                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                     No. 11-50376
              Plaintiff-Appellee,
                                                  D.C. No.
                    v.                       3:10-cr-00579-H-1

 MARIANO ANGUIANO -MORFIN ,
          Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
          for the Southern District of California
         Marilyn L. Huff, District Judge, Presiding

                    Argued and Submitted
            January 8, 2013—Pasadena, California

                         Filed April 18, 2013

  Before: William A. Fletcher and Johnnie B. Rawlinson,
  Circuit Judges, and Alvin K. Hellerstein, Senior District
                          Judge.*

                 Opinion by Judge W. Fletcher




  *
    The Honorable Alvin K. Hellerstein, Senior District Judge for the
Southern District of New York, sitting by designation.
2           UNITED STATES V . ANGUIANO -MORFIN

                           SUMMARY**


                           Criminal Law

    The panel affirmed a conviction for making a false claim
of citizenship in violation of 18 U.S.C. § 911 in a case in
which the defendant’s sole defense at trial was that he
suffered from a delusion that caused him genuinely to believe
that he was a United States citizen.

    The panel agreed with the defendant that the willfulness
element of § 911 requires that the defendant know that the
representation is false, but held that the instruction given to
the jury was adequate under the circumstances because a
“misrepresentation . . . deliberately made” suggests a
knowing falsehood. The panel wrote that combined with the
testimony and closing arguments at trial, which focused on
what the defendant knew, the jury was aware that his
subjective belief was the dispositive issue.

    The panel held that the defendant did not show plain error
arising from the prosecutor’s asking the defendant’s expert
witness, a doctor, to comment on the defendant’s veracity,
where the witness had found the defendant to be truthful as
part of the basis for his diagnosis.




  **
     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 . ANGUIANO -MORFIN                3

                        COUNSEL

Zandra Luz Lopez (argued), Assistant Federal Public
Defender, Federal Defenders of San Diego, Inc., San Diego,
California, for Appellant.

Bruce R. Castetter and Mark R. Rehe (argued), Assistant
United States Attorneys, Office of the United States Attorney,
San Diego, California, for Appellee.


                         OPINION

W. FLETCHER, Circuit Judge:

     Defendant Mariano Anguiano-Morfin appeals the district
court’s denial of his motion for a new trial. Anguiano, a
former lawful permanent resident of the United States, was
removed to Mexico in early 2010. After his removal,
Anguiano approached a United States port of entry and told
the border agent that he was a U.S. citizen. He was arrested
and tried under 18 U.S.C. § 911 for making a false claim of
citizenship. His sole defense at trial was that he suffered
from a delusion that caused him genuinely to believe that he
was a United States citizen. Anguiano argued that his
misstatement was therefore not willful as required by the
statute. The jury convicted Anguiano, and the district court
denied his motion for a new trial. We have jurisdiction under
28 U.S.C. § 1291 and we affirm.

                   I. Jury Instructions

   Anguiano’s first argument is that the jury instructions
were inadequate. “A criminal defendant has a constitutional
4          UNITED STATES V . ANGUIANO -MORFIN

right to have the jury instructed according to his theory of the
case, provided that the requested instruction is supported by
law and has some foundation in the evidence.” United States
v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011)
(citations and internal quotation marks omitted). We review
de novo whether an instruction is “supported by law.” Id.
(internal quotation marks omitted). We review for an abuse
of discretion whether it has “some foundation in the
evidence.” Id. (internal quotation marks omitted). “The
district court’s failure to give a defendant’s requested
instruction that is supported by law and has some foundation
in the evidence warrants per se reversal, unless other
instructions, in their entirety, adequately cover that defense
theory.” Id. (citations and internal quotation marks omitted).
We review de novo whether other instructions adequately
cover the defense theory. United States v. Mason, 902 F.2d
1434, 1438 (9th Cir. 1990). We also review de novo whether
the jury instructions correctly state the elements of a crime.
United States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004).
“The district court has broad discretion in formulating the
instructions” for both the elements and the theory of the
defense, and it “need not give an instruction in the precise
language proposed by the defendant.” United States v.
Hayes, 794 F.2d 1348, 1351 (9th Cir. 1986).

    Anguiano was convicted under 18 U.S.C. § 911, which
requires that a defendant “falsely and willfully represent[]
himself to be a citizen of the United States.” The essential
elements of a § 911 violation are that “(1) [the defendant]
made a false claim of U.S. citizenship; (2) his
misrepresentation was willful . . . ; and (3) it was conveyed to
someone with good reason to inquire into his citizenship
status.” United States v. Karaouni, 379 F.3d 1139, 1142 (9th
Cir. 2004).
          UNITED STATES V . ANGUIANO -MORFIN                 5

    Anguiano argues that the willfulness element of § 911
requires that the defendant know that his representation is
false. We agree. Anguiano requested the following jury
instruction, which the district court refused to give:

       The defense has presented evidence that Mr.
       Anguiano Morfin genuinely, though
       mistakenly, believed he was a United States
       citizen when he claimed to be a United States
       citizen.

       The Government must prove beyond a
       reasonable doubt that Mr. Anguiano Morfin
       knew that his claim to United States
       citizenship was false.

       If, after considering the evidence, you are left
       with a reasonable doubt as to whether Mr.
       Anguiano Morfin knew his claim to United
       States citizenship was false, you must find
       Mr. Anguiano Morfin not guilty.

The second and third paragraphs of Anguiano’s proposed
instruction are an accurate statement of the law. Given
Anguiano’s defense at trial, the best course would have been
to include these paragraphs in the instructions.

    We nonetheless conclude that the given instructions,
considered as a whole, were adequate in the circumstances of
this case. The instructions sufficiently conveyed the essential
elements of the crime. See Hayes, 794 F.2d at 1351. The
instructions stated that the “Government must prove . . .
beyond a reasonable doubt” that “the Defendant made such
false representation willfully. That is, the misrepresentation
6          UNITED STATES V . ANGUIANO -MORFIN

was voluntarily and deliberately made.”             Although
Anguiano’s requested instruction more clearly articulated the
knowledge requirement, the given instruction was adequate
under the circumstances because a “misrepresentation . . .
deliberately made” suggests a knowing falsehood. Combined
with the testimony and closing arguments at trial, which
focused on what Anguiano knew, the jury was aware that his
subjective belief was the dispositive issue. See United States
v. Feingold, 454 F.3d 1001, 1012 (9th Cir. 2006).

    The instructions also adequately presented Anguiano’s
theory of the case. The instructions stated that “[t]he theory
of the defense is that the Defendant genuinely believes,
though mistakenly, that he was a United States citizen when
he claimed to be a United States citizen.” Coming in context
after the legal definition of the essential elements, this
instruction sufficiently conveyed the defense theory. See
Marguet-Pillado, 648 F.3d at 1006.

               II. Prosecutorial Misconduct

     Anguiano’s second argument is that the prosecution
improperly questioned his expert witness, Dr. Lavid.
Anguiano did not object on this basis at trial, so we review
for plain error. See Puckett v. United States, 556 U.S. 129,
135 (2009). Anguiano has the burden to show that (1) there
was an error; (2) the error was plain, i.e. clear or obvious; (3)
the error affected his substantial rights, meaning that it
“affected the outcome of the district court proceedings”; and
(4) the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (alteration and
internal quotation marks omitted).
          UNITED STATES V . ANGUIANO -MORFIN                 7

    Anguiano has not shown plain error. He argues that the
prosecutor inappropriately asked Dr. Lavid to comment on
Anguiano’s veracity. But given that Dr. Lavid had found
Anguiano to be truthful as part of the basis for his diagnosis,
questions on this subject were arguably proper. See In re
Hanford Nuclear Reservation Litig., 534 F.3d 986, 1016 (9th
Cir. 2008) (“Opposing counsel may cross-examine an expert
on the facts or data on which his opinion was based.”). Any
error here was not “plain” since it was not “clear or obvious
under current law.” United States v. De La Fuente, 353 F.3d
766, 769 (9th Cir. 2003). Anguiano also contends that the
prosecutor improperly impugned Dr. Lavid’s trustworthiness
and vouched for a government witness’s credibility. Even if
true, Anguiano has failed to demonstrate that these remarks
“affected the outcome” of the trial and “seriously affect[ed]
the fairness, integrity or public reputation of judicial
proceedings.” Puckett, 556 U.S. at 135.

   AFFIRMED.
