                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 04-50086
                Plaintiff-Appellee,
               v.                                 D.C. No.
                                                CR-03-1041-JTM
YAMINA ABIGAIL MUNOZ,
                                                   OPINION
             Defendant-Appellant.
                                          
         Appeal from the United States District Court
            for the Southern District of California
          Jeffrey T. Miller, District Judge, Presiding

                    Argued and Submitted
           February 18, 2005—Pasadena, California

                       Filed June 14, 2005

  Before: A. Wallace Tashima and Kim McLane Wardlaw,
   Circuit Judges, and Raner C. Collins,* District Judge.

                   Opinion by Judge Tashima




  *The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.

                                7031
7034             UNITED STATES v. MUNOZ


                      COUNSEL

Steven F. Hubachek, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.

Lawrence E. Spong, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
                   UNITED STATES v. MUNOZ                 7035
                         OPINION

TASHIMA, Circuit Judge:

   Yamina Abigail Munoz appeals her convictions under 8
U.S.C. § 1324(a)(2)(B)(ii) & (iii) for two counts of bringing
illegal aliens to the United States for financial gain, and two
counts of bringing illegal aliens to the United States without
presentation to an immigration officer. Munoz argues that the
district court erred by giving a jury instruction that relieved
the government of its burden of proving one of the elements
of the financial gain offenses, by denying her motion for
acquittal when the government failed to prove that the aliens
found in her car lacked permission to “come to,” as opposed
to “enter,” the United States, and by allowing the government
to elicit testimony regarding a border inspector’s reasons for
referring Munoz to secondary inspection. We have jurisdic-
tion pursuant to 28 U.S.C. § 1291. We affirm the district
court’s denial of Munoz’s motion for acquittal and its chal-
lenged evidentiary ruling, but reverse Munoz’s convictions on
the two pecuniary gain counts, and remand for further pro-
ceedings.

                    I.   BACKGROUND

   At approximately 5:45 a.m. on April 2, 2003, Munoz and
her two young children arrived at the San Ysidro, California,
Port of Entry in a Ford minivan and applied for admission
into the United States. Munoz told Inspector Jimenez, the pri-
mary inspector, that she was a United States citizen and that
she had been visiting her aunt in Tijuana. She also stated that
the van she was driving belonged to her aunt and that she
planned on visiting her uncle in the United States. Jimenez
noticed that Munoz was sweating despite the cool weather,
that she was avoiding direct eye contact, and that her answers
were very brief. Jimenez’s inspection of the van revealed that
it appeared to have a nonfactory addition, a black plastic
cover along the bottom of the vehicle. Jimenez then referred
7036               UNITED STATES v. MUNOZ
Munoz to secondary inspection. As Jimenez escorted Munoz
to secondary inspection, she became aggressive, repeatedly
asking Jimenez what the problem was and saying “you must
be new, why are you giving me attitude.”

   Secondary inspection revealed a compartment under the
van’s rear floorboard that contained two Chinese nationals
(the “aliens”). They testified that they lacked permission to
enter the United States, that each had paid an unidentified
man for transport from Mexico into the United States, and
that neither had seen Munoz before inspectors removed them
from the van at the United States border.

   Munoz was charged with two counts of bringing illegal
aliens to the United States for financial gain, in violation of
8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2, and two
counts of bringing illegal aliens to the United States without
presentation to an immigration officer, in violation of 8
U.S.C. § 1324(a)(2)(B)(iii). During trial, Munoz made a
motion for judgment of acquittal at the conclusion of each
side’s case. A jury found Munoz guilty of all four counts. She
was sentenced to 36 months’ imprisonment on each of the
pecuniary gain counts, and 21 months’ imprisonment on each
of the two remaining counts, with all sentences to run concur-
rently.

                     II.   DISCUSSION

  A. Jury      Instruction    Regarding     Financial    Gain
  Offenses

   Munoz first argues that the district court erroneously gave
a jury instruction that relieved the government of its burden
of proof on one element of the financial gain offenses. We
review de novo whether a jury instruction misstated an ele-
ment of the charged offense. United States v. Kaur, 382 F.3d
1155, 1157 (9th Cir. 2004).
                    UNITED STATES v. MUNOZ                  7037
   8 U.S.C. § 1324(a)(2)(B)(ii) provides enhanced penalties
for “an offense done for the purpose of commercial advantage
or private financial gain.” In instructing the jury on the finan-
cial gain element of the offenses, the district court stated that
“[i]t is not necessary for the government to prove the defen-
dant was to receive the financial gain.” Munoz argues that this
instruction relieved the government of its burden of proof in
that it allowed the jury to convict her without finding that she
had the requisite intent to benefit financially from transporta-
tion of the aliens.

   The government argues that the instruction correctly stated
the law because the statute does not require proof that Munoz
was to receive any financial gain. It contends that
§ 1324(a)(2)(B)(ii) requires only that the defendant brought
an alien to the United States for the purpose of some person’s
private financial gain. It is thus unnecessary, in its view, to
prove that Munoz intended to derive any financial gain for
herself. The government goes on to argue that, even if the jury
instruction was incorrect, any error was harmless.

   [1] We agree with Munoz that the statute requires the gov-
ernment to prove that she intended to derive a financial bene-
fit from transport of the aliens. Our previous cases touching
on this issue, while not requiring the government to prove an
actual payment or agreement to pay the defendant, have
assumed that the statute requires proof that the defendant
intended to reap a financial benefit from the alien-smuggling
transaction. See United States v. Yoshida, 303 F.3d 1145,
1152 (9th Cir. 2002); United States v. Angwin, 271 F.3d 786,
805 (9th Cir. 2001); United States v. Dixon, 201 F.3d 1223,
1230-32 (9th Cir. 2000); cf. United States v. Schemenauer,
394 F.3d 746, 751 (9th Cir. 2005) (declining to address the
question of whether § 1324(a)(2)(B)(ii) requires that the
offense be done for the purpose of financially benefitting the
defendant herself). Although another of our cases, United
States v. Tsai, 282 F.3d 690 (9th Cir. 2002), approved a
§ 1324(a)(2)(B)(ii) conviction based on intent financially to
7038                   UNITED STATES v. MUNOZ
benefit someone other than the defendant, Tsai was an aiding
and abetting case. In that context, it correctly relied upon a
defendant’s intent to aid and abet another as a principal in
achieving financial gain. Id. at 697. As Munoz points out, the
government here expressly declined to prosecute her under an
aiding and abetting theory. We hold that, in order to impose
§ 1324(a)(2)(B)(ii)’s enhanced penalties on a defendant pros-
ecuted as a principal, the government must prove that she
intended to derive a financial gain from the transaction.1

   [2] In the circumstances of this case, the challenged instruc-
tion effectively relieved the government of its burden of proof
  1
    The government points to a Seventh Circuit case and a district court
case construing 17 U.S.C. § 506(a), which criminalizes willful copyright
infringement “for purposes of commercial advantage or private financial
gain,” in support of its interpretation of § 1324(a)(2)(B)(ii). In United
States v. Cross, a video store employee convicted of violating, and con-
spiring to violate, § 506(a) argued that insufficient evidence supported her
conviction because the government failed to prove that she realized a com-
mercial advantage or private financial gain. 816 F.2d 297, 301 (7th Cir.
1987). The Seventh Circuit held that “[a] conviction under 17 U.S.C.
§ 506(a) does not require that a defendant actually realize either a com-
mercial advantage or private financial gain. It is only necessary that the
activity be for the purpose of financial gain or benefit.” Id. The district
court in United States v. Stolon held that a defendant was properly con-
victed despite the government’s admission that he did not personally profit
from the infringement at issue. 555 F. Supp. 238, 239-40 (E.D.N.Y. 1983).
The court reasoned that it was not necessary for the commercial advantage
or private financial gain to flow to each co-defendant individually. Id. at
240.
   Both of these cases involved several defendants, some of whom clearly
realized commercial advantage or private financial gain. In Cross, the
defendant was convicted of conspiracy in addition to the substantive
offense, 816 F.2d at 299-301, and in Stolon, the court concluded that the
defendant could have been convicted as an aider and abettor, 555 F. Supp.
at 240. Both cases thus fall under Tsai’s reasoning that an aider and abet-
tor need only intend to further a principal’s intent to reap financial gain.
See Tsai, 282 F.3d at 697. They do not support the government’s position
that in a case like this one, in which only Munoz was charged and prose-
cuted as a principal, a defendant can be convicted without evidence that
she intended financially to benefit from the offense.
                    UNITED STATES v. MUNOZ                   7039
on the financial gain element of the offenses. The instruction
implies that proof of any person’s financial gain in connection
with the alien’s transport will satisfy the financial gain ele-
ment of the offense. The record indicates that both the trial
court and the prosecutor understood this to be the case. The
instruction thus misstates the financial gain element of the
offense in that the jury could interpret it, as the district court
and the prosecutor did, to allow conviction without proof that
Munoz had the requisite intent to derive a financial benefit.
Accordingly, the district court erred in giving the instruction
because it effectively eliminated an element of the offense.

   [3] Finally, we agree with Munoz that the erroneous jury
instruction was not harmless. A jury instruction misstatement
that omits an element of the offense is a constitutional error
subject to harmless error review. Neder v. United States, 527
U.S. 1, 8-13 (1999). A district court’s failure properly to
instruct the jury on an element of the offense is harmless if we
can “conclude that it is ‘clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent
the error.’ ” United States v. Shryock, 342 F.3d 948, 986 (9th
Cir. 2003) (quoting United States v. Gracidas-Ulibarry, 231
F.3d 1188, 1197 (9th Cir. 2000) (en banc)); see also Neder,
527 U.S. at 15-16. Here, we cannot conclude beyond a rea-
sonable doubt that a rational jury would have convicted
Munoz of the financial gain offenses absent the erroneous
instruction because the instruction deprived her of the oppor-
tunity of arguing to the jury regarding her lack of pecuniary
intent. Given that there was no evidence that Munoz ever
received or would have received money in connection with
the aliens’ transport, she may have been able to convince a
properly instructed jury that reasonable doubt existed as to her
intent. Therefore, the erroneous instruction was not harmless
error.

   [4] Accordingly, we reverse Munoz’s conviction on the two
financial gain counts.
7040                UNITED STATES v. MUNOZ
  B.     Denial of Motion for Acquittal

  Munoz next challenges the district court’s denial of her
motion for acquittal, arguing that the government failed to
prove that the aliens found in the van she was driving lacked
permission to “come to,” as opposed to “enter,” the United
States. This lack of proof, in her view, renders the evidence
against her insufficient to sustain her convictions.

   We review de novo a sufficiency of the evidence challenge
properly preserved by a defendant’s motion for acquittal.
United States v. Karaouni, 379 F.3d 1139, 1141 (9th Cir.
2004). We must determine whether, “ ‘viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’ ” Id. at 1142 (quoting
United States v. Booth, 309 F.3d 566, 574 n.5 (9th Cir.
2002)).

    1.    “Come to” Versus “Enter” the United States

   [5] Section 1324(a)(2) requires the government to prove
that Munoz brought aliens to the United States “knowing or
in reckless disregard of the fact that [the] alien[s] ha[d] not
received prior official authorization to come to, enter, or
reside in the United States.” 8 U.S.C. § 1324(a)(2) (2004).
Munoz offers a proposed construction of the phrase “come to”
the United States and argues that, while the government
proved that the aliens lacked permission to enter the United
States, it failed to prove that they lacked permission to come
to the United States.

   [6] The Immigration Reform and Control Act of 1986, Pub.
L. No. 99-603, § 112, 100 Stat. 3539 (1986) (“IRCA”),
expanded the reach of 8 U.S.C. § 1324(a). Prior to IRCA,
§ 1324(a) criminalized “bring[ing] into or land[ing] in the
United States” any alien “not duly admitted by an immigra-
tion officer or not lawfully entitled to enter or reside within
                   UNITED STATES v. MUNOZ                  7041
the United States.” See United States v. Aguilar, 883 F.2d
662, 671-72 n.2 (9th Cir. 1989), superceded by statute as
stated in United States v. Gonzales-Torres, 309 F.3d 594,
599-600 (9th Cir. 2002), cert. denied, 538 U.S. 969 (2003).
Our § 1324(a) case law required proof that the alien was
physically present in the United States and free from official
restraint, i.e., that the alien had “entered” the United States,
as that term is understood in the immigration context. Id. at
680-82; see also Gonzales-Torres, 309 F.3d at 598 (explain-
ing the official restraint doctrine). IRCA amended § 1324(a),
replacing the words “brings into” with the words “brings to”
in order to overrule precedent that required an alien’s entry to
sustain a smuggling conviction. Id. at 599. Under the current
version of § 1324(a), a smuggling conviction does not require
proof of an alien’s entry. Id. at 599-600.

   IRCA also changed the requisite status of a smuggled alien
under § 1324(a). The government previously had to demon-
strate that the alien was “not duly admitted by an immigration
officer or not lawfully entitled to enter or reside within the
United States.” See Aguilar, 883 F.2d at 671-72 n.2. The post-
IRCA § 1324(a)(2) requires that the smuggler act “knowing
or in reckless disregard of the fact that” the alien had “not
received prior official authorization to come to, enter, or
reside in the United States.” 8 U.S.C. § 1324(a)(2) (2004).

   [7] The parties disagree about the appropriate construction
of the phrase “come to” the United States. Munoz appears to
contend that to “come to” the United States means to
approach the United States border from within another coun-
try without actually crossing the border. The government’s
argument implies that to “come to” the United States means
to cross the border into the United States with or without offi-
cial restraint, i.e., to cross the border so as to be physically
present in the United States whether or not one has actually
“entered.” Munoz’s interpretation is problematic because, as
the government points out, an alien does not need prior offi-
cial authorization to approach the United States border. The
7042                    UNITED STATES v. MUNOZ
government’s construction comports with congressional intent
to remove the official restraint doctrine as a hurdle to criminal
liability for alien smuggling. Cf. United States v. Hernandez-
Garcia, 284 F.3d 1135, 1137-39 (9th Cir. 2002) (recognizing
a distinction between “coming to” and “entering” the United
States that renders the official restraint doctrine inapplicable
to a § 1324(a)(1)(A)(ii) alien transporting offense). We there-
fore hold that an alien “comes to” the United States when the
alien crosses the border into the United States regardless of
whether he or she is under official restraint.2

      2.   Sufficiency of the Evidence

   [8] Munoz could have the state of mind required by
§ 1324(a)(2) only if the aliens found in the van she was driv-
ing did not have the prior official authorization specified in
the statute. Her sufficiency challenge thus raises the question
of whether the evidence presented would allow a rational jury
to conclude that the aliens lacked prior official authorization
to come to, enter, or reside in the United States. See
Karaouni, 379 F.3d at 1142.

   [9] We disagree with Munoz’s contention that the govern-
ment failed to present evidence that would allow a rational
jury to conclude that the aliens lacked permission to “come
to,” as opposed to “enter,” the United States. Each alien testi-
fied to a lack of permission to enter the United States. Both
testified regarding payments they made to a man who agreed
to transport them to the United States, and both were found
  2
    We reject Munoz’s argument that authorization to “come to” the
United States is the only relevant authorization in a case like this one. Sec-
tion 1324(a)(2) applies to those who act “knowing or in reckless disregard
of the fact that an alien has not received prior official authorization to
come to, enter, or reside in the United States.” 8 U.S.C. § 1324(a)(2)
(2004) (emphasis added). Thus, the government must prove that a
§ 1324(a)(2) defendant acted in reckless disregard of the fact that an alien
did not have official authorization to do any of the three specified activi-
ties.
                    UNITED STATES v. MUNOZ                   7043
by secondary inspectors hiding in a compartment concealed
beneath the floorboard of the van that Munoz was driving.
While they did not explicitly state that they lacked permission
to come to the United States, the aliens’ actions in paying to
be smuggled across the border and hiding in a secret compart-
ment in a vehicle attempting to cross the border certainly sup-
port an inference that neither had received such permission.
Munoz points to no evidence suggesting otherwise. A reason-
able jury could thus conclude, based on their testimony and
behavior, that the aliens had not received prior official autho-
rization to come to, enter, or reside in the United States.

   [10] Because sufficient evidence supports the jury’s con-
clusion that the aliens did not have prior official authorization
to come to, enter, or reside in the United States, the district
court properly denied Munoz’s motion for acquittal.

  C.   Testimony Regarding Reasons for Referral to
       Secondary Inspection

   Finally, Munoz argues that the district court erroneously
allowed the government to elicit testimony regarding Jime-
nez’s reasons for referring Munoz to secondary inspection.
We review for abuse of discretion a district court’s decision
to admit evidence challenged under Federal Rule of Evidence
403. United States v. Montgomery, 384 F.3d 1050, 1061 (9th
Cir. 2004).

   In response to a question asking why she referred Munoz
to secondary inspection, Jimenez testified as follows:

    I had a couple of reasons. One, I observed her behav-
    ior; to me she appeared nervous; the fact that she did
    not or was not the registered owner of the vehicle;
    and three, which was the most important one, was
    the fact that the plastic cover in the bottom of the
    van sat very low and it was a nonfactory part to that
7044               UNITED STATES v. MUNOZ
    vehicle that I believed should have been, you know,
    furtherly [sic.] inspected.

Munoz objects to the district court’s admission of this testi-
mony, claiming it was irrelevant and prejudicial.

   [11] While Munoz is correct in observing that Jimenez’s
state of mind was not at issue because Munoz did not chal-
lenge the decision to refer her to secondary inspection, admis-
sion of the testimony was nevertheless appropriate. The
inspector’s observations were relevant circumstantial evi-
dence of Munoz’s state of mind and the explanation of her
reasons for referral gave the jury context in which to assess
the significance of Munoz’s subsequent behavior towards her.
See United States v. Gutierrez-Espinosa, 516 F.2d 249, 250
(9th Cir. 1975) (“The facts observed by the customs agent
(the new paint job on the appellant’s car, the strong odor of
room deodorizer, the trembling of appellant’s hands) were rel-
evant circumstantial evidence of appellant’s knowledge of the
presence of the marijuana in the vehicle. Even though the
agent’s state of mind was not itself relevant, his testimony
that he referred appellant for secondary inspection was admis-
sible and his statement that he took this action because of the
facts observed was self-evident and surely harmless.”). Jime-
nez had already testified as to each of the observations sum-
marized in the challenged testimony and, as in Gutierrez-
Espinosa, her statement that these observations formed the
basis for her referral to secondary inspection was “self-
evident and surely harmless.” Id.

   Munoz cites United States v. Dean, 980 F.2d 1286 (9th Cir.
1992), and United States v. Nielsen, 371 F.3d 574 (9th Cir.
2004), for the proposition that an agent’s motives in perform-
ing investigative tasks are irrelevant. These cases are readily
distinguishable, however, in that they both involve hearsay
statements admitted in violation of the defendant’s Confronta-
tion Clause rights. Munoz raises no such objection to Jime-
nez’s testimony.
                    UNITED STATES v. MUNOZ                  7045
   [12] The district court did not abuse its discretion in admit-
ting the challenged testimony.

                    III.   CONCLUSION

   Based on our rejection of Munoz’s challenge of the denial
of her motion for a judgment of acquittal and her evidentiary
challenge, we affirm the two-count conviction for bringing
illegal aliens to the United States without presentation to an
immigration officer, but reverse Munoz’s two-count convic-
tion for bringing an alien into the United States for the pur-
pose of private financial gain, and remand those two counts
for a new trial. Whether or not the government chooses to
retry Munoz on the financial gain counts, we vacate the sen-
tence on the affirmed counts and remand those counts for
resentencing so that the district court can exercise its sentenc-
ing discretion in light of these changed circumstances and in
light of United States v. Booker, 125 S. Ct. 738 (2005). See
also United States v. Ameline, No. 02-30326, slip op. at 29
(9th Cir. Jun. 2, 2005).

 AFFIRMED in part, REVERSED in part, sentence
VACATED, and REMANDED.
