                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     May 21, 2012
                 UNITED STATES COURT OF APPEALS
                                            Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 11-2040
 v.                                             (D.C. No. 1:09-CR-02626-WJ-1)
                                                       (D. New Mexico)
 NATHAN DON JACK,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before KELLY, SEYMOUR and MURPHY, Circuit Judges.



      Nathan Don Jack was convicted of one count of second degree murder in

violation of 18 U.S.C. §§ 1111(a), 1153 and 3147(1). On appeal, he argues the

district court committed plain error when it failed to instruct the jury that the

government had the burden to prove the absence of heat of passion as an

additional element of the murder charge. We affirm.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      “[T]he only difference between second degree murder and voluntary

manslaughter in the homicide hierarchy is that voluntary manslaughter is

committed in the heat of passion, and the presence of this mitigating factor negates

the malice that would otherwise attach given an intentional or reckless mental

state.” United States v. Serawop, 410 F.3d 656, 665 (10th Cir. 2005). “Heat of

passion” is defined as “‘a passion of fear or rage in which the defendant loses his

normal self-control as a result of circumstances that would provoke such a passion

in an ordinary person, but which did not justify the use of deadly force.’” Id. at

664-65 (quoting United States v. Browner, 889 F.2d 549, 552 (5th Cir. 1989)); see

also Tenth Circuit Pattern Criminal Jury Instructions No. 2.54, at 184 (2011)

(nearly identical definition). Significantly,

      [t]here are four obstacles for the defendant to overcome before he can
      have his intentional killing reduced from murder to voluntary
      manslaughter: (1) There must have been a reasonable provocation.
      (2) The defendant must have been in fact provoked. (3) A reasonable
      man so provoked would not have cooled off in the interval of time
      between the provocation and the delivery of the fatal blow. And (4),
      the defendant must not in fact have cooled off during that interval.

2 Wayne R. LaFave, Substantive Criminal Law § 15.2(a), at 494 (2d ed. 2003).

      “[T]he Due Process Clause requires the prosecution to prove beyond a

reasonable doubt the absence of the heat of passion on sudden provocation when

the issue is properly presented in a homicide case.” Mullaney v. Wilbur, 421 U.S.

684, 704 (1975); see also United States v. Lofton, 776 F.2d 918, 920 (10th Cir.

1985) (“[A] defendant in a federal murder case who has sufficiently raised a heat

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of passion defense is entitled to instructions informing the jury of the theory of

defense and of the Government’s duty to prove beyond a reasonable doubt the

absence of heat of passion in order to obtain a murder conviction.”); Tenth Circuit

Pattern Criminal Jury Instructions No. 2.53, at 182 (2011) (noting that “if there is

evidence that the defendant acted upon a sudden quarrel or heat of passion,” an

additional element should be added to the second degree murder instruction). A

district court commits plain error when it fails to provide such an instruction

where the issue is properly presented. Lofton, 776 F.2d at 922.

      Mr. Jack contends the evidence shows he killed the victim, Jessica Shorty,

with whom he shared a child, in a fit of enraged passion because he thought Ms.

Shorty had been cheating on him. Courts have held that “a reasonable man may be

provoked upon suddenly being told of his wife’s infidelity.” LaFave, Substantive

Criminal Law § 15.2(b)(5), at 498 (emphasis added). Courts have also held “that a

reasonable though erroneous belief on the part of the husband that his wife is

committing adultery” is sufficient to establish adequate provocation. Id.

(emphasis added); see also id. § 15.2(b)(9), at 503 (“It would seem that the

provocation is adequate to reduce the homicide to voluntary manslaughter if the

killer reasonably believes that the injury to him exists, though actually he has not

been injured.”). Having thoroughly reviewed the record, however, we conclude

there was insufficient evidence to support a heat of passion defense in this case.

See United States v. Scafe, 822 F.2d 928, 932-33 (10th Cir. 1987).

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      While there is evidence in the record that Mr. Jack was accusing Ms. Shorty

of cheating on him the evening of the murder, the evidence does not begin to

establish when any alleged cheating occurred, nor when Mr. Jack first learned

about the alleged infidelity. Thus, a jury had no evidence on which to find there

was a “sudden” and “reasonable provocation” 1 for Mr. Jack’s rage. “Evidence of a

string of prior arguments and a continuing dispute, without any indication of some

sort of instant incitement,” does not constitute sufficient evidence to show heat of

passion. United States v. Bordeaux, 980 F.2d 534, 537 (8th Cir. 1992) (internal

quotation marks omitted).

      Even assuming there was a reasonable provocation, there is no evidence

suggesting a “reasonable man so provoked would not have cooled off in the

interval of time between the provocation and the delivery of the fatal blow.” See

LaFave, Substantive Criminal Law § 15.2(a), at 494. Instead, the evidence at trial

established that while Mr. Jack engaged in a violent argument with Ms. Shorty

about her alleged cheating just hours before killing her, he “actually cooled off by

the time he commit[ted] his deadly act.” See id. § 15.2(e), at 509. The record


      1
        Notably, Mr. Jack was drunk when he became enraged and killed Ms.
Shorty. A defendant “does not qualify for the voluntary manslaughter treatment
where, because of intoxication, he easily loses his self-control; that is to say, he is
to be judged by the standard of the reasonable sober man.” LaFave, Substantive
Criminal Law § 15.2(b)(10), at 504. See also United States v. Soundingsides, 820
F.2d 1232, 1242 (10th Cir. 1987) (holding that intoxication does not negate the
general intent to kill necessary to support a conviction for second-degree murder
or voluntary manslaughter).

                                          -4-
reflects that Mr. Jack’s stepfather helped Mr. Jack calm down after the argument.

He testified:

      I was outside talking to Nathan, trying to calm him down. I told him,
      you know, “It’s going to blow away. Don’t worry about it. I went
      through it. Things happen. Maybe it didn’t happen.” And I tried to
      talk some sense into him to calm down, and we talked for about
      probably about a good 30 minutes, and he finally – he finally calmed
      down. He listened to me, and he started crying.
              I hugged him and I gave him a good hug and told him, you
      know, “Everything will be okay, not – not just right now, but you
      know, just we’re drinking right now, and it’s not a good time. Wait
      till the morning. Everything will – everything will be fine in the
      morning, and you know, just get some sleep and, you know, just don’t
      bother them. Let them sleep.” So he finally calmed down.

Rec., Vol. III, at 211-12. It was not until much later in the night that Mr. Jack

returned and killed Ms. Shorty. Although it is theoretically possible some new

event rekindled Mr. Jack’s passion after he calmed down but before he killed Ms.

Shorty such that he was reasonably provoked anew, see LaFave, Substantive

Criminal Law § 15.2(d), at 508, there is no evidence in the record about any such

event. “It is well established that if the defendant had enough time between the

provocation and the killing to reflect on his or her intended course of action, ‘then

the mere fact of passion would not reduce the crime below murder.’” Bordeaux,

980 F.2d at 537-38 (quoting Collins v. United States, 150 U.S. 62, 65 (1893)).

      For all of these reasons, a jury could not have reasonably concluded that Mr.

Jack was suddenly and reasonably provoked at the time he killed Ms. Shorty.

Because Mr. Jack did not produce sufficient facts for a reasonable jury to conclude


                                          -5-
that he was adequately provoked into a sudden rage by having learned of Ms.

Shorty’s alleged cheating, the district court did not plainly err by failing to

instruct the jury on a heat of passion defense to the second degree murder charge.

      Accordingly, we AFFIRM.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge




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