                        FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 11-30348
           Plaintiff-Appellee,
                                                    D.C. No.
                   v.                            2:10-cr-00001-
                                                     EFS-1
 RUDY MARTIN GARCIA,
       Defendant-Appellant.                   ORDER AND
                                            AMENDED OPINION


         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: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Gordon J. Quist, Senior District Judge.*

                             Order;
                  Opinion by Judge W. Fletcher


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

                           SUMMARY**


                           Criminal Law

     Reversing a conviction for involuntary manslaughter, the
panel held that the version of the Ninth Circuit model jury
instruction given by the district court was improper because
it did not require the jury to find that the defendant acted with
gross negligence – that is, “with wanton or reckless disregard
for human life.”

    The panel held that the instructional error was not
harmless. The panel also held that the district court should
have admitted the defendant’s testimony about the victim’s
prior violent acts and should have admitted, as evidence
impeaching the testimony of witnesses who had testified that
they had never seen the victim with a firearm, photographs
that had been posted on the victim’s MySpace page.


                             COUNSEL

Peter S. Schweda (argued), Waldo, Schweda, Montgomery,
P.S., Spokane, Washington, for Defendant-Appellant.

Matthew F. Duggan (argued), Assistant United States
Attorney, Spokane, Washington, for Plaintiff-Appellee.




  **
     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. GARCIA                    3

                          ORDER

   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 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.>
4               UNITED STATES V. GARCIA

                        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 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.
                 UNITED STATES V. GARCIA                      5

               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 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
6                UNITED STATES V. GARCIA

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 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.
                 UNITED STATES V. GARCIA                    7

                   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
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.
8                  UNITED STATES V. GARCIA

                        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
produce death.”1




    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;
                  UNITED STATES V. GARCIA                          9

    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, 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


            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.
10               UNITED STATES V. GARCIA

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.

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
                 UNITED STATES V. GARCIA                   11

       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 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;
12               UNITED STATES V. GARCIA

           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 a material adverse effect on Garcia. No other
                 UNITED STATES V. GARCIA                     13

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 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
14               UNITED STATES V. GARCIA

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
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
                    UNITED STATES V. GARCIA                           15

[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
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



  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.
16                   UNITED STATES V. GARCIA

    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 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


(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.
                 UNITED STATES V. GARCIA                    17

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.

                   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
18               UNITED STATES V. GARCIA

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. 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 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
                 UNITED STATES V. GARCIA                    19

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.
