nine twenty two a three prosecution that the ramifications of the ruling that the government wants that willfully means and intent to commit any unlawful act even one not charged would not be limited to nine twenty two offenses and it would be fairly unprecedented waived on the excerpt of the record nine sixty three counsel says if i have a right i'm in complete agreement with the jury instruction that your honor is going to particular case that is insufficient because the government is making this argument here that intent to commit these three other and charged acts can substitute for the intent to commit the actual charged act and so we need to explain this better  have to preserve on the record his objection to the to the trial courts refusal to give his proposed jury instruction number four number six maybe not it's not number four number six that's that's on the door residency they must prove intent to commit this actual offense so i don't see any instructions that the district court gave i mean it looks to me like it's like it's pretty much a brian instruction i see that the government argued that you can that you can prove it by  including i'm quoting on charge backs i don't see that that's actually part of the instruction so help me figure out what what i'm missing here is your honor i think in your in your typical case where the government wasn't making those sorts of arguments perhaps this instruction would be fine but we have to look at the instructions as a whole and whether they are misleading and inadequate in this particular case and in this particular case where the instructions were specifically formulated by the thought so what we're seeing first the corrective instruction that you request firearms purchased in arizona to california he knew that his conduct was unlawful and he intended to disobey the law that's a little bit different from the problem that you've got with the government other words it's yes it might have cured that but you've asked you've asked for something quite specific you've asked for something that looks like it might have been rejected in brian and may have been rejected at least subsequent to brian in our cases but i don't see in here the that you said it's not sufficient that that he knew that he was doing something wrong that didn't have anything that's what this looks like this looks like this comes very close to being a cheek rats love which looks like we've rejected in subsequent and subsequent cases dealing with one twenty two and twenty four but this this so this might have cured the problem you're describing but this isn't sort of the what is essential to cure the problem that you're describing and i think you could have cured that with a different instruction that still would have been consistent with our cases your honor i would respectfully disagree that that this court has resolved that she corrects the question but let's put that to the side because i think the bigger problem in this case is the transferred intent issue and it was not at the time the parties were proposing the instructions it was in no way shape or form clear that the government was using this novel transferred intent theory at trial that only came up just days before the trial itself and as soon as that became clear counsel immediately objected and repeatedly said both  and you're on it it's so it's more than just a cheek wrasslin problem the government here was permitted to encourage the jury to substitute intent a substitute intent from one race to another and that's just completely new president it would create a circuit split if it was permitted and even if the defense is proposed instructions did not convey that of the excerpts of record the court says well mr bell says he cannot have a purpose to commit an entirely separate crime at an entirely different time and place the court says no yes he can that's precisely the point he can in other words intention any bad intention will do any better intention would get you get to the willful point doesn't have to be that exact crime that he's committing it can be done some other crime that he's committing to mr bell says i agree with your honor entirely i think that we're actually saying the same thing i believe it's still the government's burden at the time he crosses at the time he buys those firearms and brings them to california it's them so i was a consistent with what you're arguing context of the entire trial there was some perhaps in artful language to use if you look at the argument as a whole and just two pages later here's what the defense says it nine sixty seven it is trying to put him on trial for a different crime and i do not believe th to make sure that the defense is admonished not to urge that the court will make sure that there is not an impropriety here because the defense clearly has a very different position on what brian means than we do and i don't want that to co that was there was really no dispute at trial as to what the parties positions were on this matter i'm a little confused on the instruction the jury was instructed that a person acts willfully if he a instruction that is the instruction at issue and in your typically the in your typical case that would not necessarily be problematic right the that instruction would not be problematic the problem here is that the government proceeded on a theory that mr hernandez was guilty if he had the intent to do one of three and charged acts it and that is specifically the argument made to the jury and that is the evidence presented to the jury so this intent to do something the law forbids the something is problematic in that context because here that something could be a problem with the argument or the problem with the instruction well the problem is the other is the instruction in light of the argument the instructions cannot be misleading or an adequate in that in a particular case and simply because the brian court said that that the instruction given here was appropriate in one case does not mean it's going to be appropriate in every case in this court has been very clear that pattern instructions and model instructions need to be modified if the facts so require so where the jury is being presented with and argue to that facts of all their uncharged acts are sufficient to demonstrate willfulness the jury needs to be informed that it cannot convict the defendant unless they find that he had the actual mens rea and to commit this particular act it if i may your honors there are additional problems that even putting aside the willfulness instruction a issued here two of them being instructions regarding knowledge and residency neither of which was was given and both of which were specifically requested in fact with to knowledge the parties agree that the government harmless but the lack of instruction there it can't be harmless it's not clear beyond a reasonable doubt that the jury would have rejected the ample evidence that mr hernandez could have believed he was in arizona for a dual resident the relevance of dual residency was not explained to the jury at all and it was relevant to more than well fullness in fact it would create a circuit split for this court to say otherwise with the seventh circuit and the second circuit the only other two circuits to address the police the court scene muhammad representing the united states good morning honors so really the overarching theme seems to be in this appeal that the defendant made a series of strategic decisions the other sites that judge smith did cited two of the points in the record where the defendant conceded and waived this point of brian that the brian instruction was the correct instruction but another thing that the defendant below and that's it for forty five was that the gun laws are not such a complex regulatory scheme that the defendant need know of the specific statutory subsection he only needs to know that what he's doing violates the law and in a more general sense that it violates some law and that's very important because that goes exactly to what brian what what's the what's the extent of the government's of the government's theory here have to say that the government's the government's theory that you just have to be able to prove to the jury that you had that intent if you cross the state line to do something but not necessarily what you've been charged with just strikes me is bizarre so if he was if he was carrying guns and a young girl in violation of the mann act across state lines but wasn't charged with the mann act under the government's theory he could still be convicted right now i think the government's theory is that he has to violate some line it has to be in connection with the crime that is charged with and that's what happened in bring in brian there was no evidence that he knew that unlicensed the defendant and brian knew that unlicensed dealing was against the law but the evidence that the government used in brian to show the bad intent was the fact that use having straw purchasers lie on forms to make the purchase these guns that he would sell for there was evidence that he was promising these straw purchasers that he would obliterate serial those are all different crimes let me ask you this i mean i've given this instruction dozens and dozens and dozens of of time in the way i always understood understood it was that if you're charged with this crime it could have been the defendant's intention he might not have specifically been intending to to violate this law to that is to cross the state lines for to bring guns back into his residence but he might have been intending to sell those guns illegally or he might have been intending to do some other some other crime and the jurors could could actually disagree on that on that point some could think he was just trying to bring them across state lines illegally some could think he was trying to do some something else or third thing as long as it's all connected to the same act and he they find that he had a bad purpose in in doing the act he's presumed to know what the law is that's the way i've always thought it it worked in that you didn't have to have a green light of the of the jury that the bad purpose he had in mind was to actually cross the state line with these guns back into his residence the jury had to unanimously agree on that point are i completely agree with the court your honor and in fact here there is overwhelming evidence that he actually was trying to circumvent the california gun laws even putting the redistribution illegal redistribution aside i mean we go back to the purpose of this law and it's to respect one state laws concerning you know what gun possession should be and there was evidence from which the jury could infer that he knew that he couldn't buy multiple firearms at one we this gun show that he went to in arizona was in his backyard the week before yet he took a trick that was a forty eight hour trip twenty four hours of it was a commute he went and bought these five guns at one point and the that just days later they were stolen from his garage floor and never reported the theft of approximately what he claims to be twenty gun stolen and when he did report it diverted to the police it was only it to the police he said nearly twenty guns had been stolen from his garage in twenty in january of two thousand and eleven yet many of those guns that he had purchased there was evidence of seventeen gun city purchased and many of those guns were found prior to when he allegedly said they were stolen there is so much evidence of redistribution here you are and there's so much evidence that he knew of the california gun laws there's evidence that several of the guns that he bought were illegal for sale in california  shift gears on something because this dual residency topic is seems like a like a big issue and it appears to me like the defendant is asking the ninth circuit to really wade into the heckler and mattel  cases but if i'm wondering if this isn't waived and i'm trying to make sense of the statement in the in the transcript where where there's a  you try this case right yes you're on so you say on the record we've reached agreement with respect to the jury instruction on residence and then you say in the government has gone ahead and agreed on the first three paragraphs not the fourth paragraph and when i look at the instruction there are three paragraphs there but i went back and looked at the proposed instructions and it looks like what the defendant didn't get was was instruction for instructions proposed for him propose six i don't understand what that that means we read the first three paragraphs but not the fourth what does it mean well your honor what happened is a judge the trial judge asked us to go back and if we could agree on an instruction the judge would give it or the judge would formulate i believe his own instruction so we agreed on the first three paragraphs the government did not believe that the other two that the court just referred to actually comported with the law because they basically said they do a residency is a complete defense which the government is argued cannot be the law it doesn't comport with with my taylor one we will start fourth paragraph of what that reference the fourth paragraph there was i believe that the defense had proposed an additional paragraph your honor record i'm trying to figure out what if it's wait what was the defense waiting if they said you know if you said we're not agreeing the fourth paragraph and then they don't object that sounds like a waiver but i don't know what that fourth paragraph is and your honor i would have the record i can go back and look at it but it would take me a little bit of time because it would take a while to be you think it's the substance of proposed instruction four and six it probably would be i would imagine that's what it would be because i what i remember from the proceedings below is that the dispute was really centered on whether dual residency can serve as a complete defense and so  i remember that that was sort of the main dispute that we were having and so we did propose a joint instruction when i think when the court takes a look at the elements the state of residence instruction in the wilfulness instruction those  together the different was was free to actually argue that his that he believed he was a dual resident and that defeated willfulness we don't believe that was a good argument and the jury didn't believe it but he was free to argue that under those instructions to say th dual residency is a complete defense actually contradicts material that's the second circuit case and i believe my tail got it right because if the residency was a complete defense then the defendant in material who was engag unlicensed distribution would have been his conduct would have been legal and we were just agree with you and agree with the seven circuits decision and hacker what does that do to your theory well your honor i don't believe one heckler is actually inconsistent with material because in one heckler if you notice happening in one heckler was that the court was saying hey you have this dual residency and that's why we don't think that he had any bad motive or or about intent but it really really boils down to willfulness mean do residency is a consideration and that's why the government was in complete agreement that you know do residency if the jury hadn't found that that that mr hernandez was a resident of arizona could he have been convicted i believe he could have because the elements of the crime require that he's not licensed as a manufacturer or dealer or collector and second things that he transported these firearms purchased or you know taint outside the state into his state of residence those are the elements of the crime so what the government had to prove they are little if he was a resident of arizona where with what were the crime about the crime would have still been so if there was evidence as i think there is in this case there was evidence that the defendant was acting to disregard california's gun laws and he was bringing guns into california which was his state of residence even if he was a resident arizona bringing him into california as a california resident then he would have been in violation of one t you're basically so sane that you even if you are do residence that doesn't give you a carte blanche to transport guns from one state of your residence to another state if your intention is to do something to you know to not to violate the law that's basically what you're saying and i was trying to think what could the judge have done and i think he could've maybe said further on these instructions if you find the defendant has do residency but didn't have a bad purpose then you must find him not guilty but if you find he has to residents and he did have a better purpose than you find him guilty and that would be that would be consistent with the idea of duals residency and come back to the question of and i believe the corps right about all of that but was it an abuse of discretion not to give that a dish was that an instruction that was requested no that was not the is there any is there any place in here where the jury was asked to find whether he was a resident of arizona no the jury was not asked of him to the jury was never asked how can we even get to the question if the jury was if the jury never was never required to find that he was that he was not an arizona resident but if he's not an arizona resident then the government looks to me like the government's humphrey if there's any possibility that he's a an arizona resident it looks like it gets a little more complicated what your honor and on that point i would say that actually the elements of the crime really focus on whether he's a resident of the state into which he's bringing the firearms so if he's a resident of the state that's all that we're required to prove the arizona part of it really went to the one i'm a little confused by the argument counsel in light of a lot of the regulation of regulation gives this example about having the  hunting cabin and taking it from a place where you live you know up to the summer up to the summer place so i guess i'm not exactly sure that i understand your argument because and your honor i would go back to material on that because it in my teo the into his state of residence from one from one state of residence to another for a completely permissible purpose there was no bad motive or intent in one heckler if the defendant was bringing it over but bringing over his gun to actually engag unlicensed dealing or to violate his other states gun laws or for another bad purpose then one heckler the defendant would be there would be a problem there but that if that was and those weren't the facts in one heckler in one heckler the whole issue was that there was no willful if there was no bad intent he was allowed to bring it over and you know the residents are allowed to do that if there's no bad intent right but it's certainly if you've got a dual resident it certainly focuses the jury and everybody else's attention as to what the intent was when it crossed state lines and i believe that the court the trial court did give an instruction and if and if you don't ask the jury here to find where there was an arizona resident then it looks like the jury has a lot more a lot wider range of motives that it might but it might conceivably consider before it convicts him well your honor the trial or did give an instruction on dual residency defining what dual residency was and a person is there was no evidence that he was an arizona resident in this case that's not true counsel he had an arizona driver's license he had lived in arizona as wife testified that they were temporarily in california take care of her sister and that they intended to return to arizona your honor when he was given the choice in two the government argued against those with the facts that the government had in terms of you know all of his belongings in california and him in california for the past three years and so for them going to one of the reasons for the trip that they took other than purchasing these guns was that they transfer their car registration from arizona california that was one of the reasons they took the trip so i think the evidence was pretty overwhelming on the government side on this issue i agree with the court there may have been an issue but with the instructions were sufficient jury had to consider that in the jury did the jury was asked to consider that to do a residency and he did consider it and rejected it and i believe the jury was right on that but as far as whether the court abused its discretion in not giving  three sixty nine and three seventy seven first at three sixty nine the law does not prohibit the transportation of a firearm between two states by person with residence in both states and then at three seventy seven if you have a reasonable doubt as to whether mr hernandez knew that he was not a resident of arizona then you must find him not guilty of reasonable doubt as to whether mr hernandez believed that he held dual residency in california and arizona then you must find him so can you tell me why the again that isn't waived when the government says we've reached agreement with respect to the jury instruction on residents of course is ok the government mohamed says first three paragraphs not the fourth that's fine you have no objection yes that's actually what was happening there was the government was waiting theory of defense instructions the ones i just read that had already been resolved that the court then instructed the parties to get together and come up with the definition of student residence parties attempted to do so the government wanted this fourth paragraph to be part of it  the government then agreed not to include that fourth paragraph which was language saying you can't transport from between two states for an unlawful purpose even if you do you are a dual resident it was in a affirmative and title residency  instruction but but the court had already rejected our theory of the defense instruction at that don't you have to preserve your objection well certainly we did your honor by seeking the instruction and having the court conclusively rule against us on that proposed instruction we did preserve the matter this was purely about the definition of state of residence was what the court then was asking the parties to come together in and define the government wanted to throw in this this other part and then said ok we won't bother doing that  the government withdrawing that instruction which we thought was improper but i don't see how that waves are already clearly made and ruled upon request for the dual residency instruction and of course i will remind the court that with respect to both this and the  throughout the trial it's certainly parent that that was never the intent at all and i do and i don't believe that any of the parties in district court thought as much with respect to with respect to do a residency as well mr muhammad argued that the jury had this instruction on what to residency was the jury was never told how it could use that there was absolutely no instruction informing the jury what they were to do if they found  mr hernandez a dual resident and in fact the jury had a question about the residency and that came out right after closing arguments so it's certainly not clear that an error here was was harmless in any way shape or form in fact if if mr hernandez was in fact it will resident or at least believed himself to be one he did not have an unlawful purpose in bringing these firearms into california there is no law prohibiting a person other than the state of residency it's a gun i can't have in california it is a gun you can have in california it's simply a gun you can't purchase in california and let me just explain why and this is in the record that one of these models of guns that mr hernandez purchased wasn't dropped tested which is effectively means someone stands in a lab and drops it humbles and so let's say it's to avoid the waiting period isn't that an unlawful purpose well there is no purpose to avoid the waiting period if you are doing resident if mr hernandez was both a resident of arizona and california it was completely lawful for him to purchase five firearms in arizona under arizona's laws using his arizona id his true name etc etc he had no you cannot create it person and then travel to his second residence with those guns and in fact section one twenty six a which was also an act it is part of focus specifically says that unless there is that that putting aside the state of residence issues a person can travel between two states with their lawfully purchased firearms so there's nothing that makes transporting these firearms into california inherently lawful they weren't machine guns or some sort of gun sure but that's what it all comes back to willfulness that's the whole point is it isn't it that if the purpose is to do something that's illegal like avoid waiting periods or or sell guns to be prohibited persons or whatever it might be then the transportation across state lines into your state of residence would be with a bad purpose it would be it would violate the statute but if if your purpose is just you know i found a gun in arizona that i really want to have in my collection and i'm going to keep it in california then it's not with the bad purpose but there was there two points your honor first there was if you have to residence and it so what it becomes is a way to avoid california's or any other states gun laws all you have to do is set up a residence in and an adjoining state or any state and that has a more favorable gun law and transport your guns into that state  the jury still may well have misunderstood that it was an unlawful purpose to bring these guns into california if mr hernandez was a dual resident it was never explained to them that his potential dual residency might have negated any  unlawful purpose here because there was simply nothing unlawful about it otherwise so even conceding that if someone is setting up another residence and they can't traffic guns in the jury it was not required to find that mr hernandez was a gun trafficker and in fact the judge after hearing all the evidence said i don't see anything to say he is so so i don't think that that's that's quite the situation we have here that was a question for the jury but that was taken away from the jury and they were never given the opportunity to decide that