United States v. Smith

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 05-50375

MALIK SMITH, a/k/a Michael

Marvin Montana, Tarid M. Smith,  D.C. No.

CR-03-00728-PA-01

Tarik N. Smith, Tarik Smith, Tarik

OPINION

Marchand Smith, Tarik Malik

Smith, Milik and Tarid Smith,

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

April 3, 2006—Pasadena, California

Memorandum Filed May 26, 2006

Memorandum Withdrawn March 31, 2008

Filed March 31, 2008

Before: Dorothy W. Nelson and Diarmuid F. O’Scannlain,

Circuit Judges, and Robert C. Jones,* District Judge.

Opinion by Judge O’Scannlain;

Dissent by Judge D.W. Nelson

*The Honorable Robert C. Jones, District Judge for the District of

Nevada, sitting by designation.

3245

UNITED STATES v. SMITH 3249

COUNSEL

Davina T. Chen, Deputy Federal Public Defender, Los Ange-

les, California, argued the cause for the defendant-appellant,

and filed briefs; Maria E. Stratton, Federal Public Defender,

Los Angeles, California, was on the briefs.

Craig H. Missakian, Assistant U.S. Attorney, Los Angeles,

California, argued the cause for the plaintiff-appellee, and

filed a brief; Debra Wong Yang, U.S. Attorney, and Thomas

P. O’Brien, Assistant U.S. Attorney, were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must primarily decide whether a jury instruction imper-

missibly relieved the government of its burden to prove

beyond a reasonable doubt that the defendant used a “danger-

ous weapon,” an essential element of the crime.

I

In August 1999, four inmates at the federal penitentiary in

Lompoc, California, were in the recreation cage of the Special

Housing Unit: Malik Smith, Charles Wesley Helem, George

W. Jeffries, and Milton Johnson. After hearing scuffling

noises, prison guards went to the cage, where they saw Smith

stabbing Jeffries with a sharpened plastic object while Helem

held him from behind. The object snapped into two pieces,

but Smith continued to use one of the pieces to stab Jeffries.

3250 UNITED STATES v. SMITH

The object, a prison-made knife, was about six inches long,

flat, and sharpened to a point at one end. Prison officials later

found a similar knife wrapped in a towel in the recreation

cage. The knives had been made by melting down very thin

Styrofoam trays and forming them into a hard plastic.

After the incident, Reynaldo Nisperos, a physician’s assis-

tant employed by the prison, examined the four inmates for

injuries. Helem and Johnson had none. Smith had injuries on

the palm of his right hand and on the inside of his lip. Jeffries

had sustained several cuts, one of which was about eight cen-

timeters long and pierced the skin of Jeffries’s right eyelid.

Another cut on the face was approximately ten centimeters

long. Nisperios also noted a superficial abrasion on Jeffries’s

neck that was about six centimeters long and multiple superfi-

cial abrasions and laceration on Jeffries’s lower back. Accord-

ing to Jeffries, either Smith or Helm yelled, “You’re hot,

you’re hot” right before the attack began. In prison slang,

“hot” meant that Jeffries was considered a snitch.

The government did not file criminal charges immediately

after the incident, although Smith was sanctioned administra-

tively by the prison. After Smith was released in 2002, the

government indicted Smith for the assault. The case pro-

ceeded to trial.

At Smith’s trial, Lieutenant Jaime Bengford explained his

belief that the weapon had been made by melting down accu-

mulated thin plastic trays on which prison meals are served.

Nisperos described the injuries Jeffries sustained and the jury

viewed photographs of them. Nisperos also testified that the

weapon could cause “very fatal injuries.” He specifically

stated that if the knife were used to hit an internal organ or a

major artery, like the carotid artery or the jugular vein, it

could cause “major injuries.” The district court allowed

Nisperos to render this opinion over Smith’s objection that

Nisperos lacked sufficient expertise to qualify as an expert

because he was not a doctor and twice had failed the exam to

UNITED STATES v. SMITH 3251

qualify as a doctor. In determining that Nisperos was qualified

to give his opinion, the court relied on Nisperos’s medical

degree from the Philippines, his bachelor’s degree in crimi-

nology, and his testimony that he had treated inmates for

wounds inflicted by prison-made knives 50 to 100 times dur-

ing his nineteen years at the prison.

At the close of the evidence, Smith moved for a judgment

of acquittal pursuant to Fed. R. Crim. P. 29. On the assault

with intent to commit murder charge, he argued that the gov-

ernment had failed to prove he intended to commit murder.

On the assault with a dangerous weapon charge, he argued

that the government had failed to show that he had assaulted

Jeffries or that the assault was not without just cause. The dis-

trict court denied the motion.

The court instructed the jury as to three offenses: assault

with intent to commit murder, assault with a dangerous

weapon, and the lesser included offense of simple assault. The

instructions on the elements of assault with a dangerous

weapon provided that the third element the government had

to prove beyond a reasonable doubt was that “the defendant

used a prison-made knife.” The immediately preceding para-

graph of the instructions advised the jury that Smith was

“charged . . . with assault with a dangerous weapon,” and the

immediately following sentence instructed the jury that “[a]

prison-made knife is a dangerous weapon if it is used in a way

that is capable of causing death or serious bodily injury.”

Smith objected to the instructions, contending that the third

element usurped the jury’s role as finder of fact as to whether

the knife qualified as a “dangerous weapon.” Based on these

instructions, the jury convicted Smith of assault with a dan-

gerous weapon. The jury, however, found Smith not guilty of

assault with intent to commit murder.

Smith’s timely appeal of his conviction followed.1

1

Smith also challenges his sentence. We decide such separate claims in

a concurrently filed memorandum disposition. See United States v. Smith,

No. 05-50375 (9th Cir. March 31, 2008) (mem.).

3252 UNITED STATES v. SMITH

II

Smith was charged with assault with a dangerous weapon

in violation of 18 U.S.C. § 113(a)(3), which has three ele-

ments: (1) that the defendant intentionally struck or wounded

the victim; (2) that the defendant acted with the specific intent

to do bodily harm; and (3) that the defendant used a “danger-

ous weapon.” United States v. Etsitty, 130 F.3d 420, 427 (9th

Cir. 1997) (per curiam); 18 U.S.C. § 113(a)(3). A “dangerous

weapon,” we have held, includes not only objects that are

dangerous per se, but also objects used in a way capable of

causing death or serious bodily injury. United States v. Rig-

gins, 40 F.3d 1055, 1057 (9th Cir. 1994). The statute, in turn,

defines “serious bodily injury” as any bodily injury that

involves “(A) a substantial risk of death; (B) extreme physical

pain; (C) protracted and obvious disfigurement; or (D) pro-

tracted loss or impairment of the function of a bodily member,

organ, or mental faculty.” See 18 U.S.C. §§ 113(b)(2),

1365(h)(3). “[W]hat constitutes a dangerous weapon in a par-

ticular case is a question of fact for the jury.” Riggins, 40 F.3d

at 1057 (citing United States v. Moore, 846 F.2d 1163, 1166

(8th Cir. 1988)).

Smith argues on appeal that the following jury instruction,

which tracks Ninth Circuit Model Criminal Jury Instruction 8.5,2

2

That model instruction provides:

The defendant is charged in [Count ___ of] the indictment with

assault with a dangerous weapon in violation of Section 113(a)(3)

of Title 18 of the United States Code. 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, the defendant intentionally [struck or wounded [victim]]

[used a display of force that reasonably caused [victim] to fear

immediate bodily harm];

Second, the defendant acted with the specific intent to do bod-

ily harm to [victim]; and

UNITED STATES v. SMITH 3253

impermissibly relieved the government of its burden to prove

beyond a reasonable doubt that he used a “dangerous weap-

on”:

The defendant is charged in Count 2 of the indict-

ment with assault with a dangerous weapon, in viola-

tion of Section 113(a)(3) of Title 18 of the United

States Code.

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,

the defendant intentionally struck or wounded

George Jeffries; second, the defendant acted with the

specific intent to do bodily harm to George Jeffries;

and, third, the defendant used a prison-made knife.

A prison-made knife is a dangerous weapon if it

is used in a way that is capable of causing death or

serious bodily injury.

Because we disagree that these instructions removed an ele-

ment of the crime, we affirm.

A

[1] “[T]he Due Process Clause [of the Fourteenth Amend-

ment] protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In re Winship,

397 U.S. 358, 364 (1970). Accordingly, when a jury instruc-

Third, the defendant used a [weapon].

[A [weapon] is a dangerous weapon if it is used in a way that is

capable of causing death or serious bodily injury.]

9th Cir. Model Crim. Jury Inst. 8.5 (2003).

3254 UNITED STATES v. SMITH

tion is challenged on appeal, our task is to determine whether

the trial court’s instruction relieved the state of this essential

burden as to any individual element of the crime of which the

defendant has been convicted. Medley v. Runnells, 506 F.3d

857, 864 (9th Cir. 2007) (en banc).

[2] Nevertheless, “[a] single instruction to a jury may not

be judged in artificial isolation, but must be viewed in the

context of the overall charge.” United States v. Dixon, 201

F.3d 1223, 1230 (9th Cir. 2000); see also United States v.

Brooksby, 668 F.2d 1102, 1104 (9th Cir. 1982) (quoting Cupp

v. Naughten, 414 U.S. 144, 146-47 (1973)). Moreover, “we do

not engage in a technical parsing of [isolated] language of the

instructions, but instead approach the instructions in the same

way that the jury would—with a ‘commonsense understand-

ing of the instructions in the light of all that has taken place

at the trial.’ ” Johnson v. Texas, 509 U.S. 350, 368 (1993)

(emphasis added) (quoting Boyde v. California, 494 U.S. 370,

381 (1990)). “In reviewing jury instructions, the relevant

inquiry is whether the instructions as a whole are misleading

or inadequate to guide the jury’s deliberation.” United States

v. Frega, 179 F.3d 793, 806 n.16 (9th Cir. 1999) (emphasis

added) (citing United States v. Moore, 109 F.3d 1456, 1465

(9th Cir.) (en banc), cert. denied 522 U.S. 836 (1997)). The

Supreme Court has cautioned that “not every ambiguity,

inconsistency, or deficiency in a jury instruction rises to the

level of a due process violation.” Middleton v. McNeil, 541

U.S. 433, 437 (2004). If the jury instructions “as a whole [are]

ambiguous, the question is whether there is a ‘reasonable like-

lihood that the jury has applied the challenged instruction in

a way that violates the Constitution.’ ” Id. (internal quotation

marks omitted) (quoting Estelle v. McGuire, 502 U.S. 62, 67

(1991)).

B

[3] While it seems clear that the instructions would have

been improved if the words “prison-made knife” in the ele-

UNITED STATES v. SMITH 3255

ments list were replaced with “dangerous weapon,” we are

persuaded that the instructions as a whole were not mislead-

ing or inadequate to guide the jury’s deliberation and that

there is no “reasonable likelihood” that the jury convicted

Smith without proof beyond a reasonable doubt that he used

a “dangerous weapon.” First, there is a close connection

between the special instruction requiring the jury to find proof

beyond a reasonable doubt that the defendant used a “prison-

made knife” and the immediately following instruction

informing the jury that “a prison-made knife is a dangerous

weapon if it is used in a way that is capable of causing death

or serious bodily injury.” Indeed, the two instructions appear

in directly adjacent sentences and the latter instruction logi-

cally appears to clarify the former. Viewed with the “com-

monsense understanding” required by Johnson, 509 U.S. at

368, the tight connection between the “prison-made knife”

element and the immediately following passage describing a

“dangerous weapon” persuades us that it is not reasonably

likely that the jury believed that it could convict Smith with-

out proof beyond a reasonable doubt that the “prison made

knife” was “used in a way that is capable of causing death or

serious bodily injury.” In other words, the final instruction

defining a “dangerous weapon” should be viewed as a clarify-

ing instruction, part-and-parcel of the third element instruc-

tion in the elements list. A contrary conclusion would require

the jury to treat such instruction as mere surplusage even

though the district court ordered the jurors to “follow all of

[the instructions] and not single out some and ignore others.

They are all equally important.”

[4] Second, the district court immediately prefaced the ele-

ments list with an instruction stating the crime charged: “The

defendant is charged in Count 2 of the indictment with assault

with a dangerous weapon.” (emphasis added.)

[5] Finally, in charging the jury on the lesser included

offense of simple assault, the instructions again emphasized

that the jury could only convict Smith for assault with a dan-

3256 UNITED STATES v. SMITH

gerous weapon if it was “convinced beyond a reasonable

doubt that [Smith was] guilty of . . . assault with a dangerous

weapon with the intent to do bodily harm.” (emphasis added.)

As a consequence, we are satisfied that this instruction is

quite distinct from the jury instruction we found deficient in

Medley. In that case, the defendant was convicted in state

court of murder and received a twenty-year sentencing

enhancement for the discharge of a firearm during the com-

mission of a felony. 506 F.3d at 860. At trial, the judge

plainly instructed the jury that the defendant’s flare gun met

the sentencing enhancement statute’s definition of a “fire-

arm.” Id. at 859. On habeas review, we held that the trial

judge committed constitutional error because his instruction

“took a critical issue of fact away from the jury” and relieved

the prosecution of its duty to prove beyond a reasonable doubt

that the defendant used a firearm. Id. at 867. But in this case,

the district court never took such a critical issue away from

the jury’s determination because the district court never

instructed the jury that Smith’s prison-made knife was a dan-

gerous weapon.

Instead, the district court explained to the jury that the gov-

ernment was required to prove beyond a reasonable doubt that

Smith used a prison-made knife and, in its very next sentence,

instructed that “[a] prison-made knife is a dangerous weapon

if it is used in a way that is capable of causing death or serious

bodily injury.” We are persuaded that the tight connection

between these two sentences prevented members of the jury

from making the incorrect assumption that they could convict

Smith without proof beyond a reasonable doubt that the

prison-made knife he used to stab Jeffries was, in fact, a dan-

gerous weapon.

C

Furthermore, contrary to Smith’s argument, we are not per-

suaded that our prior decision in Brooksby compels a contrary

UNITED STATES v. SMITH 3257

conclusion. In Brooksby, the defendant was charged with will-

fully making and subscribing false tax returns, in violation of

26 U.S.C. § 7206(1). Brooksby, 668 F.2d 1102. Although

“willfully” is an essential element of that offense, the district

court’s special instructions wholly omitted any reference to

“willfully” in the elements list. Id. Brooksby concluded that

the district court “correctly stated the law by reading the

indictment and the statute and defining the term ‘willfully’,

but incorrectly listed only three of the elements that would be

necessary to be proven beyond a reasonable doubt in order to

convict the defendant.” Id. at 1105. Brooksby thus held that

“notwithstanding that the indictment, the statute[,] and an

instruction on ‘willfully’ were read to the jury, the failure to

instruct [the jurors] that ‘willfulness’ was an essential element

of the crime prejudiced the defendant.” Id.

Viewed with a commonsense understanding, the jury

instructions as a whole in Brooksby were indeed inadequate

and misleading. The challenged elements list contained nei-

ther the required willfulness element nor stated that any par-

ticular mens rea was even required. The only reference to

“willfully” was found in a later instruction defining that term

and indicating that the government had the burden to prove it.

That later definition of “willfully” failed to clarify any ele-

ment within the elements list, and was not at all connected to

any element of the list.

[6] In contrast to the instructions in Brooksby, the district

court’s instructions here contained a close and articulated link

from the elements list to the definition of a “dangerous weap-

on” that immediately followed. Indeed, as discussed above,

the elements list expressly required the jury to find proof

beyond a reasonable doubt that Smith used a “prison-made

knife” and the immediately following instruction clearly

advised the jury when a “prison-made knife” would constitute

a “dangerous weapon” sufficient to sustain the charge.

Because of this explicit and close connection between the ref-

erence in the elements list and the subsequent definition,

3258 UNITED STATES v. SMITH

Smith’s jury instructions as a whole did not suffer from the

same constitutional flaw as those in Brooksby.

D

[7] Accordingly, we conclude that the instructions did not

relieve the government of the burden of proof on the “critical

question” of whether Smith used a dangerous weapon. Med-

ley, 506 F.3d at 864. We are persuaded that the instructions

as a whole were not misleading or inadequate to guide the

jury’s deliberation and we do not believe that there is a “rea-

sonable likelihood” that the jury convicted Smith without

proof beyond a reasonable doubt that the prison-made knife

the jury determined that he used was, in fact, a “dangerous weap-

on.”3

III

We now turn to Smith’s argument that the evidence was

insufficient to support his conviction for assault with a dan-

gerous weapon.

A

We must first consider Smith’s assertion that district court

abused its discretion by allowing Nisperos to testify as an

expert witness. United States v. Alatorre, 222 F.3d 1098, 1100

(9th Cir. 2000). Specifically, Nisperos testified that “if some-

one was stabbed in a vital organ with that prison-made knife,”

the injury could be fatal.

[8] Fed. R. Evid. 702 governs the admissibility of expert testi-

3

Although we uphold the jury instruction delivered in this case, we rec-

ognize that even a legally sufficient instruction could benefit from a more

precise phrasing. Our Office of the Circuit Executive may wish to bring

this decision to the attention of the Ninth Circuit Jury Instructions Com-

mittee.

UNITED STATES v. SMITH 3259

mony.4 Under Daubert v. Merrell Dow Pharmaceuticals, 509

U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526

U.S. 137 (1999), “only relevant and reliable expert opinion

testimony is admissible. Expert opinion testimony is relevant

if the knowledge underlying it has a ‘valid . . . connection to

the pertinent inquiry.’ And it is reliable if the knowledge

underlying it ‘has a reliable basis in the knowledge and expe-

rience of [the relevant] discipline.’ ” United States v.

Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006) (foot-

notes omitted).

[9] We are persuaded that the district court did not abuse

its discretion here. Nisperos’s expert opinion that if the plastic

prison-made knife were used to strike a vital organ, it could

be fatal was relevant to the pertinent inquiry whether that

same knife was a “dangerous weapon.” Moreover, we are per-

suaded that Nisperos’s education and experience provided a

reliable basis for him to express that opinion. See United

States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000).

Nisperos completed medical school in the Phillippines and

had special knowledge based on his experience working at the

prison for almost 20 years, during which time he treated

between 50 and 100 injuries inflicted by prison-made knives.

Accordingly, the district court’s determination that Nisperos’s

education and experience were sufficient to qualify him as an

expert in this case was not an abuse of discretion.

[10] We also reject as unpersuasive Smith’s argument that

the district court abused its discretion because Nisperos was

a physician’s assistant rather than a doctor, had failed the

4

“If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based upon sufficient facts or data, (2) the testimony

is the product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the case.” Fed.

R. Evid. 702.

3260 UNITED STATES v. SMITH

medical board examinations twice, and had never testified as

a forensic expert before. That Nisperos had never before testi-

fied as an expert witness does not preclude his opining as an

expert in this case. Similarly, we are unpersuaded that

Nisperos was unqualified to testify as an expert in this case

because he is not a medical doctor and because he twice had

failed the medical board examination. Fed. R. Evid. 702 refers

only to “a witness qualified as an expert by knowledge, skill,

experience, training, or education.” No specific credentials or

qualifications are mentioned. Moreover, we have previously

held that an expert need not have official credentials in the

relevant subject matter to meet Rule 702’s requirements. See

United States v. Garcia, 7 F.3d 885, 889-90 (9th Cir. 1993).

B

We now consider whether the evidence in this case, includ-

ing Nisperos’s expert testimony, was sufficient to support

Smith’s conviction. A conviction will be sustained if, viewing

the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential ele-

ments of the crime beyond a reasonable doubt. Jackson v. Vir-

ginia, 443 U.S. 307, 319 (1979).

To support the conviction for assault with a dangerous

weapon in violation of 18 U.S.C. § 113(a)(3), the government

was required to prove beyond a reasonable doubt that Smith

(1) intentionally struck or wounded the victim, (2) acted with

the specific intent to do bodily harm, and (3) used a “danger-

ous weapon.” Etsitty, 130 F.3d at 427. On appeal, Smith only

challenges the sufficiency of the evidence with respect to the

third element: that he used a “dangerous weapon.”

[11] A “dangerous weapon” includes not only objects that

are dangerous per se, but also objects used in a way capable

of causing death or serious bodily injury. Riggins, 40 F.3d at

1057. “Serious bodily injury” is defined as any bodily injury

that involves “(A) a substantial risk of death; (B) extreme

UNITED STATES v. SMITH 3261

physical pain; (C) protracted and obvious disfigurement; or

(D) protracted loss or impairment of the function of a bodily

member, organ, or mental faculty.” 18 U.S.C. §§ 113(b)(2),

1365(h)(3). Thus, we must consider whether any rational trier

of fact, when viewing the evidence in the light most favorable

to the prosecution, could have found beyond a reasonable

doubt that the prison-made knife fashioned from Styrofoam

trays was capable of inflicting serious bodily injury.5

[12] Smith argues that the evidence was insufficient to sup-

port such a conclusion, pointing to testimony that the prison

staff had not previously considered the very thin plastic Styro-

foam meal trays—the raw materials used to make the knife—

to be potential weapons. This argument is without merit. We

have previously held that a shoe, which like a Styrofoam tray

in this case may not be readily identified as potential weapon,

could, as a matter of law, be a dangerous weapon. Riggins, 40

F.3d at 1057. Similarly, we cannot accept the argument that

the evidence was insufficient to support a finding that Smith

used a dangerous weapon simply because the prison-made

knife had its genesis in otherwise innocuous Styrofoam meal

trays. Smith altered these trays from the original state to

create a hard, flat object about six inches in length and sharp-

ened to a point to be used as a weapon.

Smith also contends that the evidence was insufficient to

support a finding that the knife was a dangerous weapon

because testimony established that Jeffries’s injuries consisted

of lacerations and abrasions requiring only minor first aid. We

are equally unpersuaded. The critical inquiry is not whether

the prison-made knife inflicted “seriously bodily injury,” but

whether it was capable of inflicting such injury. That the inju-

ries in this case required only minor first aid is of no moment.

5

Because Smith did not raise this specific insufficiency of the evidence

claim in his Fed. R. Crim. P. 29 motion or in his new trial motion, we

review for plain error. United States v. Delgado, 357 F.3d 1061, 1068 (9th

Cir. 2004).

3262 UNITED STATES v. SMITH

We have previously rejected an argument that a belt and shoe

could not be a dangerous weapon because in that particular

case they only inflicted welts and bruises, nothing more. Id.

at 1057.

[13] Rather, we are persuaded that the evidence presented

in this case was sufficient for a rational trier of fact to con-

clude that the prison-made knife was a dangerous weapon.

The testimony and photographs of the prison-made knife, as

well as the knife itself, establish that it was formed by melting

down Styrofoam trays and hardening them into a flat plastic

material of about six inches in length and sharpened to a

point. Moreover, testimony and photographs establish that,

while Jeffries’s injuries required only minor first aid, several

lacerations cut through the skin of his eyelid and the top of his

head. Nisperos referred to these cuts as a “full skin thickness.”

As Nisperos further testified, two of those wounds came close

to cutting Jeffries’s right eye: one of those cuts was about ten

centimeters inches long to the upper eyelid, and another was

about eight centimeters long and pierced the skin of his right

eyelid. Nisperios also noted a superficial abrasion on Jef-

fries’s neck that was about six centimeters long and multiple

superficial abrasions and lacerations on Jeffries’s lower back.

Finally, Nisperos provided expert testimony that “if someone

was stabbed in a vital organ with that prison-made knife the

injury could be fatal.” Considering all of the evidence pre-

sented at his trial in the light most favorable to the prosecu-

tion, we are persuaded that a rational trier of fact could con-

clude that the prison-made knife was capable of causing

“serious bodily injury” and therefore was a “dangerous weap-

on.” See Riggins, 40 F.3d at 1057.

IV

Because the jury instructions in this case did not relieve the

government of its burden to prove beyond a reasonable doubt

that Smith used a “dangerous weapon,” and because the evi-

UNITED STATES v. SMITH 3263

dence was sufficient to support the verdict, we reject Smith’s

challenge to his conviction.

AFFIRMED.

D.W. NELSON, Senior Circuit Judge, Dissenting:

I.

The rationale for reversing Smith’s conviction is straight-

forward. Smith was convicted of assault with a dangerous

weapon for attacking a fellow prisoner with a knife made out

of plastic and Styrofoam. The knife broke during the assault,

resulting in injuries requiring only “minor first aid.” The prin-

cipal defense at trial was that the plastic knife was not a “dan-

gerous weapon” because it was incapable, as used, of causing

death or serious bodily injury.

The trial court gave the following jury instruction:

The defendant is charged in Count Two of the

indictment with assault with a dangerous weapon, in

violation of Section 113(a)(3) of Title 18 of the

United States Code.

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,

the defendant intentionally struck or wounded

George Jeffries; Second, the defendant acted with

the specific intent to do bodily harm to George Jef-

fries; and Third, the defendant used a prison-made

knife.

A prison-made knife is a dangerous weapon if it

is used in a way that is capable of causing death or

serious injury.

3264 UNITED STATES v. SMITH

(emphasis added).1

Smith objected to the instruction because it did not require

the jury to find him guilty of the offense beyond a reasonable

doubt. Indeed, the three elements, as enumerated in the

instruction, do not even include the term “dangerous weap-

on,” even though use of such an instrument is an element of

the offense. See 18 U.S.C. § 113(a)(3). Furthermore, it is

unclear how the jurors used the last statement of the instruc-

tion, if at all, in their deliberations. They could have inter-

preted the statement as a legal conclusion—that this prison-

made knife was a dangerous weapon—which would have

completely usurped the jury’s role as fact-finder regarding the

principal element for which Smith mounted a defense. United

States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994).

Moreover, even if the jury did not interpret it as a statement

of fact, the instruction does not require the jury to find beyond

a reasonable doubt that the plastic and Styrofoam knife was

capable of causing death or serious bodily injury. In fact, the

instruction specifically listed three elements that the jury was

required to find beyond a reasonable doubt, and the fact that

Smith used a “dangerous weapon” is omitted from that list.

Thus, the last statement in the instruction could have been

interpreted to be not an element of the crime, but instead a

statement merely intended to clarify an element of the offense

without requiring strict adherence to the beyond-a-reasonable-

doubt standard.

Smith proposed an alternative instruction, requiring that the

jury find, as the third element, that he “used a dangerous

weapon,” and that a dangerous weapon is “an object . . . used

in a way that is capable of causing death or serious bodily

1

This mirrors Ninth Circuit Model Criminal Jury Instruction 8.5. For

reasons explained herein, the model instruction is insufficient and should

be abandoned in favor of an instruction similar to that used in other cir-

cuits.

UNITED STATES v. SMITH 3265

injury.” Thus, he suggested that the court replace “prison-

made knife” with “dangerous weapon” at both places the term

appeared in the instruction. Although it would have been a

minor textual change, the effect would have been significant,

as it would have avoided the insufficiencies discussed above,

and it would have incorporated the terms of the offense with

which Smith was charged: assault with a dangerous weapon.

II.

Our recent en banc decision in Medley v. Runnels strongly

suggests that Smith’s conviction should not be upheld. 506

F.3d 857 (9th Cir. 2007) (en banc). Medley was convicted in

state court of murder and received a twenty-year enhancement

for discharge of a firearm during commission of a felony. Id.

at 860. At trial, Medley argued that a flare gun did not qualify

as a firearm. Id. Under California Penal Code § 12001(b), a

firearm is defined as “any device designed to be used as a

weapon, from which is expelled through a barrel, a projectile

by the force of any explosion, or other form of combustion.”

The judge was satisfied that a flare gun fell under this defini-

tion, and instructed the jury that “[a] flare gun is a firearm.”

Id. Medley did not challenge this instruction at trial, but in

subsequent habeas petitions, argued that it violated his due

process rights. Id. The question before the en banc panel was:

“Did the trial judge’s instruction that ‘[a] flare gun is a fire-

arm’ relieve the State of the burden of proof . . . on the critical

question of whether Medley’s flare gun was designed to be

used as a weapon?” Id. at 864. We stated:

By instructing the jury that a flare gun is a firearm,

the court did not permit the jury to make the factual

determination as to whether the object used by Med-

ley was designed to be used as a weapon and expels

a projectile through a barrel by the fore of an explo-

sion.

Id. The error was not harmless because we could not “con-

clude that the jury would have convicted Medley of use of a

3266 UNITED STATES v. SMITH

‘firearm’ ” had the judge properly instructed the jury on each

element of the offense. Id. at 867. We ultimately held:

Because “designed to be used as a weapon” is an ele-

ment of the offense and an issue of fact, the trial

court’s direction to the jury that a flare gun is a fire-

arm was constitutional error. This instruction took a

critical issue of fact away from the jury in violation

of clearly established constitutional law. Accord-

ingly, Medley’s enhancement . . . must be vacated.

Id. (internal citations omitted).

Medley should control the outcome in this case. In the

majority’s view, this case can be distinguished because “the

district court never took such a critical issue away from the

jury’s determination because the district court never

instructed the jury that Smith’s prison-made knife was a dan-

gerous weapon.” Maj. Op. at 3256. Although the error here

may not have been as egregious as the flawed instruction

given in Medley, the effect was the same — the prosecution’s

burden of proof was blurred. Here, whether Smith “used a

dangerous weapon” is an element of the offense and an issue

of fact. Just as the trial court in Medley committed constitu-

tional error by instructing the jury that a flare-gun is a firearm,

the trial court here erred by obscuring the burden of proof on

whether a prison-made knife is a “dangerous weapon.” The

trial court’s direction was fatally flawed because it impeded

the jury’s ability to ascertain for itself whether this prison-

made knife was, indeed, a “dangerous weapon.” Medley

makes clear that such an instruction is a reversible error

because it relieved the State of its burden of proof on an

essential element of the crime. 506 F.3d at 867.

III.

Our holding in United States v. Brooksby, 668 F.2d 1102

(9th Cir. 1982), also counsels us to reverse Smith’s convic-

UNITED STATES v. SMITH 3267

tion. In Brooksby, the trial court omitted “willfulness” from a

jury instruction regarding an offense of which “willfulness”

was an element. Id. at 1104. Instead, the court read the indict-

ment, the statute, and two separate instructions regarding will-

fulness. Id. at 1105. We determined that an instruction that

omits a key element of the offense cannot be cured merely by

using a patch-work approach. Id. We held that while “the

court correctly stated the law by reading the indictment and

the statute and defining the term ‘willfully’ . . . [it] incorrectly

listed only three of the elements that would be necessary to

be proven beyond a reasonable doubt in order to convict the

defendant.” Id.

Moreover, in Brooksby, as here, the defendant objected to

the instruction as given and proposed an additional instruction

to cure the deficiency in the court’s instruction. Id. at 1103-

04. In Smith’s case the court did not even instruct the jury that

the government shouldered the burden of proving beyond a

reasonable doubt a key element of the offense (i.e., that Smith

used a dangerous weapon)—an instruction that the court did

give in Brooksby. Thus, if anything, the error in Smith’s case

is more significant than that in Brooksby.

The majority concedes that the instruction was not ideal,

but it argues that the instruction as a whole was not mislead-

ing, citing our holding in United States v. Frega, 179 F.3d

793, 806 n.16 (9th Cir. 1999). I disagree. While the instruc-

tion need not be “artful,” it must ensure that the government

proved every element to a unanimous jury beyond a reason-

able doubt, and it must be held invalid if there is “a reason-

able likelihood that the jury . . . applied the . . . instruction in

a way that violates the Constitution.” Estelle v. McGuire, 502

U.S. 62, 67 (1991) (internal quotations omitted). For the rea-

sons explained heretofore, there is at least a reasonable likeli-

hood that the jury applied the instruction improperly,

especially when we consider that “dangerous weapon” does

not appear anywhere in the instruction as an element of the

crime.

3268 UNITED STATES v. SMITH

The majority’s argument that there is a “close connection”

between the last statement in the instruction and the third ele-

ment of the offense is also unavailing. Although the two state-

ments are related, as already explained, the context in which

they are used easily distinguishes them: the former requires a

finding beyond a reasonable doubt while the latter appears to

require something less (perhaps even no finding at all). There-

fore, the majority’s assertion that the jury would have had to

interpret the last statement as “mere surplusage” is incorrect.

Similarly, the majority’s argument that the court’s prelimi-

nary statement to the jury that the charge is “assault with a

dangerous weapon” does not cure the instruction. While it

stated that Smith was charged with “assault with a dangerous

weapon, in violation of Section 113(a)(3),” there is no further

mention of the statute or its requirements in the instruction,

and it cannot be true that merely reciting the charge is suffi-

cient for instructing the jury on what elements must be proven

beyond a reasonable doubt.

Additionally, it is unreasonable to conclude that the instruc-

tion was harmless. See Medley, 506 F.3d at 867 (instruction

that takes away “critical issue of fact away from the jury” is

reversible error). Smith’s primary defense was that the plastic

and Styrofoam knife was incapable of causing serious bodily

harm, and that, therefore, it was not a “dangerous weapon.”

Indeed, at trial, each side offered substantial testimony regard-

ing that specific issue, and on appeal, other than pointing to

the erroneous jury instruction, Smith only challenges his con-

viction on the ground that the evidence was insufficient to

prove he used a “dangerous weapon.” Although the majority

is correct that jury instructions are to be considered as a

whole, “they must also be considered in context and as part

of the whole trial.” Brooksby, 668 F.2d at 1105 (quoting

United States v. Elksnis, 528 F.2d 236, 238 (9th Cir. 1975)).

Thus, as was the case in Brooksby, because the defendant’s

primary defense concerned an element of the crime that was

UNITED STATES v. SMITH 3269

not sufficiently addressed in the jury instruction, error con-

cerning that instruction cannot be deemed harmless.

IV.

For the foregoing reasons, I do not believe that we can con-

clude that the flawed instruction in the instant case was

“harmless” beyond a reasonable doubt or that there is no “rea-

sonable likelihood that the jury applied the challenged instruc-

tion in a way that violates the Constitution.” Estelle, 541 U.S.

at 72, 437 (2004). Accordingly, I respectfully dissent. I would

also expressly disapprove of the continued use of Model

Criminal Jury Instruction 8.5 and adopt an instruction consis-

tent with those used in other circuits.