No. 05-50375.

520 F.3d 1097 (2008)

UNITED STATES of America, Plaintiff-Appellee, v. Malik SMITH, a/k/a Michael Marvin Montana, Tarid M. Smith, Tarik N. Smith, Tarik Smith, Tarik Marchand Smith, Tarik Malik Smith, Milik and Tarid Smith, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed March 31, 2008.

Memorandum Filed May 26, 2006.

Memorandum Withdrawn March 31, 2008.

Attorney(s) appearing for the Case

Davina T. Chen, Deputy Federal Public Defender, Los Angeles, CA, argued the cause for the defendant-appellant, and filed briefs; Maria E. Stratton, Federal Public Defender, Los Angeles, CA, was on the briefs.

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

Before: D.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.

O'SCANNLAIN, Circuit Judge:

We must primarily decide whether a jury instruction impermissibly relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a "dangerous weapon," an essential element of the crime.


In August 1999, four inmates at the federal penitentiary in Lompoc, California, were in...


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