17

‐ 3972

United States v. Walters

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ).

A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED

BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 4 th day of June, two thousand nineteen.

PRESENT: DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges,

BRENDA K. SANNES,

District Judge.*

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

UNITED STATES OF AMERICA,

Appellee,

v. 17

‐ 3972

JAQUAN WALTERS,

Defendant

‐ Appellant

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

* Judge Brenda K. Sannes, of the United States District Court for the Northern District of

New York, sitting by designation.2 FOR APPELLEE: MATTHEW LAROCHE, Assistant

United States Attorney (Karl Metzner,

Assistant United States Attorney, on the

brief ), for Geoffrey S. Berman, United

States Attorney for the Southern District

of New York, New York, New York.

FOR DEFENDANT

‐ APPELLANT: PAULA JACLYN NOTARI, Law Office

of Paula J. Notari, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Nathan, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

.

Defendant

‐ appellant Jaquan Walters appeals the judgment of the district

court entered December 4, 2017, convicting him of distributing and possessing with

intent to distribute marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), and

841(b)(1)(D), and of murdering another person with a firearm in relation to the

distribution of a controlled substance, in violation of 18 U.S.C. § 924(j)(1). After

stipulating to most of the offense conduct, the parties proceeded to a three

‐ day bench

trial. The sole issue at trial (and on this appeal) was whether the killing was murder or

manslaughter, that is, whether Walters acted with malice aforethought. The district

court concluded that Walters committed the killing with malice aforethought and

sentenced him principally to a total of 300 months ʹ imprisonment.3 The following facts are drawn from the parties ʹ stipulation and the district

court ʹ s factual findings: On August 26, 2015, at approximately 1:00 p.m., Walters

provided Lamar Moorer with a $10 bag of marijuana. Moorer refused to pay for it.

Moorer punched Walters, and a fistfight between them ensued, which lasted for several

minutes. After the fistfight ended, Walters left the scene on his bicycle to retrieve a

loaded firearm that had been stowed in a plastic bag on the roof of a nearby building.

Approximately six minutes after leaving the altercation with Moorer, Walters returned

to the scene with the gun. As the district court concluded, ʺ Mr. Walters walked out

between two cars towards Mr. Moorer, slowly and purposely pulled his gun out of the

plastic bag, and fired at least five shots in Mr. Moorer ʹ s chest. He continued to shoot

even after Mr. Moorer had fallen on the ground. ʺ App ʹ x at 489.

We assume the parties ʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

DISCUSSION

Walters challenges the sufficiency of the evidence supporting his

conviction for murdering another with a firearm in relation to a drug trafficking offense

in violation of 18 U.S.C. § 924(j)(1). In particular, he argues that the government failed

to meet its burden of proving beyond a reasonable doubt that the killing was committed

with the state of mind necessary for murder.4 I. Standard of Review

A defendant challenging a guilty verdict ʺ bears a heavy burden. ʺ United

States v. Martoma

, 894 F.3d 64, 72 (2d Cir. 2017) (internal quotation marks omitted). ʺ In

evaluating a sufficiency challenge, we ʹ must view the evidence in the light most

favorable to the government, crediting every inference that could have been drawn in

the government’s favor, and deferring to the jury’s assessment of witness credibility

and its assessment of the weight of the evidence. ʹʺ Id. (quoting United States v. Coplan

,

703 F.3d 46, 62 (2d Cir. 2012)). ʺ [W]e will uphold the judgment[] of conviction if ʹ any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. ʹʺ Coplan

, 703 F.3d at 62 (quoting Jackson v. Virginia

, 443 U.S. 307, 319

(1979)). This standard ʺ is exactly the same regardless whether the verdict was

rendered by a jury or by a judge after a bench trial. ʺ United States v. Pierce

, 224 F.3d

158, 164 (2d Cir. 2000) (internal quotation marks omitted).

II. Applicable Law

To convict a defendant of violating § 924(j), the government must prove

that the defendant (1) knowingly participated in a drug trafficking offense (2) during

and in relation to which the defendant used a firearm (3) that caused the death of

another person (4) in circumstances constituting either murder or manslaughter. 18

U.S.C. §§ 924(c), 924(j)(1)

‐ (2). 1

1 If the killing is a murder, as defined in 18 U.S.C. § 1111(a), then § 924(j)(1) applies, which5 Murder is the unlawful killing of another with ʺ malice aforethought, ʺ and

includes both (1) first

‐ degree murder, which encompasses premeditated and felony

murder, see 18 U.S.C. § 1111(a), and (2) second

‐ degree murder, which requires showing

ʺ a heightened disregard for human life, ʺ see United States v. Velazquez

, 246 F.3d 204, 215

(2d Cir. 2001). Voluntary manslaughter, on the other hand, is the killing of another

without malice ʺ [u]pon a sudden quarrel or heat of passion. ʺ 18 U.S.C. § 1112(a); see

also United States v. Castillo

, 896 F.3d 141, 151 (2d Cir. 2018). In other words, ʺ voluntary

manslaughter functions

. . . like a partial defense to murder, ʺ United States v. Steward

,

880 F.3d 983, 987 (8th Cir. 2018), and ʺ requires a mental state that would be malice

except for heat of passion or provocation, ʺ Velazquez

, 246 F.3d at 212 (quoting Leonard

B. Sand et al., Modern Federal Jury Instructions ¶ 41.02 (2000) (emphasis omitted)).

ʺ [T]he basic inquiry is whether or not at the time of the killing, the reason and judgment

of the defendant was obscured or disturbed by passion

. . . to such an extent as would

cause an ordinarily reasonable person of average disposition to act rashly and without

deliberation and from passion rather than judgment. ʺ Id. at 210 (internal quotation

marks omitted). The ʺʹ heat of passion ʹ defense is normally unavailable after some

interval of time has elapsed between the provocation and the response. ʺ Id. at 213. It

provides for a maximum sentence of life imprisonment. If the killing is a manslaughter, as

defined in 18 U.S.C. § 1112, then § 924(j)(2) applies, which provides for a maximum sentence of

15 years ʹ imprisonment.6 is the government ʹ s burden to prove the absence of the heat of passion beyond a

reasonable doubt. See Mullaney v. Wilbur

, 421 U.S. 684, 697

‐ 98, 704 (1975).

In addition to the heat of passion defense, some courts recognize the

doctrine of ʺ imperfect self

‐ defense, ʺ which similarly mitigates murder to voluntary

manslaughter where the defendant ʺ intend[ed] to use deadly force in the unreasonable

belief that he [was] in danger of death or great bodily harm. ʺ United States v. Manuel

,

706 F.2d 908, 915 (9th Cir. 1983) (emphasis added); see also United States v. Milk

, 447 F.3d

593, 599 (8th Cir. 2006) (noting that ʺ [a]n imperfect self

‐ defense involves the defendant ʹ s

unreasonable use of deadly force to thwart an assault ʺ and ʺ may be proven by evidence

that

. . . the defendant unreasonably but truly believed that deadly force was necessary

to defend himself ʺ ). This Circuit, however, has never held this partial defense to

murder to exist at federal common law.

III. Application

Walters ʹ s sole challenge on appeal is that evidence at trial was insufficient

to support the district court ʹ s conclusion that he killed Moorer with malice

aforethought.

First, Walters contends that the government failed to prove beyond a

reasonable doubt the absence of the heat of passion. We disagree. The district court

found, based on its review of the evidence, that ʺ [a]pproximately six minutes passed

between when the fistfight ended and when Mr. Walters killed Mr. Moorer, ʺ during7 which time ʺ any inflamed passions should have been cooled ʺ because ʺ Mr. Walters and

Mr. Moorer were separated from each other during this time, giving Mr. Walters time to

escape the provocative situation and reflect on his course of action. ʺ App ʹ x at 491

‐ 92.

Instead of merely leaving, however, Walters retrieved a gun from the roof of a nearby

building and returned to the scene. Id. at 492. After the killing took place, Walters

ʺ attempted to hide the gun ʺ and ʺ disposed of his bicycle. ʺ Id. at 492

‐ 93. All of this

demonstrated that ʺ Mr. Walters ʹ [s] reason and judgment were not disturbed by passion

at the time that he killed Mr. Moorer ʺ and instead demonstrated ʺ a calm, cool, collected

man who acted with a motive to kill the person who had just robbed him of marijuana

and with whom he had fought. ʺ Id. at 493. The district court thus concluded that ʺ Mr.

Walters ʹ [s] passions did in fact cool down, ʺ id. at 492, and that the government proved

ʺ beyond a reasonable doubt that the heat of passion defense does not apply here, ʺ id. at

493. The evidence was more than sufficient to support the district court ʹ s conclusions.

Second, Walters contends that the government failed to prove beyond a

reasonable doubt the absence of a subjective belief that he was in danger of death or

great bodily harm. Assuming without deciding that this partial defense to murder

exists at federal common law, there was ample proof to support the district court ʹ s

conclusion that Walters did not hold such a belief. The district court found, based on

its review of the evidence, that (1) Walters ʹ s conduct during the fistfight showed that he

was ʺ frequently the instigator or aggressor, ʺ App ʹ x at 500; (2) ʺ after managing to escape8 the situation, ʺ Walters ʺ chose to return and kill Mr. Moorer

. . . [and did so] almost

immediately and without provocation ʺ after returning to the scene, id. at 500

‐ 01; (3)

Walters ʹ s attempts to conceal the killing by attempting to hide the gun and his bicycle

indicate ʺ consciousness of guilt and thereby malice, ʺ id. at 501; (4) Walters shot Moorer

ʺ execution style, firing at least five shots at nearly point

‐ blank range ʺ while Moorer was

unarmed and talking on his cell phone and continued to fire even after Moorer was

lying on the ground, id. at 501

‐ 02; and (5) ʺ evidence suggest[s] that the true motivation

behind the killing was retaliation for Mr. Moorer ʹ s failure to pay Mr. Walters for

marijuana and their subsequent fight as opposed to genuine fear of Mr. Moorer, ʺ id. at

502. For all of these reasons, the evidence was more than sufficient to support the

district court ʹ s conclusion that Walters killed Moorer with malice aforethought and not

in the unreasonable belief that ʺ deadly force was necessary to defend himself. ʺ See

Milk

, 447 F.3d at 599.

* * *

We have considered all of Walters ʹ s remaining arguments and find them to

be without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED

.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk of Court