*1 unreasonably advantage failed to take IV. Conclusion opportunities or corrective of- preventive genuine Davis has raised issues of mate- employer, harm by fered or to avoid treatment, rial fact disparate on her retali- (citing Burling- otherwise. Id. at 1183-84 ation, and hostile work environment Indus., Ellerth, 742, ton Inc. v. 524 U.S. claims. The grant district court’s of sum- 765, 2257, 141 L.Ed.2d S.Ct. mary judgment in favor of Team Electric (1998)). available, This defense is howev- is therefore REVERSED. The case is er, only if not culmi- the harassment did REMANDED for proceedings further con- action,” “tangible nate in a employment sistent with opinion. this significant change employ- which is AND REVERSED REMANDED. status, ment discharge such as or undesir- reassignment. able Id.
Team Electric has failed to show that it steps prevent
took sexual harassment evidence, workplace.
its There is no for
example, that it had an anti-harassment America, UNITED STATES of policy, any preventive or that it had other Plaintiff-Appellee, in place, measures such as sexual harass- Nichols, training. ment 256 F.3d at Cf. project 877. One of Team Electric’s man- SMITH, Malik Michael Marvin a/k/a agers deposition “pretty stated Montana, Smith, Tarid M. Tarik N. much whoever has a problem goes to the Smith, Smith, Tarik Tarik Marchand project manager, and it’s dealt with in that Smith, Smith, Tarik Malik Milik and Nothing manner.” the record shows Smith, Defendant-Appellant. Tarid whether is a policy, written or even No. 05-50375. employees
whether are informed of the policy. alleged prohibit- Davis that she was United States Court of Appeals, from reporting problems anyone ed her Ninth Circuit. supervisors very but her immediate —the 3, Argued April and Submitted 2006. supervisors allegedly who created the hos- 26, May tile environment. Memorandum Filed 2006. Team Electric’s apparent attempt Memorandum Withdrawn March 2008. to correct the harassment came after Filed March BOLI, Davis contacted the following sever- alleged al months of mistreatment her
supervisors. There is no evidence that supervisors of these disciplined were
for their conduct or even to behave told
differently, and Team Electric has not advantage
shown that Davis failed to take any preventive or corrective opportuni- sum,
ties that offered. Team Electric successfully
has not an asserted affirma-
tive defense to Davis’s claim.
For these reasons we vacate the district finding summary judgment
court’s
her hostile work environment claim. *3 Chen, T. Deputy
Davina Federal Public Defender, CA, Angeles, Los argued the cause for the defendant-appellant, and briefs; Stratton, filed Maria E. Federal Defender, CA, Angeles, Public Los onwas the briefs. Missakian,
Craig H. Assistant U.S. At- CA, torney, Angeles, argued Los the cause brief; plaintiff-appellee, for the filed Wong Yang, Attorney, Debra U.S. O’Brien, Thomas P. Attor- Assistant U.S. ney, were the brief.
Before: D.W. NELSON O’SCANNLAIN, DIARMUID F. Circuit JONES,* Judges, and ROBERT C. Judge. District O’SCANNLAIN; Opinion by Judge by Judge Dissent D.W. NELSON. * Jones, Nevada, Judge sitting by designa- The Honorable Robert C. District for the District of
O’SCANNLAIN, right began. before the attack Judge: you’re hot” Circuit slang, In “hot” meant that Jeffries prison decide whether primarily must We was considered a snitch. relieved the impermissibly instruction prove beyond of its burden government criminal government did not file the defendant doubt reasonable incident, al- charges immediately after the weapon,” an essential used a though Smith was sanctioned administra- crime. element of the tively by prison. After Smith was indicted released I proceeded Smith for the assault. The case inmates at August four to trial. California, Lompoc, penitentiary federal trial, Beng- At Smith’s Lieutenant Jaime *4 Special cage recreation of the were weapon his that the explained ford belief Smith, Charles Wes- Housing Malik Unit: by melting down accumu- had been made Jeffries, Helem, and Milton ley George W. plastic trays prison lated thin on which noises, scuffling hearing After Johnson. Nísperos meals are served. described cage, where prison guards went injuries Jeffries sustained and the stabbing with a they saw Smith Jeffries photographs Nísperos viewed of them. object sharpened plastic while Helem held weapon could cause also testified object snapped him The into from behind. “very injuries.” specifically fatal He stat- pieces, but Smith continued to use one two ed that if the knife were used to hit an pieces of the to stab Jeffries. major organ artery, internal or a like the knife, object, was The vein, artery jugular it could carotid or the flat, long, sharpened inches and about six “major injuries.” cause The district court later point to a one end. Prison officials Nísperos opinion allowed to render wrapped found a similar knife a towel objection Nísperos over cage. The had been the recreation knives expertise qualify lacked sufficient to as an by melting very Styro- made down thin expert because he was not a doctor and trays forming foam and them into a hard qualify twice had failed the exam to as a plastic. determining Nísperos doctor. was incident, Reynaldo Nísperos, After the a qualified give opinion, his the court re- by physician’s employed pris- assistant Nisperos’s degree lied on medical from the on, injuries. the four inmates for examined Philippines, degree his bachelor’s in crimi- Helem and Johnson had none. Smith had nology, testimony and his that he had injuries palm right on the of his hand and treated inmates for inflicted wounds lip. on the inside of his Jeffries had sus- during knives 50 to 100 times cuts, one of tained several which was about years prison. his nineteen at the eight long pierced centimeters evidence, At the close of the Smith eyelid. right skin of Jeffries’s Another cut judgment acquittal pursu- for a moved approximately on the face was centim- ten ant to Fed.R.Crim.P. 29. On the assault Nisperios long. superfi- eters also noted a charge, with intent to commit murder he cial abrasion on Jeffries’s neck that was argued government that the had failed to long multiple about six centimeters prove he intended to commit murder. On superficial abrasions and laceration on Jef- Jeffries, dangerous weapon the assault with a According fries’s lower back. hot, yelled, charge, argued either or Helm “You’re he tion. II that he had assaulted failed to show
had
was not without
that the assault
Jeffries
charged
with assault
court denied
cause. The district
just
with a
violation of 18
motion.
113(a)(3),
§
which has three ele
U.S.C.
(1)
intentionally
that the defendant
ments:
to three
instructed the
The court
(2)
victim;
struck or wounded the
to commit
with intent
offenses: assault
specific
acted with the
intent to
defendant
murder,
dangerous weapon,
assault with
(3)
harm;
that the defendant
do
simple
included offense of
and the lesser
“dangerous weapon.”
used a
United
elements
The instructions on the
assault.
Etsitty,
States
weapon pro-
with a
of assault
Cir.1997)
curiam);
(per
18 U.S.C.
govern-
that the third element
vided
113(a)(3).
§
A “dangerous weapon,” we
prove beyond a reasonable
ment had to
held,
objects
have
includes not
pris-
that “the defendant used
doubt was
se,
objects
dangerous per
are
but also
immediately preced-
on-made knife.”
way capable
death or seri
advised
of the instructions
ing paragraph
bodily injury.
Rig
United States v.
(9th Cir.1994).
“charged
...
that Smith was
with gins, 40 F.3d
statute,
turn,
and the The
defines “serious bodi
dangerous weapon,”
assault with
*5
in
ly injury”
any bodily injury
that
immediately following
instructed
sentence
“(A)
(B)
death;
volves
a substantial risk of
knife is a
that “[a]
(C)
physical pain;
protracted
extreme
way
if it is used in a
dangerous weapon
(D) protracted
or
disfigurement;
obvious
causing
of
death or serious
capable
that is
a
impairment
or
of the function of
loss
in-
objected to the
bodily injury.” Smith
member,
faculty.”
bodily
organ, or mental
structions,
third ele-
contending that
1365(h)(3).
113(b)(2),
§§
See 18 U.S.C.
of
usurped
jury’s
ment
role as finder
dangerous weapon
a
constitutes
“[W]hat
qualified
the knife
as a
fact as to whether
question
a
case is a
of fact for
particular
in-
weapon.” Based on these
(citing
jury.” Riggins,
ment of its burden to
see also
v.
United States
a “danger-
1102,
reasonable doubt
he used
Brooksby, 668 F.2d
1104
Cir.
1982)
weapon”:
(quoting Cupp Naughten,
414 U.S.
141, 144, 146-47,
396,
94 S.Ct.
38
is-charged in Count 2
L.Ed.2d
The defendant
(1973)). Moreover,
368
engage
of the indictment with assault with a
“we do not
of
dangerous weapon,
parsing
violation
Sec-
a technical
lan
[isolated]
113(a)(3)
instructions,
Title
of the
guage
tion
United
of the
ap
but instead
proach
States Code.
way
the instructions
the same
would—with a ‘commonsense
for the defendant to be found
order
understanding of the instructions in the
charge,
guilty of
Government
light of all that
place
of the
has taken
at the
prove
following
must
each
ele-
”
Texas,
350,
trial.’ Johnson v.
beyond a reasonable
509 U.S.
ments
doubt:
368,
2658, 125
(1993)
First,
intentionally
the defendant
struck
S.Ct.
L.Ed.2d 290
added)
Jeffries; second,
George
(emphasis
(quoting Boyde
or wounded
v. Cali
specific
fornia,
370, 381,
1190,
acted with the
defendant
intent
494 U.S.
110 S.Ct.
Jeffries;
(1990)).
George
harm to
do
A
knife is a
jury’s
if it
weapon
way
is used
deliberation.” United States v. Fre
793,
(9th Cir.1999)
death or
ga,
serious bodi-
179 F.3d
806 n. 16
ly injury.
added)
(emphasis
(citing United States v.
Moore,
(9th Cir.) (en
disagree
Because we
these instruc-
banc),
cert. denied 522 U.S.
118 S.Ct.
crime,
tions removed an element of the
(1997)).
108,
C from the elements list to the definition of a Furthermore, contrary argu- to Smith’s “dangerous weapon” immediately fol- ment, we not persuaded prior are that our Indeed, above, lowed. as discussed Brooksby compels decision in a contrary elements expressly required jury list In Brooksby, conclusion. the defendant proof beyond to find a reasonable doubt charged willfully with making and “prison-made that Smith used a knife” and returns, subscribing false tax in violation immediately following instruction 7206(1). § Brooksby, of 26 U.S.C. 668 clearly advised “prison- when a 1102. Although “willfully” F.2d is an es- made knife” would constitute a offense, sential element of that the district weapon” sufficient to charge. sustain the special court’s wholly instructions omitted Because of this explicit and close connec- “willfully”in reference to the elements tion between the reference the elements Brooksby list. Id. concluded that the dis- subsequent definition, list and the trict “correctly court stated the law jury instructions as a whole did not suffer reading the indictment and the statute and from the same constitutional flaw as those defining ‘willfully’, incorrectly term but in Brooksby. listed three of the elements that necessary would be to be proven beyond a D reasonable doubt in order to convict the Id. at Brooksby defendant.” 1105. thus Accordingly, we conclude that in- “notwithstanding held that that the indict- structions did not relieve the ment, statute[,] and an instruction on of the proof burden of on the “critical ‘willfully’ jury, were read to the the failure question” of whether Smith danger- used a jurors] instruct [the ‘willfulness’ ous weapon. Medley, 506 F.3d was an essential element prej- of the crime persuaded We are that the instructions as udiced the defendant.” Id. a whole were not misleading inadequate Viewed with commonsense under- guide jury’s deliberation and we do standing, instructions aas whole not believe that there is a “reasonable in Brooksby were indeed inadequate and likelihood” that convicted Smith misleading. challenged elements list proof beyond without a reasonable doubt contained neither the required willfulness knife the deter- element nor any particular stated that was, fact, mined that he used “danger- mens rea was required. even The only weapon.”3 “willfully” reference to was found in a later defining instruction that term and indicat- III *8 ing that the had the burden to prove it. That later We now turn to argument definition of “willful- Smith’s that ly” failed to clarify any the element within the evidence was support insufficient to his list, elements and was not at all connected conviction for assault with a dangerous element of the list. weapon. 3. Although uphold we instruction de- may bring Circuit Executive wish to this case, recognize livered in this we that even a decision to the attention of the Ninth Circuit legally sufficient instruction could benefit Jury Instructions Committee. precise phrasing. from a more Our Office of
1105 working prison years, A at the for almost 20 during time he treated which between 50 Smith’s as must first consider We injuries by prison-made and 100 inflicted that district court abused its dis sertion Accordingly, knives. the district court’s testify as by allowing Nisperos to cretion Nisperos’s education determination States v. Ala expert an witness. United Cir.2000). experience qualify and were sufficient to torre, 1098, 222 F.3d 1100 him in expert as an this case was not an testified that “if Specifically, Nisperos abuse of discretion. organ stabbed in a vital with someone was knife,” injury could reject unpersuasive We also as Smith’s fatal. be argument that the district court abused its Nísperos physi- discretion because was a governs Fed.R.Evid. 702 testimony.4 doctor, admissibility expert Under cian’s assistant rather than a had Pharmaceuticals, Daubert v. Merrell Dow failed the medical board examinations 579, 2786, 125 L.Ed.2d 509 U.S. 113 S.Ct. twice, and had never as a testified forensic (1993), and Kumho Tire Co. v. Carmi 469 expert Nísperos before. That had never chael, 1167, 137, 526 U.S. 119 S.Ct. 143 expert before as an testified witness does (1999), reli “only L.Ed.2d 238 relevant and preclude opining expert not his as an opinion testimony is admissi expert able Similarly, unpersuaded this case. we are Expert opinion testimony ble. is relevant Nísperos unqualified testify was as knowledge underlying if it has a ‘valid expert an in this case because he is not a inquiry.’ ... pertinent connection to the medical doctor and because twice had he underly if knowledge And it is reliable failed the medical board examination. ing knowledge it ‘has a reliable basis Fed.R.Evid. 702 refers to “a witness experience disci [the relevant] skill, qualified an expert knowledge, ” pline.’ United States v. Sandoval-Mendo experience, training, or education.” No (9th Cir.2006) (foot za, 645, 472 F.3d 654 specific qualifications credentials or are omitted). *9 methods, issue, (3) applied qualified expert by and the witness has a witness as an and skill, reliably knowledge, experience, training, principles and methods or edu- cation, may testify an of the case.” Fed.R.Evid. 702. thereto in the form of facts
1106
shoe,
any
trier of fact could have
a
Styrofoam
rational
found that
which like a
tray in
beyond
elements of the
the essential
crime
may
readily
this case
not be
identified as
a
doubt.
v. Virginia,
reasonable
Jackson
potential
could,
law,
weapon,
aas matter of
307, 319,
443
99
U.S.
S.Ct.
dangerous
be a
weapon. Riggins, 40 F.3d
(1979).
L.Ed.2d 560
Similarly,
1057.
accept
cannot
argument
that
the evidence was insuffi-
support
To
the conviction for assault
cient
support
finding
to
a
that Smith used
dangerous weapon
with a
in violation of 18
dangerous
a
weapon simply because the
113(a)(3),
§
U.S.C.
was re-
prison-made
genesis
knife had its
in other-
quired
prove beyond
to
a reasonable doubt
Styrofoam
wise innocuous
(1)
trays.
meal
intentionally
struck or
Smith altered
(2)
trays
original
these
from the
victim,
wounded the
acted with the
hard,
state to
a
(3)
object
create
flat
about
specific
bodily harm,
intent to
six
do
length
inches in
sharpened
point
a
to a
weapon.” Etsitty,
appeal,
weapon.
F.3d at 427. On
to be used as
chal-
lenges
sufficiency
of the evidence with
Smith also contends that
the evidence
respect to the third element: that he used was insufficient
support
finding
a “dangerous weapon.” A “dangerous
dangerous
the knife was a
weapon because
weapon”
only objects
includes not
that are
testimony established that
inju-
Jeffries’s
se,
dangerous per
objects
but also
used in ries consisted of lacerations and abrasions
way capable
of causing death or serious
requiring only minor first aid. We are
bodily injury. Riggins,
statement as murder and dangerous a weap knife was twenty-year received a enhancement for completely usurped would have on—which discharge of a firearm during commission regarding fact-finder jury’s role as trial, felony. of a at Medley Id. 860. At which mounted principal element for Smith argued gun that a qualify flare did not as a Riggins, v. 40 a defense. United States firearm. Id. Under California Penal Code (9th Cir.1994). 1055, 1057 F.3d 12001(b), § a “any firearm is defined as Moreover, jury designed weapon, if the did not inter- device to be used as a even fact, pret barrel, it as a statement of the instruc- expelled through from which is a jury be- require tion does not to find projectile by the force explosion, plastic that the yond a reasonable doubt judge other form of combustion.” The was Styrofoam knife was of caus- gun satisfied that a flare fell under this injury. fact, ing bodily death or serious definition, jury and instructed the that “[a] specifically the instruction listed three ele- gun flare Medley is firearm.” Id. did not jury required that the was to find ments challenge trial, this instruction at but in doubt, beyond a reasonable and the fact subsequent petitions, argued habeas that it weapon” Smith used is violated his process rights. due Id. The Thus, omitted from that list. the last question before panel the en banc was: statement the instruction could have “Did judge’s the trial instruction that ‘[a] been to be not an interpreted element of gun flare is a firearm’ relieve the State of crime, merely instead a statement but proof burden of ... on the critical clarify an intended to element of the of- question Medley’s gun of whether flare requiring fense without strict adherence to designed was to be weapon?” used as a beyond-a-reasonable-doubt standard. Id. at 864. We stated: proposed an alternative instruc- By instructing jury gun that a flare tion, find, jury requiring as the firearm, is a permit the court did not element, third that he “used a jury to make the factual determination weapon,” and that a is object as to whether the Medley used object way “an ... capa- that is designed was weapon to be used as a inju- ble death or serious expels projectile through a barrel Thus, ry.” suggested he the court by the fore of an explosion. replace “prison-made “danger- knife” with ous weapon” places ap- both the term Id. The error was not harmless because we peared in Although the instruction. could not “conclude that would would have been a minor textual change, have Medley convicted of use of a ‘fire- significant, effect would have been itas ” arm’ judge properly had the instructed would have avoided the insufficiencies dis- on each element of the offense. above, cussed incorpo- and it would have Id. at ultimately 867. We held: rated the terms of the offense with which “designed Because weap- be used as a charged: danger- assault with a on” is an element of the weapon. offense and an fact, issue of the trial court’s direction to
II.
gun
that a flare
a firearm was
constitutional error.
Our recent en
This instruction
Medley
banc decision
Runnels
took a critical
strongly suggests
away
issue of fact
from
conviction
upheld.
should not be
clearly
F.3d
violation of
estab-
(en
Cir.2007)
banc).
Medley was
lished
Accordingly,
constitutional law.
...
Medley’s
by reading
enhancement
must be va-
the indictment and the statute
cated.
defining
the term ‘willfully’ ...
[it]
omitted).
incorrectly
listed
(internal
three of the ele-
citations
Id.
*12
ments that would be necessary
prov-
to be
in
Medley should control the outcome
en
a reasonable
in
doubt
order to
view,
majority’s
In the
this case.
this case
convict the defendant.” Id.
distinguished
can be
“the district
because
away
court never took such a critical issue
Moreover, Brooksby,
here,
in
as
the de-
jury’s
from the
determination because the
objected
fendant
giv-
instruction as
jury
instructed
district court never
en
proposed
an additional instruction
knife was a dan-
deficiency
cure the
in the court’s in-
Maj.
gerous weapon.”
Op. at 1103. Al-
struction.
Id. at 1103-04. In Smith’s case
though
may
the error here
not have been
the court did not even instruct
jury
egregious
as
as the flawed
giv-
instruction
shouldered the bur-
in Medley,
en
the effect was the same—the
proving beyond
den of
a reasonable doubt
prosecution’s
proof
burden of
was blurred.
key
(i.e.,
a
element of the offense
Here,
dangerous
whether Smith “used a
Smith used a
weapon)
in-—an
weapon” is an element of the offense and
struction that the
give
court did
in Brooks-
an issue of fact.
the trial
in
Just as
court
Thus,
by.
if anything, the error in Smith’s
Medley committed constitutional
by
error
significant
case is more
than that
instructing
jury
flare-gun
that a
is a
Brooksby.
firearm,
the trial court here erred
ob-
majority
The
concedes that the instruc
scuring the
proof
burden of
on whether a
ideal,
tion
argues
was not
but it
that the
“dangerous weap-
knife is a
on.”
trial
instruction as a whole
fatally
misleading,
The
court’s direction was
was not
flawed
it impeded
jury’s
citing
because
abili-
holding
our
United
States
Fre
ty to ascertain for itself whether
pris-
(9th Cir.1999).
ga, 179 F.3d
806 n. 16
was, indeed,
on-made
knife
a
I disagree. While the instruction need not
weapon.” Medley makes clear that such
“artful,”
govern
be
it must ensure that the
an instruction is a reversible error because
proved every
ment
element
ato unanimous
proof
relieved the State of its burden of
doubt,
jury beyond a reasonable
and it
on an essential element of the crime. 506 must
if
be held invalid
there is “a reason
F.3d at 867.
able likelihood that
... applied
...
in way
instruction
that violates
III.
McGuire,
the Constitution.” Estelle v.
holding in
Our
United States v. Brooks
62, 67,
U.S.
S.Ct.
clude harmless. (instruction Medley,
See
that takes “critical issue of fact error). jury”
from the reversible primary plas- defense was that the Styrofoam incapable tic knife was OCHIENG, Petitioner, Collins harm, that, serious therefore, it not a “dangerous weap- Indeed, trial, on.” each side offered MUKASEY,* Attorney Michael B. testimony regarding spe- substantial General, Respondent. issue, appeal, point- cific and on other than instruction, ing to the erroneous 07-9530, Nos. 07-9554. only challenges his conviction on the Appeals, United States Court ground that the evidence was insufficient Tenth Circuit. prove weapon.” he used majority Although is correct that 6, Feb. 2008. instructions are to be considered as a Ordered Published March whole, “they must also be considered in part context and of the whole trial.”
Brooksby,
(quoting
ed States v. * 9, 2007, Procedure, Mukasey On Appellate November Michael B. eral Rules of Mr. Muka Attorney sey became the United States General. is substituted for Alberto R. Gonzales as 43(c)(2) respondent In accordance with Rule of the Fed in these matters. notes Moreover, previously mentioned. we have persuaded that district court We are expert held that an need not have official Nispe did not abuse its discretion here. subject credentials in the relevant matter expert opinion plastic pris ros’s that if the requirements. to meet Rule 702’s See on-made knife were used to strike a vital Garcia, 889- United States v. F.3d organ, it could be fatal was relevant to the (9th Cir.1993). pertinent inquiry whether that same knife Moreover, “dangerous weapon.” was a B persuaded Nisperos’s are education We now consider whether the experience provided reliable basis case, Nisperos’s including evidence express opinion. for him to See Unit testimony, support sufficient to expert Hankey, ed States v. conviction. A conviction will be (9th Cir.2000). Nísperos completed medi if, viewing the evidence spe sustained Philippines cal school had light prosecution, favorable to the knowledge experience cial based on his most otherwise, scientific, technical, (1) testimony specialized opinion other or if is "If data, (2) upon knowledge un- sufficient facts or will assist the trier of fact to based principles testimony product reliable the evidence or to determine a fact derstand