                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 07-30190
                Plaintiff-Appellee,
               v.                           D.C. No.
                                          CR-06-00173-EJL
PAUL WILLIAM DRIGGERS,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
                 for the District of Idaho
        Edward J. Lodge, District Judge, Presiding

                Argued and Submitted
         November 18, 2008—Seattle, Washington

                   Filed March 18, 2009

 Before: Alex Kozinski, Chief Judge, Betty B. Fletcher and
          Johnnie B. Rawlinson, Circuit Judges.

             Opinion by Chief Judge Kozinski;
             Concurrence by Judge Rawlinson




                           3511
                  UNITED STATES v. DRIGGERS              3513




                         COUNSEL

Greg S. Silvey, Kuna, Idaho, for the defendant-appellant.

Alan G. Burrow, Lynne W. Lamprecht, Traci Jo Whelan and
Syrena Case Hargrove, Assistant U.S. Attorneys, for the
plaintiff-appellee.


                         OPINION

KOZINSKI, Chief Judge:

  We consider the intent requirement of 18 U.S.C. § 1958,
which prohibits using interstate commerce facilities in the
commission of murder-for-hire.

                            Facts

   Paul Driggers was convicted of violating 18 U.S.C. § 1958
by causing Matthew Robinson to travel in interstate com-
merce with the intent that a murder-for-hire be committed.
Driggers twice asked Robinson to travel from California to
Idaho to meet with him. Robinson testified that at the first
meeting, in April 2006, he agreed to kill Driggers’s ex-wife
for $10,000. Driggers drove him past the ex-wife’s house, and
they discussed various murder methods. Robinson returned to
California with the understanding that Driggers would send
him a deposit when Driggers was ready to proceed with the
plan. Driggers testified that he did not discuss murdering his
ex-wife at the April meeting, and that Robinson later sug-
3514               UNITED STATES v. DRIGGERS
gested the idea in a phone conversation. In July, Driggers
deposited $1,000 in Robinson’s bank account. Robinson testi-
fied that Driggers asked him to return to Idaho and told him
that he had a “green light” to proceed with the murder. Robin-
son became a police informant, and his subsequent conversa-
tions with Driggers were recorded.

   In their next conversation, Driggers confirmed that he
wanted Robinson to return to Idaho, but also said he wanted
“to have a good long conversation” with him “before we even
do anything.” Robinson then flew to Idaho. After a long con-
versation, Driggers eventually affirmed that he wanted Robin-
son to proceed with the murder. Driggers was arrested.

   At trial, Driggers objected to a jury instruction describing
the intent element of section 1958. The challenged instruction
required the government to have proven three elements:
“First, the Defendant caused Matthew Robinson to travel
from one state to another. Second, the Defendant intended a
murder be committed . . . . And third, the Defendant promised
to pay Matthew Robinson anything of pecuniary value in con-
sideration for the murder.” The instruction was wrong, Drig-
gers argued, because it didn’t require the government to have
proven any connection between the travel and the intent to
murder. In his proposed alternative instruction, the second
element instead read: “the defendant intended that a murder
be committed . . . at the time he caused Matthew Robinson to
travel in interstate commerce” (emphasis added). The district
court rejected this proposed instruction and gave the chal-
lenged instruction, reasoning that section 1958’s travel ele-
ment is purely “jurisdictional.”

                            Analysis

   [1] Section 1958 prohibits, in relevant part, “travel[ing] in
or caus[ing] another . . . to travel in interstate or foreign com-
merce . . . with intent that a murder be committed” for hire.
18 U.S.C. § 1958 (emphasis added). Accordingly, we’ve
                   UNITED STATES v. DRIGGERS                 3515
described the elements of a section 1958 violation as “1) to
. . . cause another to travel in interstate commerce, 2) with the
intent that a murder be committed” for hire. United States v.
Ritter, 989 F.2d 318, 321 (9th Cir. 1993) (emphasis added).

   [2] The statute itself, and our interpretation of it in Ritter,
make clear that the defendant must have had a murderous
intent when he caused another person to travel across state
lines. In other words, the causing of the travel (the actus reus)
must have been done with the intent that a murder be commit-
ted (the mens rea). The instruction given by the district court
didn’t adequately explain this. The instruction would have
allowed the jury to convict even if it found that the defendant
did not form a murderous intent until after the interstate travel
was completed.

   Indeed, the instruction required no connection at all
between the murder scheme and the travel. Suppose, for
instance, that Driggers had asked Robinson to cross state lines
to pick up a birthday present for his niece or to fix his grand-
mother’s roof. If, some years later, Driggers had involved
Robinson in a purely intrastate murder-for-hire scheme, the
jury could still have found him guilty of using interstate com-
merce facilities in the commission of murder for hire under
the instruction given. Asking Robinson to cross state lines to
pick up a birthday present would satisfy the first element:
Driggers caused Robinson to travel from one state to another.
The unrelated murder-for-hire scheme, making no use what-
soever of interstate commerce facilities, would satisfy the sec-
ond and third elements: Driggers intended that a murder be
committed, and Driggers offered to pay Robinson to commit
the murder. It would make no difference, under the instruction
given by the district court, that Robinson’s interstate trip had
nothing to do with the murder.

   The jury might well not have believed that it could convict
Driggers if the interstate travel had been utterly unrelated to
the murder scheme. However, there is no way to be sure of
3516               UNITED STATES v. DRIGGERS
this, and no way to know exactly what the jury believed it
needed to find on this point. The instruction could have led
the jury to conclude that it could convict Driggers so long as
the travel somehow furthered the murder scheme, even if
Driggers formed the intent to have his ex-wife murdered only
after the travel had been completed. The district court itself
was mistaken on this point; we must presume that the jury
was as well. The instruction was therefore misleading and
inadequate to guide the jury’s deliberation. United States v.
Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000).

   The Eighth and Tenth Circuits have both concluded that
section 1958 requires that the defendant have the murderous
intent when he travels interstate or causes the interstate travel.
The Eighth Circuit in United States v. Delpit reversed two
section 1958 convictions because there was no evidence that
the defendants had been involved in the murder-for-hire
scheme when the interstate travel occurred. 94 F.3d 1134,
1150-51 (8th Cir. 1996). “Once the interstate-commerce facil-
ity is used with the required [murderous] intent the crime is
complete,” so anyone who becomes involved in the murder
scheme after that point does not violate section 1958. Id. at
1149; see also United States v. McGuire, 45 F.3d 1177, 1187
(8th Cir. 1995) (finding sufficient evidence for a conviction
under section 1958 because “the jury could fairly conclude
that McGuire’s intent to commit the murder . . . existed at the
time that he travelled”). Similarly, the Tenth Circuit in United
States v. McCullah held that “the jury could reasonably infer
that [the hitman] must have known about the homicidal pur-
pose behind the trip from California to Oklahoma before he
undertook the venture, and thus the conviction[ ] under [18
U.S.C. § 1958 is] sufficiently supported by the evidence.” 76
F.3d 1087, 1104 (10th Cir. 1996).

  [3] The government argues that the interstate travel require-
ment is purely “jurisdictional,” and therefore need not be con-
nected to the murderous intent. This argument misses the
point. As United States v. Feola explained, “the significance
                   UNITED STATES v. DRIGGERS                3517
of labeling a statutory requirement as ‘jurisdictional’ is . . .
merely that the existence of the fact that confers federal juris-
diction need not be one in the mind of the actor at the time
he perpetrates the act made criminal by the federal statute.”
420 U.S. 671, 677 n.9 (1975). In other words, a defendant can
violate section 1958 without intending to cause anyone to
travel across state lines. See United States v. Winters, 33 F.3d
720, 721 (6th Cir. 1994); United States v. Edelman, 873 F.2d
791, 795 (5th Cir. 1989). But the defendant must have
intended that a murder be committed, and have caused the
travel with this murderous intent. As one court explained this
distinction, “[t]he intent element of § 1958 relates to murder;
it does not relate to interstate activity. The interstate travel
merely triggers federal jurisdiction. A defendant need not
intend to travel across state lines to commit a murder for hire;
instead, a defendant need only intend to commit a murder for
hire and, in doing so, travel across state lines.” Bertoldo v.
United States, 145 F. Supp. 2d 111, 115 (D. Mass. 2001)
(citation omitted).

   [4] An erroneous jury instruction is subject to harmless
error review. United States v. Munoz, 412 F.3d 1043, 1047
(9th Cir. 2005). Driggers argues that the instruction was a
constructive amendment of the indictment, which alleged that
he caused travel “with the intent that murder be committed,”
and so requires per se reversal. United States v. Bhagat, 436
F.3d 1140, 1145 (9th Cir. 2006). Constructive amendments
occur when the prosecutor proves, or the court instructs the
jury to convict on, materially different facts or substantially
different crimes than those charged in the indictment. Id.;
United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984).
Here, Driggers was indicted and convicted of violating 18
U.S.C. § 1958, and the facts charged in the indictment were
the same as those proven at trial: Driggers, in a scheme to
have his ex-wife murdered for hire, caused another to travel
interstate. The jury instruction merely mis-stated an element
of the crime, an error subject to harmless error review. Neder
v. United States, 527 U.S. 1, 9-10 (1999).
3518              UNITED STATES v. DRIGGERS
   [5] The error here is harmless because “it is clear beyond
a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” Munoz, 412 F.3d at 1047
(internal quotation marks omitted). While the court failed to
instruct the jury to find that Driggers had a murderous intent
in causing the travel, overwhelming, unchallenged evidence
established that Driggers intended that a murder-for-hire be
committed when he caused Robinson to travel from California
to Idaho in July. See United States v. Salazar-Gonzales, 458
F.3d 851, 858 (9th Cir. 2006); United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1197 (9th Cir. 2000). Driggers him-
self testified that Robinson told him before the July trip that
if Driggers could “come up with $6,000,” then Robinson
“could come over and do my ex-wife, which means kill her,
and the [child custody] problem would be resolved.” Driggers
testified that he answered, “yeah, I think I can come up with
that, you know, and that would be worth it, you know, if I
could end my problems that way.”

  Driggers didn’t contest that he then wired Robinson $1,000
and asked him to return to Idaho. Their last conversation
before Robinson left California was recorded by police. In it,
Robinson tells Driggers that he’s arranged the trip, and they
agree to discuss the details of the murder and locate Drig-
gers’s ex-wife once Robinson arrives.

   Driggers argues that a rational jury could have concluded
from his testimony and the taped conversation that he did not
intend for a murder to be committed when he caused Robin-
son to travel in July. He testified that he paid Robinson and
asked him to come to Idaho in order “to talk him out of his
suggestion” to commit the murder. He chose this roundabout
means of persuasion, he testified, because he “wanted to be
diplomatic,” so that he and Robinson would remain friends.
Driggers also points to two of his remarks from the taped con-
versation: “before we even do anything, I want to have a good
long conversation with you” and “if you decide not to go
                  UNITED STATES v. DRIGGERS               3519
ahead . . . you can take [your expenses] out of the money I’ve
given you.”

   The evidence overwhelmingly contradicts Driggers’s
defense. Both comments from the taped conversation were
prompted by Robinson’s asking whether Driggers had the
$5,000 balance owed on the murder, and Driggers’s admis-
sion that he did not. Driggers’s actions (paying Robinson
$1,000 and arranging the trip) and the rest of the conversation
belie Driggers’s claim that he intended to cancel the scheme.
When Robinson tells Driggers that he’s “ready to do it” with-
out further advance payment, Driggers responds “Okay.
Good.” And in addition to negotiating the payment, Driggers
also discusses helping Robinson locate his ex-wife and pre-
paring to take “the final steps.”

   [6] Because the evidence at trial overwhelmingly proved
that Driggers intended for Robinson to kill his ex-wife when
he caused Robinson to travel in July, the erroneous instruction
was harmless. See United States v. Cherer, 513 F.3d 1150,
1156 (9th Cir. 2008) (where overwhelming evidence proved
that defendant believed he was enticing a 14-year-old and
contradicted his defense that he believed he was enticing an
18-year-old, erroneous instruction on required belief was
harmless); Gracidas-Ulibarry, 231 F.3d at 1197 (where over-
whelming evidence contradicted defense that re-entry of the
United States was unintentional, erroneous instruction on
required intent was harmless).

   For reasons explained in the accompanying memorandum,
the trial did not otherwise violate Driggers’s Sixth Amend-
ment rights.

  AFFIRMED.
3520              UNITED STATES v. DRIGGERS
RAWLINSON, Circuit Judge, concurring:

   I concur in the conclusion that the judgment of the district
court should be affirmed. I write separately to emphasize that
any instructional error regarding the elements of 18 U.S.C.
§ 1958 was, at most, technical in nature.

  Section 1958 provides in pertinent part:

    “(a) Whoever travels in or causes another (including
    the intended victim) to travel in interstate or foreign
    commerce, or uses or causes another (including the
    intended victim) to use the mail or any facility of
    interstate or foreign commerce, with intent that a
    murder be committed in violation of the laws of any
    state or the United States as consideration for the
    receipt of, or as consideration for a promise or agree-
    ment to pay, anything of pecuniary value, or who
    conspires to do so, shall be fined under this title or
    imprisoned for no more than ten years, or both . . .

  The district court instructed the jury that to find the defen-
dant guilty

    the Government must prove each of the following
    elements beyond a reasonable doubt: First, the
    defendant caused Matthew Robinson to travel from
    one state to another. Second, the defendant intended
    a murder be committed in violation of the laws of the
    United States or the State of Idaho. And third, the
    defendant promised to pay Matthew Robinson any-
    thing of pecuniary value in consideration for the
    murder.

   Our precedent has upheld jury instructions that track the
statutory language. See, e.g. Johnson v. United States, 270
F.2d 721, 725 (9th Cir. 1959); see also United States v.
                  UNITED STATES v. DRIGGERS                3521
McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998) (applying the
same principle to a regulation). In my view, there is no legally
significant difference between an instruction that states the
defendant caused another to travel in interstate commerce
with the intent that a murder be committed and an instruction
that states the defendant caused another to travel in interstate
commerce and intended that a murder be committed. See
United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.
2008) (discussing the “nebulous” difference between “could
have influenced” and “capable of influencing”); see also
United States v. Knigge, 832 F.2d 1100, 1109 (9th Cir. 1988),
as amended (holding that instruction was adequate where the
phrase “for the purpose of influencing conduct” was used
rather than “will influence his conduct”) (emphasis omitted).

   I am not persuaded that the cases from the Eighth and
Tenth Circuits cited by the majority compel a finding of error
in the formulation of the instruction.

   In McGuire v. Mandacina, 45 F.3d 1177, 1186 (8th Cir.
1995), the issue was framed as whether sufficient evidence
supported the jury’s verdict convicting the defendant “of
using interstate facilities in the commission of murder-for-hire
. . .” Notably, no issue of jury instruction was raised or
decided. In concluding that the evidence was sufficient to sup-
port the jury’s verdict, the Eighth Circuit determined that the
standard was met where the evidence “establish[ed] beyond a
reasonable doubt that Mandacina caused McGuire to travel in
interstate commerce for the purpose of murdering Strada.” Id.
at 1187 (emphasis added). Applying this standard to the facts
of our case supports the jury’s guilty verdict because the evi-
dence “establish[ed] beyond a reasonable doubt that [Drig-
gers] caused [Matthew Robinson] to travel in interstate
commerce for the purpose of murdering [Driggers’ ex-wife].”

  The Eighth Circuit case of United States v. Delpit, 94 F.3d
1134, 1149 (8th Cir. 1996) was also resolved in the context
of a challenge to the sufficiency of the evidence, rather than
3522               UNITED STATES v. DRIGGERS
a challenge to the jury instruction addressing § 1958. See id.
at 1148 (addressing only reasonable-doubt instruction and
lack of multiple-conspiracies instruction).

   In resolving defendant’s sufficiency of the evidence argu-
ment, the Eighth Circuit stated: “To convict Saunders of vio-
lating § 1958(a), the government had to prove that (1)
Saunders caused Delpit to travel in interstate commerce, (2)
he or Delpit intended that a murder be committed in violation
of Minnesota law, and (3) the murder was to be committed for
hire.” Id. at 1150 (citing McGuire, 45 F.3d at 1186). Far from
calling into question the challenged jury instruction, the
Eighth Circuit’s articulation of the elements of § 1958(a) is
strikingly similar to the instruction given by the district court
in this case.

   Finally, the Tenth Circuit in United States v. McCullah, 76
F.3d 1087, 1104 (10th Cir. 1996) did conclude that “[i]n light
of all the evidence, the jury could reasonably infer that Mr.
McCullah must have known about the homicidal purpose
behind the trip from California to Oklahoma before he under-
took the venture . . .” However, as with the cases in the Eighth
Circuit, this conclusion was reached in the context of a
sufficiency-of-the-evidence challenge rather than a challenge
to a jury instruction on the elements of § 1958. Indeed, the
court in no way opined on the proper phrasing of a § 1958
jury instruction.

   The majority makes use of a hypothetical scenario to illus-
trate the perceived instructional error. See Majority Opinion,
p. 3515. However, in reviewing the adequacy of a jury
instruction, we consider the instruction as applied to the facts
of the case before us, rather than to a hypothetical set of facts.
See Peterson, 538 F.3d at 1072 (analyzing the claim of
instructional error “[u]nder the facts in this case”); see also
United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir. 1986)
(“The adequacy of the entire charge must be evaluated in the
context of the trial.”) (citation omitted) (emphasis added).
                   UNITED STATES v. DRIGGERS                3523
   I am simply not persuaded that the district court’s instruc-
tion regarding the elements of § 1958 was erroneous when
viewed in the context of the facts of this case. Driggers did
not ask Robinson to cross state lines to pick up a birthday
present, to fix a roof or for any other innocuous purpose. The
facts of this case reflect that Driggers asked Robinson to cross
state lines to kill Driggers’s wife and for no other reason. No
question of purely intrastate activity was raised. The hypo-
thetical possibility that the jury could have misapprehended
the instruction does not rise to the level of cognizable error.
Cf. Leavitt v. Arave, 383 F.3d 809, 823 (9th Cir. 2004), as
amended (noting that although an instruction could have mis-
led the jury, there was no reasonable likelihood that it did so).
Nevertheless, I acknowledge that the district court’s mis-
characterization of the mens rea element as a jurisdictional
component of the statute, rather than an element of the
offense, may have technically constituted instructional error.
Cf. United States v. Fisher, 494 F.3d 5, 10 (1st Cir. 2007)
(noting that the government’s jurisdictional argument was not
germane when considering the elements of the offense). For
that reason, I fully endorse the harmless error analysis articu-
lated in the majority opinion and concur in the judgment
affirming Driggers’s conviction.
