                                                                            FILED
                            NOT FOR PUBLICATION
                                                                              JUL 26 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,      )              No. 15-50410
                               )
      Plaintiff-Appellee,      )              D.C. No. 2:15-cr-00086-JAK-1
                               )
      v.                       )              MEMORANDUM*
                               )
FERNANDO GABRIEL               )
CARRILLO, AKA Fernando Gabriel )
Salvado Carrillo,              )
                               )
      Defendant-Appellant.     )
                               )

                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                        Argued and Submitted July 12, 2017
                               Pasadena, California

Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.

      Fernando Gabriel Carrillo appeals his conviction for damaging property of

the United States government. 18 U.S.C. § 1361. We reverse and remand.

      (1)    Carrillo first argues that because the evidence was insufficient to



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
support the verdict, the district court erred when it denied his motion for a

judgment of acquittal. See Fed. R. Crim. P. 29(a). We disagree. “‘[A]fter viewing

the evidence in the light most favorable to the prosecution, [a] rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’”

United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc); see also

United States v. Green, 592 F.3d 1057, 1065 (9th Cir. 2010). The jury was

properly instructed,1 and our review of the record satisfies us that the evidence was

sufficient to establish all of the elements of the offense.

      (2)      Carrillo also asserts that the district court abused its discretion2 when

it denied his motion for a new trial3 based on government misconduct.4 We agree.

      The district court did properly instruct the jury on the critical element in this

case—willfulness. The court made it plain that the evidence had to show that

Carrillo acted “‘intentionally and purposely and with the intent to do something the


      1
        See United States v. Derington, 229 F.3d 1243, 1248 (9th Cir. 2000). The
parties do not dispute that.
      2
        See United States v. Washington, 462 F.3d 1124, 1135 (9th Cir. 2006); see
also United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc);
cf. United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1
(1985).
      3
          Fed. R. Crim. P. 33(a).
      4
          See Washington, 462 F.3d at 1135.

                                             2
law forbids.’” Derington, 229 F.3d at 1248. While the instruction was correct,

“willfully” remains a troublesome concept in the context of the criminal law. See

Bryan, 524 U.S. at 191–92 & n.12, 118 S. Ct. at 1944–45 & n.12; Spies v. United

States, 317 U.S. 492, 497–98, 63 S. Ct. 364, 367, 87 L. Ed. 418 (1943). The

government decided to explain the instruction further. In doing so, it did not

improve upon the instruction, but, instead, misled the jury. In effect, the

government told the jury that if the actions of Carrillo were not themselves

accidental, the willfulness element was proved, even if the evidence did not

otherwise show that he knew the law or acted with a bad purpose to disobey or

disregard it.5

       The government’s accident argument undercut any defense Carrillo had to

the charged crime—there could be little doubt that his breaking a door and a fire

alarm annunciator panel was not an accident. Therefore, the argument could easily

have led to a conviction on an incorrect basis. See United States v. Berry, 683 F.3d

1015, 1021 (9th Cir. 2012); United States v. Weatherspoon, 410 F.3d 1142,

1149–50 (9th Cir. 2005); cf. United States v. Begay, 673 F.3d 1038, 1046–47 (9th

Cir. 2011) (en banc).

       5
       We note that its statements in its rather brief arguments were not isolated
comments, but were repeated. See Deck v. Jenkins, 814 F.3d 954, 980 (9th Cir.
2016).

                                          3
      Although the prosecutor’s comments were improper,6 we must still

determine whether they were harmless or whether “they affected the fundamental

fairness of the trial.” United States v. Del Toro-Barboza, 673 F.3d 1136, 1150 (9th

Cir. 2012); see also Berry, 683 F.3d at 1024; Allen v. Woodford, 395 F.3d 979, 997

(9th Cir. 2005). In the context of this case, because the ideal of fundamental

fairness was breached, the comments were not harmless.

      In so stating, we are quite aware of the principle that the court’s instructions

are more weighty than counsel’s arguments,7 but here the instructions do not save

the day. Here: the concept of willfulness is rather arcane and is not easily grasped;

this case is not an instance of an isolated prosecution misstatement in the context of

a lengthy argument; finally, the objection to the argument was overruled and there

was no curative instruction.8 While there was sufficient evidence to convict

Carrillo, we cannot say that the evidence was strong enough9 to render the

      6
       We do not suggest they were intentionally so, but they certainly were
mistaken.
      7
       See Boyde v. California, 494 U.S. 370, 384–85, 110 S. Ct. 1190, 1200, 108
L. Ed. 2d 316 (1990); Begay, 673 F.3d at 1046; United States v. Medina
Casteneda, 511 F.3d 1246, 1249–50 (9th Cir. 2008).
      8
        This undercut part of the rationale for giving extra weight to the
instructions. See Boyde, 494 U.S. at 384, 110 S. Ct. at 1200.
      9
          See United States v. Stinson, 647 F.3d 1196, 1214–15 (9th Cir. 2011);
                                                                         (continued...)

                                            4
misstatements harmless.

      REVERSED and REMANDED for further proceedings.




      9
      (...continued)
Weatherspoon, 410 F.3d at 1151.

                                  5
