United States v. Larry Burstein , 50 F.3d 16 ( 1995 )

50 F.3d 16

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Larry BURSTEIN, Defendant-Appellant.

No. 94-10185.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 13, 1995.
Decided March 9, 1995.

Before: FLETCHER, PREGERSON, and RYMER, Circuit Judges.

* The district court's repeated and coercive Allen instructions were plain error under United States v. Seawell, 550 F.2d 1159 (9th Cir.1977), prejudiced Burstein, and hurt the integrity of the proceedings, justifying reversal under the plain error standard of United States v. Olano, 113 S.Ct. 1770 (1993).

II

Under the circumstances, Burstein preserved his objection to the district court's misstatement of the Jewell instruction. We review de novo whether a jury instruction misstates the elements of a crime, and examine whether the jury instructions overall are misleading or inadequate to guide the jury's deliberations. United States v. Blinder, 10 F.3d 1468, 1477 (9th Cir.1993). By several times omitting the word "not" from the last paragraph of the Jewell instruction, the district court failed to give the jury adequate guidance, entitling Burstein to a new trial. This was not cured by one interspersed statement that was not incorrect.

REVERSED AND REMANDED.

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* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.