United States v. Smith

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 subsequently granted rehearing en banc.

Although we hold there was a “reasonable likelihood” the trial judge’s instructions…