                                                                          FILED
                               FOR PUBLICATION                            AUG 13 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 11-30348

              Plaintiff - Appellee,             D.C. No. 2:10-cr-00001-EFS-1

  v.
                                                ORDER AND
RUDY MARTIN GARCIA,                             AMENDED OPINION

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                     Argued and Submitted November 9, 2012
                              Seattle, Washington
                               Filed July 19, 2013
                           Amended August 13, 2013

Before:      W. FLETCHER and FISHER, Circuit Judges, and QUIST, Senior
             District Judge.*

       This court’s opinion, filed July 19, 2013, is hereby amended as follows:

       At slip opinion page 16-17, delete the following sentence: <We held in both


       *
             The Honorable Gordon J. Quist, Senior United States District Judge
for the Western District of Michigan, sitting by designation.

                                         -1-
cases that evidence of prior violent acts of the victim that were known to the

defendants should have been admitted. James, 169 F.3d at 1214–15; Saenz, 179

F.3d at 688–89.>

      Replace that sentence with the following paragraph:

      <In James, the defendant had been allowed to testify about prior violent
      conduct by the victim of which she had been aware. The dispute on appeal
      was whether the defendant could reinforce her testimony by introducing
      court documents, a presentence report, and police reports describing the
      victim’s prior conduct. James, 169 F.3d at 1212–13. We held that the
      district court had abused its discretion in excluding that evidence. Id. at
      1214–15. In Saenz, the district court held as a matter of law that the
      defendant could not testify about prior violent acts by the victim of which he
      had been aware. Saenz, 179 F.3d at 688. We reversed based on James. We
      wrote, “[W]e assumed [in James] that, in a self-defense case, a defendant
      may show her state of mind at the time of an attack by testifying that she
      knew about a victim’s past acts of violence.” Id. at 689.>




                                         -2-
                                AMENDED OPINION

W. FLETCHER, Circuit Judge:

      Rudy Martin Garcia was tried for first-degree murder after he shot David

McCraigie. The jury was instructed on the elements of first- and second-degree

murder and of voluntary and involuntary manslaughter. The jury convicted Garcia

of involuntary manslaughter and otherwise acquitted him. Garcia appeals his

conviction. He contends that the version of the Ninth Circuit model jury

instruction for involuntary manslaughter given by the district court was defective

in that it failed to tell the jury that “gross negligence,” defined as “wanton or

reckless disregard for human life,” was required for a conviction. We agree that

the jury instruction allowed the jury to convict Garcia without finding an essential

element of involuntary manslaughter. We therefore reverse Garcia’s conviction.

                                    I. Background

      Garcia shot McCraigie on the Colville Indian Reservation in eastern

Washington during the evening of November 4, 2009. Garcia and McCraigie had

been friends since childhood. Garcia and another friend had been drinking at

Garcia’s apartment, planning to go hunting the next day, when they ran out of beer.

They drove Garcia’s Jeep two blocks to the McCraigie house where a drinking

party was in progress. An altercation between Garcia and McCraigie began inside

                                           -3-
the house and spilled out onto the sidewalk. A point-blank shot from Garcia’s

hunting rifle seriously wounded McCraigie. McCraigie died a few days later.

                            A. Evidence Admitted at Trial

      The prosecution and defense presented starkly different versions of the

events leading up to the shooting and of the shooting itself. The prosecution

version was that after the fight spilled out onto the sidewalk, McCraigie chased

Garcia from the property. Garcia then went to his apartment, retrieved his hunting

rifle, returned to the house, and intentionally shot McCraigie. One prosecution

witness testified that he heard Garcia say he was going to get his gun. Four

prosecution witnesses reported hearing from someone else that Garcia had gone to

get a gun. Two prosecution witnesses reported seeing McCraigie grab the barrel of

Garcia’s rifle. Two other prosecution witnesses did not see the shot that hit

McCraigie. None of the prosecution witnesses reported seeing a gun in

McCraigie’s hand that night. Three of the prosecution witnesses testified that they

had never seen McCraigie with a firearm.

       The defense version was that Garcia had acted in self-defense and that the

shooting itself was an accident. Garcia testified that McCraigie and two others at

the party started a fight with him. He testified that he had seen McCraigie with a

pistol earlier that night. He testified further that McCraigie tried to hit him on the

                                          -4-
head with the pistol. He reported being chased and pushed from the house.

       Garcia testified that he ran to his car and got in, but his girlfriend had taken

his keys. He then grabbed his hunting rifle from the back seat and got out of the

car. McCraigie kept coming toward him. Garcia testified that he backed up and

fired a warning shot in the air. When they were about six feet apart, McCraigie ran

at him. Garcia testified that he “flinch[ed] up,” expecting a punch, but McCraigie

grabbed the barrel of the rifle. There was a struggle, and the gun went off,

inflicting the wound that eventually killed McCraigie.

       Jordan Lynn, Garcia’s girlfriend, testified that McCraigie and two others

were beating up Garcia, and that she saw McCraigie with something in his hand

that she thought was a gun. She testified that she saw McCraigie grab the rifle

barrel and that the rifle then discharged. She also testified seeing one of the

prosecution witnesses pick something up from beside McCraigie after he was shot.

       The defense introduced text messages sent by one of the prosecution

witnesses immediately after the shooting. Unbeknownst to the witness, he had

mistakenly sent his texts to a stranger, a fourteen-year old girl. The girl responded

several times before revealing that she was not the intended recipient. The texts

read, in part:

                 Witness: Yea bro at grandpa waynes papa called out beno n that

                                           -5-
      bitch n got a shotti and pops got his pis but by the time we reached the
      frnt porch he got shot
             Response: when did this happen?
             Witness: I grabbd bros pist but when I saw beanz dip down the
      alley I grabd bros wep n followd n had it pointed at the end of the
      alley bitch was gone

McCraigie’s nickname was “Poppa” or “Pop,” and Garcia’s nickname was “Beno”

or “Beanz.” These text messages thus lent support to the defense’s theory that

McCraigie had his own gun during the altercation.

                               B. Excluded Evidence

      Defense counsel elicited testimony from several witnesses that McCraigie

had a reputation for fighting and being “rowdy” when he drank. When defense

counsel tried to ask Garcia about specific prior acts of violence that McCraigie had

committed, the court prevented Garcia from answering. Had he been permitted to

testify, Garcia would have testified to three prior incidents involving McCraigie,

each of which was known to Garcia before the night of the shooting: (1) in another

incident at the McCraigie house, a group of people including McCraigie beat

someone so severely that the victim suffered permanent brain damage; (2)

McCraigie shot someone after starting an argument, but another person took the

blame; and (3) McCraigie once “took a burning board from a fire and assaulted and

burned a person of Hispanic heritage.” The court also prevented Jordan Lynn from



                                         -6-
describing McCraigie’s prior violent acts. Lynn’s testimony would have been

consistent with Garcia’s.

      Defense counsel also tried to introduce three photographs from McCraigie’s

public MySpace social networking page. All three photographs showed McCraigie

holding a sawed-off shotgun. Garcia tried to introduce the photographs as direct

evidence, but the district court ruled they were unduly prejudicial and excluded

them. Garcia later tried to introduce the photographs as impeachment evidence

against prosecution witnesses who testified that they had never seen McCraigie

with a firearm. The district court again excluded them.

                                 C. Jury Instruction

      The district court instructed the jury on first-degree murder, second-degree

murder, voluntary manslaughter, and involuntary manslaughter. Garcia submitted

a proposed involuntary manslaughter instruction that included as its first element

that “the defendant committed an act, with wonton [sic] or reckless disregard for

human life, which might produce death.” The trial court rejected this instruction,

instead using a version of the Ninth Circuit model instruction that read, with

respect to that element, that “the Defendant committed an act, done either in an

unlawful manner or with wanton or reckless disregard for human life, which might




                                         -7-
produce death.”1

      During deliberation, the jury sent out a note asking, “Can we ask for more

definition on all counts including 1st Degree, 2nd Degree, voluntary, and

involuntary manslaughter.” The court responded, “While you can ask for more

definition, the instructions you have been given are the standard instructions for a

case of this kind.”

                               D. Verdict and Appeal

      The jury acquitted Garcia of first- and second-degree murder and voluntary

manslaughter, but convicted him of involuntary manslaughter. Garcia appealed,

      1
        The jury instruction given for involuntary manslaughter listed the
following elements:
             [T]he Government must prove each of the following elements
      beyond a reasonable doubt:
             First, the Defendant committed an act, done either in an
      unlawful manner or with wanton or reckless disregard for human life,
      which might produce death;
             Second, the Defendant’s act was the proximate cause of David
      McCraigie’s death;
             Third, the killing was unlawful;
             Fourth, the Defendant either knew that such conduct was a
      threat to the lives of others or knew of circumstances that would
      reasonably cause the Defendant to foresee that such conduct might be
      a threat to the lives of others;
             Fifth, the killing occurred within the boundaries of the Colville
      Indian Reservation;
             Sixth, the Defendant is Indian; and
             Seventh, the Defendant did not act in self-defense.


                                         -8-
challenging the jury instruction, the exclusion of evidence by the court, and the

length of his sentence.

                               II. Standard of Review

      When a party properly objects to a jury instruction, we review de novo

whether the instructions given “accurately describe[] the elements of the charged

crime.” United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc).

Harmless errors are not reversible. United States v. Thongsy, 577 F.3d 1036, 1040

(9th Cir. 2009).

      We review de novo the district court’s interpretation of the Federal Rules of

Evidence. United States v. Saenz, 179 F.3d 686, 688 (9th Cir. 1999). We review

exclusion of evidence under Rule 403 for an abuse of discretion. United States v.

James, 169 F.3d 1210, 1214-15 (9th Cir. 1999).

                                   III. Discussion

                                A. Jury Instruction

      The statute of conviction, 18 U.S.C. § 1112(a), defines involuntary

manslaughter as follows:

      Manslaughter is the unlawful killing of a human being without malice.
      It is of two kinds: . . . Involuntary — In the commission of an
      unlawful act not amounting to a felony, or in the commission in an
      unlawful manner, or without due caution and circumspection, of a
      lawful act which might produce death.

                                         -9-
Significant case law in our circuit and others provides a gloss on the statutory text.

      We have consistently held that involuntary manslaughter requires proof

beyond a reasonable doubt that the defendant acted with gross negligence. In

United States v. Keith, 605 F.2d 462 (9th Cir. 1979), we held that an involuntary

manslaughter conviction requires both:

      (1) that the defendant acted with “gross negligence,” defined as
      “wanton or reckless disregard for human life;” and (2) that the
      defendant had actual knowledge that his conduct was a threat to the
      lives of others, . . . or had knowledge of such circumstances as could
      reasonably be said to have made foreseeable to him the peril to which
      his acts might subject others.

Id. at 463 (emphasis added) (quoting United States v. Escamilla, 467 F.2d 341, 347

(4th Cir. 1972)); see also United States v. Shortman, 91 F.3d 80, 81 (9th Cir. 1996)

(“It is well-settled that ‘gross negligence’ is an element of involuntary

manslaughter under § 1112.”); United States v. Crowe, 563 F.3d 969, 973 (9th Cir.

2009) (quoting Keith). Garcia argues that the instruction given in his case allowed

the jury to convict him of involuntary manslaughter without a finding of gross

negligence. We agree.

      Ninth Circuit Model Criminal Jury Instruction No. 8.110 provides in full:

             The defendant is charged in [Count ___ of] the indictment with
      involuntary manslaughter in violation of Section 1112 of Title 18 of
      the United States Code. [Involuntary manslaughter is the unlawful
      killing of a human being without malice aforethought and without an

                                         -10-
      intent to kill.] In order for the defendant to be found guilty of that
      charge, the government must prove each of the following elements
      beyond a reasonable doubt:
             First, [the defendant committed an unlawful act not amounting
      to a felony,] [or] [committed a lawful act, done either in an unlawful
      manner or with wanton or reckless disregard for human life,] which
      might produce death;
             Second, the defendant’s act was the proximate cause of the
      death of the victim. A proximate cause is one that played a substantial
      part in bringing about the death, so that the death was the direct result
      or a reasonably probable consequence of the defendant’s act;
             Third, the killing was unlawful;
             Fourth, the defendant either knew that such conduct was a
      threat to the lives of others or knew of circumstances that would
      reasonably cause the defendant to foresee that such conduct might be
      a threat to the lives of others; and
             Fifth, the killing occurred at [specify place of federal
      jurisdiction].

(Emphasis added.) The Comment to this model instruction provides, with respect

to the first element of the instruction: “Use either or both of the bracketed phrases

in the first element depending on the allegation in the indictment.”

      The district court used the second bracketed phrase of the first element. It

instructed the jury that the government must prove beyond a reasonable doubt as

follows: “First, the Defendant committed an act, done either in an unlawful

manner or with wanton or reckless disregard for human life, which might produce

death.” The district court omitted the word “lawful” from the model instruction’s

phrase “committed a lawful act,” but we do not regard that omission as having had



                                         -11-
a material adverse effect on Garcia. No other instruction required the jury to find

that Garcia had acted with “gross negligence.”

      The model instruction, as given by the district court, did not properly

instruct the jury. The instruction allowed the jury to convict Garcia of involuntary

manslaughter in either of two ways: (1) if it found that Garcia “committed an act,

done . . . in an unlawful manner . . . , which might produce death,” or (2) if it found

that Garcia “committed an act, done . . . with wanton or reckless disregard for

human life, which might produce death.” The second alternative adequately

required the jury to find that Garcia acted with gross negligence. See Keith, 605

F.2d at 463 (“[T]he defendant acted with ‘gross negligence,’ defined as ‘wanton or

reckless disregard for human life[.]’”). The first alternative, however, did not. It

required only that the defendant have acted “in an unlawful manner” and that the

act “might produce death.”

      There is no way that the jury could have known from the instruction that an

act committed “in an unlawful manner” had to be an act committed with “gross

negligence” — that is, committed “with wanton or reckless disregard for human

life.” Indeed, given that this critical phrase — “with wanton or reckless disregard

for human life” — was included in the second alternative but omitted from the

first, the jury was encouraged to think that the first alternative did not require such

                                          -12-
a finding.

      We have no case law in the circuit specifically addressing the problem

created by the “in an unlawful manner” language in § 1112(a). However, the

Eighth Circuit, addressing an almost identical instruction, has expressed concern

with the formulation. United States v. McMillan, 820 F.2d 251, 255 (8th Cir.

1987). The McMillan court confronted an instruction requiring the jury to find

“that the Defendant caused the victim’s death as a result of conduct that was

unlawful or that exhibited a conscious indifference or reckless disregard for human

life.” Id. The McMillan court noted that if this sentence were the sole instruction

on gross negligence, “it would appear that part of the government’s burden of

proof had been removed.” Id. at 256. However, because additional instruction and

argument clarified the standard in that case, the court found no error. Id. Here, by

contrast, no subsequent instruction or argument informed the jury that gross

negligence is an essential element of involuntary manslaughter.

      The government makes two arguments in favor of the version of the model

instruction that was given. We disagree with both arguments.

      First, the government argues that the instruction is proper because it tracks

the statute of conviction. Even setting aside the differences between the instruction

and the statute, this argument fails. Although an instruction tracking a statute is

                                         -13-
generally not erroneous, see Johnson v. United States, 270 F.2d 721, 725 (9th Cir.

1959), statutory language cannot be used in an instruction if that language omits a

required element of the crime. See, e.g., Shortman, 91 F.3d at 82 (rejecting use of

statutory “without due caution” language in instruction because it was “a far less

onerous standard than ‘gross negligence’”); Keith, 605 F.2d at 464 (finding that a

grand jury indictment tracking the language of § 1112 “did not charge two

essential elements”).

      Second, the government argues that part four of the given instruction

includes the gross negligence element. Part four required the jury to find that “the

Defendant either knew that [his] conduct was a threat to the lives of others or knew

of circumstances that would reasonably cause the Defendant to foresee that such

conduct might be a threat to the lives of others.” This part of the instruction

required only that Garcia knew of risk caused by his conduct. Degree of risk is

different from knowledge of risk. Gross negligence is addressed to the degree of

risk rather than mere knowledge of risk. In Keith, we held that gross negligence

and knowledge of risk are both required elements. Keith, 605 F.2d at 463.

      Because the instruction did not require the jury to find that Garcia acted with

gross negligence — that is, “with wanton or reckless disregard for human life” —

we hold that it was improper. We have in past cases held jury instructions

                                         -14-
improper even when they accorded with model instructions. Indeed, we have

required changes to other parts of this very model instruction. See United States v.

Paul, 37 F.3d 496, 500-01 (9th Cir. 1994) (holding that the model instruction did

not adequately distinguish between the mental states required for voluntary and

involuntary manslaughter); United States v. Main, 113 F.3d 1046, 1050 (9th Cir.

1997) (holding that the model instruction failed to adequately instruct on proximate

cause); see also United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004).2

      An improper jury instruction does not require reversal if the error is

harmless. An error in describing an element of the offense is harmless only if it is

“clear beyond a reasonable doubt that a rational jury would have found the

defendant guilty absent the error.” Neder v. United States, 527 U.S. 1, 18 (1999);

see also Thongsy, 577 F.3d at 1043. We consider whether the element at issue is


      2
         As noted above, Ninth Circuit Model Criminal Jury Instruction No. 8.110
provides, with respect to the first required element for involuntary manslaughter:
       First, [1] [the defendant committed an unlawful act not amounting to a
       felony,] [or] [2] [committed a lawful act, done either in an unlawful manner
       or with wanton or reckless disregard for human life,] which might produce
       death.
(Bracketed numbers added to indicate alternative instructions.) We hold that
alternative [2], which was given by the court, was improper because it failed to
inform the jury that gross negligence is required for conviction. Even though
alternative [1] was not given by the court and the issue of its propriety is therefore
not before us, we note that it, like alternative [2], does not inform the jury that
gross negligence is required for conviction.

                                         -15-
sufficiently explained, given the totality of the instructions. United States v.

Lesina, 833 F.2d 156, 160 (9th Cir. 1987) (“Viewing the instructions as a whole

and in the context of the entire trial, we conclude that the omission requires

reversal.”) (internal citation omitted); see also McMillan, 820 F.2d at 256-57

(finding instructional error to be harmless where at least two other instructions

properly set out the gross negligence standard). Counsel’s arguments to the jury

are relevant in assessing harmlessness. McMillan, 820 F.2d at 256 (both counsel

mentioned gross negligence as an element of involuntary manslaughter in their

opening statements).

      We hold that the instructional error was not harmless. Garcia’s defense

hinged on self-defense and accident, focusing on the degree of risk that his actions

posed. The use of the appropriate negligence standard was thus of central

importance. The instruction was readily susceptible to a reading that did not

require gross negligence. When the jury expressed confusion by sending out a

note asking “for more definition” of all the counts, including involuntary

manslaughter, the court merely referred it to the defective instructions previously

given. Gross negligence was not mentioned elsewhere in the instructions. It is

therefore not clear beyond a reasonable doubt that the jury would have convicted

Garcia of involuntary manslaughter if properly instructed.

                                          -16-
                               B. Excluded Evidence

       Because we reverse Garcia’s conviction based on the defective jury

instruction, we need not reach the other issues presented on appeal. We

nonetheless address briefly the two evidentiary issues, given that they may arise

again if Garcia is retried.

       First, Garcia contends that the district court should have allowed him, or his

girlfriend Jordan Lynn, to testify about McCraigie’s prior violent acts. Garcia

argues that this testimony should have been admitted under United States v. James,

169 F.3d 1210 (9th Cir. 1999), and United States v. Saenz, 179 F.3d 686 (9th Cir.

1999), to show his state of mind — specifically, to show that he had good reason to

fear McCraigie. The district court held that the testimony was inadmissible under

United States v. Keiser, 57 F.3d 847, 853 (9th Cir. 1995).

       We agree with Garcia, at least with respect to his own proffered testimony.

The facts of James and Saenz are very similar to the facts in this case. The

defendants in both cases knew and feared the victim, as did Garcia; and the

defendants in both cases argued self-defense, as did Garcia. In James, the

defendant had been allowed to testify about prior violent conduct by the victim of

which she had been aware. The dispute on appeal was whether the defendant could

reinforce her testimony by introducing court documents, a presentence report, and

                                         -17-
police reports describing the victim’s prior conduct. James, 169 F.3d at 1212–13.

We held that the district court had abused its discretion in excluding that evidence.

Id. at 1214–15. In Saenz, the district court held as a matter of law that the

defendant could not testify about prior violent acts by the victim of which he had

been aware. Saenz, 179 F.3d at 688. We reversed based on James. We wrote,

“[W]e assumed [in James] that, in a self-defense case, a defendant may show her

state of mind at the time of an attack by testifying that she knew about a victim’s

past acts of violence.” Id. at 689. The facts of Keiser are different. In that case,

the defendant did not know of the prior violent acts by the victim – indeed, the

victim’s prior violent acts post-dated the crime – and those acts therefore could not

have affected the defendant’s state of mind. See Keiser, 57 F.3d at 853 (“Keiser

makes no claim on appeal that the [victim’s violent] incident . . . – which . . .

occurred after the shooting – was relevant to his state of mind at the time of the

shooting or the reasonableness of his belief that force in self-defense was

necessary.”).

      Second, Garcia contends that he should have been allowed to introduce three

photographs that had been posted on McCraigie’s MySpace page. All three

photographs show McCraigie holding a sawed-off shotgun. In two of them

McCraigie or another person was wearing what appear to be gang-associated

                                          -18-
colors, and in two of them, McCraigie is drinking out of a bottle that may have

contained alcohol. The district court excluded the photographs because they

involved a different type of weapon and were unduly prejudicial.

      We agree with Garcia that the district court should have admitted the

photographs as impeachment evidence. Three prosecution witnesses specifically

testified that they had never seen McCraigie with a firearm: Keith McCraigie (“Q:

[D]id you ever know him to have a firearm? A: No.”); Alex McCraigie (“Q: How

about with a firearm? A: No.”); and Mariela Sanchez (“Q: Had you seen him with

a gun at any time that evening? A: I never seen him with a gun my whole life

knowing him.”). Garcia’s self-defense argument relied heavily on his testimony

that McCraigie had a pistol, and the testimony of each of these witnesses, if

believed, cast serious doubt on Garcia’s testimony.

                                    Conclusion

      Because the jury was not properly instructed that involuntary manslaughter

requires finding gross negligence, we reverse Garcia’s conviction for involuntary

manslaughter.

      REVERSED.




                                        -19-
                            COUNSEL LISTING

Peter S. Schweda (argued), Waldo, Schweda and Montgomery, P.S., Spokane, WA
for the Appellant

Matthew F. Duggan (argued), Assistant United States Attorney, Spokane, WA
for the Appellee




                                     -20-
