presented a notariz e d l etter of authoriz ation from X.N.’s p a r ents stating that L ili a nd F rank would be X.N.’s g uardians during her studies in the United States. She also told the CB P officer that they were g oing to “see how it would work out having X.N. stay with [ us] and g o to school.” The officer told L ili to g e t the authoriz ation letter stamped at the local police station, but otherwise said nothing about X.N.’s attending school on Sai p a n

. A t some point during processing
, L ili or X.N. showed proof that X.N. had a return flig ht to China booked for O ctober 2 8
, 2013. The parole
prog r am allows a seven-day buffer from the d a t e of a return ticket to account for problems that mig ht prevent a flig ht from departing as scheduled, so the o f f i cer stamped the I

94—a paper record of entry and departure dates—i n X.N.’s
p a s s p ort w ith “Nov 04 2013” to indicate that X.N. h a d t o leave the CNMI

by November 4.

After p assing throug h immig ration control, Defendants and X .N. went throug h customs. F rank filled out a customs declaration f

orm for his f

amily and X.N. I n the sec tion that asked about the p urpose of the trip, F rank filled in the bubble for “Returning Resident.” H e filled in o nly the CNMI bubble in the section that asked for c o u ntry of permanent residence, but he also w rote X.N.’s name under “Travelers,” pr o v i d ed her correct passport number, and listed China as her country of citiz enship.U N I T E D S T A T E S V

. T Y D I N G C O 6

About two weeks after r eturning to Saipan, Defendan ts enrolled X.N. in public school. L ili stated that s h e d i d n ot apply for a student visa for X.N. because the school n e v er asked for one; L ili simply ga v e t h e s c hool a copy of X.N.’s
pas sport and the authoriz ation letter. Defendants also filled
out other forms to enroll X.N. in school, including a consent to disclose X.N.’s directo ry information and a hand-drawn
map accur a tely depicting the location of their house relative to the school.

X.N. lived with Defendants until F ebruary 201 5. After X.N. l e f t her home, L ili voluntarily spoke to an ag e nt from Homeland Security and sig ned a w ritten statement. The
statement acknowledg ed that L ili understood “that there a r e immig ration laws” and that she “had to follow certain s teps and pay certain fees” to obtain her g reen card. L ili also said that she “had [ X.N.] ’s p assport and saw the I

- 94 showing she was paroled in until N ovember 2013.” An ag ent present for L ili’s interview testified, on c ross-ex amination, that the interviewing ag ent did not ask L ili if she knew what a n I -94

was. He could not recall whether the i n t e rviewer asked L ili if she knew what a student visa w as. The ag ent also testified that L ili said she knew what “ b e i n g paroled in” meant. The
g overnment indicted Defendants after L ili’s interview.

Defendants m o v e d for acquittal after the c lose of the
g overnment’s case. The district court d enied both motions. F ollowing their convictions, Defendants timely appeal.U N I T E D S T A T E S V

. T Y D I N G C O 7

D I SCUSSI ON

A. Sufficiency of the Evidence 1

Only L ili’s mental state was truly in dispute at trial. L ili admitted seeing X.N.’s I -94 and the mandatory departure date of November 4, 2013 (indee d
, L ili personally broug ht X.N. throug h immig ration control), y et L ili kept X.N. in her h ouse long after th a t m a ndatory departure date passed. L ili also understood that the United States has immig ration laws, a nd she understood that obtaining leg al status (as she did) requires

an alien to f

o llow certain proc edures. The evidence also showed that L ili ex pected to be paid for keeping X.N. in the family h ome. On this record, a r at i o n al juror could have found that L ili knew that X.N.’s continued p r esence in the United States w as unlawful after November 4, 2013, and that L ili intended to violate the immig ration laws.

W ith respect to F r ank, the fact that he was nam e d as a g uardian in the Chinese letter of a utho r i z a t ion from X.N.’s parents is circumstantial evidence te n d i n g to show that he actively participated in the plan t o bring X.N. to the CNMI for a period long er than is authori z e d b y law. And as the district court o bserved, F rank knew that, when X.N. c ame to Saipan, she had a return t i c ket to China booked for October 28, 2013, w ithin the parole period. A rational juror could conclude that F rank intended to g ive X.N. a place to live long

1 W e rev i ew d e n o v o th e su f f icien cy o f th e ev id en ce. U

n i ted S ta tes

v. Ga r riso n , 8 8 8 F.3 d 1 0 5 7 , 1 0 6 4 (9 t h Cir. 2 0 1 8 ). In d o in g so , w e v iew th e ev i d en ce in t h e lig h t m ost f av o rab le to th e g o v ern m en t an d ask

w h eth er a ratio n al t

rier o f f act co u l d h a v e f

o un d th at th e g o v ern m en t p ro v ed th e essen tial elem en ts o f th e crim e b ey o n d a reaso n ab le d o u bt. Id

. at 1 0 6 3 . In an aly zin g th e su f f icien cy o f th e ev id en ce, w e ap p ly th e leg al
p rin cip les th at w e h o ld , b elo w , are req u i red to in stru ct a j ury p ro p erly

.U N I T E D S T A T E S V

. T Y D I N G C O 8

after her parole per i o d ended and that he had a financial motive for doing so: D efendants’ f amily had modest income,

a n d F rank was an active p articipant in what occurred. Fo r

ex ample, he flew to Chi n a with L ili to bring X.N. back to Saipan, he f

illed out the customs form at the border, and he enrolled X.N. in school.

I n short, the evidence—viewed in the lig ht most favorable
to the g o vernment—is sufficient for a rational trier of fact to find that L ili harbored an illeg al alien and that F rank had the specific in t e nt to facilitate L ili’s commission of that crime. Therefore, D efendants are not entitled to outrig ht reversal o f
t h e ir convictions. W e turn, then, to D efendants’ claims o f instructional error and their request for a new trial.

B

. T h e Meaning o

f “Harbor” and the Necessary Me n s Rea 2

Title 8 U.S.C. § 1324(a)(1)(A)(iii) criminaliz es the conduct of any

person who:

knowing or in r eckless d isreg ard of the fact that an alien has come to, entered, or remains in the United States i n violation of law,

co n ceals, harbors, o r shields from detection, or attempts to conceal, harbor, or shield f rom detecti o n , such alien in any place, including
any building or any

means of transportation.

2 W e rev iew

d e n o v o w

h eth er a j ury

in stru ctio n

m isstates a req u ired elem en t o f a ch arg ed o f

f en se. Un ited S ta tes v. Ho fu s , 5 9 8 F.3 d 1 1 7 1
, 1 1 7 4 (9 th C ir. 2 0 1 0 ). Ord in arily
, su ch an erro r req u ires rev ersal u n less i t is h arm less b ey o n d a reaso n ab le d o u b t. Un ited S ta tes v. Pierre
, 25 4 F.3 d 8 7 2 , 8 7 7 (9 th

Cir. 2 0 0 1 ).U N I T E D S T A T E S V

. T Y D I N G C O 9

Here, the court instructed the jury simpl y t h a t the term “harbor” “means ‘to afford shelter to.’” The instructions did
not include a

ny requirement that the jury consider whet h er Defendants intended to violate the law. Defendants asked the
court to instruct the jury that it had to f ind that they sheltered X.N. for t h e s p e cific p urpose of avoiding detection b y immig ration authorities. T he c ourt declined to g ive that proposed instruction. W e hold that, altho u gh the court properly rejected Defendants’ particular formulation, harboring instructions must require a finding that Defendants intended to violate the law.

I n Un i t ed S t a tes v. Acosta de Evans
, 531 F

. 2d 428, 429 (9th Cir. 1976), we r ejected the defendant’s a r g ument that “harbor” means “to harbor so as to prevent detection by law enforcement a g ents,” in th e contex t of c onsidering the sufficiency of the e v idence to su s t ain the defendant’s conviction. I n concluding that the evid e n c e sufficed even thoug h the defendant did not h ave the s p e cific intent to prevent detection, we held that—as the court in s t r ucted here—“harbor” means “afford shelter to.” Id. at 430. Acosta addressed an earlier version of the statute but, like the present statute , it criminaliz ed “conceal[ ing ]
, harbor[ ing ]
, o r shield[ ing ] from detection” a n unlawful alien. Id. at 4 29 n.1. Tex tually
, the Ac osta h olding comports with the list o f prohibited acts, because one is gu i l t y of the crime if o ne either “harbor[ s] ” o r “shield[ s] from d e tection.” 8 U .S.C. § 1324(a)(1)(A)(iii). W hen Cong ress u ses different terms in the same statute, w e p r esume t h a t each term has a d istinct meaning

. SEC v. M

c Ca rthy
, 322 F

. 3d 650, 656 (9th Cir. 2003).

Nearly 30 y ears after Acosta
, we decided United States v

. Y o u , 382 F .3d 958 (9th Cir. 2004 ). There, we h e ld that juryU N I T E D S T A T E S V

. T Y D I N G C O 10

instructions on h arboring an illeg al alien “must r e quire a finding that the defendants in tended to violate the law.” Id.
at 9 6 6. The d istrict “court instructed the jury that it must find that [ the defendants] had acted with ‘ the purpose o f avoiding the a liens’ detection by immig ration authorities.’” I d

. (brackets omitted). W e held that the instruction “c o n t ained the necessary mens rea element” because it r equired the jury
to find t h at t h e d efendants a cted with the required intent to violate the law. Id. Thus, an additional instruction tha t the defendants had requested would have been redundant. Id. I n other words, we held that the instruction concerning a specific intent to avoid detection was sufficient, but we did not hold that it is necessary

.

The g overnment arg u es, f irst, that the statement in Y ou concerning the required content of a jury instruction o n intent

was mere dictum, rather than a holding that we must follow. W e are not persuaded. The opinion considered the question
at some leng th, relying on two analog ous decisions in which

we held that a district court should have instr u c t e d the jury that it must find that the defendants in t e n d e d to violate the law. I d. a t 965–66. Moreover, t he discussion was the sole analy tical underpinning for the conclusion that an additional instruction was not needed. See Barapind v. E n o moto , 400 F .3d 744, 751 ( 9 th Cir. 2005) (en banc) ( per curiam) (footnote omitted) (ex plaining t h a t a n issue presented for review on appeal, w hich this c o urt addressed a n d d e cided, “became law of t h e c i rcuit, reg ardless of whether it was in

some technical sense ‘ necessa r y ’ to o ur disposition of the case”).

Nex t, the g overnment asserts that we need not follow Y ou because it was wrong ly decided. W hether we ag r ee with Y ou

or not, we are bound to foll o w i t

. See Miller v. Gammie
,U N I T E D S T A T E S V

. T Y D I N G C O 11

335 F .3d 889, 899–900 (9th Cir. 2003) (en b a n c ) (holding that a three-judg e panel must follow a p rior decisi o n of this
court unless it is “c l e a r l y irreconcilable” with the r easoning or theory of an intervening Supreme Court decision or other hig her authority

).

F inally
, the g overnment urg es us to seek e n banc rehearing because Acosta an d Y ou c onflict irreconcilably

. See United States v. Torre-Jimenez
, 771 F .3d 1163, 1167 (9th Cir. 2014) (citi n g A tonio v. W ards Cove Packing Co.
, 810 F .2d 1 477, 1 4 7 8

– 7 9 (9th Cir. 1987) (en banc)) (“Moreover, if we thoug ht that two controlling cases were in irreconcilable conflict, w e could not simply pick o ne to follow—we would be required to call this case en banc.”). I n

our view, we can harmoniz e the two cases despite some tension between them.

Y ou requir e s only an instruction that the defendant intended to violate the law. One way to demonstrate such an intention is to prove that the d e f enda n t soug ht to prevent immig ration authorities from detecting a n i lleg al alien’s
presence. B u t that is not the o nly way

. F or ex a m p le, a defendant who c hooses t o p u bliciz e her h arboring of an illeg al alien in order to call attention to what she considers an unjust immig ratio n l a w intends to violate the law, even thoug h she does not intend to prevent detection. See United States v

. Dann , 652 F .3d 1160, 1174 ( 9 th Cir. 2011) (stating that “the g o vernment is correct” in interpreting Acosta to

mean that it did not have to prove tha t t he defendant “harbored [ the a lien] to prevent detection by imm i g r ation authorities”); United States v. Aguilar
, 883 F .2d 662, 690 (9th Cir. 1989) (ex plaining that Acosta held that “‘harbor’

. . . does not require an intent to avoid detection”).U N I T E D S T A T E S V

. T Y D I N G C O 12

I n summary , the jury instructions were le g ally deficient by not requiring the jury to find that Defendants i n t e n ded to

v iolate the law. The o mitted instruction was n ot harml e s s b e y o n d a reasonable d o ubt, because it went to the hear t o f L il i ’ s primary defense—that she d id not understand the immig ration laws a

nd did not act with the intent to violate the law. I ndeed, the g overnment ex pressly concedes t h a t , if the harboring instruction wa s erroneous, the error was not harmless. F rank’s conviction rises o r falls with L ili’s in this respect, because his conviction for aiding and abetting cannot stand without her conviction for the underly ing o ffense o f harboring

.

C. The Meaning of “Reckless Disregard”

The district court instruct ed the jury that “reckless disreg ard” means “being aware of facts which, if considered and weig hted in a reasonable manner, indicate a s u b stantial and unjustifiable risk that” the p erson h arbored was in fact an alien and was in the United States u nlawfully

. The
g overnment concedes that the inst r u ction was plainly

erroneous in lig h t of U

nited S tates v

. R odriguez
, 880 F .3d 1151 (9th Cir. 2018). 3 Rodriguez held that reckless d isreg ard requires that the defendant hersel f must be aware of facts

3 W h en a d ef

en dan t f ails to o b j ect to an in stru ctio n b elo w , w e rev iew f o r p lain erro r. Un ited S ta tes v. Co n ti
, 8 0 4 F.3 d 9 7 7
, 9 8 1 (9 th Cir. 2 0 1 5 ). W e m ay co rrect a p lai n e r r o r w h e n : (1 ) th ere w as erro r, m ean i n g “ a d ev iatio n f

ro m a leg al ru le th at is n ot w aiv ed ”; (2 ) th e erro r is p la in
,
“ m ean in g ‘ clear’ o r ‘o b v io u s’ ”; (3 ) t h e erro r w as p rej u d icial, m ean in g a

“ ‘ reaso n ab le p ro b ab ility ’ ” ex ists th at i t “ ‘ af f ected t h e o u tco m e o f th e d istrict co urt p ro ceed in g s’ ”; an d (4 ) th e erro r “ ‘ serio u sly af f e c t s th e f airn ess, in teg rity
, or p u b lic rep u tatio n o f j u d icial pro ceed in g s.’ ” Id

. (q u o tin g Un ited

S ta tes v. Ola n o , 5 0 7 U.S. 7 2 5 , 7 3 4 , 7 3 6 (1 9 9 3 )).U N I T E D S T A T E S V

. T Y D I N G C O 13

from which a

n inference of ri s k c o u l d be drawn and the defendant must actually draw that inference. Id. at 1159–62.

The parties dispute whether the erroneous instruction, to which Defenda n t s did n ot object at trial, p rejudiced Defendants. Defendants bear the burden of showing prejudice, which requires some intermediate level o f p r oof that the error affected the outcome at trial: more than a mere possibility
, United States v. G o n z a l e z

- A g u i l a r , 718 F .3d 1185, 1189 (9th Cir. 2013), b ut less than a prepondera n c e of the evidence, United States v. Dominguez Benitez
, 5 4 2 U

. S. 74, 83 n

. 9 ( 2 0 04). To determine whether the error affected the

o u t c o me, w e c onsider the whole trial record, including “the streng th o f the evidence ag ainst” Defendants and “the
arg uments made by the parties.” United Sta t e s v. Garrido
, 713 F .3d 985, 995 (9th Cir. 2013) (internal quotati o n marks omitted). W e also consider “whether the defendant contested the o mitted element ‘and raised evidence sufficient to support

a contrary finding

. ’” United States v. Conti, 8 0 4 F .3d 977, 982 (9th Cir. 2015) (quoting Neder v. United States
, 527 U.S. 1, 19 ( 1999)). I n sum, we must decide whether a reasonable probability e x ists that the jury wou l d have found L ili not g uilty 4 had the district court de f i ned “reckless disreg ard” to

mean: “ the defendant knew of facts w hich, if considered a nd weig hed in a reasonable manner, i n d icate a substantial a nd

u n j u s t ifiable risk that the alleg ed alien was in fact an a lien and was in the United States u n l a w f u l l y , and the defendant knew o f t h a t risk .” See Rodriguez
, 880 F .3d at 1162 (providing a sample instruction).

4 Fran k ’ s co n v ict i o n fo r aid in g an d ab ettin g can n o t s tan d w ith o u t L ili’ s co n v ictio n f

o r th e un d erly i n g o f

f en se, so th e in stru ctio n n ecessarily
p rej u d iced h im

if it p rej u d iced L ili.U N I T E D S T A T E S V

. T Y D I N G C O 14

L ili’s mental state was the main d isputed issue at trial. The g o vernment provided uncontested evidence of the other elements o f harboring an illeg al alien: that X.N. was an a lien, that X.N. remained in the United States unlawfully
, and that L ili afforded shelter to X .N. And the g overnment offered strong evidence on the mental-state element: L ili b roug ht X.N

. t h r o u g h immig ration control and saw the I -94 with a mandatory d eparture date of November 4, 2013, y et she k ept X.N. in her home until 2015.

X.N. also had a return flig h t (that she never boarded) booked w ithin the parole prog ram’s 45-day window. That reservation sug g ests t h a t someone connected to X.N. knew the requirements of the parole prog ram, but the evidence did
not definitively show that L ili booked the flig ht or even knew about it.

L ili’s defense strateg y focused on sowing dou b t about whether she knew (or knew o f the risk) that X.N.’s continued
presence on Saipan was unlawful. Throug h c ro ssex amination a

nd s o m e of the g overnment’s ex hibits, substantial evidence emerg e d from which a reasonable jury could infer that L ili—despite knowing o f facts from w hich a reasonable person would infer the risk of X

. N. ’ s presence being unlawful—did n ot actually d raw that inference herself
, as Ro d r i g u e z r equires. 880 F .3d at 1160. L ili said that she consult ed with a knowledg e able friend before ag reeing to bring X.N. to the United States, and the f riend told her that it

w a s p ossible to b r ing a child to the United States to stu d y

. L ili also e x plicitly told a CB P officer, w hile g oing t h roug h immig ration c ontrol, that X.N. would attend school on Saipan; she received no re s p o nse to that information other
t h an a n instruction to have the authoriz ation letter f r o m X.N.’s parents stamped at the local police station.U N I T E D S T A T E S V

. T Y D I N G C O 15

Moreover, L ili g ave the p ublic school e x te n s i v e documentation connecting herself to X

. N.—something the jury could h ave inferred that she mig h t not have done had she appreciated the facts o f X.N.’s unlawful status. Among other thing s, L ili g ave the school t he a uthoriz ation letter listing h erself and F rank as X.N.’s g uardians, a consent form to release X.N.’s directory i n fo r m ation to the public, a nd a hand-drawn map showing p recisely w here Defendants lived. L ili also said that she n ever soug ht a s t u d e n t visa for X.N. because the school never asked for one and simply accepted X.N.’s passport a

nd the not a

riz e d letter from her parents in China. One reasonable view of that evidence is that L ili did
not realiz e that X.N. n e ed ed o ther documents to make her long -term presence in the United States leg al.

I n sum, L ili has shown more than a mere possibility that the jury would have reached a different verdict i f p r o perly instructed on reckless disreg ard. Gonzalez-Aguilar
, 718 F .3d
at 1189. B ut prejudice alone does not require r e versal. W e also must decide whether the error “ser i o u s l y affects the fairness, integ r ity or p ublic rep u t a t i o n of judicial proceeding s” before ex ercising o u r d iscretion to correct the

error. Johnson v. United States
, 520 U.S. 461, 4 69–70 (1997) (brackets omitted) (quoting United S tates v. Olano
, 507 U.S. 725, 736 (1993)).

Here, the jury mig ht h ave relied on a leg ally invalid theory to convict L ili: that she acted in reckless d i sreg ard because a r easonable person, a ware of the facts t h at L ili knew, w ould have understood the risk that X.N. remained in the country unlawfully —eve n if L ili herself did not

u nderstand that risk. The jury ’s “possible r elianc e o n a leg ally invalid theory constitutes a miscarriag e of justice which would seriously a f

fect ‘the fairness, integ rity or publicU N I T E D S T A T E S V

. T Y D I N G C O 16

reputat ion o f judicial proceeding s.’” United States v

. Vasquez-Hernandez
, 849 F .3d 1219, 12 2 9 (9th Cir. 2 017) (quoting Garrido , 713 F

. 3d at 998).

According ly
, we hold that D efendants have met t heir burden under Olano to sho w t h a t r eversal and remand for a new trial is warranted.

REVERSED and

REMANDED.