Gun-Transport Conviction Reversed Over a Faulty "Willfully" Instruction

The Ninth Circuit threw out a federal gun-transport conviction because the jury was told it could find "willfulness" based on the defendant's plans to commit a different crime. The case is a good reminder that the guilty mind must match the crime charged, and that a careful objection to a jury instruction can decide an appeal.

What § 922(a)(3) Makes a Crime

Under 18 U.S.C. § 922(a)(3), it is a crime for someone who is not a licensed gun dealer to buy guns in another state and bring them into their home state, if doing that breaks the law of the home state. To convict, the government must prove the person acted "willfully."

Unlawfully Transporting Firearms

"Willfully" means the person knew the conduct was against the law. The Supreme Court's decision in Bryan v. United States allows a broad reading of that word. Under Bryan, a person does not need to know the exact law being broken. It is enough to act with "the bad purpose to disobey or disregard the law."

The Case

In United States v. Hernandez, No. 14-50214 (9th Cir. June 15, 2017), Lucio Hernandez bought five guns in Arizona and brought them home to California. At the time, California law required a ten-day waiting period and allowed only one gun to be bought at a time.

A grand jury indicted Hernandez on February 1, 2013. A jury later convicted him of unlawfully transporting firearms under § 922(a)(3).

The Jury Instruction on "Willfully"

On appeal, the question was whether the jury had been told the right thing about willfulness. The trial judge gave this instruction:

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.

Hernandez asked for a narrower instruction. His version made clear he acted willfully "only if he knew that bringing the guns to California was somehow unlawful." The judge refused. In fact, the judge found Hernandez could be found guilty based on "crimes separate and distinct from the actual transportation of firearms."

The Ninth Circuit said both instructions correctly stated the law under Bryan. In this case, though, the one the judge gave was misleading. Jurors could think Hernandez was guilty because he planned some later crime, even if he did not know that bringing the guns into California was illegal.

As the court put it, a person "cannot be convicted of one crime on the basis of an intent to commit another." The guilty mind (lawyers call it mens rea) has to go with the act charged, and a guilty mind for one crime cannot be swapped in for another. Here, the instructions were too broad and misleading.

Why the Court Reversed

The court found there was enough evidence for a jury to convict. The facts suggested Hernandez did know that bringing the guns into California was unlawful.

The problem was how the government tried to prove intent. It "relied heavily on evidence that Hernandez committed crimes separate and distinct from the actual transportation of firearms," such as plans to resell the guns illegally. The trial judge allowed this and rejected the defense argument that Hernandez could not be convicted based on intent tied to a completely different crime.

Willfulness can be proved with circumstantial evidence. Sometimes intent has to be inferred from a person's surrounding conduct, which may include other bad acts. But here, one intent was swapped for another. A plan to sell guns later did not prove Hernandez knew the transport itself was illegal.

An old common-law rule says a defendant's mental state and act must happen together for a conviction to be valid. Neither Bryan nor §§ 922(a)(3) and 924 changes that rule.

The broad instruction, combined with the evidence that Hernandez planned to sell the guns illegally, caused him real harm (lawyers call this prejudice). It created a substantial likelihood that the jury convicted him for transporting guns with intent to commit a later crime, rather than for the crime charged. Due process requires reversal in that situation.

The jury might well have found that Hernandez acted willfully. But the court could not say so beyond a reasonable doubt, which meant the constitutional error was not "harmless beyond a reasonable doubt." The Ninth Circuit reversed the conviction under the Fifth Amendment's due process clause.

Practical Takeaways

• Object to the instruction before the jury deliberates. Hernandez's lawyer asked for a narrower instruction, which kept the issue alive for appeal. Under Federal Rule of Criminal Procedure 30(d), an objection to a jury instruction must be made, with the grounds stated, before the jury retires. Without one, the appeals court reviews only for "plain error," which is much harder to win.
• Watch the appeal deadline. In a federal criminal case, the notice of appeal is generally due within 14 days after the judgment is entered. FRAP 4(b)(1)(A). The judgment is the court's written order stating the conviction and sentence.

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