FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-50375 Plaintiff-Appellee,

D.C. No.

v.  CR 03-728-PA

MALIK SMITH,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

December 17, 2008—Pasadena, California

Filed March 24, 2009

Before: Alex Kozinski, Chief Circuit Judge,

Mary M. Schroeder, Stephen Reinhardt, Andrew J. Kleinfeld,

Michael Daly Hawkins, Susan P. Graber,

Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez,

Marsha S. Berzon, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Hawkins;

Dissent by Judge Berzon

3735
COUNSEL

Davina T. Chen, Deputy Federal Public Defender (authored

briefs and presented oral argument), Los Angeles, California,

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, California, for the plaintiff-appellee. 

OPINION

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 “misled” the jury to think they did

not have to determine beyond a reasonable doubt that the

UNITED STATES v. SMITH 3739
defendant used a dangerous weapon, see Middleton v. McNeil,

541 U.S. 433, 437 (2004) (per curiam), we nevertheless

affirm Smith’s conviction because we “conclude that it is

‘clear beyond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error.’ ” United

States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir.

2000) (en banc) (quoting Neder v. United States, 527 U.S. 1,

18 (1999)). 

Smith also challenges his sentence. Concluding that the district court erred in delegating its statutory duties and applying

the Sentencing Guidelines to the facts of this case, we vacate

Smith’s sentence and remand for further sentencing proceedings consistent with this Opinion.

I.

A.

Prison officials at the federal penitentiary in Lompoc, California, found Charles Helem holding George Jeffries from

behind while Malik Smith was stabbing Jeffries with a prisonmade knife. The knife used in the assault was a flat, six-inchlong “shank” fashioned from melted plastic dishware. It was

hard and sharpened to a point. Although the prison-made

knife broke in two under the force of the stabbing, Smith continued to strike Jeffries with one of the pieces until Jeffries

broke away. 

After the altercation, the three inmates were examined by

Reynaldo Nisperos, a physician’s assistant at the prison.

Nisperos—a twenty-year veteran of the Bureau of Prisons

who has treated between fifty and one hundred prison

stabbings—found no injuries on Helem and only minor abrasions on Smith’s hands and lower lip. His examination of Jeffries, however, revealed “very extensive injur[ies],”

including: a “ten centimeters,” “full-skin thick” laceration on

Jeffries’s right eyelid; an “eight centimeters full-skin thick3740 UNITED STATES v. SMITH
ness laceration” on the left parietal region of his head; a third,

less serious laceration; superficial abrasions on his neck and

right knee; and several “abrasions and lacerations” of varying

sizes on his lower back. Nisperos provided first aid to both

Smith and Jeffries for their injuries. 

After the incident, the prison punished Smith for assault

and possession of a sharpened instrument, imposing 120 days

of disciplinary segregation and deducting 360 visitor days and

80 days of good conduct time. Smith was subsequently

released from prison in 2002.

B.

After his release, Smith was charged in connection with the

prison fight with “Assault with intent to commit murder,” in

violation of 18 U.S.C. § 113(a)(1), and “Assault with a dangerous weapon, with intent to do bodily harm,” in violation of

18 U.S.C. § 113(a)(3). At trial, Lieutenant Jaime Bengford

testified that the prison-made knife had been made by accumulating and melting down plastic meal trays to create a

“weapon.” Testifying as a medical expert,1 Nisperos

explained to the jury the severity of Jeffries’s injuries,

describing them as “very extensive” and detailing the locations of the specific wounds. When subsequently asked

whether, “in your opinion, based on your experience, if someone was stabbed in a vital organ with that prison-made knife,

could that injury be fatal,” Nisperos testified that the prisonmade knife “could cause very fatal injuries.” Smith never

challenged, on cross-examination or at any other time before

the jury, Nisperos’s conclusions that the prison-made knife

did cause “very extensive” injuries, including a skin-deep laceration on Jeffries’s eyelid, or that it could have caused fatal

injuries. 

1Smith challenged Nisperos’s certification as a medical expert at trial

and before the initial three-judge panel of this court. The panel upheld the

certification, and Smith has not raised the issue on petition for rehearing.

UNITED STATES v. SMITH 3741
At the conclusion of trial, the court instructed the jury on

assault with intent to commit murder, assault with a dangerous weapon, and the lesser-included offense of simple assault.

Tracking this circuit’s then-current Model Criminal Jury

Instruction 8.5, the trial court instructed the jury on assault

with a dangerous weapon as follows: 

The defendant is charged in Count 2 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 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.2

(Emphasis added.) 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.” 

The jury acquitted Smith of attempted murder but convicted him of assault with a dangerous weapon. The court

2Model Criminal Jury Instruction 8.5 has since been amended to correct

the defect raised by this appeal. As of April 2008, that instruction now

requires the jury to find “[t]hird, the defendant used a dangerous weapon”

and explains that a particular object “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 Instr. 8.5 (2008) (emphasis added). 

3742 UNITED STATES v. SMITH
sentenced Smith to 100 months in prison to run consecutively

with his undischarged term of imprisonment, followed by

three years of supervised release. Smith timely appealed,

arguing in part that the district court’s jury instruction had

improperly charged the jury to find only that Smith committed assault with a prison-made knife, rather than assault with

a dangerous weapon, effectively relieving the government of

the burden to prove the prison-made knife was a dangerous

weapon.

II.

A.

We review de novo the legal sufficiency of jury instructions. United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th

Cir. 2001). 

B.

[1] “[T]he Due Process Clause of the Fourteenth Amendment requires that the prosecution prove beyond a reasonable

doubt every fact necessary to establish each element of the

crimes charged.” Mejia v. Garcia, 534 F.3d 1036, 1042 (9th

Cir. 2008) (citing In re Winship, 397 U.S. 358, 364 (1970)),

cert. denied, 129 S. Ct. 941 (2009). A defendant is therefore

deprived of constitutional due process when the jury is not

properly instructed that the government bears the burden of

proving guilt beyond a reasonable doubt on each element of

the crime. Middleton, 541 U.S. at 437. Here, the trial court

stated that to support a conviction, the jury needed to find “the

defendant used a prison-made knife.” Although the court then

defined under what circumstances a prison-made knife constitutes a dangerous weapon, the instructions did not unambiguously require the jury to find the prison-made knife was, in

fact, a dangerous weapon. We therefore conclude there is a

“reasonable likelihood” the trial judge’s instructions “misled”

the jury to believe they did not have to determine beyond a

UNITED STATES v. SMITH 3743
reasonable doubt that the prison-made knife was a dangerous

weapon. 

[2] Not all constitutional errors require reversal, however.

The Supreme Court has specifically recognized that omitting

an offense element from a jury instruction is “ ‘simply an

error in the trial process itself’ ” and not a “ ‘defect affecting

the framework within which the trial proceeds.’ ” Neder, 527

U.S. at 8 (quoting Arizona v. Fulminante, 499 U.S. 279, 310

(1991)). Because such an error is not “structural,” it “does not

necessarily render a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.” Id. at

8-9. 

Non-structural constitutional errors like the one at issue

here are therefore subject to harmless error review. See Chapman v. California, 386 U.S. 18 (1967). When “a reviewing

court concludes beyond a reasonable doubt that the omitted

element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same

absent the error, the erroneous instruction is properly found to

be harmless.” Neder, 527 U.S. at 17; see also GracidasUlibarry, 231 F.3d at 1197 (error is harmless if “we conclude

that it is ‘clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error’ ”

(quoting Neder, 527 U.S. at 18)). If the error is harmless, we

will affirm the conviction regardless of whether the instruction omitted or incorrectly described an element of the

offense. See Neder, 527 U.S. at 9-10; cf. United States v. Larson, 495 F.3d 1094 (9th Cir. 2007) (en banc) (affirming

despite an acknowledged Confrontation Clause error because

the error was harmless), cert. denied, 128 S. Ct. 1647 (2008).

Notwithstanding the defect in the trial court’s instructions

—and based on the evidence and argumentation actually presented to the jury—we hold it is clear beyond a reasonable

doubt that any rational jury would have found Smith guilty

even absent the error. 

3744 UNITED STATES v. SMITH
[3] An object is a dangerous weapon within the meaning of

18 U.S.C. § 113(a)(3) if it is either “inherently dangerous” or

otherwise “ ‘used in a manner likely to endanger life or inflict

great bodily harm.’ ” United States v. Riggins, 40 F.3d 1055,

1057 (9th Cir. 1994) (quoting United States v. Guilbert, 692

F.2d 1340, 1343 (11th Cir. 1982) (per curiam)) (finding a

“belt” and a “shoe” to be dangerous weapons given “the manner in which the object[s] w[ere] used”). Inherently dangerous

weapons, or “ ‘dangerous weapons per se,’ ” are “ ‘obviously

dangerous’ ” objects such as “ ‘guns, knives, and the like.’ ”

Id. (quoting Guilbert, 692 F.2d at 1343). Although we have

not previously defined “great bodily harm,” we find guidance

in the definition of “substantial bodily injury” in § 113 (incorporating by reference the definition of “substantial bodily

injury” in § 1365(h)). Therefore, we hold that “great bodily

harm” means “(A) a substantial risk of death; (B) extreme

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

(D) protracted 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). 

[4] Here, “overwhelming and uncontradicted evidence at

trial” indicated both that the prison-made knife was inherently

dangerous and that it was used in a manner that risked great

bodily harm to Jeffries. See United States v. Hollis, 490 F.3d

1149, 1157 (9th Cir. 2007) (holding that jury instruction

errors are harmless when there is “overwhelming and uncontradicted evidence at trial” concerning the omitted element).

[5] It is undisputed that the knife was formed by melting

Styrofoam meal trays into a hard, flat, six-inch-long shank,

which was sharpened to a dagger-like point. Nisperos provided uncontradicted expert testimony that the knife did cause

“full skin thickness” lacerations about Jeffries’s head and

face, and that it could have caused “very fatal injuries.” Smith

did not challenge these expert conclusions on crossexamination and, as his counsel conceded at oral argument,

entered no evidence at trial to rebut a conclusion that the

UNITED STATES v. SMITH 3745
shank was a dangerous weapon. There is therefore no reasonable doubt that any rational jury would have found that the

prison made knife at issue here—designed for, and capable of,

inflicting great bodily harm—was an inherently dangerous

weapon within the meaning of 18 U.S.C. § 113(a)(3). 

[6] It is also clear beyond a reasonable doubt that any rational juror would have found Smith used the prison-made knife

in a manner likely to inflict extreme physical pain, cause

obvious disfigurement, or impair the function of a bodily

organ. While Jeffries did not require hospitalization, he sustained “very extensive injur[ies],”

3

 including two lacerations

penetrating the entire thickness of his skin about his head and

face. He also nearly lost an eye: Smith’s counsel conceded at

oral argument that the evidence established that the ten centimeters long laceration within the fold of Jeffries’s inner eyelid was caused by the shank and that, if Smith’s stroke had

“been more precisely targeted,” Jeffries could have lost the

eye and thereby sustained serious bodily injury. (Because the

evidence established as much, she explained, she did not raise

a sufficiency of the evidence claim on appeal.)4 Given the evi3Although Nisperos checked a box on his incident report indicating that

Jeffries’s extensive injuries required only “minor first aid,” his testimony

indicates that if a patient does not have “a lot of blood loss [or] organ

damage” requiring “outside hospital[ization],” the patient will be treated

at the prison with “minor first aid,” including, for example, the suturing

of lacerations. The only reasonable inference to be drawn from the incident report, therefore, is that Jefferies’s injuries were not so severe that he

required emergency hospital care for extreme blood loss or organ damage.

4While Smith’s appellate counsel’s admission does not constitute evidence in the record, it does constitute a concession about the evidence in

the record: that it left the jury with no reasonable doubt that the shank

caused the injury on Jeffries’s eyelid. This conclusion has never been disputed at any point in the long history of this case. Thus while we agree

with the dissent’s characterization of “[o]ur task in conducting the harmless error analysis” here, [Dissent at 3753-54 n.2], we note further that the

task requires us to refrain from conjuring factual disputes that were never

presented to the jury, that are unsupported by the evidence, and that have

accordingly been waived on appeal. We must consider the trial Smith

actually had, and not one he might hypothetically receive on remand. 

3746 UNITED STATES v. SMITH
dence before the jury regarding the severity and location of

Jeffries’ injuries, it is clear beyond a reasonable doubt that

any rational juror would have found that Smith’s specific use

of the prison-made knife was capable of causing serious bodily injury. 

[7] Whether the jury found Smith did not intend to kill Jeffries,5

 and whether Smith did in fact inflict great bodily harm

within the meaning of the law, are both immaterial to whether

Smith used the shank in a manner that made it likely that Jeffries would suffer such harm. As the dissent itself acknowledges, “Smith struck him with a sharpened object in a

downward motion with a high degree of force” about his face,

head, and shoulders, [Dissent at 3753], causing, in Nisperos’s

words, “very extensive injur[ies].” Those injuries demonstrate

that Smith used the shank in a manner that seriously risked

blinding Jeffries in his right eye and otherwise inflicting

extreme physical pain. See Riggins, 40 F.3d at 1057 (belt and

shoe were dangerous weapons where defendant beat child “as

hard as she could” and expert testified victim could have suffered severe injury or death, despite fact that victim “only suffered welts and bruises”). The overwhelming and

uncontradicted evidence therefore leaves no doubt that

Smith’s use of the weapon was “ ‘likely to . . . inflict great

bodily harm’ ” upon Jeffries. Id. at 1057 (quoting Guilbert,

692 F.2d at 1343). 

Smith nevertheless argues the error in the jury instructions

5Smith’s acquittal on the attempted murder charge does not suggest the

jury “did not believe that the object was used in the manner the prosecutor

suggested or that it did not believe that the object was, as Nisperos testified, capable of causing ‘very fatal injuries’ (or both).” [Dissent at 3755].

Smith’s acquittal of “Assault with intent to commit murder,” 18 U.S.C.

§ 113(a)(1), coupled with his conviction for “Assault with a dangerous

weapon, with intent to do bodily harm,” 18 U.S.C. § 113(a)(3), demonstrates only that the jury did not believe he intended to kill Jeffries. It says

nothing at all about either the latent capabilities of the prison-made knife

or whether it was used in a manner likely to inflict great bodily harm. 

UNITED STATES v. SMITH 3747
was not harmless because the evidence demonstrating the

prison-made knife was a dangerous weapon was both “underwhelming” and “contested.” Neither claim is persuasive.

Although Smith contested Nisperos’s certification as an

expert, he never once challenged any of Nisperos’s unambiguous expert opinions about the nature of the shank or the

extent of Jeffries’s injuries. 

Smith points to Lieutenant Bengford’s testimony that the

unaltered Styrofoam food trays from which the shank was

fashioned were “thin, very thin plastic” and “would not be

perceived as a possible weapon or a potential weapon” to

argue the jury could have found the shank was not a dangerous weapon. But this testimony was unambiguously elicited

for the purpose of casting doubt on whether Smith had himself melted the trays to create the shank, not whether the

shank was indeed a dangerous weapon. In fact, the exchange

between Smith’s counsel and the prison official on this issue

concluded as follows:

Q: [W]as [there] evidence consistent with creating

a weapon in Mr. Smith’s cell . . . ? 

A: . . . . So, no, if a tray was—because they’re thin,

very thin plastic, these common-fare trays,

where the meat item comes in. It’s only about

a three-by-five-inch piece of plastic. So it’s not

considered, in itself, as a potential weapon.

Q: But when it’s melted down or burnt, it is a

weapon; correct?

A: When you accumulate a few of those, you could

put them together and melt it down into a

weapon, yes.

Q: Okay. And in this case, there was no evidence

that was consistent or showed that Mr. Smith

had created this weapon in his cell; correct?

3748 UNITED STATES v. SMITH
(Emphasis added.) Thus not only did Smith never submit any

evidence or argue before the jury that the prison-made knife

was not a dangerous weapon, but his counsel’s questions

assumed (if not conceded) that it was a “weapon.” In fact,

throughout the entire three-day trial, Smith’s counsel consistently referred to the implement at issue here as a “knife” and

a “shank”—words that both colloquially connote inherent dangerousness.6

C.

[8] In the absence of any evidence or argument before the

jury to contest the government’s overwhelming case, it is

clear beyond a reasonable doubt that any rational juror would

have found the prison-made knife was a dangerous weapon

within the meaning of 18 U.S.C. § 113(a)(3), regardless of

whether the jury instructions were constitutionally defective.

III.

A.

Smith also challenges the terms and conditions of his sentence. “ ‘We review de novo the district court’s interpretation

of the United States Sentencing Guidelines, review for clear

error the district court’s factual determinations, and review for

abuse of discretion the district court’s applications of the

Guidelines to the facts.’ ” United States v. Gomez-Leon, 545

F.3d 777, 782 (9th Cir. 2008) (alteration omitted) (quoting

United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007)).

“We must reverse if the district court committed a significant

procedural error, such as incorrectly calculating the advisory

6

See Webster’s New International Dictionary 1249, 2087, 2589 (3d ed.

2002) (defining a “knife” as “a [weapon] consisting of a sharp-edged

blade provided with a handle”; a “weapon” as “something (as a club,

sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy”; and a “shank” as a “knife”). 

UNITED STATES v. SMITH 3749
Guidelines’ sentencing range.” Id. at 782-83 (citing Gall v.

United States, 128 S. Ct. 586, 597 (2007); United States v.

Carty, 520 F.3d 984, 991-93 (9th Cir.) (en banc), cert. denied,

128 S. Ct. 2491 (2008)).

B.

[9] As a condition of his supervised release, Smith was

required to submit to an unspecified number of non-treatment

drug tests. The district court did not state the maximum number of drug tests Smith was required to take, and the government concedes that this failure constituted an impermissible

delegation of the court’s statutory duty under 18 U.S.C.

§ 3583(d). See United States v. Stephens, 424 F.3d 876, 883-

84 (9th Cir. 2005).7

[10] Smith argues further that the district court applied the

wrong standard to his request for concurrent, rather than consecutive, sentences. The government has also conceded that

the district court erroneously consulted U.S.S.G. § 5G1.3(a),

rather than U.S.S.G. § 5G1.3(c), when it denied Smith’s

request for concurrent sentences. Because “the sentence

imposed . . . [was] a result of an incorrect application of the

Guidelines,” and we cannot say that “the error did not affect

the district court’s selection of the sentence imposed,” a “remand is required under § 3742(f)(1).” Williams v. United

States, 503 U.S. 193, 202-03 (1992). 

Accordingly, we AFFIRM Smith’s conviction, VACATE

the sentence imposed, and REMAND for resentencing as to

the conditions of his supervised release and the decision to

7Our conclusion here has no bearing on the continued validity of United

States v. Garcia, 522 F.3d 855 (9th Cir. 2008), where the district court

directed one of the defendants to “ ‘submit to one drug test within 15 days

of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.’ ” Id. at 860 (emphasis added). Here, as

in Stephens, the number of tests was to be set “by the probation officer.”

Stephens, 424 F.3d at 883. 

3750 UNITED STATES v. SMITH
impose Smith’s sentence concurrently, partially concurrently,

or consecutively to his undischarged term of imprisonment. 

Conviction AFFIRMED; sentence VACATED;

REMANDED for resentencing.

BERZON, Circuit Judge, with whom SCHROEDER,

REINHARDT, WARDLAW, and PAEZ, Circuit Judges, join,

dissenting: 

I agree with the majority that the jury instructions given in

this case were erroneous, because they relieved the government of its burden of proving that the object in question was

a “dangerous weapon” within the meaning of the federal

assault statute. The given instructions purported to define

“dangerous weapon,” but, critically, failed to instruct the jury

that it must find, as an element of the offense — and, therefore, beyond a reasonable doubt — that Smith used a dangerous weapon. Given that error and the trial record, I cannot

agree with the majority that it is clear beyond a reasonable

doubt that a rational jury would have returned the same verdict had a proper instruction been given. See Chapman v. California, 386 U.S. 18, 23 (1967). I therefore respectfully

dissent. 

We have held that an object is a “dangerous weapon”

within the meaning of 18 U.S.C. § 113(a)(3) if it is “dangerous per se” or “used in a manner likely to endanger life or

inflict great bodily harm.”

1 United States v. Riggins, 40 F.3d

1

I am not at all sure that this standard is an appropriate interpretation of

the statute. Were the issue before us, I would probably conclude that a

“dangerous weapon” must be an object designed to injure someone

through the use of force, not an object — like a shoe or a pot or a chair

— that could seriously injure someone but is not meant for or likely to be

used for that purpose. Cf. Medley v. Runnels, 506 F.3d 857, 863-64 (9th

UNITED STATES v. SMITH 3751
1055, 1057 (9th Cir. 1994) (quoting United States v. Guilbert,

692 F.2d 1340, 1343 (11th Cir. 1982)). For objects that cannot

“obviously” be described as dangerous, Riggins, 40 F.3d at

1057, then, a conviction under § 113(a)(3) must rest not on

the object’s abstract capabilities, but instead on evidence that

the accused used the object during the commission of an

assault in a seriously endangering manner. We have therefore

emphasized that determining whether an object was so used

in a particular case is a fact-intensive inquiry reserved for the

jury. See id. 

The erroneous jury instructions removed this critical — and

dispositive — issue of fact from the jury. Smith’s defense at

trial questioned the dangerousness of the Styrofoam “prisonmade knife” by attacking its inherent capabilities, by emphasizing the relatively minor extent of the injuries it allegedly

caused, and by contesting the prison guard witnesses’ version

of how it was used. Unlike the majority, I cannot say that the

Cir. 2007) (en banc) (recognizing that the California statute in question

requires that a “firearm” be “designed to be used as a weapon”). It seems

evident to me that a “weapon” describes a specific kind of object, not any

object that can injure someone. Congress’s purpose in providing an

enhancement for use of a dangerous weapon, I would likely conclude, was

to deter possession of, access to, and use of objects particularly dangerous

in themselves, not the use of everyday objects that are not meant as objects

of violence but can be used for that purpose. In other words, Congress

wanted to deter people from having and using guns, switchblades, and

brass-knuckles, but not from wearing shoes, cooking in pots, or sitting in

chairs and then deciding to use them to hurt someone. The use of everyday

objects to exert additional force does not seem sufficiently different from

throwing a good punch to come within the statutory language or Congress’s purpose. 

There has been no direct challenge in this case, however, to the Riggins

line of cases holding otherwise. Also, an appropriately instructed jury

probably could have found that the prison-made knife falls on the “dangerous weapon” side of the line I suggest, as it was at least designed to inflict

injury, whether capable of doing so or not. I therefore do not dissent on

this ground. 

3752 UNITED STATES v. SMITH
evidence of the object’s dangerousness, either inherently or as

it was used, was so overwhelming that the jury instructions’

failure to direct the jury to decide this critical issue of fact was

harmless beyond a reasonable doubt. 

If anything, the bulk of the testimony at trial reasonably

suggested that the prison-made knife, as used during the altercation, was unlikely to cause serious bodily injury. The jury

heard from two correctional officers who observed the fight

in the prison yard. Both officers testified that while Jeffries

was restrained, Smith struck him with a sharpened object in

a downward motion with a high degree of force. One officer

offered a more specific account: he testified that Smith struck

Jeffries in the small of his back “really forcefully . . . it looked

like he was putting all of his effort into it.” But the testimony

also was that the object broke under that pressure and that,

despite Smith’s use of his utmost force, the injuries to Jeffries’s back required only minor first aid. Defense counsel

emphasized this point at closing. Thus, it would have been

reasonable for the jury to conclude that the object, even when

used as violently as possible, was capable of causing only

minor injuries. 

True, Jeffries’s physical examination after the incident

revealed a laceration on his right eyelid. There was no testimony, however, that Smith directed the prison-made knife

towards Jeffries’s face, nor any testimony, from Nisperos, the

medical examiner, or any one else, that Jeffries “nearly lost an

eye.”

2

 Maj. Op. at 3746. Nor, contrary to the majority’s

2Unlike the majority, I do not understand Smith’s appellate counsel’s

statements at oral argument as concessions about the jury’s likely understanding of the record in this case, and would not rely on them even if I

did so understand them. Our task in conducting the harmless error analysis

is to determine whether every member of the jury hearing the evidence in

this case would have concluded, beyond a reasonable doubt, that Smith

used the prison-made knife in a manner likely to inflict great bodily harm.

See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (“[T]he question

UNITED STATES v. SMITH 3753
account, see Maj. Op. at 3741, 3745, did Nisperos testify that

the injuries to Jeffries’s eyelid resulted from the prison-made

knife or the use of any other sharp object. In fact, the medical

term Nisperos used to describe the injury, “laceration,” signifies “a torn or jagged wound,” as opposed to a clean cut, suggesting that the wound was not inflicted by a sharp object. See

PDR Medical Dictionary 958 (2d ed. 2000); see also http://

www.healthatoz.com/healthatoz/Atoz/common/standard/

transform.jsp?requestURI=/healthatoz/Atoz/ency/wounds.jsp

(distinguishing “cuts,” “slicing wounds made with a sharp

instrument,” from “lacerations,” which are “produced by a

tremendous force against the body . . . from an external source

like a punch”). There was testimony that in addition to striking Jeffries with the sharpened object, Smith struck him with

his clenched fist. The photographic depiction of Jeffries’s

injury, from my lay perspective, reveals nothing more than a

pool of blood above his right eye, hardly a showing sufficient

to support the conclusion that a stabbing is the only plausible

explanation for the injury. The jury reasonably could have

concluded, instead, that the injury to the eyelid was the result

of punches thrown by Smith, not of the prison-made knife. 

In short, in the absence of any testimony establishing that

Smith directed the prison-made knife toward Jeffries’s eye, I

cannot conclude that it is clear beyond a reasonable doubt

that, had they been properly instructed, every member of the

[Chapman] instructs the reviewing court to consider is not what effect the

constitutional error might generally be expected to have upon a reasonable

jury, but rather what effect it had upon the guilty verdict in the case at

hand.”). For that reason, Smith’s appellate counsel’s statements, made

nine years after the fact, are irrelevant to our inquiry, as they reflect only

her assessment of the same trial evidence before us now. Neither her characterization of the testimony, nor, for that matter, any post-trial factual

concession about what actually happened during the altercation, bear on

our task. The only question posed is whether this jury, in its assessment

of the trial evidence, would have reached the verdict of guilty beyond a

reasonable doubt had a correct instruction been given. 

3754 UNITED STATES v. SMITH
jury would have found beyond a reasonable doubt that Smith

used the object in a manner likely to cause great bodily harm.

The medical examiner’s testimony that the object “could

cause very fatal injuries” does not convince me otherwise.

Nisperos, a medical professional who had twice failed the

American medical doctor board exams and had never before

testified as a forensic expert, testified that the object could

cause fatal injuries if directed at a vital organ. The jury could

well have decided not to rely on Nisperos’s opinion, given his

less-than-impressive medical background, the vagueness of

his testimony about the dangerousness of the object, and the

contradiction between his very general assertion and the

record fact that the object broke when used on the victim’s

back, after causing no more than minor lacerations. 

Moreover, Nisperos’s testimony is only marginally pertinent to the facts of this case, because there was paltry evidence that Smith attacked Jeffries in any vital organ. Defense

counsel stressed this point in closing argument, in part to

defend against the attempted murder charge. As the definition

the jury should have been given focuses on how the object

was used, the jury could have viewed Nisperos’s testimony as

off-to-the-side on the facts of this case. 

Tellingly, the jury acquitted Smith on the attempted murder

charge, suggesting either that it did not believe that the object

was used in the manner the prosecutor suggested or that it did

not believe that the object was, as Nisperos testified, capable

of causing “very fatal injuries” (or both). Either way, the

jury’s actual verdict indicates that it did not believe a great

deal of the evidence the majority relies on as indisputably

supporting the assault with a dangerous weapon verdict. 

Finally, although Smith’s counsel, as well as the prosecutors, referred to the object as a “weapon” and a “knife,” the

jury was required to find that the object is a “dangerous

weapon,” not just any weapon. As the majority observes, the

UNITED STATES v. SMITH 3755
use of such words may connote dangerousness, but this observation only highlights the prejudicial effect of failing to give

a correct jury instruction on dangerousness. Under the case

law, dangerousness is a critical question for the jury, not for

counsel or the court. 

I cannot conclude that the failure to give the correct instruction on dangerousness was harmless beyond a reasonable

doubt. I respectfully dissent.

3756 UNITED STATES v. SMITH