                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 14-50214
             Plaintiff-Appellee,
                                                   D.C. No.
                    v.                       2:13-cr-00070-GW-1

 LUCIO SALVADOR HERNANDEZ,
          Defendant-Appellant.                      OPINION


         Appeal from the United States District Court
            for the Central District of California
          George H. Wu, District Judge, Presiding

           Argued and Submitted November 9, 2016
                    Pasadena, California

                         Filed June 15, 2017

   Before: Mary M. Schroeder and Jay S. Bybee, Circuit
   Judges, and William E. Smith,* Chief District Judge.

                         Per Curiam Opinion




     *
       The Honorable William E. Smith, Chief United States District Judge
for the District of Rhode Island, sitting by designation.
2                UNITED STATES V. HERNANDEZ

                            SUMMARY**


                            Criminal Law

    The panel reversed the defendant’s conviction for
transportation of firearms into his state of residence in
violation of 18 U.S.C. § 922(a)(3), and remanded.

    The panel agreed with the government that the prohibition
on the transportation of guns in § 922(a)(3) is not subject to
the heightened willfulness requirement used in some tax and
structuring laws. In this case, the government was required
to show that the defendant knew his transportation of firearms
into California was somehow unlawful, even if he did not
know of the specific legal duty, or the particular law, that
made it unlawful. The panel held that, viewed in the light
most favorable to the prosecution, a reasonable jury could
have concluded that the government met its burden.

    But given the district court’s broad willfulness
instruction, and the government’s introduction of, and
arguments relying on, evidence that the defendant intended to
later unlawfully sell the guns he purchased, the panel held
that there is a substantial likelihood that the defendant was
convicted for the act of transporting guns with the intent to
commit a later crime rather than the one with which he was
charged. The panel could not conclude on this record that
this constitutional error was harmless beyond a reasonable
doubt.


    **
       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. HERNANDEZ                     3

                         COUNSEL

Alexandra W. Yates (argued), Deputy Federal Public
Defender; Hilary Potashner, Federal Public Defender; Office
of the Federal Public Defender, Los Angeles, California; for
Defendant-Appellant.

Yasin Mohammad (argued), Assistant United States Attorney,
Asset Forfeiture Section; Lawrence S. Middleton, Chief,
Criminal Division; United States Attorney’s Office, Los
Angeles, California, for Plaintiff-Appellee.


                          OPINION

PER CURIAM:

    Lucio Salvador Hernandez appeals his conviction for
transportation of firearms into his state of residence in
violation of 18 U.S.C. § 922(a)(3). The Indictment charged
Hernandez with transporting guns from the state of Arizona
to his state of residence, California. In order to convict
Hernandez of this crime, the government was required to
prove that his violation was “willful,” i.e., that the defendant
acted with knowledge that the charged conduct (transporting
the firearms into his state of residence) was unlawful.
Hernandez argues on appeal that the evidence was
insufficient to prove that the specifically charged conduct was
done “willfully.” Moreover, Hernandez contends that
because the district court allowed the government to
introduce evidence of other (uncharged) criminal acts
allegedly committed by Hernandez in connection with the
firearms at issue, combined with a broad interpretation of the
willfulness instruction contemplated by Bryan v. United
4             UNITED STATES V. HERNANDEZ

States, 524 U.S. 184, 194–95 (1998), the jury may have
convicted him without finding the requisite level of
culpability. For reasons we explain below, we agree. We
therefore reverse and remand for a new trial.

                     BACKGROUND

    On January 20, 2011, Hernandez and his wife drove to
Arizona from California to transfer the title on his car. While
in Arizona, Hernandez went with his stepfather to a gun
show, where Hernandez purchased five guns from a federal
firearm licensee: two Glock Model 19 9mm pistols, two
Jimenez Arms Model J.A. 380 .380 caliber pistols, and one
Hi-Point Model C9 9mm pistol. This is a purchase he could
not have made in California, where the law required a ten-day
waiting period and prohibited the simultaneous purchase of
multiple weapons. On a form required by the Bureau of
Alcohol, Tobacco & Firearms (“ATF”) to purchase guns,
Hernandez reported Arizona as his state of current residence
and his address as his mother’s house in Arizona.

    Hernandez had lived in Arizona for about two years after
moving from California in 2008. In 2010, he and his wife
moved first to Idaho for work, and later to Pittsburg,
California to help care for his wife’s sister. The couple lived
rent free in a spare bedroom of Hernandez’s sister-in-law.
Hernandez maintained his Arizona driver’s license, but
bought and registered a used car in California and applied for
a California driver’s license.

    On May 28, 2011, the Pittsburg Police Department
recovered, in the possession of other persons, two of the guns
Hernandez had purchased in Arizona. Police had earlier
recovered guns Hernandez had purchased, which are not at
               UNITED STATES V. HERNANDEZ                      5

issue in this case, in the possession of other individuals in Los
Angeles. After recovering the two guns purchased in Arizona
and determining that Hernandez was a California resident,
ATF agents sought a search warrant for Hernandez’s home.
The ATF agents determined Hernandez was a California
resident after surveillance of Hernandez’s sister-in-law’s
home; observations of Hernandez’s car; and examinations of
his tax, employment, and Department of Motor Vehicle
records. When ATF agents searched the home, the only
weapon found was a shotgun in Hernandez’s closet. When
the agents informed Hernandez they were investigating him
for unlawfully transporting guns as a California resident from
Arizona to California, Hernandez voluntarily responded that
he believed he was an Arizona resident and intended to return
there. When questioned concerning the whereabouts of the
guns he had purchased, Hernandez responded that some had
been stolen, and some he had buried in the desert to keep
safe. A grand jury indicted Hernandez on February 1, 2013,
charging him with a single count of illegal transportation of
firearms into his state of residence, in violation of 18 U.S.C.
§ 922(a)(3).

    During the pretrial proceedings, a dispute arose as to what
the government needed to prove to establish Hernandez’s
guilt. The government argued that, under Bryan, Hernandez
was guilty of willfully transporting guns into California so
long as he intended to violate some law in connection with
the transportation of the firearms into California. The district
court appeared to accept the government’s theory and its
reading of Bryan. For example, the district judge stated that
“[the government needed] to show that [Hernandez is] doing
something willfully which is illegal but it doesn’t necessarily
have to be the particular transportation that he knows is
illegal. It could be something else.” The district court thus
6             UNITED STATES V. HERNANDEZ

agreed to give an instruction, based on Bryan, that may have
permitted the jury to find Hernandez guilty even if he did not
know that his act of transporting guns into California was
illegal. The court rejected an instruction that would have
connected the required willfulness to the act of transporting
the guns into California.

    Hernandez was convicted after a jury trial in December
2013. In addition to evidence of Hernandez’s knowledge of
California’s strict firearms laws, such as the prohibition on
the simultaneous purchase of multiple firearms and the
required waiting period, and evidence of the effort Hernandez
had to expend in order to obtain the guns (a 12-hour drive
each way to the gun show), the government presented
evidence of Hernandez’s arguable commission of uncharged
crimes related to the firearms at issue. For example, the
government introduced testimony from an ATF agent and a
Pittsburg Police officer. The ATF agent testified that a
“straw purchaser” is someone who purchases a firearm for
“someone that cannot possess a firearm for whatever reason,”
and stated that the defendant responded “I have no comment”
when asked about the five firearms he purchased that were
not recovered in his possession. The Pittsburg Police officer
testified that, after the ATF searched Hernandez’s home,
Hernandez called to report that approximately 20 firearms
were stolen from his home 6 months prior. In addition, the
government presented a California gun store owner, Ron
Kennedy, as an expert on gun distribution. Kennedy testified
that a person like Hernandez, with a history of legally
purchasing guns in California, likely would have known
about California gun laws; that the types of guns purchased
were not the types of guns a collector would purchase; and
that the types of guns Hernandez purchased frequently turned
up in ATF trace requests, i.e., requests generated by a gun’s
                   UNITED STATES V. HERNANDEZ                          7

use in a crime, which Kennedy understood meant the guns
were no longer in the possession of their original lawful
purchaser.1 The government also introduced evidence to
show that several of the guns Hernandez had purchased in
Arizona were recovered by police officers in the possession
of third parties, implying that he had sold the guns illegally
upon his return.2 In closing, the government argued, in part,
that this evidence was sufficient to show that Hernandez
acted willfully because he intended to do “something” the law
forbids, even if that “something” did not include the actual
transportation of guns into his state of residence.3 His

     1
       Among other issues raised on appeal, Hernandez argues that this
testimony was improperly admitted into evidence. We do not reach these
issues for the reasons discussed below.
    2
      During pretrial proceedings, Hernandez objected to this evidence on
the basis that it was unduly prejudicial and in violation of a pretrial
stipulation. After the district court ruled that it was admissible, the
government and the defendant reached a second stipulation that sanitized
the evidence. We do not reach Hernandez’s claim of error on this point.
    3
        To illustrate, the government argued:

           In proving willfulness, ladies and gentlemen, the person
           need not be aware of the specific law or rule that his
           conduct may be violating but he must act with the
           intent to do something the law forbids. For instance, if
           he falsifies information on a form in transporting the
           firearms, that’s something the law forbids. If he
           intentionally goes and tries to get around the California
           laws and purchases multiple firearms to bring back to
           California, that’s something the law forbids.

    The government also argued to the jury that evidence showing
Hernandez’s unlawful distribution of guns to third parties in California
helped establish his “willfulness,” “consciousness of guilt,” and “bad
purpose.”
8             UNITED STATES V. HERNANDEZ

argument to the jury was that he was an Arizona resident.
The jury found Hernandez guilty.

    Following the jury’s guilty verdict, Hernandez was
sentenced to three months in prison. This timely appeal
followed.

                       DISCUSSION

I. Sufficiency of the Evidence and Meaning of Bryan

    Hernandez’s primary argument is that the government did
not present sufficient evidence for a reasonable jury to find
that his violation of 18 U.S.C. § 922(a)(3) was willful, as
required under 18 U.S.C. § 924. We reverse a conviction on
grounds of insufficient evidence if “in the light most
favorable to the prosecution, [no] rational trier of fact could
have found the essential elements of the crime.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979).

    As we explain below, however, the evidence presented in
this case was sufficient to prove willfulness; had it been
presented in the context of a narrower instruction we would
find no error on this point. We conclude that, given the
district court’s broad jury instruction and the government’s
theory of the case, it is not clear beyond a reasonable doubt
that the jury actually found that Hernandez had willfully
committed the charged conduct.

    To begin, we turn to the Supreme Court’s analysis in
Bryan. There the defendant was charged with “willfully
engaging in the business of dealing firearms” without a
license. Bryan, 524 U.S. at 189 (citing § 922(a)(1)(A)). The
defendant’s sole argument on appeal was that the evidence
               UNITED STATES V. HERNANDEZ                      9

was insufficient to prove that he sold guns “willfully”
because he did not specifically know about the federal
licensing requirement. Id. at 190–91. The defendant
contended that the licensing requirement was similar to
technical tax and antistructuring laws that imposed sanctions
on only those defendants who knew of the specific legal
duties they had to follow. Id. at 194 (citing Cheek v. United
States, 498 U.S. 192, 201 (1991); Ratzlaf v. United States,
510 U.S. 135, 138, 149 (1994)).

     The Supreme Court disagreed. The Court noted that
Cheek and Ratzlaf “involved highly technical statutes that
presented the danger of ensnaring individuals engaged in
apparently innocent conduct . . . ‘carv[ing] out an exception
to the traditional rule’ that ignorance of the law is no excuse.”
Id. at 194–95 (citing Cheek, 498 U.S. at 200). The Court
declined to extend that exception to the licensing law at issue,
holding that the government needed to show only that the
“defendant knew that his conduct was unlawful” but not that
it was unlawful specifically because of the federal licensing
requirement. Id. at 195. That the defendant knew his selling
of guns was unlawful could not have been doubted, the Court
noted, because there was evidence that he had used straw
purchasers to acquire the guns, told the straw purchasers that
he would file the serial numbers off the guns before he sold
them, and conducted his business on Brooklyn street corners
known for drug dealing. Id at 189.

    We agree with the government here that, just as with the
licensing requirement at issue in Bryan, the prohibition on the
transportation of guns in § 922(a)(3) is not subject to the
heightened willfulness requirement used in some tax and
antistructuring laws. We have applied the heightened
standard only when “the criminal conduct is contained in a
10            UNITED STATES V. HERNANDEZ

regulation instead of in a statute, and when the conduct is not
obviously unlawful.” United States v. Henderson, 243 F.3d
1168, 1172 (9th Cir. 2001). In United States v. Ogles, we
clarified that the word “willful” as used in § 924, which
supplies the culpability required for § 922(a)(3), is the lower
standard of willfulness. 406 F.3d 586, 590 n.1 (9th Cir.
2005), reh’g en banc granted, 430 F.3d 1221 (9th Cir. 2005);
see United States v. Ogles, 440 F.3d 1095, 1097 (9th Cir.
2006) (en banc) (adopting the relevant portion of the original
panel opinion). Thus, the government did not need to prove
that Hernandez, while en route to California from Arizona,
knew he was violating the particular federal statute against
transporting firearms into one’s state of residence.

    In Bryan, it was apparent that the defendant knew that the
act with which he was charged—the selling of firearms
without a license on Brooklyn street corners—was unlawful.
Bryan, 524 U.S. at 189. There simply was no evidence that
he knew why it was unlawful, i.e., he was not aware that a
federal law required him to possess a license before selling
firearms. Id. In this case, the government was required to
show that Hernandez knew his transportation of firearms into
California was somehow unlawful, even if he did not know of
the specific legal duty, or the particular law, that made it
unlawful.

    Viewing the evidence in the light most favorable to the
prosecution here, a reasonable jury could have concluded that
the government met its burden under Bryan. The government
presented evidence that the same gun show where Hernandez
purchased the firearms in Arizona had been close to his home
in California the week before; that someone, like Hernandez,
with experience in purchasing guns in California would have
been aware that California law allows the purchase of only
              UNITED STATES V. HERNANDEZ                   11

one gun at a time and requires a ten-day waiting period; and,
with respect to the purchase at issue in this case, that
Hernandez drove 12 hours to Arizona, purchased the
firearms, and within 24 hours drove back to California with
the guns. All of this circumstantial evidence suggests that
Hernandez knew his transportation of the guns into California
was unlawful. Had the jury convicted on this evidence alone,
we would likely find no error on this issue, even with the
broad charge given by the district court. But the government
went further here in its effort to prove Hernandez’s guilty
mind, and when the government takes this path, more is
required to ensure the jury is not led astray. We turn to this
next.

II. The Instruction and Evidence of Other Crimes

    As discussed above, the government presented evidence
suggesting Hernandez’s intent to commit other (uncharged)
crimes, some of which came after he returned to California.
At the close of trial, the district court gave the following
instruction on willfulness that was approved by the Supreme
Court in Bryan:

       A person acts willfully if he acts intentionally
       and purposely and with the intent to do
       something the law forbids, that is, with the
       bad purpose to disobey or disregard the law.
       Now, the person need not be aware of the
       specific law or rule that his conduct may be
       violating. But he must act with the intent to
       do something that the law forbids.
12            UNITED STATES V. HERNANDEZ

Hernandez, in turn, proposed the following instruction that
more clearly identified not only the standard, but the nature
of the conduct that the government had to prove was willful:

       An act done willfully is one which is done
       knowingly and purposely and with the intent
       to do something that the law forbids, that is
       the bad purpose to disobey the law.
       Therefore, in order to establish a willful
       violation in this case, the government must
       prove beyond a reasonable doubt that, when
       Hernandez transported firearms purchased in
       Arizona to California, he knew that his
       conduct was unlawful and he intended to
       disobey the law.

    Both the actual instruction and the defendant’s proposed
instruction accurately stated the law of Bryan. Hernandez’s
proposed instruction, however, made clear that Hernandez
could have acted willfully only if he knew that bringing the
guns to California was somehow unlawful. The Bryan
instruction given made no such explicit connection and could
have been misunderstood by the jury to permit conviction
even if Hernandez intended to commit some later crime.

    There are many cases where the instruction given, which
is taken directly from Bryan, is perfectly appropriate.
However, where there is a serious risk that the jury might
impute the willfulness to commit an uncharged crime to that
required to prove the mens rea for the charged crime, more is
required to ensure the government meets its burden of proof
and the jury performs its duty. It is a longstanding precept of
the common law that a person cannot be convicted of one
crime on the basis of an intent to commit another. There
               UNITED STATES V. HERNANDEZ                    13

must be a “concurrence of an evil-meaning mind with an evil-
doing hand.” Morissette v. United States, 342 U.S. 246, 251
(1952); see also Gasho v. United States, 39 F.3d 1420, 1429
(9th Cir. 1994) (“It is fundamental that a person is not
criminally responsible unless criminal intent accompanies the
wrongful act. . . . [The defendant must have] intended [to
commit the crime] at the time that she [did].”); Wayne R.
LaFave, 1 Subst. Crim. L. § 6.3(d) (2d ed. 2016) (“One
problem is that of the necessary concurrence of the mental
fault with the act or omission which is the basis for liability.
. . . [M]ental states are not interchangeable between crimes;
if one sets out with intent to cause the harm covered in crime
A and then inadvertently causes the harm covered by crime
B, neither crime A nor crime B has been committed.”). The
instruction suggested by defense counsel here would have
sufficed, as would have any other effective articulation of this
distinction and direction as to the jury’s use and proper
consideration of evidence proffered by the government
pursuant to Rule 404(b) of the Federal Rules of Evidence.

    Hernandez contends that in this case, he was targeted as
a gun trafficker and that the jury was allowed to convict him,
not for his willful, unlawful transportation of weapons, but
for his intent to commit the future crimes of unlawfully
selling those weapons. There is sufficient support for this
contention to cast doubt upon the validity of the jury’s
verdict. We note three salient examples.

    First, the district court emphatically rejected defense
counsel’s contention that Hernandez could not be convicted
on the basis of a purpose “to commit an entirely separate
crime at an entirely different time and place,” stating, “No,
yes, he can.” Although the exchange took place outside the
presence of the jury, it demonstrates the court’s approval of
14            UNITED STATES V. HERNANDEZ

the government’s relying on future crimes to establish intent.
Second, having received the green light from the district
court, the government relied heavily on evidence that
Hernandez committed crimes separate and distinct from the
actual transportation of firearms. The government presented
evidence, for instance, that Hernandez, when he was arrested,
no longer had any of the purchased handguns, and the
government was permitted to introduce evidence that the guns
were later found in the possession of other people, despite a
stipulation barring evidence of “recovery location
information.” Third, over defense counsel’s objection on
relevancy grounds, the district court permitted a gun dealer to
testify as an expert on gun distribution that the types of guns
Hernandez purchased were often unlawfully sold in
California, and permitted the government to argue that the
evidence of Hernandez’s intent to unlawfully distribute
firearms to other individuals was relevant to establish
Hernandez’s willful violation of § 922(a)(3).

    This is not to suggest that the government is not permitted
to prove willfulness by circumstantial evidence, including
evidence of other bad acts or crimes under Rule 404(b) of the
Federal Rules of Evidence. Indeed, the government may, and
doubtless will, do so in many cases because so rarely is there
evidence of what a defendant thought at the moment he
committed a criminal act; his intent must often be inferred
from his surrounding conduct. What is critical, however, is
the distinction between proof of the intent to commit the
other uncharged crimes and proof of the intent to commit the
charged crime: evidence tending to show intent to commit
other crimes may be circumstantial evidence of intent to
commit the charged crime, but it is not a substitute for it.
              UNITED STATES V. HERNANDEZ                    15

     We hold that the broad jury instruction, combined with
the evidence of the commission of later crimes and the
government’s argument to the jury, resulted in significant
prejudice to Hernandez. The rule from the common law
requires that a defendant’s mental state and act coincide for
a conviction to be valid. See Morrisette, 342 U.S. at 251.
Neither Bryan nor §§ 922(a)(3) and 924 deviate from this
rule. Here, the combination of the broad jury instruction and
the government’s introduction of evidence that Hernandez
intended to later unlawfully sell the guns he purchased, raises
a substantial likelihood that he was convicted for the act of
transporting guns with the intent to commit a later crime
rather than the one with which he was charged. This
substantial likelihood requires reversal under the due process
clause of the Fifth Amendment. See Deck v. Jenkins,
814 F.3d 954, 986 (9th Cir. 2016), amending 768 F.3d 1015
(9th Cir. 2014) (holding that the “prosecutor’s misstatements
regarding an element of the crime amount[s] to constitutional
trial error” if the misstatements were central to the case and
were not corrected by the trial court’s instructions to the
jury).

    We recognize that “a constitutional trial error will not
warrant reversal if it was harmless beyond a reasonable
doubt.” Id. at 985 (citing Chapman v. California, 386 U.S.
18, 24 (1967)). While it is possible on this record the jury
found that Hernandez transported firearms willfully, we
cannot conclude this beyond a reasonable doubt. We
therefore cannot conclude on this record that the
constitutional trial error was harmless beyond a reasonable
doubt.
16           UNITED STATES V. HERNANDEZ

   Because we reverse Hernandez’s conviction on this
ground, we do not address the other issues he raises on
appeal, leaving these issues to the trial court on remand.

     REVERSED and REMANDED.
