and Submitted November 9, 2016 Pasadena, California
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
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.
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.
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.
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
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.
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.
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 ...