The defendant is charged in [Count _______ of] the indictment with murder in the first degree in violation of Section 1111 of Title 18 of the United States Code.  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 unlawfully killed [name of victim]; 

            Second, the defendant killed [name of victim] with malice aforethought; 

            Third, the killing was premeditated; and 

            Fourth, the killing occurred at [specify place of federal jurisdiction]. 

            To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life. 

            Premeditation means with planning or deliberation.  The amount of time needed for premeditation of a killing depends on the person and the circumstances.  It must be long enough, after forming the intent to kill, for a killer to have been fully conscious of the intent and to have considered the killing. 

Comment 

            The applicable statute, 18 U.S.C. § 1111, also contains a first-degree felony murder provision.  When felony murder is charged, the instruction relevant to premeditation should be appropriately modified.  For examples, see the Tenth Circuit’s Criminal Pattern Jury Instructions 2.52.1 (2011 ed., updated Feb. 2018) and the Eleventh Circuit’s Pattern Jury Instructions O45.2 (2019 ed). 

            The elements for first degree murder are discussed in United States v. Free, 841 F.2d 321, 325 (9th Cir. 1988) (“The essential elements of first-degree murder are: (1) the act . . . of killing a human being; (2) doing such act . . . with malice aforethought; and (3) doing such  act . . . with premeditation.”); see also United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993) (locus of offense is issue for jury). 

            As to the second element, in United States v. Houser, 130 F.3d 867, 872 (9th Cir. 1997), the Ninth Circuit approved the use of a jury instruction that defined malice aforethought as “either deliberately and intentionally or recklessly with extreme disregard for human life.”  

            Killing with “extreme disregard” refers not only to acts endangering the public at large, but also to acts directed solely to the person killed.  Houser, 130 F.3d at 890.  In addition, the court should exercise caution regarding the “troublesome issue” of providing a permissive inference instruction on malice aforethought.  Id. at 869-71. 

            As to the fourth element, whether the crime alleged occurred at a particular location is a question of fact.  Whether the location is within the special maritime and territorial jurisdiction of the United States, or a federal prison is a question of law.  See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).           

            If there is evidence that the defendant acted in self-defense or with some other justification or excuse, see Instruction 5.10 (Self-Defense). 

            Voluntary and involuntary manslaughter are lesser included offenses of murder.  United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007).  However, they are not lesser included offenses of felony murder.  United States v. Miguel, 338 F.3d 995, 1004-06 (9th Cir. 2003). 

            The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction.  In United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000), the Ninth Circuit held that it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental.  A defendant is not automatically entitled to a voluntary manslaughter instruction.  There must be some evidence that supports the proposition that the defendant was acting out of passion rather than malice, such as evidence of provocation. United States v. Begay, 673 F.3d 1038 (9th Cir. 2011) (en banc).  The district court, which instructed the jury following Instruction 8.89 (2003) (now this instruction), properly instructed the jury on the correct definition of premeditation.  Id. at 1043. 

            The trial judge is obligated to give an instruction on a lesser included offense in a murder case if the law and evidence satisfy a two-part test.  Arnt, 474 F.3d at 1163.  The first step is a legal question: “Is the offense for which the instruction is sought a lesser-included offense of the charged offense?”  Id.  “The second step is a factual inquiry:  Does the record contain evidence that would support conviction of the lesser offense?”  Id. 

Revised June 2019

            The defendant is charged in [Count _______ of] the indictment with murder in the second degree in violation of Section 1111 of Title 18 of the United States Code.  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 unlawfully killed [name of victim]; 

            Second, the defendant killed [name of victim] with malice aforethought; and 

            Third, the killing occurred at [specify place of federal jurisdiction]. 

            To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life. 

Comment 

            See Comment to Instruction 16.1 (Murder—First Degree).  Because the difference between first- and second-degree murder is the element of premeditation, United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994), most of that Comment is applicable to second degree murder. 

            This instruction is derived from several sources.  It is primarily based upon Ornelas v. United States, 236 F.2d 392, 394 (9th Cir. 1956) (defendant could be convicted of second-degree murder at most when premeditation not part of murder charge).  See also Quintero, 21 F.3d at890.  

            As to the second element, the standard of malice was approved in United States v. Houser, 130 F.3d 867, 871 (9th Cir. 1997) (in second degree murder prosecution, malice aforethought means “to kill either deliberately and intentionally or recklessly with extreme disregard for human life”), and United States v. Begay, 33 F.4th 1081, 1091 (9th Cir. 2022) (en banc) (quoting standard of malice aforethought in Ninth Cir. Model Crim. Jury Instruction 16.2).  

            As to the third element, that a jurisdiction element is necessary is suggested by United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993).  Whether the crime alleged occurred at a particular location is a question of fact.  Warren, 984 F.2d at 327.  Whether the location is within the special maritime and territorial jurisdiction of the United States, or a federal prison is a question of law.  See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982). 

            The necessity for an additional element if a defense is raised is considered in United States v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987) (when defendant raised defense of accident to second degree murder charge, government bore burden of proving lack of heat of passion). 

            If there is evidence that the defendant acted in self-defense, see Instruction 5.10 (Self-Defense).

            Evidence that the defendant acted upon a sudden quarrel or heat of passion “acts in the nature of a defense to the murder charge . . . .  Once such evidence is raised, the burden is on the government to prove . . . the absence of sudden quarrel or heat of passion before a conviction for murder can be sustained.”  Quintero, 21 F.3d at 890; see Begay, 33 F.4th at 1088.  The following language might be added to address such circumstances: 

The defendant claims to have acted in sudden quarrel or in the heat of passion caused by adequate provocation, and therefore without malice aforethought.  Heat of passion may be provoked by fear, rage, anger, or terror.  Provocation, to be adequate, must be such as might arouse a reasonable and ordinary person to kill someone.

To show that the defendant acted with malice aforethought, the government must prove the absence of heat of passion beyond a reasonable doubt. 

            The heat of passion standard set forth above is suggested by United States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993). 

            The Ninth Circuit has noted that heat of passion is not the only condition that might serve as a defense to a murder charge and reduce the offense to manslaughter.  In Kleeman v. United States Parole Commission, 125 F.3d 725, 732 (9th Cir. 1997), the circuit suggested that an “extremely irrational and paranoid state of mind that severely impairs a defendant’s capacity for self control” may also negate the malice attached to an intentional killing.  If such a defense is raised, it may be appropriate to instruct the jury regarding the effect of such a theory.  A defendant is not automatically entitled to a voluntary manslaughter instruction.  There must be some evidence which supports the proposition that the defendant was acting out of passion rather than malice, such as evidence of provocation.  United States v. Begay, 673 F.3d 1038 (9th Cir. 2011) (en banc).  The district court, which instructed the jury following Instruction 8.89 (2003) (now this instruction), properly instructed the jury on the correct definition of premeditation.  Id. at 1043. 

            The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction.  In United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000), the court of appeals held that it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental. 

            The trial judge is obligated to give an instruction on involuntary manslaughter in a murder case if the law and evidence satisfy a two part test.  United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007).  The first step is a legal question: “Is the offense for which the instruction is sought a lesser-included offense of the charged offense?”  Id.  “The second step is a factual inquiry: Does the record contain evidence that would support conviction of the lesser offense?”  Id.  

            It is reversable error if the instructions “make it appear as though there is no difference between the severity of second degree murder and manslaughter . . . .”  United States v. Lesina, 833 F.2d 156, 158-59 (9th Cir. 1987) (language used in instructions did not provide meaningful distinction between second degree murder and involuntary manslaughter). 

            Voluntary and involuntary manslaughter are lesser included offenses of murder.  Arnt, 474 F.3d at 1163, however they are not lesser included offenses of felony murder.  United States v. Miguel, 338 F.3d 995, 1004-06 (9th Cir. 2003).  If any construction of the evidence would rationally support a jury’s conclusion that the killing was unintentional or accidental, even if there is conflicting evidence, an involuntary manslaughter instruction must be given.  United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000). 

Revised June 2022

            The defendant is charged in [Count _______ of] the indictment with voluntary manslaughter in violation of Section 1112 of Title 18 of the United States Code.  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 unlawfully killed [name of victim]; 

            Second, while in a sudden quarrel or heat of passion, caused by adequate provocation: 

a)         the defendant intentionally killed [name of victim]; or 

b)         the defendant killed [name of victim] recklessly with extreme disregard for human life; and 

            Third, the killing occurred at [specify place of federal jurisdiction]. 

            Heat of passion may be provoked by fear, rage, anger, or terror.  Provocation, to be adequate, must be such as might arouse a reasonable and ordinary person to kill someone. 

Comment 

            As to the first element, if there is evidence of justification or excuse, the following language should be added:  “A killing is unlawful within the meaning of this instruction if it was [not justifiable] [not excusable] [neither justifiable nor excusable].”           

            As to the second element, the United States Code defines manslaughter as an “unlawful killing of a human being without malice.”  18 U.S.C. § 1112.  Such killing is voluntary manslaughter when it occurs “[u]pon a sudden quarrel or heat of passion.”  Id.  However, noting tension between the common law and the boundaries of these statutory definitions, the circuit has suggested that courts have leeway to reconcile the “apparent language” of the statute with the common law of homicide.  See United States v. Quintero, 21 F.3d 885, 890-91 (9th Cir. 1994) (holding that intent without malice, not heat of passion, is essential element of voluntary manslaughter, despite “apparent” statutory language).  But see United States v. Paul, 37 F.3d 496, 499 n.1 (9th Cir. 1994) (suggesting language from Quintero that intent to kill is necessary element of voluntary manslaughter is dicta; while most voluntary manslaughter cases involve intent to kill, it is possible that a defendant who killed unintentionally but recklessly with extreme disregard for human life may have acted in a heat of passion with adequate provocation, so as to commit voluntary manslaughter). 

            Regardless of whether the mental state of a defendant was to kill intentionally or to kill with extreme recklessness, the circuit has explained that acting under a heat of passion serves to negate the malice that otherwise would attach to an intentional or extremely reckless killing.  United States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993) (holding defendant’s showing of heat of passion negates presence of malice); Paul, 37 F.3d at 499 n.1 (holding heat of passion and adequate provocation negates malice that would otherwise attach if defendant killed with mental state required for murder—intent to kill or extreme recklessness—so that it would not be murder but manslaughter); Quintero, 21 F.3d at 890-91 (holding sudden quarrel or heat of passion are not essential elements of voluntary manslaughter but may demonstrate that the defendant acted without malice). 

            The heat of passion standard found in the last paragraph of this instruction was suggested by Roston, 986 F.2d at 1291. 

            As to the third element, whether the crime alleged occurred at a particular location is a question of fact.  United States v. Warren, 984 F.3d 325, 327 (9th Cir. 1993).  Whether the location is within the special maritime and territorial jurisdiction of the United States, or a federal prison is a question of law.  See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982). 

            Heat of passion is not the only condition that might serve as a defense to a murder charge and reduce the offense to manslaughter.  In Kleeman v. United States Parole Commission, 125 F.3d 725, 732 (9th Cir. 1997), the circuit suggested that an “extremely irrational and paranoid state of mind that severely impairs a defendant's capacity for self control” may also negate the malice attached to an intentional killing.  

            If there is evidence that the defendant acted in self-defense, see Instruction 5.10 (Self-Defense). 

            Voluntary and involuntary manslaughter are lesser included offenses of murder.  United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007).  However, they are not lesser included offenses of felony murder.  United States v. Miguel, 338 F.3d 995, 1004-06 (9th Cir. 2003).  

            Second degree murder is reduced to voluntary manslaughter if the unlawful killing is done upon a sudden quarrel or in the heat of passion caused by adequate provocation.  Roston, 986 F.2d 1290-91. 

             Revised June 2019

            The defendant is charged in [Count _______ of] the indictment with involuntary manslaughter in violation of Section 1112 of Title 18 of the United States Code.  [Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill.]  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 committed an act that might produce death; 

            Second, the defendant acted with gross negligence, defined as wanton or reckless disregard for human life; 

            Third, the defendant’s act was the proximate cause of the death of the victim.  A proximate cause is one that played a substantial part in bringing about the death, so that the death was the direct result or a reasonably probable consequence of the defendant's act; 

            Fourth, the killing was unlawful; 

            Fifth, the defendant either knew that such an act was a threat to the lives of others or knew of circumstances that would reasonably cause the defendant to foresee that such an act might be a threat to the lives of others; and 

            Sixth, the killing occurred at [specify place of federal jurisdiction]. 

Comment 

            With respect to the first and second elements, see United States v. Garcia, 729 F.3d 1171 (9th Cir. 2013). 

            While the third element is not in the statute, it is required by United States v. Main, 113 F.3d 1046, 1049-50 (9th Cir. 1997) (“When the jury is not told that it must find that the victim’s death was within the risk created by the defendant’s conduct an element of the crime has been erroneously withdrawn from the jury . . . It is not relevant that § 1112 does not expressly mention proximate cause.”). 

            As to the fourth element, if there is evidence of justification or excuse, the following language should be added: “A killing is unlawful within the meaning of this instruction if it was [not justifiable] [not excusable] [neither justifiable nor excusable].” 

            While the fifth element is not in the statute, it is required by United States v. Keith, 605 F.2d 462, 463 (9th Cir. 1979). 

            As to the sixth element, whether the crime alleged occurred at a particular location is a question of fact.  Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law.  See United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982).

            The trial judge may be obligated to give an instruction on involuntary manslaughter in a murder case even when the defense does not offer the instruction.  In United States v. Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000), the Ninth Circuit held that it was plain error for the court not to instruct the jury on involuntary manslaughter, even though the defendant had not requested such an instruction, because there was evidence in the record to support the theory that the killing was accidental. 

            A two-step test applies to determine whether the trial judge is obligated to give an instruction on involuntary manslaughter in a murder case.  United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007).  The first step is a legal question: “Is the offense for which the instruction is sought a lesser-included offense of the charged offense?”  Id.  “The second step is a factual inquiry: Does the record contain evidence that would support conviction of the lesser offense?”  Id.  Voluntary and involuntary manslaughter are lesser included offenses of murder.  Id.  However, they are not lesser included offenses of felony murder.  United States v. Miguel, 338 F.3d 995, 1004-06 (9th Cir. 2003). 

Revised June 2019

            The defendant is charged in [Count ________ of] the indictment with attempted murder in violation of Section 1113 of Title 18 of the United States Code.  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 did something that was a substantial step toward killing [name of intended victim]; 

            Second, when the defendant took that substantial step, the defendant intended to kill [name of intended victim]; and 

            Third, the attempted killing occurred at [specify place of federal jurisdiction]. 

           A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing the crime.

             Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. 

Comment 

            “To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).  

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same). 

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010). 

            See Braxton v. United States, 500 U.S. 344, 351 (1991) (“Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.” (citations omitted)).  Although one acting “recklessly with extreme disregard for human life” can be convicted of murder if a killing results (see Instruction 16.1 (Murder—First Degree) and 16.2 (Murder—Second Degree)), that same recklessness cannot support a conviction of attempted murder if, fortuitously, no one is killed.  See United States v. Kwong, 14 F.3d 189, 194-95 (2d Cir. 1994) (holding that under 18 U.S.C. § 1113, attempted murder conviction requires proof of specific intent to kill; recklessness and wanton conduct, grossly deviating from a reasonable standard of care such that defendant was aware of the serious risk of death, would not suffice as proof of an intent to kill). 

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003). 

Revised May 2023

Comment 

          If a defendant is charged with murder, manslaughter, attempted murder, or attempted manslaughter of an officer or employee of the United States in violation of 18 U.S.C. § 1114, the appropriate murder instruction (16.1 (Murder—First Degree) or 16.2 (Murder—Second Degree)), manslaughter instruction (16.3 (Manslaughter—Voluntary) or 16.4 (Manslaughter—Involuntary)), or attempted murder instruction (16.5 (Attempted Murder)) should be used but modified to require the jury to find that the victim was a federal officer or employee and that at the time of the killing the victim was engaged in the victim’s official duties or was killed on account of the performance of his/her official duties.  An element alleging that the killing or attempted killing occurred at a place of federal jurisdiction, that is, within the special maritime and territorial jurisdiction of the United States, is not necessary here. 

            For an instruction defining “official duties,” see United States v. Ornelas, 906 F.3d 1138, 1149 (9th Cir. 2018) (upholding “official duties” instruction stating that test for determining whether officer is “[e]ngaged in the performance of official duties” is “whether the officer is acting within the scope of his employment, that is, whether the officer’s actions fall within his agency’s overall mission, in contrast to engaging in a personal frolic of his own”). See also United States v. Juvenile Female, 566 F.3d 943, 950 (9th Cir. 2009) (describing official duties test as “whether [the officer] is acting within the scope of what he is employed to do, as distinguished from engaging in a personal frolic of his own”). 

Revised June 2019

            The defendant is charged in [Count _______ of] the indictment with using interstate commerce facilities in the commission of a murder-for-hire in violation of Section 1958 of Title 18 of the United States Code.  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 [used] [caused another to use] [conspired to use] [conspired to cause another to use] a [specify facility in interstate or foreign commerce]]; 

or 

            [First, the defendant [traveled] [caused another to travel] [conspired to travel] [conspired to cause another to travel] via [specify method of travel in interstate or foreign commerce]]; 

            Second, the defendant did so with the intent that murder be committed; and 

            Third, the defendant intended that the murder be committed in exchange for [specify thing of pecuniary value]. 

Comment 

            Concerning the elements of the crime, see, e.g., United States v. Linehan, 56 F.4th 693, 707 (9th Cir. 2022) (citing Ninth Cir. Model Crim. Jury Instruction No. 16.7 (2022)).As to the first element, a “facility in interstate or foreign commerce” includes means of transportation and communication.  18 U.S.C. § 1958(b)(2). 

            As to the second element, the intent that murder be committed must have existed when the defendant used or conspired to use the facility of interstate commerce.  United States v. Driggers, 559 F.3d 1021, 1023 (9th Cir. 2009). 

            “State” includes a State of the United States as well as the District of Columbia, and any commonwealth, territory, or possession of the United States.  18 U.S.C. § 1958(b)(2). 

            “Pecuniary value” means anything of value, whether in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage.  18 U.S.C. § 1958(b)(1).  The defendant must have clearly understood he or she would give or receive the thing of pecuniary value in exchange for the murderous act.  United States v. Chong, 419 F.3d 1076, 1082 (9th Cir. 2005).  A promise of economic advantage may constitute a thing of pecuniary value even if it is not enforceable under contract law.  United States v. Phillips, 929 F.3d 1120, 1124 (9th Cir. 2019). 

Revised March 2023