                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-2849

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

D ANIEL L. D ELANEY,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Southern District of Indiana, Terre Haute Division.
   No. 2:11-cr-00005-JMS-CMM-1—Jane E. Magnus-Stinson, Judge.



        A RGUED M AY 1, 2013—D ECIDED M AY 30, 2013




 Before B AUER, P OSNER, and T INDER, Circuit Judges.
  P OSNER, Circuit Judge. The defendant, a federal
prisoner serving a term for unarmed robbery and
confined in a two-person cell in the prison’s segregation
unit because of a fight he’d had with another inmate,
strangled his cellmate. He was prosecuted, convicted
by a jury of first-degree murder, and sentenced to life in
prison. The single issue presented by his appeal is
2                                                No. 12-2849

whether the jury should have found that he killed in
“the heat of passion” and should therefore have
convicted him only of voluntary manslaughter.
   Late one night, as a guard walked past the defendant’s
cell, the defendant told him that he had to be moved to
a new cell and that “he [the cellmate] had [had] to go.
He was a child molester.” The cellmate was lying on the
floor of the cell, dead. His wrists were bound with a
piece of bedsheet. Another piece of bedsheet was tied
tightly around his neck with multiple knots. He was
bruised and bleeding from a number of nonfatal
wounds inflicted on him by the defendant with his
fists and with the victim’s cane before the strangulation.
A substantially older and weaker man than the de-
fendant, the victim had apparently put up no resistance
to the defendant’s assaults.
  Interviewed by an FBI agent shortly after the killing,
the defendant said that he had shared a cell with the
victim for a couple of weeks and during this time had
noticed inconsistencies in his cellmate’s account of his
background and had eventually elicited an admission
that the cellmate was in prison for having sexually
abused a child. The defendant told the agent that he
had attacked the cellmate “after some thought.” But at
his trial he testified that as a child he had been sexually
abused by his uncle and that upon hearing his cellmate
admit to having been twice convicted of child molesta-
tion “all sorts of flashes” had lit up his mind and he
had snapped, but that he “didn’t really intend nothing . . . .
I want[ed] to, like, beat him up, you know?”
No. 12-2849                                               3

 The federal criminal code defines murder as
   the unlawful killing of a human being with malice
   aforethought. Every murder perpetrated by poison,
   lying in wait, or any other kind of willful, deliberate,
   malicious, and premeditated killing; or committed
   in the perpetration of, or attempt to perpetrate,
   any arson, escape, murder, kidnapping, treason,
   espionage, sabotage, aggravated sexual abuse or
   sexual abuse, child abuse, burglary, or robbery;
   or perpetrated as part of a pattern or practice of
   assault or torture against a child or children; or perpe-
   trated from a premeditated design unlawfully and
   maliciously to effect the death of any human being
   other than him who is killed, is murder in the first
   degree. Any other murder is murder in the second
   degree.
18 U.S.C. § 1111(a). The maximum punishment for first-
degree murder is death and for second-degree murder
is life in prison. § 1111(b).
 The judge instructed the jury that
   “malice” is the state of mind that would cause a
   person to act without regard to the life of another.
   To act with “malice aforethought” means that the
   defendant took someone’s life deliberately and in-
   tentionally or willfully acted with callous and
   wanton disregard for human life. It doesn’t matter
   whether the defendant hated the victim or felt any
   ill will toward the victim at the time. But the gov-
   ernment must prove beyond a reasonable doubt
   that the defendant intended to kill or willfully acted
4                                              No. 12-2849

    with callous and wanton disregard for the conse-
    quences, knowing that a serious risk of serious bodily
    harm or death would result.
  In contrast to murder, manslaughter is defined in the
criminal code as “the unlawful killing of a human being
without malice. It is of two kinds: Voluntary—Upon a
sudden quarrel or heat of passion. Involuntary—In the
commission of an unlawful act not amounting to a
felony, or in the commission in an unlawful manner, or
without due caution and circumspection, of a lawful
act which might produce death.” 18 U.S.C. § 1112(a).
Only “heat of passion” manslaughter, a subset of
voluntary manslaughter, is relevant to this case. The
maximum punishment for voluntary manslaughter is
15 years in prison. § 1112(b).
   The judge instructed the jury that to find the
defendant guilty of manslaughter rather than of murder
it had to find that he’d killed his cellmate “intentionally
but without malice and in the heat of passion.” And
she instructed that “heat of passion” means
    a passion of fear or rage that caused the defendant
    to lose his normal self-control as a result of circum-
    stances that would provoke such passion in an ordi-
    nary person, but which did not justify the use of
    deadly force. Heat of passion may be provoked by
    fear, rage, anger or terror. Provocation, in order to
    be adequate, must be such as might naturally cause
    a reasonable person in the passion of the moment
    to lose self-control and act on impulse and without
    reflection.
No. 12-2849                                             5

   The abstract and archaic language in which the statu-
tory provisions and jury instructions we’ve quoted
abound, though familiar to lawyers and judges, must
be confusing to many laypersons, including jurors. Both
first- and second-degree murder require “malice afore-
thought,” which means that the murderer had to have
harbored before the killing a conscious intention to
kill. The word “aforethought” has disappeared from
ordinary language, however, and “malice” has in
ordinary language today a narrower meaning than
intent to kill, which is the meaning it bears in “malice
aforethought.” That term (originally “malice prepensed,”
“prepensed” meaning the same thing as “afore-
thought”—namely thought of in advance of the crime) is
of medieval origin. Rollin M. Perkins, “A Re-Examination
of Malice Aforethought,” 43 Yale L.J. 537, 543-44
(1934). That such terms should appear in modern
statutes and jury instructions (though not in all of them:
for example, Illinois’s criminal code and pattern crim-
inal jury instructions are written in plain language and
dispense with “premeditation,” “malice,” and other
technical legal terms entirely; see, for example, 720
ILCS 5/9 and Illinois Pattern Jury Instructions—Criminal
7.0 (2013)) testifies to the legal profession’s linguistic
conservatism.
  And sometimes linguistic ineptitude. The term “malice
aforethought” is sometimes written “malice of fore-
thought.” See Eric M. Johnson, “U.S. Soldier Pleads
Guilty to Murdering Fellow Servicemen in Iraq,” Reuters,
Apr. 22, 2013, www.reuters.com/article/2013/04/22/us-usa-
iraq-courtmartial-idUSBRE93L0EL20130422 (visited May
6                                              No. 12-2849

24, 2013) (the “trial will determine…whether he acted on
impulse, as his defense attorneys argue, or with malice
of forethought, as alleged by military prosecutors”).
This barbarism has appeared in jury instructions, as
noted in Alexander v. Foltz, 838 F.2d 140, 144 (6th Cir.
1988). No surprise, really; for the word “malice” has no
consistent meaning in law, as remarked in Jendusa-
Nicolai v. Larsen, 677 F.3d 320, 323-24 (7th Cir. 2012),
and Matheny v. United States, 469 F.3d 1093, 1097 (7th Cir.
2006); cf. Wayne R. LaFave, Substantive Criminal Law
§§ 14.1(a), 21.3(e) ( 2d ed. 2003).
  The only difference between the two degrees of
murder, sharing as they do the requirement that the
murderer have acted with “malice aforethought,” is, as
stated in section 1111(a) of the federal criminal code,
that a first-degree murder, unless committed in the
course of perpetrating one (or more) of the crimes, such
as arson or robbery (but confusingly including mur-
der), that are specified in the statute, must be “premedi-
tated.” The exception for killing in the course of perpe-
trating one of the specified crimes (that is, the exception
for felony murder, which is first-degree murder even
though there is no intent to kill) is limited to “deaths
resulting from acts of violence committed in the further-
ance of particularly dangerous felonies.” Guyora Binder,
“The Culpability of Felony Murder,” 83 Notre Dame L.
Rev. 965, 978 (2008).
  Second-degree murder does not involve premedita-
tion—but remember that it must be consciously in-
tended, therefore thought about in advance, and there-
No. 12-2849                                                   7

fore in a sense premeditated, for otherwise it would not
involve “malice aforethought.” But what is true is that
the more planning that goes into a murder, the likelier
the murderer is to elude detection, and that is an argu-
ment for a heavier sentence. 18 U.S.C. § 3592(c)(9);
United States v. Snarr, 704 F.3d 368, 392 (5th Cir. 2013);
United States v. Richart, 662 F.3d 1037, 1048 (8th Cir.
2011); Suggs v. McNeil, 609 F.3d 1218, 1232 (11th Cir. 2010).
And so premeditation has generally been understood to
require more forethought than mere “aforethought” (and
for the additional reason that otherwise the two terms,
malice aforethought and premeditation, would collapse
into one, erasing the distinction between first- and second-
degree murder). In contrast to malice aforethought,
premeditation requires that “an appreciable time elapse
between formation of the design and the fatal act within
which there is, in fact, deliberation.” Fisher v. United States,
328 U.S. 463, 469 n. 3 (1946) (emphasis added); see also
United States v. Catalán-Roman, 585 F.3d 453, 474 (1st Cir.
2009); House v. Bell, 311 F.3d 767, 774 (6th Cir. 2002); Austin
v. United States, 382 F.2d 129, 135 (D.C. Cir. 1967).
  The word “appreciable” is vague, however, and the
judge in this case improved upon it by instructing the
jury that to find the defendant guilty of first-degree
murder it would have to find “that the killing was in
cold blood after the defendant had time to think over
the matter and form the intent to kill. There’s no exact
amount of time that must pass between forming the
intent to kill and the killing itself. But it must be
enough time for the killer to be fully conscious of
having the intent to kill.” The jury in this case, as in the
8                                            No. 12-2849

rather similar prison murder case of United States v.
Brown, 518 F.2d 821, 826-27 (7th Cir. 1975), could find
that the defendant’s fatal assault on his cellmate was
pondered rather than being spontaneous or nearly so,
and therefore that the “appreciable time” gloss on “pre-
meditated” fit the case.
  The American Law Institute’s Model Penal Code elimi-
nated the distinction between first- and second-degree
murder. The Code defined murder simply as homicide
“committed purposely or knowingly,” or “committed
recklessly under circumstances manifesting extreme
indifference to the value of human life.” American Law
Institute, Model Penal Code § 210.2(1) (1962). That seems
an improvement over requiring a jury determination of
“malice aforethought” or “premeditation.” For as the
ALI later explained,
    the case for a mitigated sentence on conviction of
    murder does not depend on a distinction between
    impulse and deliberation. Prior reflection may
    reveal the uncertainties of a tortured conscience
    rather than exceptional depravity. The very fact of a
    long internal struggle may be evidence that the homi-
    cidal impulse was deeply aberrational . . . . It also
    seems clear, moreover, that some purely impulsive
    murders will present no extenuating circumstances.
    The suddenness of the killing may simply reveal
    callousness so complete and depravity so extreme
    that no hesitation is required.
American Law Institute, Model Penal Code and Commentar-
ies, comment to § 210.7, p. 127 (1980).
No. 12-2849                                                9

  We needn’t pursue the issue of degrees of murder
further. The defendant isn’t arguing that if his crime
wasn’t manslaughter it was second-degree murder
rather than first degree. He is arguing that he should
not have been convicted of murder at all but only of
voluntary manslaughter, with its 15-year maximum
sentence—that no reasonable jury could have failed to
find that he acted in the “heat of passion.”
  What is said to distinguish killing in the heat of
passion from murder is absence of malice. United States
v. Serawop, 410 F.3d 656, 665-66 (10th Cir. 2005); United
States v. Velazquez, 246 F.3d 204, 212 (2d Cir. 2001); United
States v. Browner, 889 F.2d 549, 552 (5th Cir. 1989);
United States v. Fountain, 642 F.2d 1083, 1096 (7th Cir.
1981). For remember that the judge instructed the jury
that it should convict the defendant of voluntary man-
slaughter if it found that he had killed his cellmate “in-
tentionally but without malice and in the heat of passion.”
This is puzzling, because “malice aforethought” in the
statute means intent and so what does it mean to say
that a person did something intentionally but without
malice? (In her instruction the judge defined “malice
aforethought” to mean “that the defendant took some-
one’s life deliberately and intentionally or willfully acted
with callous and wanton disregard for human life,” but the
addendum that we’ve italicized is actually part of the
traditional common law concept of “malice,” see, e.g.,
United States v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996);
McFadden v. United States, 814 F.3d 144, 146 (3d Cir.
1987), and does not appear in 18 U.S.C. § 1111(a).)
10                                             No. 12-2849

  Another puzzle is created by the judge’s instructing the
jury that to return a verdict of “heat of passion” man-
slaughter it must determine that the “passion . . . caused
the defendant to lose his normal self-control as a result
of circumstances that would provoke such passion in
an ordinary person”—that thus would “naturally cause
a reasonable person in the passion of the moment to
lose self-control and act on impulse and without reflec-
tion” (emphases added). The average or ordinary, and a
fortiori the reasonable, person does not fly into a rage
and kill a person who is not threatening him with
death or bodily injury.
   But should average or ordinary or reasonable refer,
rather, to what is average or ordinary or reasonable in
a subset of the population, such as the subset consisting
of past victims of child sexual abuse? Maybe the relevant
question is whether the average person who has been
sexually molested as a child has a powerful propensity
to kill a known sexual molester (not necessarily of him-
self). Some victims of sexual molestation do. The strangler
of a convicted child molester (a former priest who
had molested some 130 children) took the stand to “argu[e]
that his own molestation as a child and years in prison had
filled him with rage.” Associated Press, “Inmate Testifies
Why He Killed Molester Priest,” N.Y. Times, Jan. 24, 2006,
www.nytimes.com/2006/01/24/national/24priest.html. In
another case a man who killed two sex offenders was
acclaimed by some persons as a hero, which might encour-
age such murders. Isolde Raftery, “Man Sentenced to Life
for Killing Sex Offenders; Judge Chastises Supporters,”
NBC News, Sept. 18, 2012, http://usnews.nbcnews.com/_
No. 12-2849                                             11

news/2012/09/18/13943695-man-sentenced-to-life-for-
killing-sex-offenders-judge-chastises-supporters (both web-
sites were visited on May 24, 2013). Nevertheless
no evidence was presented in this case that murder of a
sexual molester is a common reaction of a person who
has been sexually molested.
  Again one looks to the Model Penal Code for thoughtful
advice. It defines a heat-of-passion killing, more clearly
than the judge’s instruction in this case did, as “a
homicide which would otherwise be murder . . . committed
under the influence of extreme mental or emotional
disturbance for which there is reasonable explanation
or excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a
person in the actor’s situation under the circumstances
as he believes them to be.” American Law Institute,
Model Penal Code, § 210.3(1)(b) (1962). The second sen-
tence asks the jury to consider whether there was some-
thing in the defendant’s background that made him
especially susceptible to killing in the heat of passion.
  This section of the Code has garnered some support
among state courts. See Patterson v. New York, 432 U.S.
197, 206-07 (1977); Wellman v. Commonwealth, 694
S.W.2d 696, 697-98 (Ky. 1985); Mitchell N. Berman & Ian
P. Farrell, “Provocation Manslaughter as Partial Justifica-
tion and Partial Excuse,” 52 Wm. & Mary L. Rev. 1027, 1044
n. 64 (2011). Others, however, worry that the approach
is too subjective—leaves too much to speculation. See,
e.g., State v. Bird, 734 N.W.2d 664, 676-77 (Minn. 2007).
  No matter; our defendant doesn’t quarrel with the heat-
of-passion instruction. He argues only that no reasonable
12                                                No. 12-2849

juror could have failed to find that he had acted in the
heat of passion when he killed his cellmate. The argu-
ment fails because there was considerable evidence of
forethought, much of it emanating from the defendant’s
own statements. He admitted to the prison guard that
the cellmate, because a child molester, “had to” be
killed, and to the FBI agent that he had attacked the
cellmate “after some thought.” His testimony at trial was
different, suggestive of an act triggered by spontaneous
rage, but the jury was entitled to believe his pretrial
admissions instead.
  It remains only to note the seeming oddity that the
government bore—and has been held required by the
due process clause to bear—the burden of proving
absence of heat of passion beyond a reasonable doubt.
Mullaney v. Wilbur, 421 U.S. 684, 703-04 (1975); see also
United States v. Martinez, 988 F.2d 685, 690 (7th Cir. 1993);
United States v. Lofton, 776 F.2d 918, 921-22 (10th Cir. 1985).
To prove that a defendant killed in the heat of passion
seems like proving a defense to a charge of murder (as
distinct from manslaughter), and usually the proponent
of a defense bears the burden of proving it. It would be
very strange to allow a defendant to list every possible
defense to the charges against him and require the pros-
ecution to negate every one of them beyond a reasonable
doubt in order to avoid an acquittal. And so the cases
require the defendant to make an initial showing that
the defense has some evidentiary support; only then is
the burden of proof beyond a reasonable laid on the
government. United States v. Begay, 673 F.3d 1038, 1045
(9th Cir. 2011) (en banc); United States v. Lofton, supra, 776
No. 12-2849                                             13

F.2d at 920. That happened here—the defendant’s testi-
mony at trial about having “snapped,” and so killed in
blind rage, triggered the requirement that the govern-
ment prove beyond a reasonable doubt that he had not
killed in the heat of passion.
  Probably “heat of passion” shouldn’t be thought a
defense. The jury had to find malice beyond a reasonable
doubt in order to convict the defendant of murder, and
so evidence that he acted in the heat of passion and
therefore without malice would if believed require the
jury to acquit him of the charge of murder. (Similarly, if
a defendant presents some evidence of entrapment, the
prosecution must prove beyond a reasonable doubt that
he was not entrapped, Jacobson v. United States, 503
U.S. 540, 548-49 (1992); United States v. Pillado, 656 F.3d
754, 763 (7th Cir. 2011), since if he was entrapped this
would negate culpability.) The heat of passion “defense”
just puts the government to its proof. To prove that a
defendant has killed in the heat of passion is unlike
proof that the statute of limitations has run, because
proof that prosecution is time-barred does not negate
any element of the crime. Smith v. United States, 133
S.Ct. 714, 720 (2013).
  But since the jury had solid grounds for finding murder
rather than manslaughter, the judgment is
                                                A FFIRMED.
14                                            No. 12-2849

  B AUER, Circuit Judge, concurring. I have to admit that
this opinion had me in suspense until the last minute.
I’m not sure it provides a clear trail for future prosecu-
tions but I sign on because the result is in keeping with
the evidence.




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