Michael Joseph Brown stabbed John Roy in the chest and was indicted on one count of second degree murder in violation of 18 U.S.C. § 1111(a) and 18 U.S.C. § 1153(a). 1 After a jury trial, he was con *969 victed of the lesser included offense of voluntary manslaughter and sentenced to ninety-seven months in prison and three years of supervised release. Mr. Brown appeals, contending the district court erred (1) in overruling his motion to suppress the inculpatory statements he made during interrogation by an agent of the Federal Bureau of Investigation (FBI); (2) in refusing to instruct the jury on the lesser included offense of involuntary manslaughtеr; (3) in its instruction explaining the elements of voluntary manslaughter; and (4) in determining his sentence. We reverse.
I
Mr. Brown lived with his mother, Antoinette LeClair Brown, her niece, Irma Pratt, Ms. Pratt’s common law husband, John Roy, and several children in Ms. Pratt’s apartment in White Eagle, Oklahoma. White Eagle is a small Ponca Tribal community near Ponca City consisting mainly of the Ponca Tribal Housing Authority apartment complex in which Ms. Pratt’s apartment was located. Mr. Brown, who was twenty-one years old at the time, spent the afternoon before the stabbing with his thirteen year-old cousin riding bikes, swimming, setting off fireworks аnd shooting BB guns near White Eagle.
In the late afternoon, Mr. Brown returned to White Eagle, obtained some money from his mother, and asked Mr. Roy to run him over to a convenience store to buy beer. When they got back, he took the beer to the home of his girlfriend, Goldie Clark, who lived in a nearby apartment in the complex. Between 7:00 and 8:00 p.m. that evening, Mr. Brown returned to Irma’s apartment and sat on the porch drinking beer. Ms. Pratt and Mr. Roy returned from town around 9:00 p.m. and Mr. Roy joined Mr. Brown on the porch, drinking beer and peppermint schnapps. Mr. Brown’s mother, who had beеn drinking most of the afternoon and was intoxicated, joined them briefly, drank two beers, and went back to bed. Ms. Pratt was inside, housecleaning, until around midnight when it began to rain. She called the men in and they all began drinking and singing along with a tape of “49” songs, which are Indian music with English words used on occasion as drinking songs.
The friendly atmosphere began to change after Mr. Brown talked to Ms. Pratt about his two girlfriends and Mr. Roy began to criticize Mr. Brown for having relationships with both girls. The events that followed are subject to dispute and clouded by the fact that the parties had been drinking steadily for several hours and could not remember things clearly. Irma Pratt testified at trial that Mr. Brown became upset over Mr. Roy’s remarks, and that Mr. Roy realized he had upset Mr. Brown and tried unsuccessfully to make amends. At some point, Mr. Brown went into the kitchen, where he *970 obtained a knife and hid it along his forearm. He returned to the living room and hid the knife in the chair cushions. Mr. Brown testified that he and Mr. Roy had had problems before, and that several weeks earlier Mr. Roy had ordered him to leave the apartment, shoved him, and took a swing at him. Mr. Brown stated that he got the knife to protеct himself from Mr. Roy coming toward him, and to scare Mr. Roy. Mr. Brown was five feet seven inches tall and weighed 150 pounds. Mr. Roy was forty-one years of age, and was described as between six feet and six feet two inches tall and as weighing approximately 240 pounds.
Mr. Brown left the living room a second time, went through the kitchen to his bedroom, and then returned to the living room, still upset. Mr. Brown testified he left a third time to go to his room, taking the knife with him to return it to the kitchen drawer. It is undisputed that Mr. Roy followed Mr. Brown into the kitchen while Irma remained in the living room. Mr. Brown testified that as Mr. Roy followed him into the kitchen, Mr. Roy grabbed him from behind by the shoulder. Mr. Brown stated that he had the knife in his hand ready to put it back in the drawer when Mr. Roy grabbed his shoulder, and that as he turned around, Mr. Roy swung at him and he swung at Mr. Roy with the hand holding the knife. He testified that he did not mean to stab Mr. Roy but was trying to hit him with his fist. The knife blade went into Mr. Roy’s chest and pierced his heart. He was subsequently transported to a hospital emergency room where he died a short time later.
Mr. Brown testified that he did not immediately realize he had stabbed Mr. Roy, and that he woke up his mother to tell her Mr. Roy was picking on him. When Ms. Pratt came into thе kitchen to bring Mr. Roy back to the living room, she saw blood on his shirt and discovered he had been stabbed. Mr. Brown’s mother came into the kitchen and grappled with Mr. Roy until Ms. Pratt pulled her back. Ms. Pratt ordered Mr. Brown, who was crying, to leave and he did so, going to Goldie Clark’s apartment.
Goldie Clark’s son Anthony testified that Mr. Brown gave him the knife and told him to hide it, and then went back to Irma Pratt’s house to get some clothes and his radio. When Mr. Brown returned, he told Anthony to get the knife and wash it. Anthony washed the knife and his brother hid it in a kitchen drawer.
Mr. Brown was discovered by the police at Ms. Clark’s apartment. He was arrested and taken to the Ponca Tribal Police station. At the time of his arrest, Mr. Brown was still intoxicated but able to walk. The booking officer read him a Miranda advisement and waiver form, asked him to respond, and filled in his answers. Mr. Brown’s affirmative responses to three questions on the form were the basis of his motion to suppress. 2 Although Mr. Brown was not questioned at that time, shortly after he was placed in a holding cell he agreed to accompany police officers back to the apartment complex and help them find the knife. The knife was recovered from Goldie Clark’s kitchen.
*971 The next morning Mr. Brown was interviewed by Raymond Hammergren, a special agent with the FBI. Prior to the interview, a Tribal Police officer told Agent Hammergren that Mr. Brown had been read his Miranda rights, although the agent did not see the completed form. After Agent Hammergren again informed Mr. Brown of his rights and answered Mr. Brown’s questions about his right to an attorney, Mr. Brown agreed to talk with the agent and signed the waiver. Mr. Brown was not informed of Mr. Roy’s death, and the interview was not recorded.
Agent Hammergren testified that Mr. Brown originally said he stabbed Mr. Roy after Mr. Roy аssaulted him with a baseball bat, and then said he stabbed Mr. Roy to protect his mother. After Agent Ham-mergren indicated that these stories were not consistent with the statements from other witnesses, Mr. Brown gave the following version of events. He said he had been angry with Mr. Roy for a couple weeks because Mr. Roy had made derogatory statements about him to one of Mr. Brown’s girlfriends, and that he was also upset over Mr. Roy’s comments the night of the stabbing about Mr. Brown’s involvement with two women. He refused to accept Mr. Roy’s apology that night and remained angry. Mr. Brown stated that at some point during his discussion with Mr. Roy he went into the kitchen and got a knife, and that he stabbed Mr. Roy when Mr. Roy followed him into the kitchen. According to the agent, Mr. Brown stated that Mr. Roy was unarmed and that the two never took swings at each other. Mr. Brown denied intending to kill Mr. Roy, but told the agent that he intended to hurt and scare him.
II
Mr. Brown filed a motion to suppress the statements he made to Agent Ham-mergren, contending the agent violated his rights under
Miranda v. Arizona,
Upon review of the denial of a motion to suppress, we accept the district court’s findings of fact unless they are clearly erroneous.
See United States v. Zamora,
*972 In Edwards, the Supreme Court stated that
when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
In this case, the Tribal Police waiver-of-rights form indicates that Mr. Brown answered “yes” when asked if he would answer questions without a lawyer present, but also answered yes when asked if he wanted a lawyer and if he wanted to talk to a lawyer. See rec. vol. 1, doc. 20, Gov’t Ex. 1. Although Mr. Brown concedes on appeal “that his responses to the Miranda warnings were not clear and unambiguous,” Brief of Aplt. at 24, he nonetheless argues that his statements to Agent Ham-mergren should have been suppressed, contending the police should have made an effort to clarify his responses.
Although the Court in
Davis
observed that “when a suspect makes an ambiguous or equivocal statement it will often be good police practicе for the interviewing officers to clarify whether or not he actually wants an attorney,” the Court declined “to adopt a rule requiring officers to ask clarifying questions.”
Davis,
Mr. Brown also asserts his waiver of the right against self-incrimination was not knowing and voluntary. The district court rejected this argument, finding that nothing in the circumstances of Mr. Brown’s arrest, incarceration, or questioning by Agent Hammergren rendered his statements to the • agent involuntary. “In reviewing a district court’s denial of a motion to suppress a statement or confession, we accept the district court’s underlying factual findings unless they are clearly erroneous. The ultimate issue of whether a statement was voluntary is question of law which we review
de novo.” United States v. Nguyen,
A suspect who has been advised of his right against self-incrimination may waive that right “provided the waiver is made voluntarily, knowingly, and intelligently.”
Miranda,
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.
United States v. Hernandez,
A determination of voluntariness is based on the totality of the circumstances. We examine several factors including the characteristics of the suspect, such as his age, intelligence, and education, and the details of the interrogation, such as whether the suspect was informed of his rights, the length of the detention and the interrogation, and the use or threat of physical force.
Nguyen,
Mr. Brown places great significance on the fact that he was not told prior to his interrogation that John Roy had died. He argues his waiver was not knowing and voluntary beсause he was not fully aware of the nature of the right being abandoned or the consequences of his decision to abandon it. The law is to the contrary. A waiver is not invalid “merely because the police did not inform Defendant of all the potential charges that could be brought against him.”
Nguyen,
Ill
Mr. Brown maintains that the trial court erred in refusing to give his requested instruction on the lesser included offense of involuntary manslaughter. His defense theory was that he acted in self-defense in a criminally negligent manner in causing the death of John Roy. The district court denied the request, stating that the jury could not reasonably return a verdict of involuntary manslaughter on the evidence.
A defendant seeking a lesser included offense instruction must satisfy four criteria.
See United States v. Humphrey,
Mr. Brown easily satisfied the first two elements of the lesser included offense inquiry. First, he made a proper request for the involuntary manslaughter instruction. Second, involuntary manslaughter is a lesser included offense of second degree murder, the crime with which he was charged.
See United States v. Begay,
We also conclude Mr. Brown met the third prerequisite, which requires that the element differentiating the two offenses be in dispute. Second degree murder and involuntary manslaughter both involve the unlawful killing of a human being.
See United States v. Wood,
As the cited authorities demonstrate, while “[t]he distinction between involuntary manslaughter and second-degree murder is that the former does not require malice aforethought [, t]he definitions of ‘malice aforethought’ and ‘without due care and circumspection’ developed in our case law ... use overlapping terminology: both refеr to ‘reckless and wanton’ behavior.”
Id.
at 1229. “The substantive distinction is the severity of the reckless and wanton behavior: Second-degree murder involves reckless and wanton disregard for human life that is extreme in nature, while involuntary manslaughter involves reckless and wanton disregard that is not extreme in nature.”
Id.
(citing cases);
see also Yazzie,
The government’s theory of the case was that Mr. Brown was angry with Mr. Roy, that he intended to use the knife and to inflict the wound, and that the force he used was fueled by rage and anger. The government argued to the jury that Mr. Brown’s acts were callous, wanton and reckless. In requesting an instruction on involuntary manslaughter, Mr. Brown asserted that the death of Mr. Roy occurred during an imperfect self-defense, i.e., that Mr. Brown inadvertently caused the death while defending himself, a lawful act, but did so in an unlawful manner by using excessive force. Whether Mr. Brown acted with the extreme recklessness and wantonness necessary to estаblish malice aforethought is therefore the disputed element here.
We thus turn to the fourth criteria governing a defendant’s entitlement to a lesser included offense to determine whether a jury could rationally convict Mr. Brown of second degree manslaughter and acquit him of second degree murder. In making this assessment, we bear in mind that the instruction must be given if there is any evidence to support it, even if that evidence is weak and contradicted, that we must give full credence to Mr. Brown’s testimony, and that “there may be some evidence of a lesser offense
even though this depends on an inference of a state of facts that is ascertained by believing defendant as to part of his testimony and prosecution witnesses on the other points in dispute.” Humphrey,
Our cases recognize that under section 1112(a), a defendant may commit involuntary manslaughter if he acts in self-defense but is criminally negligent in doing so.
See, e.g., Yazzie,
In Benally, the victim was also killed during a melee involving the defendant and other participants, all of whom had been drinking. We held that an involuntary manslaughter instruction was required by the defendant’s testimony that his participation in the fight was minimal, that he struck the victim when the victim punched him only because he did not want to be hit again, and that he did not intend to hurt or kill anyone. We concluded that this evidence supported the instruction despite conflicting testimony that the defendant kicked the victim in the head and side until restrained and hit him in the face until held back.
In
Begay,
we held that an involuntary manslaughter instruction was properly given in view of evidence that the victim and the defendant had been drinking, that the victim hit and shoved the defendant, and that in the ensuing scuffle the defendant drew a hunting knife and the victim was stabbed. We held that the jury could have concluded the defendant did not intend to stab the victim but was guilty of gross negligence in brandishing the knife. In so holding, we relied on
United States v. Iron Shield,
The circumstances in the above cases are sufficiently similar to inform our assessmеnt here. As we have observed, at the time of the crime, Mr. Brown was twenty-one years of age, five feet seven inches tall, and weighed 150 pounds. Mr. Roy was forty-one years old, over six feet tall, and weighed 240 pounds. The defense presented evidence that the two men had previously had problems, that Mr. Roy had thrown Mr. Brown out of the house on at least one occasion, and that the police had been involved. There was also testimony that Mr. Roy had shoved Mr. Brown on that occasion, and Mr. Brown testified that they had swung at each other. Goldie Clark tеstified that the two had gotten into arguments when Mr. Roy was drunk, and Mr. Brown’s mother testified that Mr. Roy had an “attitude” toward Mr. Brown and had kicked him out more than once. She stated that Mr. Brown stayed away from Mr. Roy when he was drunk because Mr. Roy got mean. The security guard for the apartment complex testified to hearing about Mr. Roy’s propensity for violence and to hearing that it was a common occurrence for Mr. Roy to pick on Mr. Brown. Mr. Brown testified that when Mr. Roy got drunk he liked to fight, and that he, Mr. Brown, got a knife from the kitchen to protect himself, to keep Mr. Roy from cоming toward him and to scare him. He testified that he went into the kitchen to return the knife to the drawer and that Mr. Roy followed him in and grabbed him from behind by the shoulder. *977 Mr. Roy swung at him and he ducked and swung back with the knife in his hand.
We conclude that this evidence, while contradicted to some degree by other testimony and by Mr. Brown’s prior statement to Agent Hammergren, is nonetheless sufficient to allow the jury to find that while Mr. Brown was criminally negligent in attempting to defend himself with a knife, he did not act with the extreme reckless and wanton disregard for human life required to support a conviction for second degree murder. The district court erred in taking the mens rea issue from the jury by refusing' to instruct on involuntary manslaughter.
6
“[I]f there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.” Humphrey,
IV
Mr. Brown also contends the district court erred in refusing to give two proffered instructions regarding intoxication and the intent necessary to commit the crime of second degree murder and the lesser included offense of voluntary manslaughter. To the extent that this issue may arise on retrial, we observe that voluntary intoxication is not a defense to the crime of voluntary manslaughter.
See United States v. Hatatley,
Finally, Mr. Brown challenges the district court’s application of the sentencing guidelines. In view of our holding that Mr. Brown must be retried, we need not address his sentencing arguments.
y
In sum, we REVERSE Mr. Brown’s conviction for voluntary manslaughter and *978 REMAND for a new trial in light of this opinion.
Notes
. It is undisputed that both Mr. Brown and John Roy were Indians and that the events *969 occurred within Indian country as defined in 18 U.S.C. § 1151. Under 18 U.S.C. § 1153(a), any Indian who commits, inter alia, the offenses of murder or manslaughter against another Indian within Indian country "shall be subject to the same laws and penalties as all other persons committing [such] offenses, within the exclusive jurisdiction of the United States.” The statute defining the federal crime of second degree murder provides:
Murder is 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 ... is murder in the first degree.
Any other murder is murder in the second degree.
18 U.S.C. § 1111(a).
. The form provided in pertinent part as follows:
Keeping your rights in mind, do you wish to answer questions now without a lawyer present? Yes_No_
Do you want a lawyer? Yes_ No_
Do you want to talk to a lawyer? Yes_ No_
Rec. vol. 1, doc. 20, Gov’t Ex. 1. Mr. Brown answered yes to all three questions.
. The government agreed not to offer any evidence of Mr. Brown's activities or statements when he returned to the crime scene with the Tribal police officers to recover the knife. The admission of that evidence is therefore not before us on appeal. The knife itself was offered into evidence and identified at trial by Anthony Clark, who had accepted the knife from Mr. Brown and later washed it.
. We also point out that the three questions which created the problem in this case are redundant and thus likely to elicit contradictory responses.
. We note, however, there is evidence in the record that the Tribal Police officer who processed Mr. Brown’s incarceration viewed giving Mr. Brown his Miranda rights as part of the booking procedure, and that the police did not intend to question Mr. Brown at that time.
. The district court held in part that the imperfect self-defense theory did not apply under the evidence because Mr. Brown’s own testimony tends to exclude that as a defense that can be considered in that his proposition is "I never intended to cut or stab at all.” Rec. vol. 6 at 196-97. The court erred in determining that an involuntary manslaughter instruction was precluded by Mr. Brown's testimony that he did not intend to use the knife at all. We have cited with approval the Eighth Circuit’s contrary analysis of similar circumstances:
[T]hе defendant herself testified that she did not intend to kill her husband, but meant only to brandish the knife to frighten him from their home. The court concluded that this testimony "put in issue whether [the defendant] might have been guilty of gross negligence in so brandishing the knife, and whether [this] negligence could be sufficient to convict her under that portion of § 1112(a) which refers to a killing ‘in the commission ... without due caution and circumspection, of a lawful act which might produce death.' "
United States v. Begay,
. We point out that Mr. Brown may only be retried on the charges of voluntary and involuntary manslaughter because the jury’s guilty verdict on the lesser included offense of voluntary manslaughter constituted an implicit acquittal on the charge of second degree murder.
See United States v. Paul,