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United States v. Hernandez

United States Court of Appeals, Ninth Circuit

June 15, 2017

United States of America, Plaintiff-Appellee,
v.
Lucio Salvador Hernandez, Defendant-Appellant.

          Argued and Submitted November 9, 2016 Pasadena, California

         Appeal from the United States District Court for the Central District of California D.C. No. 2:13-cr-00070-GW-1 George H. Wu, District Judge, Presiding

          Alexandra W. Yates (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

          Yasin Mohammad (argued), Assistant United States Attorney, Asset Forfeiture Section; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney's Office, Los Angeles, California, for Plaintiff-Appellee.

          Before: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and William E. Smith, [*] Chief District Judge.

         SUMMARY[**]

         Criminal Law

         The panel reversed the defendant's conviction for transportation of firearms into his state of residence in violation of 18 U.S.C. § 922(a)(3), and remanded.

         The panel agreed with the government that the prohibition on the transportation of guns in § 922(a)(3) is not subject to the heightened willfulness requirement used in some tax and structuring laws. In this case, the government was required to show that the defendant knew his transportation of firearms into California was somehow unlawful, even if he did not know of the specific legal duty, or the particular law, that made it unlawful. The panel held that, viewed in the light most favorable to the prosecution, a reasonable jury could have concluded that the government met its burden.

         But given the district court's broad willfulness instruction, and the government's introduction of, and arguments relying on, evidence that the defendant intended to later unlawfully sell the guns he purchased, the panel held that there is a substantial likelihood that the defendant was convicted for the act of transporting guns with the intent to commit a later crime rather than the one with which he was charged. The panel could not conclude on this record that this constitutional error was harmless beyond a reasonable doubt.

          OPINION

          PER CURIAM.

         Lucio Salvador Hernandez appeals his conviction for transportation of firearms into his state of residence in violation of 18 U.S.C. § 922(a)(3). The Indictment charged Hernandez with transporting guns from the state of Arizona to his state of residence, California. In order to convict Hernandez of this crime, the government was required to prove that his violation was "willful, " i.e., that the defendant acted with knowledge that the charged conduct (transporting the firearms into his state of residence) was unlawful. Hernandez argues on appeal that the evidence was insufficient to prove that the specifically charged conduct was done "willfully." Moreover, Hernandez contends that because the district court allowed the government to introduce evidence of other (uncharged) criminal acts allegedly committed by Hernandez in connection with the firearms at issue, combined with a broad interpretation of the willfulness instruction contemplated by Bryan v. United States, 524 U.S. 184, 194-95 (1998), the jury may have convicted him without finding the requisite level of culpability. For reasons we explain below, we agree. We therefore reverse and remand for a new trial.

         BACKGROUND

         On January 20, 2011, Hernandez and his wife drove to Arizona from California to transfer the title on his car. While in Arizona, Hernandez went with his stepfather to a gun show, where Hernandez purchased five guns from a federal firearm licensee: two Glock Model 19 9mm pistols, two Jimenez Arms Model J.A. 380 .380 caliber pistols, and one Hi-Point Model C9 9mm pistol. This is a purchase he could not have made in California, where the law required a ten-day waiting period and prohibited the simultaneous purchase of multiple weapons. On a form required by the Bureau of Alcohol, Tobacco & Firearms ("ATF") to purchase guns, Hernandez reported Arizona as his state of current residence and his address as his mother's house in Arizona.

         Hernandez had lived in Arizona for about two years after moving from California in 2008. In 2010, he and his wife moved first to Idaho for work, and later to Pittsburg, California to help care for his wife's sister. The couple lived rent free in a spare bedroom of Hernandez's sister-in-law. Hernandez maintained his Arizona driver's license, but ...


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