United States v. Rosario Montoya-Gaxiola

Defendant-Appellant Rosario Montoya-Gaxiola (“Rosario”) appeals the district court’s judgment of conviction and sentence for, inter alia, violating the National Firearms Act (“the Act”), 26 U.S.C. §§ 5801-5872 , arguing that the court failed to instruct the jury on the mens rea element of the charge. We agree. Ninth Circuit Model Criminal Jury Instruction 9.34, if strictly followed, as it was in this case, may result in an erroneous instruction. Since this error was not harmless, we reverse the conviction and sentence for violation of the Act, and remand for a new trial as to that count. We affirm on all other grounds.

BACKGROUND

In the early morning of April 3, 2012, United States Border Patrol agents discovered Rosario, his brother Abel Montoya-Gaxiola (“Abel”), and Fermín Ruiz-Braca-montes (“Ruiz”) in a remote part of the Arizona desert. Upon contact, the three men fled. After they were apprehended, the agents recovered the following items on or near the men: blankets, large backpacks containing significant food rations, a radio scanner, multiple cellular phones, three firearms, and ammunition. Central to this opinion, agents found a sawed-off shotgun lying near…