5.6 MALICIOUSLY

Comment

There is no uniform definition of the term "maliciously." When a statute provides a definition of a term, that definition controls. However, when a statute does not define a term, the term will generally be interpreted "by employing the ordinary, contemporary, and common meaning of the words that Congress used." United States v. Kelly, 676 F.3d 912, 917 (9th Cir. 2012), quoting United States v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998). Furthermore, when a term "has accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of the term." Kelly, 676 F.3d at 917 (in prosecution under 18 U.S.C. § 1363, government was not required to prove that defendant harbored any "malevolence or ill-will"). One acts "maliciously" when he or she has only the intent to do the prohibited act and has no justification or excuse. Id.

Approved 3/2018