                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 3 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50188

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-01687-WQH-1
 v.

JOANNA ARAGON RAZO,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   William Q. Hayes, District Judge, Presiding

                    Argued and Submitted December 12, 2019
                             Pasadena, California

Before: BOGGS,** WARDLAW, and BEA, Circuit Judges.

      Joanna Aragon Razo appeals from her conviction at trial on two counts of

unlawfully transporting an alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). We

have jurisdiction under 28 U.S.C. § 1291, and we reverse.

      1.     We review de novo whether the district court violated Razo’s rights


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
under the Confrontation Clause of the Sixth Amendment by admitting the

videotaped deposition testimony of adverse witnesses Anallely Bojorquez-Solano

(“Bojorquez”) and Josefina Flores-Munoz (“Flores”) at her second trial. United

States v. Rodriguez, 880 F.3d 1151, 1166 (9th Cir. 2018). We conclude that the

district court erred by admitting Bojorquez’s deposition testimony because the

Government failed to carry its burden of showing that Bojorquez was unavailable

to testify in person. See Crawford v. Washington, 541 U.S. 36, 68 (2004).

      Although the prosecutor’s decision to attempt to contact Bojorquez only

through her attorney was not improper, the burden remains on the Government to

demonstrate that “good-faith, available measures” were taken to convince

Bojorquez to return from Mexico to testify in person at Razo’s second trial.

Rodriguez, 880 F.3d at 1166–67. The Government had known since at least

December 4, 2017—more than three months before the March 20, 2018, second

trial—that her attorney did not have a direct phone number for Bojorquez and that

the phone number the attorney had for Bojorquez’s husband had been

disconnected. Yet the Government did not ask the attorney to do anything to

secure Bojorquez’s presence at the second trial beyond continuing to call the same

disconnected number for Bojorquez’s husband, which, unsurprisingly, proved to be

futile. Importantly, although both the Government and the attorney had an address

for Bojorquez in Mexico, neither attempted to contact her by mail.


                                         2
        In Rodriguez, we held that the Government fails to demonstrate

unavailability when it does not attempt to send a letter to a witness at an address in

its possession, when it has no other means of contacting him. Id. Rodriguez

controls here. While the Government argues that a letter would have been unlikely

to reach Bojorquez, “doubts that the address . . . was sufficient for a request to be

delivered are no excuse for not attempting to contact [her] at that address.” Id. at

1167.

        Because the Government concedes that the erroneous admission of

Bojorquez’s deposition testimony is not harmless, we reverse and remand for a

new trial.1

        2.    We do not decide whether the district court erred by denying Razo’s

last-minute oral request to access the contents of her locked cell phone, which was

in Government custody. If Razo renews her request on remand, the district court

may determine, with the benefit of the arguments that were developed more fully

on appeal, whether and under what conditions Razo is entitled to access the phone.

        REVERSED; REMANDED.




        1
        We do not decide whether the district court erred by admitting Flores’s
deposition testimony because the erroneous admission of Bojorquez’s testimony
alone requires reversal, and the Government will have to make additional attempts
to contact both witnesses before a retrial.

                                           3
