Dissenting:
I.
The rationale for reversing Smith’s conviction is straightforward. Smith was convicted of assault with a dangerous weapon for attacking a fellow prisoner with a knife made out of plastic and Styrofoam. The knife broke during the assault, resulting in injuries requiring only “minor first aid.” The principal defense at trial was that the plastic knife was not a “dangerous weapon” because it was incapable, as used, of causing death or serious bodily injury.
The trial court gave the following jury instruction:
The defendant is charged in Count Two 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 Jef-fries; 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 injury.
(emphasis added).1
Smith objected to the instruction because it did not require the jury to find him guilty of the offense beyond a reasonable doubt. Indeed, the three elements, as enumerated in the instruction, do not even include the term “dangerous weapon,” even though use of such an instrument is an element of the offense. See 18 U.S.C. § 113(a)(3). Furthermore, it is unclear how the jurors used the last statement of the instruction, if at all, in their deliberations. They could have interpreted the *1108statement as a legal conclusion — that this prison-made knife was a dangerous weapon — which would have completely usurped the jury’s role as fact-finder regarding the principal element for which Smith mounted a defense. United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir.1994).
Moreover, even if the jury did not interpret it as a statement of fact, the instruction does not require the jury to find beyond a reasonable doubt that the plastic and Styrofoam knife was capable of causing death or serious bodily injury. In fact, the instruction specifically listed three elements that the jury was required to find beyond a reasonable doubt, and the fact that Smith used a “dangerous weapon” is omitted from that list. Thus, the last statement in the instruction could have been interpreted to be not an element of the crime, but instead a statement merely intended to clarify an element of the offense without requiring strict adherence to the beyond-a-reasonable-doubt standard.
Smith proposed an alternative instruction, requiring that the jury find, as the third element, that he “used a dangerous weapon,” and that a dangerous weapon is “an object ... used in a way that is capable of causing death or serious bodily injury.” Thus, he suggested that the court replace “prison-made knife” with “dangerous weapon” at both places the term appeared in the instruction. Although it would have been a minor textual change, the effect would have been significant, as it would have avoided the insufficiencies discussed above, and it would have incorporated the terms of the offense with which Smith was charged: assault with a dangerous weapon.
II.
Our recent en banc decision in Medley v. Runnels strongly suggests that Smith’s conviction should not be upheld. 506 F.3d 857 (9th Cir.2007) (en banc). Medley was convicted in state court of murder and received a twenty-year enhancement for discharge of a firearm during commission of a felony. Id. at 860. At trial, Medley argued that a flare gun did not qualify as a firearm. Id. Under California Penal Code § 12001(b), a firearm is defined as “any device designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion, or other form of combustion.” The judge was satisfied that a flare gun fell under this definition, and instructed the jury that “[a] flare gun is a firearm.” Id. Medley did not challenge this instruction at trial, but in subsequent habeas petitions, argued that it violated his due process rights. Id. The question before the en banc panel was: “Did the trial judge’s instruction that ‘[a] flare gun is a firearm’ relieve the State of the burden of proof ... on the critical question of whether Medley’s flare gun was designed to be used as a weapon?” Id. at 864. We stated:
By instructing the jury that a flare gun is a firearm, the court did not permit the jury to make the factual determination as to whether the object used by Medley was designed to be used as a weapon and expels a projectile through a barrel by the fore of an explosion.
Id. The error was not harmless because we could not “conclude that the jury would have convicted Medley of use of a ‘firearm’ ” had the judge properly instructed the jury on each element of the offense. Id. at 867. We ultimately held:
Because “designed to be used as a weapon” is an element of the offense and an issue of fact, the trial court’s direction to the jury that a flare gun is a firearm was constitutional error. This instruction took a critical issue of fact away from the jury in violation of clearly established constitutional law. Accordingly, *1109Medley’s enhancement ... must be vacated.
Id. (internal citations omitted).
Medley should control the outcome in this case. In the majority’s view, this case can be distinguished because “the district court never took such a critical issue away from the jury’s determination because the district court never instructed the jury that Smith’s prison-made knife was a dangerous weapon.” Maj. Op. at 1103. Although the error here may not have been as egregious as the flawed instruction given in Medley, the effect was the same — the prosecution’s burden of proof was blurred. Here, whether Smith “used a dangerous weapon” is an element of the offense and an issue of fact. Just as the trial court in Medley committed constitutional error by instructing the jury that a flare-gun is a firearm, the trial court here erred by obscuring the burden of proof on whether a prison-made knife is a “dangerous weapon.” The trial court’s direction was fatally flawed because it impeded the jury’s ability to ascertain for itself whether this prison-made knife was, indeed, a “dangerous weapon.” Medley makes clear that such an instruction is a reversible error because it relieved the State of its burden of proof on an essential element of the crime. 506 F.3d at 867.
III.
Our holding in United States v. Brooksby, 668 F.2d 1102 (9th Cir.1982), also counsels us to reverse Smith’s conviction. In Brooksby, the trial court omitted “willfulness” from a jury instruction regarding an offense of which “willfulness” was an element. Id. at 1104. Instead, the court read the indictment, the statute, and two separate instructions regarding willfulness. Id. at 1105. We determined that an instruction that omits a key element of the offense cannot be cured merely by using a patch-work approach. Id. We held that while “the court correctly stated the law by reading the indictment and the statute and defining the term ‘willfully’ ... [it] incorrectly listed only three of the elements that would be necessary to be proven beyond a reasonable doubt in order to convict the defendant.” Id.
Moreover, in Brooksby, as here, the defendant objected to the instruction as given and proposed an additional instruction to cure the deficiency in the court’s instruction. Id. at 1103-04. In Smith’s case the court did not even instruct the jury that the government shouldered the burden of proving beyond a reasonable doubt a key element of the offense (i.e., that Smith used a dangerous weapon) — an instruction that the court did give in Brooks-by. Thus, if anything, the error in Smith’s case is more significant than that in Brooksby.
The majority concedes that the instruction was not ideal, but it argues that the instruction as a whole was not misleading, citing our holding in United States v. Frega, 179 F.3d 793, 806 n. 16 (9th Cir.1999). I disagree. While the instruction need not be “artful,” it must ensure that the government proved every element to a unanimous jury beyond a reasonable doubt, and it must be held invalid if there is “a reasonable likelihood that the jury ... applied the ... instruction in a way that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (internal quotations omitted). For the reasons explained heretofore, there is at least a reasonable likelihood that the jury applied the instruction improperly, especially when we consider that “dangerous weapon” does not appear anywhere in the instruction as an element of the crime.
The majority’s argument that there is a “close connection” between the last statement in the instruction and the third element of the offense is also unavailing. Although the two statements are related, as *1110already explained, the context in which they are used easily distinguishes them: the former requires a finding beyond a reasonable doubt while the latter appears to require something less (perhaps even no finding at all). Therefore, the majority’s assertion that the jury would have had to interpret the last statement as “mere sur-plusage” is incorrect.
Similarly, the majority’s argument that the court’s preliminary statement to the jury that the charge is “assault with a dangerous weapon” does not cure the instruction. While it stated that Smith was charged with “assault with a dangerous weapon, in violation of Section 113(a)(3),” there is no further mention of the statute or its requirements in the instruction, and it cannot be true that merely reciting the charge is sufficient for instructing the jury on what elements must be proven beyond a reasonable doubt.
Additionally, it is unreasonable to conclude that the instruction was harmless. See Medley, 506 F.3d at 867 (instruction that takes away “critical issue of fact away from the jury” is reversible error). Smith’s primary defense was that the plastic and Styrofoam knife was incapable of causing serious bodily harm, and that, therefore, it was not a “dangerous weapon.” Indeed, at trial, each side offered substantial testimony regarding that specific issue, and on appeal, other than pointing to the erroneous jury instruction, Smith only challenges his conviction on the ground that the evidence was insufficient to prove he used a “dangerous weapon.” Although the majority is correct that jury instructions are to be considered as a whole, “they must also be considered in context and as part of the whole trial.” Brooksby, 668 F.2d at 1105 (quoting United States v. Elksnis, 528 F.2d 236, 238 (9th Cir.1975)). Thus, as was the case in Brooksby, because the defendant’s primary defense concerned an element of the crime that was not sufficiently addressed in the jury instruction, error concerning that instruction cannot be deemed harmless.
IV.
For the foregoing reasons, I do not believe that we can conclude that the flawed instruction in the instant case was “harmless” beyond a reasonable doubt or that there is no “reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution.” Estelle, 502 U.S. at 72, 112 S.Ct. 475 (2004). Accordingly, I respectfully dissent. I would also expressly disapprove of the continued use of Model Criminal Jury Instruction 8.5 and adopt an instruction consistent with those used in other circuits.
. This mirrors Ninth Circuit Model Criminal Jury Instruction 8.5. For reasons explained herein, the model instruction is insufficient and should be abandoned in favor of an instruction similar to that used in other circuits.