Tiffany Janis v. United States of America
No. 22-2471
United States Court of Appeals for the Eighth Circuit
July 14, 2023
BENTON, Circuit Judge.
Submitted: May 10, 2023
Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Tiffany Charlene Janis appeals her conviction for discharging a firearm during a crime of violence. See
Janis shot and killed her husband when she found him cheating. She pled guilty to second-degree murder in Indian country. See
A year later, Janis moved to vacate her
II.
This court reviews de novo whether second-degree murder qualifies as a “crime of violence.” McCoy v. United States, 960 F.3d 487, 489 (8th Cir. 2020).
A.
Janis pled guilty to discharging a firearm during a crime of violence in violation of
[T]he term “crime of violence” means an offense that is a felony and—
[Force Clause] (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or [Residual Clause] (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
When Janis pled guilty under
To decide whether second-degree murder qualifies as a crime of violence under the force clause, this court applies the categorical approach described in United States v. Taylor, 142 S.Ct. 2015, 2020 (2022). Accord McCoy, 960 F.3d at 489. This approach compares the elements of second-degree murder with the force clause‘s requirements. Taylor, 142 S.Ct. at 2020. “The only relevant question is whether the federal felony at issue always requires the government to prove—beyond a reasonable doubt, as an element of its case—the use, attempted use, or threatened use of force” against the person or property of another. Id. See
Federal murder requires proof beyond a reasonable doubt that the defendant committed an “unlawful killing of a human being with malice aforethought.”
Recently, analyzing near-identical statutory language in the Armed Career Criminal Act, the Supreme Court showed how to interpret 924(c)‘s force clause. See Borden v. United States, 141 S.Ct. 1817, 1825–28 (2021) (plurality opinion); see also id. at 1834 (Thomas, J., concurring in the judgment). The plurality analyzed the clause‘s text, which defines violent felonies as those involving the “use of physical force against the person of another.”
Borden does not resolve Janis‘s case—second-degree murder cannot be committed with ordinary recklessness. See United States v. Johnson, 879 F.2d 331, 334 (8th Cir. 1989). See also United States v. Larry, 51 F.4th 290, 292 (8th Cir. 2022) (”Borden holds only that the force clause categorically excludes offenses that can be committed recklessly.“). Second-degree murder requires malice aforethought, a heightened mens rea. See Johnson, 879 F.2d at 334; Stevenson v. United States, 162 U.S. 313, 320 (1896) (“Malice in connection with the crime of killing is but another name for a certain condition of a man‘s heart or mind.“); United States v. Smith, 18 U.S. (5 Wheat.) 153, 160 (1820) (“In respect to murder, . . . ‘malice aforethought’ is of the essence of the offence . . . .“). Nonetheless, Borden‘s analysis of the statutory phrase “against the person of another” is instructive. See United States v. Frazier, 48 F.4th 884, 886 (8th Cir. 2022) (applying Borden‘s analytical approach).
B.
Janis argues that killing a person “with malice aforethought” can be done without “us[ing] force against the person or property of another.”
Under the approach of the Borden plurality,
The categorical approach compels this conclusion for malice aforethought. Malice aforethought expresses the “universal and persistent” concept “that a defendant must be ‘blameworthy in mind’ before he can be found guilty.” Elonis v. United States, 575 U.S. 723, 734 (2015), quoting Morissette v. United States, 342 U.S. 246, 250, 252 (1952). But the concept is—and has long been— “elusive.” Morissette, 342 U.S. at 252. See also Francis Wharton, A Treatise on the Law of Homicide in the United States ch. 1, § 3 (1875) (Malice aforethought is “distinctive[,] inconclusive,” and requires “peculiar exposition and limitation“), cited by Allen v. United States, 164 U.S. 492, 495 (1896), and Schad v. Arizona, 501 U.S. 624, 648 (1991) (Scalia, concurring in part and concurring in the judgment).
Malice aforethought‘s definition may be elusive, but its function is not: “malice aforethought“—a murder-specific term appearing only once in the entire United States Code (
This court defines “malice aforethought” as the “intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life.” United States v. Comly, 998 F.3d 340, 343 (8th Cir. 2021) (emphasis added), quoting Eighth Circuit Manual of Model Jury Instructions (Criminal) § 6.18.1111A-1 (2018). See United States v. Cottier, 908 F.3d 1141, 1147 (8th Cir. 2018) (recognizing that this definition “tracks circuit precedent verbatim“); Johnson, 879 F.2d at 334 (approving this definition).
Similar articulations go back hundreds of years. See United States v. Lung‘aho, --- F.4th ---, ---, No. 22-3268, 2023 WL 4359975, at *2 (8th Cir. July 6, 2023) (relying on hundreds of years of common law to define the term “malice” or “maliciously“). For example, Maine law—described as “like that of other jurisdictions,” Mullaney, 421 U.S. at 697—permitted inferring malice aforethought only where a “deliberate, cruel act, [was] committed by one person against another” without provocation, State v. Neal, 37 Me. 468, 470 (1854) (emphasis added). The Model Penal Code‘s definition also contains a direct object—it limits murder to reckless conduct “manifesting extreme indifference to the value of human life.” Model Penal Code § 210.2(1)(b) (emphasis added). Other circuits agree, too. See, e.g., United States v. Hicks, 389 F.3d 514, 530 (5th Cir. 2004) (malice aforethought involves “extreme recklessness and wanton disregard for human life” (emphasis added)); United States v. Baez-Martinez, 950 F.3d 119, 127 (1st Cir. 2020) (“[W]hat separates malice aforethought is the extreme indifference to the value of human life.” (quotation omitted)); United States v. Pineda-Doval, 614 F.3d 1019, 1037 (9th Cir. 2010) (malice aforethought involves “callous and wanton disregard of human life” and “extreme indifference to the value of human life.” (emphasis added)).
The history and definition of “malice aforethought” demonstrate that federal second-degree murder satisfies
C.
Janis suggests a narrower focus, based on the premise that “malice aforethought” can be established by a “depraved heart” or “extreme recklessness.” Such conduct, she argues, does not include the “targeted” or “directed” force that the Borden plurality says is required for a crime of violence. Thus, she says, second-degree murder cannot constitute a crime of violence.
Even if this court adopted Janis‘s preferred approach,4 it would reach the same result. Janis begins with the modern four-part categorization of mental states that
Janis says that second-degree murder can be committed with extreme recklessness, relying heavily on this court‘s quotation of the D.C. Circuit‘s statement of malice aforethought: “Malice may be established by evidence of conduct which is ‘reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.‘” United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978) (per curiam), quoting United States v. Cox, 509 F.2d 390, 392 (D.C. Cir. 1974). That articulation is often repeated. See, e.g., Cottier, 908 F.3d at 1146; United States v. French, 719 F.3d 1002, 1008 (8th Cir. 2013).
The authorities underlying Black Elk show that malice aforethought requires a “wanton disregard of human life, and a “defendant‘s “awareness of a serious danger to life.” See United States v. Dixon, 419 F.2d 288, 293 n.8 (D.C. Cir. 1969) (Leventhal, J., concurring), cited in Cox, 509 F.2d at 392 n.1. For that reason, Black Elk is consistent with this court‘s precedent that highlights the high degree of risk to
it piecemeal is appropriate, or whether that represents improper “obsess[ion] with hair-splitting distinctions, either traditional or novel, that Congress neither stated nor implied when it made the conduct criminal.” United States v. Bailey, 444 U.S. 394, 407 (1980). See also id. at 406 (“[E]lement-by-element analysis is a useful tool for making sense of an otherwise opaque concept, [but] it is not the only principle to be considered.“).
Black Elk‘s context shows that the standard it articulates is close to knowledge and far from ordinary recklessness. Black Elk contrasts its standard with “the subjective intent to kill,” another term for purposefulness. Black Elk, 579 F.2d at 51. If malice aforethought is defined by highlighting its small differences from purpose, it seems natural to locate it near the next most culpable mental state, knowledge.
Extreme recklessness also approaches the definition of knowledge. An individual acts knowingly “if he is aware that [a] result is practically certain to follow from his conduct.” United States v. Bailey, 444 U.S. 394, 404 (1980) (quotations omitted). Because the risk from extreme-reckless conduct is so high, the harmful result nears “practical certainty” that force will be applied to another person. See Baez-Martinez, 950 F.3d at 127 (“[T]he defendant who shoots a gun into a crowded room has acted with malice aforethought precisely because there is a much higher probability—a practical certainty—that injury to another will result. And the defendant certainly must be aware that there are potential victims before he can act with indifference toward them.“).
These considerations have led every other circuit considering the issue after Borden to conclude that “malice aforethought” conduct satisfies
Finally, Janis spotlights reckless-driving crimes to argue that extreme-recklessness murders need not involve directed force. She identifies five out-of-circuit cases that she says establish the possibility of committing second-degree murder by recklessly driving. See United States v. Fleming, 739 F.2d 945, 947–48 (4th Cir. 1984); United States v. Sheffey, 57 F.3d 1419, 1431 (6th Cir. 1995); United States v. Chippewa, 141 F.3d 118 (table), No. 97-30160, 1998 WL 123150, at *1 (9th Cir. Mar. 17, 1998) (unpublished); United States v. Merritt, 961 F.3d 1105, 1118 (10th Cir. 2020); United States v. Lemus-Gonzalez, 563 F.3d 88, 93 (5th Cir. 2009). This possibility, she argues, shows that second-degree murder can be committed without targeting force in the way Borden requires.
Neither Janis nor this court has found an Eighth Circuit case concluding that reckless driving can be murder. But assuming it could, reckless-driving-murder convictions require malice aforethought which, as discussed, is a sufficient mens rea to satisfy
Janis‘s five out-of-circuit cases themselves involved egregiously dangerous conduct with such a high probability of harm and such a callous and wanton disregard of human life that a jury could infer the existence of malice aforethought. See Lung‘aho, 2023 WL 4359975, at *3 (using the degree of “risk and culpability”
That a jury can find malice aforethought based on a defendant‘s acts behind the wheel does not undermine the conclusion that malice aforethought satisfies the force clause. Cf. Borden, 141 S.Ct. at 1827 (contrasting a knowingly homicidal driver who “would prefer a clear road,” but “sees a pedestrian in his path [and] plows ahead anyway” with a reckless one who “decides to run a red light, and hits a pedestrian whom he did not see.“); Lung‘aho, 2023 WL 4359975, at *2 (“running over a pedestrian the driver knows is right in front of him would still count [as a crime of violence], but one for recklessly hitting a pedestrian while texting would not“). It would overstate the holding of Borden to require that every use of force against the person of another must purposefully target the specific person who is victimized. Cf. Restatement (Second) of Torts § 8A, comment b, illus. 1 (“A throws a bomb into B‘s office for the purpose of killing B. A knows that C, B‘s stenographer, is in the office. A has no desire to injure C, but knows that his act is substantially certain to do so. C is injured by the explosion. A is subject to liability to C for an intentional tort.“); Voisine, 579 U.S. at 705 (Thomas, J., dissenting) (citing the Restatement). Therefore, this court rejects Janis‘s argument.
Janis argues that, due to the possibility of second-degree murder against an unborn child, the crime cannot be considered a “crime of violence.” She argues that a person can commit federal second-degree murder by applying force to an unborn child—but because a fetus is not “the person or property of another” as that phrase is used by
Janis relies on United States v. Flute, 929 F.3d 584 (8th Cir. 2019), which held that an indictment sufficiently alleged involuntary manslaughter when a baby died shortly after birth because the pregnant mother “ingest[ed] prescribed and over-the-counter medicines in a grossly negligent manner.” Flute, 929 F.3d at 586. This conduct, this court held, constituted unlawful killing of another human being who was born alive. Id. Relying on Flute, Janis maintains that a mother could commit second-degree murder by using force only against an unborn child (who is later born alive but dies from prenatal injuries), so the crime does not require the use of force against “the person . . . of another.”
Assuming for the sake of analysis that the use of force against an unborn child who dies after birth is not the use of force against “the person” of another, see United States v. Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011), Janis‘s reliance on Flute does not carry the day. The divided panel decision in Flute is the only reported case holding that a mother could be convicted of involuntary manslaughter for prenatal conduct. This court in McCoy, 960 F.3d at 490 did not extend the rationale of Flute to voluntary manslaughter. Janis suggests no authority under the common law or the federal statute that would extend Flute even further to convict a mother of second-degree murder (or first-degree murder) based on her prenatal conduct. Therefore, this court rejects Janis‘s argument.
Homicides committed with malice aforethought involve the “use of force against the person or property of another,” so second-degree murder is crime of violence. This holding implements the Supreme Court‘s command to interpret statutes using not only “the statutory context, structure, history, and purpose,” but also “common sense.” Abramski v. United States, 573 U.S. 169, 179 (2014). In the Court‘s force-clause cases, it counsels common-sense reasoning. In Leocal v. Ashcroft, 543 U.S. 1, 11 (2004), the Court said that it “cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.‘” Id. at 11. The Court was more explicit in Johnson v. United States, 559 U.S. 133 (2010), where it reminded courts that “[u]ltimately, context determines meaning” when interpreting a phrase “used in defining” the term “violent felony.” Id. at 139–40. The Borden plurality followed suit, noting that the “ordinary meaning” of “violent felony” “informs [its statutory] construction.” Borden, 141 S.Ct. at 1817.
Murder is the ultimate violent crime—irreversible and incomparable “in terms of moral depravity.” Kennedy v. Louisiana, 554 U.S. 407, 438 (2008). The Borden plurality agreed, quoting an opinion by then-Judge Alito that “[t]he quintessential violent crimes,’ like murder or rape, ‘involve the intentional use’ of force.” Borden, 141 S.Ct. at 1830, quoting Oyebanji v. Gonzales, 418 F.3d 260, 264 (3d Cir. 2005). Malice aforethought, murder‘s defining characteristic, encapsulates the crime‘s violent nature.
Janis unlawfully killed her husband with malice aforethought. That was murder—a crime of violence. Janis‘s
* * * * * * *
The judgment is affirmed.
Notes
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.
Even if they were, extreme-recklessness murders (where a killer has malice aforethought) are not necessarily less culpable than intentional ones (where a killer also has malice aforethought). The big division in culpability is not within malice-aforethought homicides, but between homicides committed with malice aforethought and those without. See Tison, 481 U.S. at 156; Mullaney, 421 U.S. at 693. In short, it is unclear whether subdividing malice aforethought and analyzing