D.C. No. 3:06-CR-00085-TMB.
Before: Robert R. Beezer, Ronald M. Gould, and Richard C. Tallman, Circuit Judges.
Order; Dissent by Judge Beezer
Judges Gould and Tallman have voted to deny Appellant's petition for rehearing. Judge Beezer votes to grant the petition for rehearing.
The petition for rehearing is DENIED.
BEEZER, Circuit Judge, dissenting
I would grant Anchrum's petition for rehearing as to Count 3, Interference with a Federal Officer by Means of a Deadly or Dangerous Weapon, 18 U.S.C. § 111.
Anchrum was convicted on Count 3 with an erroneous jury instruction. The district court correctly stated the first two elements: (1) interference with a federal officer (2) while the officer was engaged in official duties.*fn1 For the third element, however, the district court stated, "Third, the defendant used a motor vehicle" instead of "Third, the defendant used a dangerous or deadly weapon." The third element in § 111 is crucial because the first two elements alone constitute an independent crime. See § 111(a). The addition of the third element enhances the penalty from an eight-year to a 20-year statutory maximum. § 111(b).
The erroneous instruction allowed the jury to convict Anchrum by finding only that Anchrum interfered or assaulted Agent Gamache with his vehicle. Anchrum essentially conceded that he assaulted a federal officer with a vehicle but forcefully argued that he did not use the vehicle as a deadly or dangerous weapon in doing so.
At trial, Anchrum conceded that after a vehicle pursuit, Officer Gamache angled his police car to block Anchrum's vehicle in a dead-end side street. But Anchrum pointed to Officer Gamache's testimony that Anchrum "was able to squeeze around the front of my vehicle," "scraping [the] right front of my vehicle" and causing a "scrape mark" on the right bumper and damaging the headlight and turn signal assembly. Anchrum argued before the jury that these actions did not constitute using his vehicle as a dangerous or deadly weapon, and he objected to the district court's erroneous jury instruction.
Our opinion admits that the jury instruction was constitutionally erroneous but concludes the error was harmless. I believe the evidence in the record shows that this error was not harmless beyond a reasonable doubt.
Although constitutional error does not require automatic reversal, the standard for constitutional harmless error is high. See Chapman v. California, 386 U.S. 18, 22 (1967) ("[T]here may be some constitutional errors which in . . . a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." (emphasis added)). It must be "clear beyond a reasonable doubt that a rational jury ...