United States v. Delaney

• Decision Date: 30 May 2013
• Docket Number: No. 12–2849.,12–2849.
• Citation: 717 F.3d 553
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Daniel L. DELANEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

717 F.3d 553

UNITED STATES of America, Plaintiff–Appellee,

v.Daniel L. DELANEY, Defendant–Appellant.

No. 12–2849.

United States Court of Appeals, Seventh Circuit.

Argued May 1, 2013.

Decided May 30, 2013.

James M. Warden (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

William H. Dazey, Jr. (argued), Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant–Appellant.

Before BAUER, POSNER, and TINDER, Circuit Judges.

POSNER, 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 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 defendant, 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 molestation “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?”

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 perpetrated 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 intentionally 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 government must prove beyond a reasonable doubt that the defendant intended to kill or willfully acted with callous and wanton disregard for the consequences, 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 circumstances that would provoke such passion in an ordinary 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.

The abstract and archaic language in which the statutory 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 aforethought,” 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 “aforethought”—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 criminal 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 forethought.” 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- id USBRE 93 L 0 EL 20130422 (visited May 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 murder), that are specified in the statute, must be “premeditated.” The exception for killing in the course of perpetrating 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 furtherance 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 premeditation—but remember that it must be consciously intended, therefore thought about in advance, and therefore 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 argument 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, 66 S.Ct. 1318, 90 L.Ed. 1382 (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...