Sunday, April 12, 2009

Case o' The Week: Defense shanked by Styrofoam "knife," Malik Smith

A slow week in the Ninth for criminal decisions lets us stretch back a bit and discuss what may be one of Judge Michael Hawkins' (left) last en banc decisions: United States v. Malik Smith, No. 05-50375, 2009 WL 750279 (9th Cir. Mar. 24, 2009), decision available here.

Players: Hard-fought case by C.D. Cal. AFPD Davina Chen. Decision by Judge Hawkins, dissent by Judge Berzon.

Facts: Prison officials caught inmate Malik Smith stabbing another inmate with a shank made out of melted Styrofoam lunch trays. Id. at *1. The knife had a sharp point and caused a number of lacerations, but broke during the assault. Id. Smith was charged with assault with intent to commit murder, and assault with a dangerous weapon. Id. at *2. The standard jury instruction – given over defense objection – stated 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.” Id. at *2. Smith appealed after conviction on the “dangerous weapon” assault-charge, arguing that the instruction had relieved the government of its burden of proving that the shank was in fact a “dangerous weapon.” Id.

Issue(s): “We . . . 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.” Id. at *1.

Held: “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 defendant used a dangerous weapon . . . 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.” Id. at *1 (internal quotations and citation omitted).

Of Note: The majority readily concedes the instruction was erroneous: the real fight is whether this was Neder harmless error. Id. at *3-*4. Judge Hawkins first describes a “dangerous weapon” as something that can cause “great bodily harm” – and defines that term for the first time in the Ninth by reference to an analogous statute. Id. at *4. Because the Smith’s Styrofoam shank sliced the victim’s eyelid – and could have pierced his eye – the majority finds the knife was both inherently dangerous and used in a manner that risked great bodily harm. Id. at *4-*5.

Dissenting Judge Berzon (joined by Judges Schroeder, Reinhardt, Wardlaw, and Paez) doesn’t buy it. Id. at *6. The Styrofoam “knife” broke when Smith hit the victim in the back, and that wound just required first aid. In short, it isn’t clear that the shank could have reached vital organs. The government’s medical “expert” – who had twice failed the medical boards – didn’t persuade the dissenters otherwise. The five dissenters (just one short!) would have left the fact-finding on this critical element to the jury – a persuasive argument, particularly in this post-Booker world.

How to Use: Judge Berzon invites the defense to tackle the traditional federal definition of “dangerous weapon” – which has included things like a shoe, a pot, or a chair. Id. at *6 n.1. In her view, that stretches the term “weapon” too far – Congress didn’t mean to deter folks from “wearing shoes, cooking in pots, or sitting in chairs and then deciding to use them to hurt someone.” Id. An interesting issue to flag for a future case.

For Further Reading: Judge Michael Daly Hawkins, a Clinton appointee, recently announced his intention to take senior status. See Ninth Circuit press release here. While a former United States Attorney, Judge Hawkins doesn’t hesitate to hold the government’s feet to the fire. See United States v. W.R. Grace, 525 F.3d 499, 524 (9th Cir. 2008) (en banc) (Hawkins, J., concurring), decision available here. He also is a strong advocate for a defendant’s Confrontation Clause rights. See United States v. Larson, 495 F.3d 1094, 1113 (9th Cir. 2007) (en banc) (Hawkins, J., dissenting), decision available here . While Judge Hawkins will still maintain an active caseload, his senior status may allow a bit more time for his passion for herpetology (and specifically, Arizona Diamondbacks).

Photo of the Hon. Michael Daly Hawkins courtesy of the blog at . Arizona Diamond Backs logo from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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