
    UNITED STATES of America, Plaintiff-Appellee, v. Jose PASILLAS-GAYTAN, Defendant-Appellant.
    No. 98-30303.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 14, 1999
    Memorandum Filed Sept. 2, 1999
    Order and Opinion Filed Sept. 16, 1999
    
      Thomas Monaghan, Assistant Federal Public Defender, Yakima, Washington, for the defendant-appellant.
    Jane Kirk, Assistant United States Attorney, Yakima, Washington, for the plaintiff-appellee.
    Before: REAVLEY, ALARCON and McKEOWN, Circuit Judges.
    
      
       The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the United States Court of Appeals, Fifth Circuit, sitting by designation.
    
   ORDER

The memorandum disposition filed September 2, 1999, is redesignated as an authored opinion by Judge Reavley.

OPINION

REAVLEY, Circuit Judge:

Jose Gaytan-Pasillas (Gaytan) appeals his conviction for unlawful procurement of naturalization. Because we agree with him that the jury was improperly instructed on the mens rea requirement for this crime, we reverse. And because we conclude that he proved his defense in obtaining a verdict on the companion count, we order an acquittal.

BACKGROUND

Gaytan was charged in a two-count indictment. Count 1 alleged that, on or about December 7, 1995, the date of his naturalization interview, in violation of 18 U.S.C. § 1546(a), Gaytan knowingly made a false statement of material fact in his application for naturalization, by representing that he had never been convicted of a crime other than a motor vehicle infraction, when in fact he had been convicted of second-degree theft. Count 2 alleged that Gaytan, in violation of 18 U:S.C. § 1425, “knowingly procured, contrary to law,” his naturalization, because the theft conviction made him ineligible for naturalization.

Gaytan does not dispute that he had been convicted of theft, and that he misrepresented that he had no such conviction in his application for naturalization and in his interview with the INS. At trial he stipulated to the prior conviction, its materiality, and his resultant ineligibility for naturalization. His defense was that the misrepresentations were innocent mistakes, due to his poor understanding of English and limited education. A minister testified that she had filled out part of the naturalization application for Gaytan, and that his English was very limited. A teacher and Gaytan’s girlfriend testified that Gaytan’s English language skills were limited. Gaytan also testified, through an interpreter, that he had trouble understanding the questions in the application and at the interview, and did not know that his prior conviction precluded him from becoming a citizen.

In instruction 15, the court instructed the jury:

The defendant is charged in Count 2 of the indictment with unlawfully obtaining his naturalization in violation of the laws of the United States. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, that from on or about October 19, 1995, through December 13, 1995, in Walla, Walla, Washington, the defendant knowingly acquired naturalization; and
Second, the defendant’s naturalization was contrary to law in that the defendant claimed he had never been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance other than for no operator’s license when in fact the defendant was convicted of theft in the second degree on March 9,1992.

The next instruction explained that Gay-tan’s theft conviction “rendered the defendant ineligible for naturalization.”

Gaytan’s counsel objected to instruction 15, on grounds that the mens rea requirement was misstated. The court overruled this objection. During deliberations, the jury sent out two questions regarding the instructions on count 2 (§ 1425). First, it asked: “Inst. # 15 2nd question (3rd paragraph) — Is the defendant’s naturalization contrary to law dependent on his ‘claim’ that he was never arrested or is it contrary to law because of his conviction?” The court instructed the jury: “Please refer to Instruction No. 16 which states as follows: ‘This conviction rendered the defendant ineligible for naturalization.’ ” In effect, the court instructed the jury that the prior conviction, by itself, rendered the naturalization “contrary to law” under § 1425, regardless of what Gaytan had represented or his state of mind in making representations. The jury then asked: basis of his indictment and conviction. The Court distinguished statutes which only require “knowing” conduct. Such statutes “merely require[ ] proof of knowledge of the facts that constitute the offense,” as opposed to knowledge that the conduct is unlawful. In United States v. International Minerals & Chemical Corp., the Court construed a statute providing that whoever “knowingly violates” certain regulations of the Interstate Commerce Commission (ICC) was guilty of a criminal offense. The defendant was convicted of shipping acid without complying with an ICC reporting requirement. The Court held that ignorance of the reporting requirement was not a defense, finding no congressional intent to “carv[e] out an exception to the general rule that ignorance of the law is no excuse.” Because § 1425 requires only “knowing” conduct, rather than imposing the stricter “willful” requirement, we hold that Gaytan did not have to know that procuring naturalization was a criminal act, although such knowledge would of course suffice to impose criminal liability.

On the other hand, we cannot agree with the government that § 1425 imposes no mens rea requirement, other than the requirement of intentionally applying for naturalization. As explained above, applying for naturalization is almost always a voluntary, intentional act. We believe that the statute requires a culpable state of mind as well. The government’s construction of the statute would criminalize completely innocent conduct and would essentially impose strict liability on defendants. It would apply to defendants who did not understand the documents they were signing, as Gaytan claims. It would also apply to those who innocently apply for citizenship outside of the statutory time periods for making such application, and those who innocently apply for citizenship but are not sufficiently proficient in the English language to qualify for citizenship. The general rule is that criminal statutes do not impose strict liability. “Such ‘strict liability’ crimes are exceptions to the general rule that criminal liability requires an ‘evil-meaning mind.’ ” Even the complete omission of a mens rea requirement does not mean that the statute “defines a ‘strict liability’ crime for which punishment can be imposed without proof of any mens rea at all.” “The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.”

Following our understanding of Staples v. United States, we hold that the statute should be construed with “the usual presumption that a defendant must know the facts that make his conduct illegal.” We conclude, consistently with other circuits, that liability under § 1425 requires proof that Gaytan either knew he was not eligible for naturalization due to his prior conviction, or knowingly misstated his criminal record on his application or in his interview. At issue in Staples was the mens rea requirement under 26 U.S.C. § 5861(d), which criminalizes possession of an unregistered machine gun. The defendant claimed that he did not know the gun he bought was capable of automatic fire. The Court held that violation of the statute requires proof that the defendant knew the rifle was an automatic weapon. It noted the “conventional mens rea element” of criminal statutes, which requires “that the defendant know the facts that make his conduct illegal.” The Court also noted “the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would ‘criminalize a broad range of apparently innocent conduct.’ ” It declined to “impose criminal sanctions on a class of persons whose mental state-ignorance of the characteristics of weapons in their possession-makes their actions entirely innocent.” By this reasoning it is not enough that Gaytan submitted a naturalization application with false information. Just as the defendant in Staples had to know that the gun was an automatic weapon, the government should have been required to prove that Gaytan either knew he was ineligible for naturalization due to his criminal record, or knowingly misrepresented his criminal record in his application or interview.

We cannot agree with the government that § 1425 is a “public welfare” statute which lacks a mens rea requirement. In Staples, the Court recognized such statutes, but declined to treat the firearm statute in question as a public welfare statute. It noted that public welfare statutes were a narrow class, limited to “statutes that regulate potentially harmful or injurious items” or “some dangerous .or deleterious substance.” Section 1425, in our view, does not fall within this category. In Staples, the Court also noted that with public welfare statutes, “‘penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation.’ ” “[A] severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement.” Section 1425 imposes a sentence of up to 25 years, and up to 10 years if the offense was not committed to facilitate another offense. Conviction also results in a revocation of citizenship. Were we to dispense with a mens rea-requirement, “we would be left with a statute that exposes persons who perform innocent acts to lengthy prison sentences.” We decline to. do so.

The district court erred in misstating, and essentially omitting, the mens rea requirement that we hold is an essential element of the crime. The omission of an essential element of the crime is subject to harmless error review, which in this context means that the conviction can stand if the error was harmless beyond a reasonable doubt. If the error is not harmless, the ordinary remedy is to remand the case for a new trial.

In the pending, case, however, we are convinced that the record as a whole and the jury’s findings establish that not only was the error not harmless, but the jury necessarily would have acquitted Gay-tan on count 2 if it had been properly instructed. As explained above, Gaytan stipulated that he had a prior theft conviction, that this conviction was material to the INS, and that the conviction made him ineligible for naturalization. The evidence was undisputed that his application falsely denied a prior criminal conviction in question 15 and that agent Walker repeated this question orally to him at his interview on December 7, 1995. Gaytan did not disclose the theft conviction, but only disclosed the motor vehicle infraction. Therefore, the only disputed factual issue for the jury to decide under the instructions as to count 1 was whether “the defendant knew the statement was false.” The acquittal on count 1 necessarily means that the jury failed to find that -Gaytan knowingly misstated his criminal record.

As discussed above, the requisite intent element of § 1425 can be established by proof that (1) Gaytan knowingly misrepresented his criminal record at his interview, (2) he knowingly misstated his criminal record in his written application, or (3) regardless of his representations to the INS, he knew he was ineligible for naturalization. Of these three possibilities, the acquittal on count 1 necessarily meant that the jury rejected the first two possibilities. The questions from the jury, discussed above, further confirm that thé only explanation for the acquittal on count 1 and conviction on count 2 was a jury determination that Gaytan did not intentionally misrepresent his criminal record. That determination left the record devoid of any evidence of the third possibility. Gaytan cannot be retried.

Accordingly, the judgment is reversed and the conviction is vacated.

REVERSED and VACATED. 
      
      . See 118 S.Ct. at 1944-47.
     
      
      . Id. at 1946.
     
      
      . 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971).
     
      
      . Id. at 563, 91 S.Ct. 1697.
     
      
      . United States v. Bailey, 444 U.S. 394, 404 n. 4, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).
     
      
      . Id. at 406 n. 6, 100 S.Ct. 624.
     
      
      . Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).
     
      
      . 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).
     
      
      . Id. at 619, 114 S.Ct. 1793.
     
      
      . See United States v. Moses, 94 F.3d 182, 184 (5th Cir.1996) (stating that a violation of § 1425(b) requires proof that "the defendant knows that he or she is not entitled to naturalization or citizenship”).
     
      
      . See Staples, 511 U.S. at 619, 114 S.Ct. 1793.
     
      
      . Id. at 605, 114 S.Ct. 1793.
     
      
      . Id. at 610, 114 S.Ct. 1793 (quoting Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985)).
     
      
      . Id. at 614-15, 114 S.Ct. 1793.
     
      
      . Id. at 607, 114 S.Ct. 1793.
     
      
      . Id. at 607 n. 3, 114 S.Ct. 1793.
     
      
      . Id. at 617-18, 114 S.Ct. 1793 (quoting Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 96 L.Ed. 288 (1952)).
     
      
      . Id. at 618-19, 114 S.Ct. 1793. See also United States v. Nguyen, 73 F.3d 887, 891 n. 1 (9th Cir.1995) (noting that public welfare offenses generally are ones “where the penalty is relatively small, [and] where conviction does not gravely besmirch” (internal quotation marks omitted)).
     
      
      . See 8 U.S.C. § 1451(e).
     
      
      . Nguyen, 73 F.3d at 893.
     
      
      . See Neder v. United States, - U.S. -, -, 119 S.Ct. 1827, 1831, 144 L.Ed.2d 35 (1999).
     
      
      . See Id. at-, 119 S.Ct. at 1837.
     
      
      . See, e.g., United States v. Perez, 129 F.3d 1340, 1342 (9th Cir.1997); United States v. Alerta, 96 F.3d 1230, 1236 (9th Cir.1996); Nguyen, 73 F.3d at 895.
     