In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1390

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCIS G. GRADY,

Defendant-Appellant.

Appeal from the United States District Court for the 

Eastern District of Wisconsin.

No. 1:12-cr-00077 — William C. Griesbach, Chief Judge.

ARGUED DECEMBER 6, 2013 — DECIDED MARCH 27, 2014

Before KANNE and ROVNER, Circuit Judges, and DURKIN,

District Judge.*

KANNE, Circuit Judge. Francis Grady was convicted of arson

andintentionally damaging the property of a facility providing

reproductive health services. Grady now appeals, arguing that

the district court erred in defining the term “maliciously” in

the jury instructions. For the following reasons, we affirm.

 Of the Northern District of Illinois, sitting by designation.

*
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I. BACKGROUND

On April 1, 2012, Grady drove to Daniel Wolf’s house and

told Wolf that he wanted to blow up the Planned Parenthood

clinic in Grand Chute, Wisconsin. After Wolf refused to

provide him gasoline, Grady drove to a nearby gas station and

made two separate gasoline purchases, depositing some in his

van and a smaller amount in a plastic bottle. He then drove to

the Planned Parenthood clinic, parked his van, and

approached the facility with a hammer and the plastic container of gasoline. Grady broke a window with the hammer,

poured the gasoline into the building, and set it on fire.

The next morning, after seeing news reports of the fire,

Wolf called police and informed them that Grady may have

been responsible. The police arrested Grady and then questioned him in a videotaped interview. During the interview,

Grady admitted that he “lit the clinic up” and that his “intention was to light the building.” He also stated that he told

friends shortly after lighting the fire, he “thought as far as I

know I thought it f*****’ burned right down.”

Grady was charged with arson and intentionally damaging

the property of a facility providing reproductive health

services. At trial, Grady continued to express his discomfort at

what was happening at Planned Parenthood and reiterated

that it was his desire to burn down the clinic. He also claimed,

prior to lighting the fire, to have “said a prayer for all them

children that passed away in there from abortion.” Nonetheless, he admitted that his intent was to damage the building. A

Planned Parenthood facilities coordinatortestified that the fire

caused considerable damage to the building, which required
No. 13-1390 3

extensive repairs and forced Planned Parenthood to cancel all

clinic services the following day.

The parties disputed how to define the term “maliciously”

under 18 U.S.C. § 844(i) for the arson charge in the proposed

jury instructions. Neither the Seventh Circuit Pattern Jury

Instructions nor this court has defined the term. Grady wanted

to utilize the definition found in the Eighth Circuit Pattern Jury

Instructions whereas the government proposed use of the

definition from the Eleventh and Fourth Circuit Pattern Jury

Instructions.

The district court elected to use the government’s definition, explaining that Grady’s proposed instruction would shift

the burden to the government to prove that the defendant

acted without justification. 

The jury found Grady guilty of both arson and intentionally

damaging the property of a facility providing reproductive

health services. Grady now appeals, asserting that the district

court erred in instructing the jury regarding the definition of

the term “maliciously” as it appears in the arson statute, 18

U.S.C. § 844(i). 

II. ANALYSIS

We review jury instructions as a whole to determine

whether they fairly and accurately summarize the law. United

States v. Swan, 250 F.3d 495, 499 (7th Cir. 2000). In making this

determination, our review of the instructions is de novo. United

States v. Quintero, 618 F.3d 746, 753 (7th Cir. 2010). We afford

considerable discretion to the district court “with respect to the

precise wording of instructions so long as the final result, read
4 No. 13-1390

as a whole, completely and correctly states the law.” United

States v. Lee, 439 F.3d 381, 387 (7th Cir. 2006). We will reverse

“only if the instructions, when viewed in their entirety, so

misguided the jury that they led to appellant’s prejudice.”

Quintero, 618 F.3d at 753. 

The sole issue on appeal is whether the district court fairly

and accurately summarized the law with respect to the

meaning of the word “maliciously” in the jury instructions.

The arson statute under which Grady was charged punishes

anyone who “maliciously damages or destroys, or attempts to

damage or destroy, by means of fire or an explosive, any

building, vehicle, or other real or personal property used in

interstate or foreign commerce.” 18 U.S.C. § 844(i) (emphasis

added). The statute does not define the term “maliciously.”

Grady proposed that the term be defined as ”intentionally

caus[ing] damage without just cause orreason.” Thisdefinition

was taken from the 2011 Model Criminal Jury Instructions of

theEighth Circuit. The district court adopted the government’s

proposed instruction, however, which defined the term as

“[acting] intentionally or with deliberate disregard of the

likelihood that damage or injury will result.” Grady objected

to the definition and argued that his proposed instruction

offered a more common sense definition of the term. 

Though our circuit does not define “maliciously” in our

jury instructions, the definition used by the district court is not

without a legal basis. As we recently noted, this definition of

the term is “indeed a common definition of the word (or

cognates of it, such as ‘malice’), and makes perfectly good

sense when the damage involves a harm to a third person.”

United States v. McBride, 724 F.3d 754, 759 (7th Cir. 2013)
No. 13-1390 5

(citations omitted). Moreover, Grady’s proposed instruction is

taken from the Eighth Circuit’s 2011 model instructions, which

has since adopted the definition that was used by the district

court. See Eighth Circuit Manual of Model Jury Instructions

(Criminal) § 6.18.844 (2013); see also United States v. Whaley, 552

F.3d 904, 907 (8th Cir. 2009). The definition is also found in

both the Fourth and Eleventh Circuit Pattern Jury Instructions

and is how the common law traditionally defined the term. See

United States v. Gullet, 75 F.3d 941, 947 (4th Cir. 1996). Finally,

numerous other circuits have employed this same definition in

construing “maliciously” in the arson statute. See, e.g., United

States v. Monroe, 178 F.3d 304, 307–08 (5th Cir. 1999); United

States v. Wiktor, 146 F.3d 815, 818 (10th Cir. 1998); Gullet, 75

F.3d at 947–48; United States v. McFadden, 814 F.2d 144, 145–46

(3d Cir. 1987). 

The instructiontold the jury that Grady acted “maliciously”

if he acted intentionally or with deliberate disregard of the

likelihood that damage orinjury would result in setting the fire

at the Planned Parenthood facility. This allowed the jury to

properly weigh the intent of Grady in starting the fire. We find

no error by the district court in applying this definition.

Grady contends that the district court erred in rejecting his

proposed instruction and in particular the phrase “without just

cause or reason.” His argument relies on our recent opinion

United States v. McBride, which held that for “the federal arson

statute to make sense, ‘maliciously’ has to mean deliberately

(or in willful disregard of known or suspected consequences)

using fire to do a harmful act.” 724 F.3d at 759. Yet nothing in

McBride—which concerned the sufficiency of evidence to

establishmalicious intent rather than jury instructions—creates
6 No. 13-1390

the need for a specific jury instruction now. And as the court

in McBriderecognized, the definition used by the district court

is perfectly rational when the harm done is to a third party. Id.

Grady clearly caused harm to a third party, Planned Parenthood, when he set the fire in their building that resulted in

extensive damage and forced the facility to cancel all services

for a whole day. 

Regardless, the district court’s decision to omit the “without just cause orreason” language from the instruction is wellsupported by the record. A “jury instruction should be given

only when it addresses an issue reasonably raised by the

evidence.” United States v. Tanner, 628 F.3d 890, 904 (7th Cir.

2010). Grady has failed to point to any cognizable legal

justification for starting the fire at the Planned Parenthood

facility. Nothing in the record suggests otherwise. At trial,

Grady asserted that his proposed definition of the term was a

“more common sense definition” and did not contend that any

legal justification existed for his behavior. There was simply no

legal basis to include the phrase and the district court acted

well within its discretion in omitting it. Accordingly, we find

no error with the instruction.

III. CONCLUSION

Because we find no error with the instruction as given, we

AFFIRM Grady’s conviction.