He asserts this problem arises because "reasonable cause to believe" calls for interpreting what a reasonable person objectively would have known and done under the circumstances, imposing liability without any showing of the defendant's actual criminal intent. We reject Johal's argument because the statute does impose a mens rea requirement, as indicated in our previous decision in United States v. Kaur, 382 F.3d 1155, 1157(9th Cir. 2004), a case arising out of the same DEA operation that led to Johal's arrest. There, we evaluated — albeit under an abuse of discretion standard — a jury instruction identical to the one given here that defined "reasonable cause to believe" in § 841(c)(2) as
"Reasonable cause to believe" means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the same facts, to reasonably conclude that the pseudoephedrine would be used to manufacture a controlled substance.We have upheld this identical instruction in other prosecutions under § 841(c)(2).See United States v. Kaur, 382 F.3d 1155, 1156-57 (9th Cir. 2004); United States v. Johal, 428 F.3d 823, 827 (9th Cir. 2005) (reaffirming Kaur). Moreover, because the correct standard for criminal liability under § 841(c)(2) "incorporates both subjective and objective considerations," Johal, 428 F.3d at 825, the district court properly rejected Nguyen's proposed instruction, which "effectively equated reasonable cause to believe with actual knowledge."
Our cases make clear that the district court erred in rejecting Munguia's proposed instruction. In United States v. Kaur, 382 F.3d 1155, 1156 (9th Cir.2004), defendant Kaur was a retailer who sold large quantities of cold medications. Kaur was charged with violating 21 U.S.C. § 841(c)(2).
The statute under which Gulley was convicted states, in pertinent part, "Any person who knowingly or intentionally . . . possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance except as authorized by this subchapter" shall be guilty of a federal offense. Circuit courts disagree about whether actual knowledge that the chemical will be used to manufacture methamphetamine is required (a subjective belief), see United States v. Truong, 425 F.3d 1282, 1289 (10th Cir. 2005) (requiring "actual knowledge, or something close to it"), or whether simply having an objective "reasonable cause to believe" is enough, see United States v. Galvan, 407 F.3d 954, 957 (8th Cir. 2005); United States v. Kaur, 382 F.3d 1155, 1157-58 (9th Cir. 2004); United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). The majority believes the latter standard applies, and the Seventh Circuit Court of Appeals has not decided the issue.
We also review de novo the question whether a trial court's jury instruction omitted or incorrectly described an element of the offense. See United States v. Kaur, 382 F.3d 1155, 1157 (9th Cir. 2004). We apply harmless error analysis to an error involving improper instructions on an element of the offense.
mong our sister circuits as to the proper interpretation of the mens rea requirement in 21 U.S.C. § 841(c)(2)" one circuit believes the statute requires a defendant's subjective knowledge that the drugs he possesses or distributes will be used to manufacture a controlled substance, while at least three other circuits parse the statute to allow conviction based upon either subjective knowledge or an objective "cause to believe." Compare United States v. Truong, 425 F.3d 1282, 1289 (10th Cir. 2005) (requiring government to prove "actual knowledge, or something close to"), and United States v. Saffo, 227 F.3d 1260, 1269 (10th Cir. 2000) ("The `reasonable cause to believe' standard thus comports with the subjective `guilty mind' or `guilty knowledge' requirement for imposing criminal liability."), with United States v. Galvan, 407 F.3d 954, 957 (8th Cir. 2005) (rejecting proposed jury instruction that required actual knowledge and ignored "reasonable cause to believe" statutory language); United States v. Kaur, 382 F.3d 1155, 1157-58 (9th Cir. 2004) ("[C]onsistent with the text of the statute, the instruction incorporates both subjective and objective considerations."); and United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) ("[T]he jury thus needed to find either that he knew the pseudoephedrine would be used to manufacture methamphetamine or that he had reasonable cause to believe that it would be."). The district court applied the more stringent standard of the Tenth Circuit, which requires "actual knowledge, or something close," and concluded that the government sufficiently proved that Khattab knew that the pseudoephedrine he attempted to purchase would be used to manufacture methamphetamine.
We review jury instructions as a whole to determine whether they are misleading or inadequate to guide the jury's deliberation. United States v. Kaur, 382 F.3d 1155, 1157 (9th Cir. 2004). We review de novo whether an instruction misstated an element of the charged offense, and review for abuse of discretion the district court's formulation of instructions.
Our decisions in United States v. Kaur, 382 F.3d 1155 (9th Cir.2004) and United States v. Johal, 428 F.3d 823 (9th Cir.2005) foreclose the contention that 21 U.S.C. § 841(c)(2) imposes a constitutionally insufficient mens rea requirement. Perhaps in recognition of this binding precedent, Karawi argued for the first time in his reply brief that the district court erred in not instructing the jury on the meaning of "reasonable cause to believe."
On the face of the statute, it might appear that the mens rea element of these offenses could be either subjective or objective — that a defendant could be convicted upon proof of actual knowledge or intent (subjective) or upon proof that a reasonable person in the defendant's circumstances should have known (had "reason to believe") that the substance would be used to manufacture methamphetamine (objective). Two circuits have so held. See United States v. Kaur, 382 F.3d 1155, 1157 (9th Cir. 2004) ("[c]onsistent with the text of the statute, the [challenged jury] instruction incorporates both subjective and objective considerations. . . . [The defendant] had reasonable cause to believe if she actually knew facts that would alert a reasonable person that the pseudoephedrine would be used to make methamphetamine."); United States v. Galvan, 407 F.3d 954, 957 (8th Cir. 2005).
We review de novo whether a jury instruction misstated an element of the charged offense. United States v. Kaur, 382 F.3d 1155, 1157 (9th Cir. 2004). 8 U.S.C. § 1324(a)(2)(B)(ii) provides enhanced penalties for "an offense done for the purpose of commercial advantage or private financial gain.