Weapons conviction reversed for immigrant caught near border

WASHINGTON – A federal appeals court Monday reversed the firearms conviction of an illegal immigrant who was caught near Green Valley in 2012 with guns, cell phones, a large supply of food and a radio scanner.

Rosario Montoya-Gaxiola had argued that the jury in his case received confusing instructions on the charge that he was carrying a sawed-off shotgun at the time of his arrest.

A three-judge panel of the 9th U.S. Circuit Court of Appeals agreed, noting that the circuit’s “model criminal jury instruction” on that charge “if strictly followed, as it was in this case, may result in an erroneous instruction.”

“The jury instruction given was erroneous since it failed to instruct the jury as to the first element of the offense, namely, whether Rosario knew that the shotgun’s barrel was less than 18 inches,” making it illegal under federal law, the court said.

It overturned his conviction and ordered a new hearing on the firearms charge.

Montoya’s attorney did not immediately return a call seeking comment Monday. A spokesman for the U.S. Attorney’s Office in Arizona said the office would not have a comment on the ruling.

The case began on April 3, 2012, when Montoya was caught by Border Patrol agents with his brother, Abel, and a third man, Fermin Ruiz-Bracamontes, near Green Valley carrying firearms, ammunition, blankets, backpacks with “significant food rations,” cell phones and a radio scanner.

The court of appeals ruling said the government believed the three men were operating as a “rip crew,” which ambushes drug smugglers to steal and then sell the smugglers’ marijuana and split the proceeds among themselves.

Both Montoya and his brother had been deported at Nogales in October 2011 for being in the U.S. illegally.

All three men were indicted on charges of illegal re-entry and firearm possession, along with drug and firearm conspiracy counts. Rosario Montoya, who was found next to a sawed-off shotgun, was also charged with possession of an unregistered sawed-off shotgun with a barrel less than 18 inches in length.

The Montoya brothers said they were simply traveling from Mexico when they were arrested. Rosario also claimed he had found the shotgun in the desert a day before their arrest.

They pleaded guilty to illegal re-entry, but went to trial on the other charges.

A jury convicted the Montoyas on three firearm possession counts, including the charge that Rosario had violated the National Firearms Act by possessing an unregistered sawed-off shotgun.

The act says that it is unlawful for any person to receive or possess a firearm that is not registered and that firearm refers to a shotgun having a barrel of less than 18 inches in length.

Rosario Montoya appealed, arguing that instructions to the jury had not included language on his state of mind.

The government agreed that instruction was erroneous, but that the error was harmless because the “the shotgun was obviously ‘sawed off’ or short barreled.”

But the court disagreed, saying the law is clear “that the government must prove that the defendant knew the specific characteristics that made it (the shotgun) a firearm under the act, that is, having a barrel of less than 18 inches.”

It said the government had not done that. Despite evidence that Montoya knew the barrel’s length, the court said that evidence was “neither overwhelming nor uncontested” and that the error was not harmless. It ordered a new trial on the charge.