Jury instruction error is subject to harmless error review

TRIAL United States v. Holly, No. 05-7130, ___ F.3d ___ (10th Cir. Jun 12, 2007)(E.D. Oklahoma). Appeal of convictions for felony deprivation of rights under color of law involving aggravated sexual abuse in violation of 18 U.S.C. § 242. HELD: In case alleging multiple counts of felony deprivation of rights under color of law involving aggravated sexual abuse, jury instruction that did not require jury to find heightened level of fear of death or serious bodily injury was erroneous. Nevertheless, despite misinstruction, requisite element of victim’s fear of death or serious bodily injury was uncontested and supported by overwhelming evidence on at least one count. Error on that count was harmless, therefore, because verdict would have been same had jury been properly instructed. Convictions on other counts, however, must be reversed. Read the opinion here.