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U.S. v. SMITH

No. 05-50375.

561 F.3d 934 (2009)

UNITED STATES of America, Plaintiff-Appellee, v. Malik SMITH, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed March 24, 2009.

As Amended April 9, 2009.

Attorney(s) appearing for the Case

Davina T. Chen, Deputy Federal Public Defender (authored briefs and presented oral argument), Los Angeles, CA, for the defendant-appellant.

Erik Michael Silber, Assistant United States Attorney (presented oral argument), and Craig H. Missakian, Assistant United States Attorney (authored brief), Los Angeles, CA, for the plaintiff-appellee.

Opinion by Judge HAWKINS; Dissent by Judge BERZON.

HAWKINS, Circuit Judge:

We primarily consider whether a jury instruction impermissibly relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a "dangerous weapon" and whether any error in the instruction was harmless. A panel of our court held that the jury instruction was not defective and affirmed the defendant's conviction. United States v. Smith, 520 F.3d 1097 (9th Cir.2008). We...

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