                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                            No. 14-10255
                 Plaintiff-Appellee,
                                                        D.C. No.
                       v.                            4:12-cr-01073-
                                                      JGZ-CRP-1
 ROSARIO AURELIO MONTOYA-
 GAXIOLA, AKA Rosario Montoya-
 Gaxiola,                                               OPINION
             Defendant-Appellant.


         Appeal from the United States District Court
                  for the District of Arizona
         Jennifer G. Zipps, District Judge, Presiding

                    Argued and Submitted
           May 11, 2015—San Francisco, California

                       Filed August 10, 2015

  Before: Richard A. Paez and Richard R. Clifton, Circuit
     Judges and Leslie E. Kobayashi,* District Judge.

                   Opinion by Judge Kobayashi




 *
   The Honorable Leslie E. Kobayashi, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
2           UNITED STATES V. MONTOYA-GAXIOLA

                           SUMMARY**


                           Criminal Law

     The panel reversed a conviction for possessing an
unregistered sawed-off shotgun with a barrel of less than
eighteen inches in length, in violation of the National
Firearms Act, 28 U.S.C. § 5861(d), and remanded for a new
trial.

    The panel held that the district court erred by failing to
instruct the jury as to the mens rea element of the charge.
The panel explained that Ninth Circuit Model Criminal Jury
instruction 9.34, if strictly followed as it was in this case, is
susceptible of being unwittingly misinterpreted as calling for
the inclusion of a description of the weapon’s identifying
characteristics instead of instructing the jury to determine
whether the defendant knowingly possessed a sawed-off
shotgun with a barrel of less than eighteen inches long. The
panel held that the error was not harmless.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
          UNITED STATES V. MONTOYA-GAXIOLA                    3

                         COUNSEL

Brenda Dabdoub-Caballero, Tucson, Arizona, for Defendant-
Appellant.

Angela W. Woolridge (argued), Assistant United States
Attorney; John S. Leonardo, United States Attorney; Robert
L. Miskell, Appellate Chief, Tucson, Arizona, for Plaintiff-
Appellee.


                          OPINION

KOBAYASHI, District Judge:

     Defendant-Appellant Rosario Montoya-Gaxiola
(“Rosario”) appeals the district court’s judgment of
conviction and sentence for, inter alia, violating the National
Firearms Act (“the Act”), 26 U.S.C. §§ 5801–5872, arguing
that the court failed to instruct the jury on the mens rea
element of the charge. We agree. Ninth Circuit Model
Criminal Jury Instruction 9.34, if strictly followed, as it was
in this case, may result in an erroneous instruction. Since this
error was not harmless, we reverse the conviction and
sentence for violation of the Act, and remand for a new trial
as to that count. We affirm on all other grounds.

                      BACKGROUND

   In the early morning of April 3, 2012, United States
Border Patrol agents discovered Rosario, his brother Abel
Montoya-Gaxiola (“Abel”), and Fermin Ruiz-Bracamontes
4          UNITED STATES V. MONTOYA-GAXIOLA

(“Ruiz”) in a remote part of the Arizona desert.1 Upon
contact, the three men fled. After they were apprehended, the
agents recovered the following items on or near the men:
blankets, large backpacks containing significant food rations,
a radio scanner, multiple cellular phones, three firearms, and
ammunition. Central to this opinion, agents found a sawed-
off shotgun lying near Rosario, and matching shells in his
pockets.

    The three men were indicted on charges of illegal reentry
and firearm possession, as well as various charges of drug
and firearm conspiracy. Rosario was also charged with
violating the Act for possessing an unregistered sawed-off
shotgun with a barrel of less than eighteen inches in length.
Ruiz gave an incriminating post-arrest statement, and later
pled guilty to multiple charges; the Government dismissed
the other charges against him. In their post-arrest statements
the Montoya brothers maintained their innocence, stating that
they were simply traveling from Mexico. Rosario stated,
both at the arrest scene and in his statement, that he had found
the shotgun in the desert the day before. The Montoya
brothers pled guilty to illegal reentry, but went to trial on the
other charges.

   The Government’s theory was that the three men were
operating as a “rip crew,” meaning that they planned to steal
marijuana from drug smugglers, sell it, and split the proceeds.
This theory was borne out by Ruiz’s statement, which was
suppressed at trial but considered by the court for
enhancement purposes at the Montoya brothers’ sentencing
hearings.

  1
    To avoid confusion, we refer to the Montoya brothers individually by
their first names, as warranted.
            UNITED STATES V. MONTOYA-GAXIOLA                                5

    After the Government rested, the district court directed a
verdict for the Montoya brothers on all of the conspiracy
counts. Only three remaining charges, Counts III and IV, for
firearm possession by an illegal alien, and Count V, for
violation of the Act, were left for the jury to decide.

    Prior to submission of the case to the jury, counsel for
Rosario orally requested a modification of the jury instruction
regarding the Act on the basis that it lacked the proper mens
rea element. Relying on Ninth Circuit Model Criminal Jury
Instruction 9.34 (“Model Instruction”), the court made a
minor modification but rejected the request regarding mens
rea.

   The jury returned a verdict of guilty on all three
remaining counts. Rosario timely appealed his conviction.2

  2
     On appeal, Rosario also challenges the court’s reliance on Ruiz’s
statement and Ruiz’s plea agreement in enhancing his sentence. We
addressed the same arguments regarding the reliability of Ruiz’s
statements in our concurrently filed memorandum disposition affirming
Abel’s sentence, see United States v. Montoya-Gaxiola, No. 13-10479
(9th Cir. August 10, 2015), and reject them for the same reasons here as
to Rosario.

     We also reject Rosario’s challenge to his enhancement under
U.S.S.G. § 2K2.1(b)(6). He contends that Application Note 14(B)(ii)
requires that drug or drug paraphernalia be present with the firearm for the
court to apply the enhancement. To the contrary, that note suggests that
the presence of drugs is a sufficient, but not necessary, condition for
enhancement. This court has held that the test is “whether the firearm had
some potential emboldening role in the defendant’s felonious conduct,”
see United States v. Polanco, 93 F.3d 555, 567 (9th Cir. 1996) (citation,
internal quotation marks, and brackets omitted), and there is sufficient
evidence in the record to support the district court’s conclusion that it did.
Cf. United States v. Jimison, 493 F.3d 1148, 1149 (9th Cir. 2007)
(explaining that acquiring a gun to rob a bank would be sufficient for
6          UNITED STATES V. MONTOYA-GAXIOLA

On appeal, both parties concede that the jury instruction was
erroneous, but dispute the impact of the error. We take this
opportunity to discuss the Model Instruction in light of its
commentary and the case law, and ultimately reverse and
remand for proceedings consistent with this opinion as to
Count V.

                         DISCUSSION

    The statute at issue, 26 U.S.C. § 5861(d), provides that,
“[i]t shall be unlawful for any person . . . to receive or possess
a firearm which is not registered to him in the National
Firearms Registration and Transfer Record[.]” As defined by
the Act, the term “firearm” includes: “(1) a shotgun having a
barrel or barrels of less than 18 inches in length; [or] (2) a
weapon made from a shotgun if such weapon as modified has
an overall length of less than 26 inches or a barrel or barrels
of less than 18 inches in length[.]” 26 U.S.C. § 5845(a).
Although the statute is silent as to a mens rea requirement,
the Supreme Court has held that “to obtain a conviction, the
Government [is] required to prove that [a defendant] knew of
the features of his [weapon] that brought it within the scope
of the Act.” Staples v. United States, 511 U.S. 600, 619
(1994) (footnote omitted).

    In United States v. Gergen, 172 F.3d 719 (9th Cir. 1999),
this court applied the rule from Staples in a case involving a
sawed-off shotgun, where the defendant’s knowledge of the
feature was disputed. There, the district court gave an
instruction negating the mens rea element. Gergen was
indicted under § 5861(d) after police officers found his


enhancement, even if the defendant had not cased the location or even
identified a specific bank to rob).
            UNITED STATES V. MONTOYA-GAXIOLA                           7

friend’s sawed-off shotgun partially wrapped in a jacket in
the backseat of Gergen’s car. Evidence at trial showed that
Gergen knew that the shotgun was in his car and he had
moved it, but not necessarily that he had unwrapped it or held
it for any length of time. The district court correctly
instructed the jury that the Government was required to prove
that: (1) Gergen possessed a sawed-off shotgun; (2) he did so
knowingly; (3) he was aware of the features of the sawed-off
shotgun that brought it within the statute; and (4) he had not
registered it. Id. at 721.

    Defense counsel argued during closing that the
Government was required to prove that Gergen knew that the
shotgun was illegal, and the Government objected. Based on
that exchange and a specific request for clarification by the
jury during deliberations, the district court gave a
supplemental instruction stating that the “Government [was]
not required to show that the defendant specifically knew:
(1) the barrel length of the shotgun was less than 18 inches,
or (2) the overall length of the shotgun was less than 26
inches.” Id.

    This court applied Staples and concluded that the district
court had “erroneously eliminated the mens rea
requirement[,]” which was “an essential element of a
§ 5861(d) violation.” Id. at 724. In doing so, we adopted the
majority rule that Staples requires knowledge of the specific
characteristic of the sawed-off shotgun that brings it within
the Act, not simply knowledge that the shotgun is sawed off.3



 3
   We have subsequently reiterated that rule. See, e.g., United States v.
Summers, 268 F.3d 683, 687–88 (9th Cir. 2001) (“[T]he government was
required to prove beyond a reasonable doubt that Summers knew the
8           UNITED STATES V. MONTOYA-GAXIOLA

Id. at 723–24. We found that the erroneous jury instruction
“seriously affected the fairness of the proceedings” and, since
there was sufficient evidence that Gergen knew the weapon’s
characteristics, remanded for a retrial.4 Id. at 724–25.

    The law then is clear that, in order to convict under
§ 5861(d) for possession of a sawed-off shotgun with a short
barrel, the Government must prove that the defendant knew
the specific characteristics that made it a firearm within the
Act, that is, having a barrel of less than eighteen inches long.
What is less clear is whether the Model Instruction accurately
captures this requirement. Recognizing the reliance by
district courts and counsel alike on the Model Instruction, we
examine whether it directs the inclusion of the specific
characteristics which make the weapon a “firearm” within the
Act.

    We start first with the Model Instruction’s language,
including its comment:

            9.34 FIREARMS—POSSESSION OF
                UNREGISTERED FIREARM
                    (26 U.S.C. § 5861(d))

             The defendant is charged in [Count
         _______ of] the indictment with [possession]
         [receipt] of an unregistered firearm in


shotgun found in his car had an overall length of less than 26 inches or a
barrel length of less than 18 inches.” (citations omitted)).
    4
   If there had been insufficient evidence, the court would have directed
a verdict of acquittal, and thereby foreclosed an opportunity for a retrial.
Gergen, 172 F.3d at 724–25.
  UNITED STATES V. MONTOYA-GAXIOLA                9

violation of Section 5861(d) of Title 26 of the
United States Code. 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 knowingly
[[possessed] [received]] [specify firearm]; and

    Second, the [specify firearm] was not
registered to the defendant in the National
Firearms Registration and Transfer Record.

                  Comment

   For a definition of “firearm,” see
26 U.S.C. § 5845(a).

    The government must prove that the
defendant knew of those features which
brought the firearm within the scope of the
statute. See Staples v. United States, 511 U.S.
600, 619 (1994) (“to obtain a conviction, the
Government should have been required to
prove that petitioner knew of the features of
his AR-15 that brought it within the scope of
the Act”). See also United States v. Gergen,
172 F.3d 719, 724 (9th Cir. 1999) (mens rea
requirement that the defendant know of the
particular characteristics of the firearm which
bring it within the scope of the statute). The
government need not prove that the defendant
knew that possessing the firearm was illegal.
10       UNITED STATES V. MONTOYA-GAXIOLA

       United States v. Summers, 268 F.3d 683, 688
       (9th Cir. 2001).

The comment correctly encapsulates the mens rea
requirement. However, the Model Instruction itself does not.

    Here, after the Government rested, Rosario’s counsel
orally requested that the court modify its preliminary jury
instruction for Count V, which had been submitted by the
Government. The preliminary instruction read:

       Defendant Rosario Montoya-Gaxiola is
       charged in Count Five of the Indictment with
       Possession of Unregistered Firearm in
       violation of Sections 5841, 5861(d) and 5871
       of Title 26 of the United States Code. In
       order for the defendant to be found guilty of
       this charge the government must prove each
       of the following elements beyond a reasonable
       doubt:

       First, the defendant knowingly received or
       possessed a firearm; and

       Second, the firearm was not registered to the
       defendant in the National Firearms
       Registration and Transfer Record.

       For purposes of this offense, the term
       “firearm” includes any shotgun having a
       barrel less than 18 inches.

Defense counsel objected that the mens rea element was not
clear in the proposed instruction. The court responded by
          UNITED STATES V. MONTOYA-GAXIOLA                   11

adding certain descriptive aspects of the shotgun to the first
paragraph, but not the features that would have made it illegal
under the Act.

   The final jury instruction required that the jury find:

       First, the defendant knowingly received or
       possessed one Winchester, model 1200, 12
       gauge shotgun, serial number L936588; and

       Second, the firearm was not registered to the
       defendant in the National Firearms
       Registration and Transfer Record.

       For purposes of this offense, the term
       “firearm” includes any shotgun having a
       barrel less than 18 inches.

Thus, the jury instruction given was erroneous since it failed
to instruct the jury as to the first element of the offense,
namely, whether Rosario knew that the shotgun’s barrel was
less than eighteen inches.

    The error was largely due to the text of the Model
Instruction, which is unclear as to what is meant by “[specify
firearm].” If read in conjunction with the comment, it may
become apparent that this bracketed directive refers to the
description of the illegal aspect of the firearm involved in the
alleged crime as defined in 26 U.S.C. § 5845(a). This
subtlety, however, is not readily apparent in the Model
Instruction itself. As a result, the Model Instruction is
susceptible of being unwittingly misinterpreted as calling for
the inclusion of a description of the weapon’s identifying
characteristics (such as make, caliber and serial number).
12        UNITED STATES V. MONTOYA-GAXIOLA

    As applied to this case, the error occurred when the jury
instruction directed the jury to determine whether Rosario
“knowingly received or possessed one Winchester, model
1200, 12 gauge shotgun, serial number L936588,” instead of
instructing the jury to determine whether Rosario “knowingly
possessed one sawed-off shotgun with a barrel less than
eighteen inches long.”

    While acknowledging the error, the Government
nonetheless argues that it was harmless because the shotgun
was “obviously ‘sawed off’ or short barreled.” We conclude
otherwise.

    The harmless error test for an erroneous jury instruction
is “whether it appears beyond a reasonable doubt that the
error complained of did not contribute to the verdict
obtained.” Neder v. United States, 527 U.S. 1, 15 (1999)
(citation and internal quotation marks omitted). “Omitting an
element is harmless if the omitted element is uncontested and
supported by overwhelming evidence. The Supreme Court
has noted, however, that a jury instruction error would not be
harmless if a defendant ‘contested the omitted element and
raised evidence sufficient to support a contrary finding.’”
United States v. Cherer, 513 F.3d 1150, 1155 (9th Cir. 2008)
(some brackets, citations and internal quotation marks
omitted) (quoting Neder, 527 U.S. at 19).

    To convict under the Act, the Government needed to
prove beyond a reasonable doubt that Rosario knew that the
shotgun had a barrel of less than eighteen inches, not simply
that it was sawed off. See, e.g., Summers, 268 F.3d at
687–88. While two Border Patrol agents and two Bureau of
Alcohol, Tobacco, Firearms, and Explosives agents testified
that the shotgun was visibly sawed off, only one agent — a
          UNITED STATES V. MONTOYA-GAXIOLA                   13

“gunsmith” and licensed federal firearms dealer — testified
that the “barrel length appear[ed] to be under 18 inches, the
legal length for a shotgun.” The only other evidence
supporting the Government’s position that the shotgun’s
barrel appeared to be less than eighteen inches was the
photograph of the shotgun and the shotgun itself, which the
Government presented at trial. The record evidence of the
shotgun’s apparent length is not overwhelming.

     Furthermore, there was evidence contesting Rosario’s
knowledge of the barrel length. The single defense witness,
Sergio Murueta, an investigator from the Federal Public
Defender’s Office, who viewed the shotgun in investigating
the case and had experience working with ballistics, testified
that he could not tell the length of the shotgun just by viewing
it. And the barrel actually measured 14.5 inches, shorter than
eighteen inches, but not so much shorter that anyone looking
at the shotgun would have recognized that the weapon was a
“firearm.” See, e.g., Gergen, 172 F.3d at 720 (finding error
not harmless where barrel measured 13.5 inches). There was
also trial testimony about Rosario’s statements to agents that
he had found the shotgun the day before he was arrested, and
therefore may not have been familiar with its length. Since
there was evidence that it was not readily apparent that the
shotgun was short-barreled and that Rosario had only recently
acquired it, the Government’s evidence of the mens rea
element was sufficiently contested.

    The Government’s burden in proving harmless error is a
high one and it is undisputed that the district court omitted
one of the two elements of the crime charged. Although there
was sufficient evidence that a jury could find, under the
correct instruction, that Rosario knew that the gun’s barrel
measured under eighteen inches, it was neither overwhelming
14       UNITED STATES V. MONTOYA-GAXIOLA

nor uncontested. See Cherer, 513 F.3d at 1155. Consistent
with Gergen, we conclude that the error was not harmless.
Since it does not appear “beyond a reasonable doubt that the
error complained of did not contribute to the verdict
obtained,” Neder, 527 U.S. at 15 (citation and internal
quotation marks omitted), we reverse and remand for
proceedings consistent with this opinion as to Count V.

     REVERSED IN PART AND REMANDED.
