Petition for Writ of Certiorari — Michael Burciaga, Petitioner v. United States

Supreme Court briefMay 29, 2026

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No. _______

In the

Supreme Court of the United States

Michael Burciaga,

Petitioner,

United States of America,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Petition for a Writ of Certiorari

Rene Valladares

Federal Public Defender, District of Nevada

*Amy B. Cleary

Assistant Federal Public Defender

Office of the Federal Public Defender

411 E. Bonneville Ave., Ste. 250

Las Vegas, NV 89101

(702) 388-6577

Amy_Cleary@fd.org

*Counsel for Petitioner Michael Burciaga

May 29, 2026

Question Presented for Review

This Court recognized in Allen v. United States, 164 U.S. 492, 497 (1896), the

common-law tenet that “mere words” do not mitigate murder to manslaughter

based on a heat of passion defense. The prevailing view across the country,

however, is that words may support a heat of passion defense when those words

impart highly provocative information. This informational words exception also

existed at common law, though this Court did not have occasion to address it in

Allen or subsequently. The question presented is:

Whether informational words may constitute adequate provocation for a heat

of passion defense.

List of Parties

Michael Burciaga is the Petitioner. The United States of America is the

Respondent. No party is a corporate entity.

Related Proceedings

(Rule 14.1(b)(iii) Statement)

This case arises from the following proceedings in the United States District

Court for the District of Nevada and the United States Court of Appeals for the

Ninth Circuit:

United States v. Burciaga,

3:20-cr-60-MMD-CLB-1 (D. Nev.); and

United States v. Burciaga,

No. 23-2663, 2025 WL 3187361 (9th Cir. Nov. 14, 2025).

No other proceedings directly relate to this case.

Table of Contents

Question Presented for Review ...................................................................................... i

List of Parties ................................................................................................................. ii

Related Proceedings (Rule 14.1(b)(iii) Statement) ....................................................... ii

Table of Contents .......................................................................................................... iii

Table of Authorites ....................................................................................................... iii

Petition for Writ of Certiorari ....................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdiction ................................................................................................................... 1

Constitutional and Statutory Provisions ...................................................................... 1

Introduction ................................................................................................................... 2

Statement of the Case ................................................................................................... 4

Factual Background ........................................................................................ 4

Procedural History .......................................................................................... 8

District Court Proceedings .......................................................................... 8

Appellate Court Proceedings ..................................................................... 10

Reasons for Granting the Petition .............................................................................. 12

The prevailing view is that informational words can engender heat of

passion and negate malice. ........................................................................... 12

Five federal circuits and thirteen state high courts agree that

informational words can engender heat of passion and negate malice....... 17

This Court’s intervention is needed. ............................................................. 26

This case presents an exceptionally important issue and an ideal vehicle

for resolution.................................................................................................. 26

The Ninth Circuit’s decision is wrong. ......................................................... 28

Conclusion ................................................................................................................. 31

iii

Appendices

Appendix A: Memorandum, United States v. Burciaga, No. 23-2663, 2025

WL 3187361 (9th Cir. Nov. 14, 2025) ..........................................1a

Appendix B: Order, United States v. Burciaga, No. 23-2663, App. Dkt. 58,

(9th Cir. Mar. 3, 2026)..................................................................5a

Appendix C: Jury Instructions on Counts One and Two, United States v.

Burciaga, 3:20-cr-00060-MMD-CLB-1, Dist. Ct. Dkt. 219

(9th.Cir. Feb. 27, 2023) ................................................................6a

Appendix D: Jury Verdict Form, United States v. Burciaga, 3:20-cr-00060MMD-CLB-1, Dist. Ct. Dkt. 229 (D. Nev. Mar. 17, 2022)....... 18a

Table of Authorities

Cases

Allen v. United States, 150 U.S. 551 (1893) .................................................. 13, 14, 15

Allen v. United States, 157 U.S. 675 (1895) .................................................. 13, 14, 15

Allen v. United States, 164 U.S. 492 (1896) .............................................. ii, 11, 13, 15

Alleyne v. United States, 570 U.S. 99 (2013) ...................................................... 20, 21

Black v. Tennessee, 606 U.S. ---, 145 S. Ct. 2622 (2025)...................................... 30, 31

Black v. Workman, 682 F.3d 880 (10th Cir. 2012) ............................................. 20, 21

California v. Trombetta, 467 U.S. 479 (1984) ........................................... 2, 21, 24, 26

Commonwealth v. Bermudez, 348 N.E.2d 802 (Mass. 1976) .................................... 22

Commonwealth v. Berry, 336 A.2d 262 (Pa. 1975) ................................................... 23

Commonwealth v. Ronchi, 202 N.E.3d 499 (Mass. 2023) ......................................... 22

Commonwealth v. York, 9 Metcalf (Mass.) 93, 103 (1845) ......................................... 15

Erlinger v. United States, 602 U.S. 821 (2024) ........................................................... 2

Haley v. State, 85 So. 129 (Miss. 1920) ..................................................................... 23

John Royley’s Case, 79 Eng. Rep. 254 ................................................................. 15, 16

Mathews v. United States, 485 U.S. 58 (1988) .......................................... 3, 21, 24, 26

Mullaney v. Wilbur, 421 U.S. 684 (1975) ...................................................... 12, 24, 25

Nolan v. State, 61 So. 3d 887 (Miss. 2011) ................................................................ 23

People v. Berry, 556 P.2d 777 (Cal. 1976) ................................................................. 22

People v. Pouncey, 471 N.W.2d 346 (Mich. 1991) ..................................................... 23

People v. Valentine, 169 P.2d 1 (1946) ...................................................................... 22

Raines v. State, 277 S.E.2d 47 (Ga. 1981) ................................................................. 22

Sells v. State, 653 P.2d 162 (N.M. 1982) ................................................. 16, 17, 21, 22

State v. Erazo, 594 A.2d 232 (N.J. 1991) .................................................................. 22

State v. Flory, 276 P. 458 (Wyo. 1929) ...................................................................... 23

State v. Thille, 570 P.3d 18 (Kan. 20) ....................................................................... 22

State v. Thompson, 836 N.W.2d 470 (Iowa 2013) ..................................................... 22

Toler v. State, 260 S.W. 134 (Tenn. 1924) ................................................................. 23

United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) ....................................... 12, 13

United States v. Burns, No. 18-10083, 2023 WL 7876414 (9th Cir. Nov. 16, 2023) 18

United States v. Frady, 456 U.S. 152 (1982) ....................................................... 25, 26

United States v. Johnson, 459 F.3d 990 (9th Cir. 2006) ..................................... 13, 21

United States v. Kayser, 488 F.3d 1070 (9th Cir. 2007) ..................................... 13, 21

United States v. Lofton, 776 F.2d 918 (10th Cir. 1985) ............................................ 25

United States v. McRae, 593 F.2d 700 (5th Cir. 1979) ............................................. 18

United States v. Roston, 986 F.2d 1287 (9th Cir. 1993) ............................... 11, 29, 30

United States v. Slager, 912 F.3d 224 (4th Cir. 2019) .............................................. 19

United States v. Sockey, 157 F.4th 1282 (10th Cir. 2025) ............................ 17, 19, 20

United States v. Spentz, 653 F.3d 815 (9th Cir. 2011) ............................................. 13

United States v. Velazquez, 246 F.3d 204 (2d Cir. 2001) .............................. 16, 17, 18

United States v. Wagner, 834 F.2d 1474 (9th Cir. 1987) .............................. 11, 29, 30

Wakaksan v. United States, 367 F.2d 639 (8th Cir. 1966) ....................................... 19

Washington v. State, 989 P.2d 960 (Okla. 1999) ...................................................... 23

Watts v. Brains, 78 Eng. Rep. 1009 ........................................................................... 13

United States Constitution

U.S. Const. amend. V. ................................................................................................... 1

U.S. Const. amend. VI ...................................................................................... 1, 3, 25

Federal Statutes

18 U.S.C. § 1111 ................................................................................ 2, 8, 10,12, 24, 25

18 U.S.C. § 1112 ............................................................................. 2, 10, 12, 13, 15, 19

18 U.S.C. § 1151 ............................................................................................................. 8

18 U.S.C. § 1152 ........................................................................................................... 8

18 U.S.C. § 1841 ............................................................................................................. 8

28 U.S.C. § 1254 ........................................................................................................... 1

28 U.S.C. § 2255 ......................................................................................................... 25

Scholarly Authorities

2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law

§ 7.10(b)(6) (2d ed.1986) ................................................................................. 16, 17

3 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law

§ 15.2(b)(6) (3d ed. 2018)................................................................................... 17, 19

J. Ohlin, Wharton’s Criminal Law § 22:6 Provocation—Words and Gestures

(16th ed. 2025) ....................................................................................................... 17

Richard Singer, The Resurgence of Mens Rea: I — Provocation, Emotional

Disturbance, and the Model Penal Code, 27 B.C. L. Rev. 243 (1986)................... 13

2 C. Wharton’s Criminal Law, Section 156 (14th ed. 1979)) .................................... 16

Whart. Cr. Law, § 455a (10th ed. 1896) ...................................................................... 15

Whart. Hom., § 393 ...................................................................................................... 15

State Jury Instructions

14A Mass. Prac., Summary of Basic Law § 7:153 (5th ed.) ........................................ 22

Petition for Writ of Certiorari

Petitioner Michael Burciaga respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Ninth Circuit.

Opinions Below

The Ninth Circuit’s unreported panel opinion (App. 1a–4a) is available at

2025 WL 3187361. The Ninth Circuit’s summary order denying rehearing is

unreported (App. 5a). The district court’s jury instructions on murder and

manslaughter (App. 6a–17a) and its verdict form are unreported (App. 18a–24a).

Jurisdiction

The Ninth Circuit entered judgment on Nov. 14, 2025, and denied a timely

rehearing petition on March 3, 2026. App. 1a–6a. The Court has jurisdiction under

28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions

U.S. Const. amend. V:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use,

without just compensation.

U.S. Const. amend. VI:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.

18 U.S.C. § 1111(a):

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; 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. § 1112(a):

Manslaughter is 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.

Introduction

“The Fifth and Sixth Amendments placed the jury at the heart of our

criminal justice system.” Erlinger v. United States, 602 U.S. 821, 831 (2024). The

Fifth Amendment compels that “criminal prosecutions must comport with

prevailing notions of fundamental fairness.” California v. Trombetta, 467 U.S. 479,

485 (1984). This Court has “long interpreted this standard of fairness to require

that criminal defendants be afforded a meaningful opportunity to present a

complete defense.” Id. A necessary corollary to that meaningful opportunity is the

right “to an instruction as to any recognized defense for which there exists evidence

sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485

U.S. 58, 63 (1988). The Sixth Amendment guarantees that no conviction may be

sustained unless and until the prosecution proves all the charged offense elements

beyond a reasonable doubt. U.S. Const. amend. VI.

The rulings in this case significantly undermine these fundamental

constitutional protections. Mr. Burciaga’s jury was not properly instructed on his

heat of passion defense at his murder trial, even though the trial court found he

presented sufficient provocation evidence to negate the element of malice. This

ruling eliminated the prosecution’s burden to prove the absence of heat of passion

for the murder charge. On appeal, the appellate court bypassed both the

instructional and burden of proof errors. Instead, because some of the provocation

evidence included words, the appellate court summarily applied the common-law

“words alone” doctrine to find there was no instructional error in the first instance.

The appellate court’s ruling is not only contrary to the prevailing view on

provocation evidence, but it also ignores the common-law exception that

informational words can engender heat of passion. This Court’s review is necessary

to preserve the integrity of the Fifth and Sixth Amendment protections guaranteed

to all criminal defendants by clarifying the common-law “words alone” doctrine and

its informational words exception.

Statement of the Case

Factual Background1

Petitioner Michael Burciaga lived on the Pyramid Lake Indian Reservation in

Nevada at the home of his girlfriend Amanda Davis and her three minor children.2

The couple’s relationship, however, was a volatile one, and they often engaged in

tumultuous arguments with and domestic violence against each other.3

In early 2020, Ms. Davis became pregnant with Mr. Burciaga’s child. But

doctors gave the couple devasting news: the fetus had Trisomy-18, a lethal

chromosomal defect that meant the fetus would likely die in utero.4 The likelihood

of an in utero death ranged between over 50% to 80%5 and could occur at any

moment.6 In the statistically unlikely event the fetus survived birth, it would likely

die within days.7

The couple faced a heart-wrenching decision. Doctors advised they could: (1)

abort the pregnancy; (2) let the pregnancy take its course and, if the fetus survived,

provide palliative care as it died; (3) plan for post-birth surgery with specialists in

another city in an effort to delay death for a short time; or (4) do nothing and

1 “App. Dkt. __” citations reference the electronic docket for the Ninth Circuit

Court of appeals in United States v. Burciaga, Case No. 23-2663 (9th Cir.). “Dist. Ct.

Dkt. __” citations reference the electronic docket for the District Court in the

District of Nevada in United States v. Burciaga, Case No. 3:20-cr-00060-MMD-CLB1 (D. Nev.).

2 App. Dkt. 20, 5-ER-1181.

3 Id. at 5-ER-1186, 1204–1208.

4 Id. at 5-ER-1055–1056; 6-ER-1386–1387; 6-ER-1409–1429.

5 Id. at 6-ER-1391, 1414–1415; 8-ER-2008.

6 Id. at 8-ER-2010.

7 Id. at 6-ER-1391.

determine the best course after delivery.8 The couple could not agree on how to

proceed. Mr. Burciaga favored undertaking surgical and life support measures to

prolong the fetus’s life; Ms. Davis favored palliative care as the fetus died.9

The terminal Trisomy-18 diagnosis deeply affected Mr. Burciaga.10 He

suffered anxiety over the grim prognosis for which he received psychiatric care and

medication.11

Mr. Burciaga participated in Ms. Davis’s early prenatal appointments, but

Ms. Davis excluded him from those appointments in her third trimester.12 At a

December 9, 2020 prenatal appointment without Mr. Burciaga, a doctor confirmed

the fetus was still alive.13 This appointment was particularly important—any plan

for post-delivery, out-of-town surgery required advance scheduling of specialists and

time was running out to do so.14 Mr. Burciaga called Ms. Davis repeatedly during

that appointment, but Ms. Davis would not speak to him.15

Five days later, on December 14, 2020, Mr. Burciaga left the couple’s home,

drank alcohol excessively, and passed out.16 When he returned home that evening,

8 Id. at 6-ER-1427–1428.

9 Id. at 6-ER-1388–1389.

10 Id. at 5-ER-1062–1063.

11 Id. at 7-ER-1816–1822.

12 Id. at 5-ER-1216–1217.

13 Id. at 6-ER-1390.

14 Id. at 5-ER-1070.

15 Id. at 5-ER-1033.

16 App. Dkt. 25, GX-41a-3 (08:57:20-09:02:43).

he asked Ms. Davis if he could fall asleep and hold her.17 Ms. Davis rebuffed him18

and the couple began arguing.19 The argument increased in intensity and apexed

when Ms. Davis cursed at Mr. Burciaga and said she did not want his baby.20

Hearing this, Mr. Burciaga grabbed a nearby knife and stabbed Ms. Davis.21 When

the knife broke, he ran to the kitchen for another.22 Ms. Davis summoned her

children into the bedroom and barricaded the door.23 She armed her oldest daughter

D.D. with a wooden rod, and D.D. grabbed a knife.24 When Mr. Burciaga broke into

the bedroom,25 the chaos continued: Ms. Davis hit Mr. Burciaga in the head with a

metal bat,26 D.D. hit Mr. Burciaga with a metal lamp, a wooden rod, and a metal

bat,27 and Mr. Burciaga stabbed Ms. Davis chaotically28 with a knife.29 Mr. Burciaga

sustained a head wound and defensive knife wounds to his right hand during the

couples’ fight.30

17 Id. at GX-41a-3 (09:02:43-09:03:57; 09:08:43-09:09:22).

18 Id. at GX-41a-3 (09:03:57-09:04:04).

19 App. Dkt. 20, 5-ER-1185–1186.

20 App. Dkt. 25, GX-41a-3 (09:04:43-09:09:05).

21 Id. at GX-41a-3 (09:06:08-09:07:01).

22 Id. at GX-41a-3 (09:07:01-09:07:57).

23 Id. at GX-41a-3 (09:08:08-09:08:17); App. Dkt. 20, 5-ER-1221–1273.

24 App. Dkt. 20, 5-ER-1223–1227.

25 App. Dkt. 25, GX-41a-3 (09:07:57-09:07:58).

26 Id. at GX-41a-3 (09:08:17-09:08:30).

27 Id. at GX-41a-3 (09:10:09-09:10:15); 5-ER-1239–1242.

28 App. Dkt. 20, 8-ER-1993.

29 App. Dkt. 25, GX-41a-3 (09:08:30-09:08:38).

30 App. Dkt. 20, 7-ER-1622–1624; 12-ER-3155–3160, 3162–3163.

After the fight, Mr. Burciaga’s right hand was cut deeply and gushing blood.31

He walked out of the home32 and laid down in a nearby ditch believing the police

would come soon.33 He then realized the seriousness of what had happened,34

returned immediately, and surrendered to police35 without incident.36 He yelled to

Ms. Davis to “[t]ake care of our son,”37 but soon lost consciousness.38

Paramedics attended to the couple onsite.39 They transported Mr. Burciaga,

to the hospital for his significant hand laceration and head wound.40 Mr. Burciaga

repeatedly asked how Ms. Davis was doing, but no one would tell him.41 Though Mr.

Burciaga did not yet know it, Ms. Davis died in her home.42

Hospital tests revealed Mr. Burciaga had a high blood alcohol content and

methamphetamine and other substances in his system.43 After Mr. Burciaga

underwent emergency surgery to repair his hand, an agent with the Federal Bureau

of Investigation agent told him that Ms. Davis died.44 Mr. Burciaga then confessed

31 App. Dkt. 25, GX-41a-3 (09:10:57-09:11:15).

32 Id. at GX-41a-3 (09:10:17-09:10:56; 09:11:17-09:11:35).

33 Id. at GX-41a-3 (09:11:15-09:11:18).

34 Id. at GX-41a-3 (09:11:35-09:12:24).

35 Id. at GX-41a-3 (09:12:25-09:12:37).

36 Id. at GX-41a-3 (09:12:37-09:13:15); GX-5a-3 (00:37:17-0039:16).

37 App. Dkt. 20, 6-ER-1465; App. Dkt. 25, DX-531-A.

38 App. Dkt. 25, GX-5c.

39 Id. at GX-22d, 22e.

40 Id. at GX-23a-b; App. Dkt. 20, 10-ER-2623–2661; 12-ER-3153–3163.

41 App. Dkt. 25, GX-5e; GX-5g; GX-8a.

42 App. Dkt. 20, 6-ER-1590.

43 Id. at 1-ER-93.

44 Id. at 6-ER-1493–1494.

to the agent that he stabbed Ms. Davis when she told him she did not want his

baby, but he never planned or intended to kill Ms. Davis when he went home that

night.45

Procedural History

District Court Proceedings

Mr. Burciaga was federally indicted on three counts: first-degree murder

under 18 U.S.C. §§ 1111, 1151, 1152 (Count One); protection of unborn children

under 18 U.S.C. §§ 1841(a)(1), 1111, 1151, 1152 (Count Two); and domestic assault

by a habitual offender (Count Three).46

At his jury trial, Mr. Burciaga presented a heat of passion and sudden

quarrel defense and proffered a corresponding jury instruction to the first-degree

murder charge.47 In support, he presented largely unrebutted evidence that he

acted in the heat of passion or sudden quarrel. This evidence included: Mr.

Burciaga’s anxiety following the Trisomoy-18 diagnosis for which he received

psychiatric care; the couple’s escalating disagreement over whether to proactively

plan for surgery in an attempt to ameliorate the effects of Trisomy-18 (his strong

preference) or do nothing (Ms. Davis’s strong preference); the disagreement’s apex

immediately before the stabbing when Ms. Davis cursed at Mr. Burciaga and said

she did not want his baby; the disordered pattern of wounds on Ms. Davis; Mr.

Burciaga’s high intoxication levels at the time of the stabbing, intensifying his

45 App. Dkt. 25, GX-41a, a-1, a-2, a-3, b.

46 App. Dkt. 20, 3-ER-636–638.

47 See App. Dkt. 19, Opening Br., 25–29; App. Dkt. 46, Reply Br., 13–21.

response to perceived provocation; and Mr. Burciaga’s head and defensive hand

injuries from the fight with Ms. Davis, the latter of which required surgery.48

Mr. Burciaga’s proposed a first-degree murder instruction that identified the

offense elements but advised jurors:

It is not first degree murder if Mr. Burciaga acted upon a sudden

quarrel or heat of passion, or otherwise acted without malice

aforethought. Heat of passion may be provoked by fear, rage, anger or

terror. Provocation, in order to be adequate, must be such as might

arouse a reasonable and ordinary person to kill someone. In order to

show that Mr. Burciaga acted with malice aforethought, the

government must prove the absence of a sudden quarrel or heat of

passion, and any other condition that might negate malice forethought,

beyond a reasonable doubt.49

He proposed an identical instruction for the lesser-included second-degree murder

offense50 and requested jurors be instructed on the lesser-included offenses of

voluntary and involuntary manslaughter.51

The district court found sufficient evidence to instruct jurors on all lesserincluded offenses to first-degree murder and provide the heat of passion/sudden

quarrel defense instruction for the murder charge.52 The district court explained,

Count One appropriately includes the additional element that the

government has to . . . negate heat of passion, and I think there’s been

evidence offered that the killing occurred in the context of the two

individuals’ argument, as heard by D.D. in her testimony that she

woke up because she heard argument; and in the broader context of

the two individuals disagreement about the – their child’s Trisomy 18

and how to address the genetic condition.53

48 See supra 4–8.

49 App. Dkt. 20, 2-ER-344–345.

50 Id. at 2-ER-346–347.

51 Id. at 2-ER-342–343.

52 Id. at 8-ER-2056; 8-ER-2076–2077; 8-2082–2093.

53 Id. at 8-ER-2056.

But the district court changed course after the government claimed it would

confuse jurors to incorporate the heat of passion defense into both the murder and

voluntary manslaughter instructions.54 The district court thus removed the heat of

passion and sudden quarrel defense instructional language from the murder

instruction, including it only in the voluntary manslaughter instruction. App. 6a–

10a.55 The verdict form further instructed jurors to consider voluntary

manslaughter only if they first acquitted on the murder charges or could not

unanimously agree on the murder charges. App. 18a–23a.

Together, the jury instructions and verdict form directed jurors not to

consider the heat of passion/sudden quarrel defense unless and until they first

acquitted or could not agree on the murder charges. App. 6a–10a, 18a–23a. The jury

convicted Mr. Burciaga of first-degree murder. App. 18a–23a.56

Appellate Court Proceedings

Mr. Burciaga timely appealed.57 Mr. Burciaga argued that the district court’s

error in failing to properly instruct jurors on his a heat of passion or sudden quarrel

defense alleviated the government’s burden of proof to secure a murder conviction.58

54 Id. at 8-ER-2077–2080. The government claimed it might confuse jurors to

instruct them on the heat of passion/sudden quarrel defense in conjunction with the

murder charge because the government had to prove the absence of the defense to

obtain a murder verdict and prove the existence of the defense to obtain a voluntary

manslaughter verdict. See id.; 18 U.S.C. §§ 1111 (murder), 1112(a) (voluntary

manslaughter).

55 See also App. Dkt. 20, 2-ER-377; 2-ER-379; 8-ER-2077–2080.

56 The jury also convicted on Counts Two and Three. App. 24a.

57 App. Dkt. 3-ER-639.

58 App. Dkt. 19, Opening Br., 25–29; App. Dkt. 46, Reply Br., 13–21.

He requested his convictions be reversed and he be granted a new trial because

these errors were not harmless, and the government could not demonstrate

otherwise.59

The three-judge appellate panel circumvented the jury instruction errors. The

panel instead stated that Mr. “Burciaga presented only three statements by Davis

that he alleges constitute sufficient evidence of provocation to warrant a provocation

jury instruction. Words alone, however, generally do not make for adequate

provocation.” App. 2a. As support, the panel cited this Court’s decision in Allen v.

United States, 164 U.S. 492, 497 (1896), and the Ninth Circuit’s decisions in United

States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993), and United States v. Wagner,

834 F.2d 1474, 1487 (9th Cir. 1987). App. 2a. Then, without identifying the three

statements, their nature, or the circumstances surrounding them, the panel decided

for itself that those unidentified statements were “insufficient evidence of

provocation to warrant a defense theory instruction on heat of passion.” App. 2a.

The Ninth Circuit subsequently summarily denied Mr. Burciaga’s timely petition

for panel and en banc rehearing. App. 5a.

59 App. Dkt. 46, Reply Br., 17–21.

Reasons for Granting the Petition

The prevailing view is that informational words can serve as adequate

provocation to mitigate murder to manslaughter by negating the element of malice.

Five federal circuit courts and thirteen state high courts recognize this dominant

opinion, yet the Ninth Circuit Court of Appeals did not consider it here. Because

criminal defendants like Mr. Burciaga have a due process right to meaningfully

present a complete defense and have jurors properly instructed to consider that

defense, the Ninth Circuit’s erroneous failure to apply the prevailing view has

nationwide implication. This case presents an ideal vehicle to resolve this important

issue.

The prevailing view is that informational words can

engender heat of passion and negate malice.

Federal law divides unlawful killings into four categories: first-degree

murder, second-degree murder, voluntary manslaughter, and involuntary

manslaughter. See 18 U.S.C. §§ 1111(a) (murder offenses), 1112(a) (manslaughter

offenses). To maintain these distinct categories, this Court recognizes that “the

presence or absence of the heat of passion on sudden provocation–has been, almost

from the inception of the common law of homicide, the single most important factor

in determining the degree of culpability attaching to an unlawful homicide.”

Mullaney v. Wilbur, 421 U.S. 684, 696 (1975). “A defendant who acts in the heat of

passion is guilty of voluntary manslaughter rather than murder.” United States v.

Begay, 33 F.4th 1081, 1088 (9th Cir. 2022); see also 18 U.S.C. § 1112(a) (defining

voluntary manslaughter as an “unlawful killing” “[u]pon a sudden quarrel or heat of

passion”). This is because heat of passion “negates the malice” element necessary

for a murder conviction. Begay, 33 F.4th at 1088 (cleaned up).

To properly present a heat of passion defense, the person who committed the

killing need offer only “some provocation to produce a certain condition of mind.”

Allen v. United States, 164 U.S. 492, 496 (1896) (Allen III) (emphasis added); see

also United States v. Spentz, 653 F.3d 815, 818 (9th Cir. 2011) (defendants need

present only “slight” evidence in support of defense theory instruction); United

States v. Kayser, 488 F.3d 1070, 1076 (9th Cir. 2007) (the legal threshold for a

defense theory instruction is “generous” to “protect[] the defendant’s right to have

questions of evidentiary weight and credibility resolved by the jury”); United States

v. Johnson, 459 F.3d 990, 993 (9th Cir. 2006) (cleaned up) (standard is satisfied

when there is more than “a ‘mere scintilla of evidence,’” “even if [the] evidence ‘is

weak, insufficient, inconsistent, or of doubtful credibility’”).

The fundamental inquiry thus asks what suffices as “some provocation” to

support a heat of passion defense. At common law, the general rule provided that

“[n]o words or gestures, however provoking,” could “justify homicide from the crime

of murder.” Watts v. Brains, 78 Eng. Rep. 1009.60 This Court recognized this

common-law doctrine in a series of cases: Allen III, 164 U.S. at 497; Allen v. United

States, 157 U.S. 675, 679–78 (1895) (Allen II); and Allen v. United States, 150 U.S.

60 Watts is undated but appears to have been “decided in or before 1600.”

Richard Singer, The Resurgence of Mens Rea: I — Provocation, Emotional

Disturbance, and the Model Penal Code, 27 B.C. L. Rev. 243, n.39 (1986) (citation

omitted).

551, 552 (1893) (Allen I). But the analysis undertaken in the Allen series,

predicated on highly specific facts, is incapable of resolving the question presented

here.

The Allen trilogy arose from a murder charge against Allen, a Black teenager,

for killing Henson, a White teenager. Allen I, 150 U.S. at 552. The trial evidence

conflicted as to which teenager was the aggressor and the nature of the aggressive

acts. Allen II, 157 U.S. at 675; Allen I, 150 U.S. at 552–53, 557. For his part, Allen

presented evidence that Henson physically assaulted and, using a racial slur,

threatened to “settle with” Allen the next time he saw him. Allen I, 150 U.S. at 552.

Two days later, Henson again used a racial slur and physically assaulted Allen;

Allen responded by killing Henson. Allen II, 157 U.S. at 675; Allen I, 150 U.S. at

552–53. Allen was charged with murder. Allen I, 50 U.S. at 551.

The trial court instructed jurors on manslaughter but directed them to

separate their consideration of words Hansen may have used from conduct Hansen

may have engaged in:

The party who is killed, at the time of the killing, must offer some

provocation to produce certain condition of mind. Now, what is the

character of that provocation that can be recognized by the law as

being sufficient to reduce the grade of the crime from murder to

manslaughter? He cannot produce it by mere words, because mere

words alone do not excuse even a simple assault. Any words offered at

the time do not reduce the grade of the killing from murder to

manslaughter. He must be doing some act—that is, the deceased,

Philip Henson, in this case, the party killed—which at the time is of a

character that would so inflame the mind of the party who does the

killing as that the law contemplates he does not act deliberately, but

his mind is in a state of passion, in a heat of passion, where he is

incapable of deliberating.

Allen III, 496 U.S. at 496–97. This Court affirmed the instruction, stating “[i]t is

well settled by the authorities that mere words, however aggravating, are not

sufficient to reduce the crime from murder to manslaughter.” Id. at 497 (citing

Commonwealth v. York, 9 Metcalf (Mass.) 93, 103 [(1845)]; Whart. Hom., § 393;

Whart. Cr. Law, § 455a (10th ed. [1896])).

But Allen is of limited use here, as it is predicated on very specific facts and

did not address the common-law exception to the “words alone” tenet. Factually,

Allen involved racial insults, a single threat to “settle” matters two days before the

killing, and contested evidence concerning the events preceding the killing. Allen I,

150 U.S. at 552–53; Allen II, 157 U.S. at 675. Legally, Allen did not address the

common-law exception to the words alone doctrine for information words. Allen also

predicated its holding on common law, not modern federal statutes criminalizing

murder and manslaughter—the latter of which provides that voluntary

manslaughter is an unlawful killing predicated upon an act undertaken in the heat

of passion. Compare Allen III, 164 U.S. at 496–97, with 18 U.S.C. § 1112(a).

The common-law informational words exception is exemplified in John

Royley’s Case, 79 Eng. Rep. 254 (England 1666). There, after Royley’s son told him

another boy gave him a bloody nose, Royley walked a mile to find the young

assailant, struck him with a stick, and killed him. Id. Royley was indicted for

murder. Id. The court pardoned the murder charge, stating, “if one hear that his

brother, or cousin, or servant, is fighting upon a sudden occasion, and he go to the

place where they are fighting (although a mile or more distant), and finding the

adversary, fight with him and kill him, it is not murder, but manslaughter.” Id.

(emphasis added). Thus, at common law, hearing words that convey provocative

information could mitigate murder to manslaughter.

Courts have continued to recognize the common-law informational words

exception for centuries. Under the exception, “[t]he fact that words were used . . . is

not dispositive.” Sells v. State, 653 P.2d 162, 164 (N.M. 1982). Rather,

“informational words, as distinguished from mere insulting words, may constitute

adequate provocation.” Id. (quoting 2 C. Wharton’s Criminal Law, Section 156 (14th

ed. 1979)); see also United States v. Velazquez, 246 F.3d 204, 213 (2d Cir. 2001) (“the

prevailing view” is that highly provocative informational words cause heat of

passion) (citing 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal

Law § 7.10(b)(6), at 260 (2d ed.1986) (“words can engender heat of passion” when

they “impart information of a highly provocative nature”) [LaFave & Scott (1986)].

To assess whether the words are informational or merely insulting, courts

scrutinize the exact words used, the nature of those words, and the context and

circumstances in which they were uttered. “[T]aken together,” “the substance of the

informational words spoken, the meaning conveyed by those informational words,

[and] the ensuing arguments and other actions of the parties . . . could amount to

provocation.” Sells, 653 P.2d at 164. Under this analysis, suddenly disclosing

provocative information to the defendant “may be the equivalent of the event

presently occurring.” Id. (quoting 2 C. Wharton’s Criminal Law, Section 156 (14th

ed. 1979)).

Five federal circuits and thirteen state high courts

agree that informational words can engender heat of

passion and negate malice.

The prevailing view concerning informational words judiciously recognizes

the nuanced exception to the restrictive common-law “words alone” tenet and

acknowledges the reality that certain words can be as provocative as physical

contact. J. Ohlin, Wharton’s Criminal Law § 22:6 Provocation—Words and Gestures

(16th ed. 2025). Under this view, “words that convey information of an actual fact or

injury may be sufficient” “to provoke heat of passion” and “negate malice

aforethought.” United States v. Sockey, 157 F.4th 1282, 1287 (10th Cir. 2025) (citing

3 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 15.2(b)(6)

(3d ed. 2018) [LaFave & Scott (2018)], as “detailing extraordinary, but inapposite

exceptions”). Federal and state courts thus routinely distinguish “insulting words”

from “informational words” and treat them differently. J. Ohlin, Wharton’s

Criminal Law § 22:6 Provocation—Words and Gestures (16th ed. 2025).

“The classic example” of informational words engendering heat of passion is

where “one spouse inform[s] the other spouse of the former’s infidelity, which

provokes the recipient of the information to kill the adulterer.” Velazquez, 246 F.3d

at 213 (citing LaFave & Scott (1986), § 7.10(b)(6), at 260). But the breadth of

informational words that may sufficiently provoke a defendant and negate malice

requires scrutinizing the actual words spoken, the meaning conveyed, and the

arguments and actions of those involved in the interaction. See Sells, 653 P.2d at

164.

The federal circuits to consider the issue in published opinions—the Second,

Fourth, Fifth, Eighth, and Tenth—all require the factfinder to evaluate the nature

and context of the words exchanged to determine the proprietary of a heat of

passion defense.61 By summarily and dispositively treating the fact that words

precipitated the killing as insufficient for such a defense, the Ninth Circuit is an

outlier among the federal circuits. See App. 2a.62

The Second Circuit acknowledged the prevailing view and examined whether

the words used and the surrounding circumstances could have been considered

provocative by the factfinder. Velazquez, 246 F.3d at 213. In doing so, the Second

Circuit concluded the victim “cursing at Velazquez imparted no information, and

[the victim’s] isolated use of the same expletive Velazquez had directed at him will

not suffice for a ‘heat of passion.’” Id. The Fifth Circuit likewise examined the record

after a murder conviction but found “no evidence of any sudden quarrel and

certainly none provoked by more than mere words” because the defendant “testified

he and his [victim] wife were both laughing at the time” of her killing. United States

v. McRae, 593 F.2d 700, 705 (5th Cir. 1979).

The Eighth Circuit, however, affirmed a voluntary manslaughter conviction

because its examination of the record revealed the inebriated defendant engaged in

61 The remaining federal circuits do not appear to have published opinions

adopting or even addressing the prevailing view concerning informational words.

62 But see United States v. Burns, No. 18-10083, 2023 WL 7876414, at *1 (9th

Cir. Nov. 16, 2023) (noting Allen III in an unreported decision but also examining

the evidence of provocation to conclude the victim only insulted the defendant by

calling him “a mark”).

a sudden argument with his wife over the defendant’s infidelity which resulted in a

knife fight and the wife’s death. Wakaksan v. United States, 367 F.2d 639, 641 (8th

Cir. 1966). And the Fourth Circuit has noted the words alone tenet does have

exceptions. See United States v. Slager, 912 F.3d 224, 236 (4th Cir. 2019) (citing

LaFave & Scott (2018), supra, § 15.2(b)(6), as “detailing extraordinary, but

inapposite exceptions”).

The Tenth Circuit recently stated it “has never explicitly held that words

alone cannot provoke heat of passion manslaughter under 18 U.S.C. § 1112(a) and

such language is not included in the pattern jury instructions.” United States v.

Sockey, 157 F.4th 1282, 1286 (10th Cir. 2025). To the contrary, it specifically

acknowledged “[t]here may be some situations in which words alone can be

sufficient to negate malice aforethought — for example, ‘a reasonable man may be

provoked upon suddenly being told of his wife’s infidelity.’” Id. at 1287 (citations

omitted). But the court’s examination of the record in Sockey revealed the words

alleged to provoke the defendant were mere name-calling and teasing words, such

as “chicken legs,” “scrawny,” and “crybaby. Id. The Tenth Circuit thus found no

error in instructing jurors there that words alone do not cause heat of passion

because that “instruction did not prohibit the jury from considering words in

general.” Id. at 1284–88.

The Tenth Circuit’s approach in Sockey highlights important constitutional

implications protected by the prevailing view. The trial court in Sockey instructed

jurors that “[w]ords alone, no matter how aggravating or insulting, do not negate

malice aforethought and create heat of passion.” Id. at 1285. It was thus the jurors

sitting as factfinders who decided whether the evidence presented involved merely

aggravating or insulting words alone that would be insufficient to “cause[] an

ordinary person to lose his normal self-control,” not the trial court. Id. This is

critical. The Sixth Amendment guarantees those accused of a crime the right to

have an impartial jury adjudicate guilt. Alleyne v. United States, 570 U.S. 99, 104

(2013).

Notably, the trial court in Sockey formulated its own heat of passion jury

instruction as the defendant did not proffer one. Sockey, 157 F.4th at 1285. Ideally,

a defense-proffered instruction would instruct jurors on the critical distinction

between mere insulting words and informational words. For example:

‘Adequate provocation’ refers to any improper conduct of the deceased

toward the defendant which naturally or reasonably would have the

effect of arousing a sudden heat of passion within a reasonable person

in the position of the defendant. Generally, actions which are

calculated to provoke an emotional response and ordinarily cause

serious violence are recognized as adequate provocation. Actions that

do not ordinarily provoke serious violence do not constitute adequate

provocation. In determining whether the deceased’s conduct was

adequate provocation, the conduct is judged as a person or [sic]

reasonable intelligence and disposition would respond to it. Mere

words alone, or threats, menaces, or gestures alone, however offensive

or insulting, do not constitute adequate provocation. However, words,

threats, menaces, or gestures, when considered in connection with

provoking conduct of the deceased, may constitute adequate

provocation. Personal violence or agression [sic] by the deceased of a

nature sufficiently violent to cause or threaten to cause pain,

bloodshed, or bodily harm to the defendant may be adequate

provocation.

Black v. Workman, 682 F.3d 880, 900 (10th Cir. 2012) (alteration in original)

(emphasis added).

Fundamental fairness, as guaranteed by the Due Process Clause, requires

those accused of crimes “be afforded a meaningful opportunity to present a complete

defense,” California v. Trombetta, 467 U.S. 479, 485 (1984), and “to an instruction

as to any recognized defense for which there exists evidence sufficient for a

reasonable jury to find in his favor,” Mathews v. United States, 485 U.S. 58, 63

(1988). Thus, when the accused puts forth some provocation evidence involving

words, the Constitution rightfully demands that the jury determine whether, “taken

together,” the nature of the words, the meaning conveyed by them, the resulting

arguments and actions of the other parties involved amounted to provocation. Sells,

653 P.2d at 164; see also Alleyne, 570 U.S. at104. A defendant’s burden on this front

is “slight.” Kayser, 488 F.3d at 1076; see also Johnson, 459 F.3d at 990 (cleaned up)

(standard is satisfied when there is more than “a ‘mere scintilla of evidence,” “even

if [the] evidence ‘is weak, insufficient, inconsistent, or of doubtful credibility’”). It is

the jurors who then must decide whether the precipitating words would cause an

ordinary person to lose normal self-control. A jury instruction like the one in Black,

682 F.3d at 900, works to protect the accused’s constitutional rights by requiring

jurors to consider whether the precipitative words were merely “words alone” or

provocative, informational words.

Thirteen state high courts likewise hold the informational words exception to

the common-law “words alone” doctrine can constitute adequate provocation:

California,63 Georgia,64 Kansas,65 Iowa,66 New Mexico,67 New Jersey,68

Massachusetts,69 Michigan,70 Mississippi,71 Oklahoma,72 Pennsylvania,73

Tennessee,74 and Wyoming.75

63 See People v. Berry, 556 P.2d 777, 780–81 (Cal. 1976) (defendant entitled to

voluntary manslaughter instruction where he “chronicle[d] a two-week period of

provocatory conduct by the defendant’s wife . . . that could arouse a passion of

jealousy, pain and sexual rage in an ordinary man of average disposition such as to

cause him to act rashly”); People v. Valentine, 169 P.2d 1, 15 (1946) (whether verbal

provocation is sufficient to find a heat of passion is jury question).

64See Raines v. State, 277 S.E.2d 47, 49 (Ga. 1981) (“serious provocation”

existed to authorize voluntary manslaughter instruction where defendant

discovered wife carrying letter to her boyfriend where wife admitted and taunted

defendant with her adultery).

65 State v. Thille, 570 P.3d 18, 25 (Kan. 2025): (holding defendant pointed “to

no evidence that [the victim] said anything to provoke defendant.)

66 See State v. Thompson, 836 N.W.2d 470, 478 (Iowa 2013) (noting

informational words exception but finding exception not met where victim’s words

were “merely insulting or abusive”).

67 See Sells, 653 P.2d at 164.

68 See State v. Erazo, 594 A.2d 232, 238 (N.J. 1991) (ongoing tension in

relationship demonstrated causal connection between victim’s death and her

threatening to have defendant’s parole revoked).

69 See Commonwealth v. Ronchi, 202 N.E.3d 499, 512 (Mass. 2023) (while no

longer recognizing oral disclosure of infidelity as sufficient provocation to kill a

spouse because women are no longer viewed as property, not “foreclose[ing]

possibility of sufficient provocation caused by learning of other types of information

of a ‘nature to cause a reasonable person to lose his self-control’”); Commonwealth v.

Bermudez, 348 N.E.2d 802 (Mass. 1976) (“The existence of sufficient provocation is

not foreclosed absolutely because a defendant learns of a fact from oral statements

rather than from personal observation.”) (citation omitted); see also Voluntary

manslaughter—Mitigating circumstances; reasonable provocation, 14A Mass. Prac.,

Summary of Basic Law § 7:153 (5th ed.) (footnotes omitted):

Under the prevailing view, Mr. Burciaga’s heat of passion defense would

more than likely have succeeded. Immediately before the killing, Ms. Davis told Mr.

Mere words, no matter how insulting or abusive, do not ordinarily by

themselves constitute reasonable provocation. [But there may be

reasonable provocation where the defendant learns suddenly of

information that would cause a reasonable person to lose his selfcontrol and learning of the matter disclosed did actually cause the

defendant to do so.].

70People v. Pouncey, 471 N.W.2d 346, 351 (Mich. 1991) (noting “words of an

informative nature, rather than mere insults, have been considered adequate

provocation,” declining “to issue a rule that insulting words per se are never

adequate provocation,” and reiterating “that what constitutes adequate provocation

is a factual question”) (cleaned up).

71 See Nolan v. State, 61 So. 3d 887, 894 (Miss. 2011) (“a reasonable fact-

finder could have found that [the victim] made certain statements that had

provoked [the defendant’s] actions” because, in the days before the shooting,

defendant “was in a constant state of agitation, predicated upon his father’s

comments regarding his sexuality”); Haley v. State, 85 So. 129, 130–33 (Miss. 1920)

(upholding manslaughter conviction where defendant’s wife’s suddenly confessed

adultery).

72 Washington v. State, 989 P.2d 960, 969 n.4 (Okla. 1999) (“Mere words

alone, or threats, menaces, or gestures alone, however offensive or insulting, do not

constitute adequate provocation. However, words, threats, menaces, or gestures,

when considered in connection with provoking conduct of the deceased, may

constitute adequate provocation.”).

73See Commonwealth v. Berry, 336 A.2d 262, 263–65 (Pa. 1975) (holding jury

could find defendant was provoked when, arriving on the scene shortly after the

attack, his mother told him she had been assaulted by man that defendant killed).

74 See Toler v. State, 260 S.W. 134, 136–37 (Tenn. 1924) (father who killed his

neighbor within an hour of learning the neighbor had sexually assaulted the

father’s minor daughter acted in the heat of passion and did not commit murder).

75 See State v. Flory, 276 P. 458 (Wyo. 1929) (holding jury could find

voluntary manslaughter where defendant’s father-in-law raped defendant's wife;

wife told defendant about assault, and defendant killed his father-in-law the next

day).

Burciaga she did not want his baby76—a baby Mr. Burciaga wanted to make every

effort to save.77 These words fell on the heels of Ms. Davis shutting Mr. Burciaga

out of her third-semester prenatal appointments and decisions concerning fetal care

and while Mr. Buricaga was experience anxiety over the lethal Trisomy-18

diagnosis.78 Ms. Davis’s words signaled to Mr. Burciaga that she did not want to

secure medical specialists in an attempt to preserve even a small fraction of the

fetus’s life in the event it survived birth. Under these circumstances, Ms. Davis’s

words communicated to Mr. Buricaga that she planned to let the fetus die. These

words were at least as provocative as confessing infidelity to one’s spouse or

learning that someone assaulted a family member, if not more so. Mr. Burciaga

thus had a constitutional right to have the jury consider Ms. Davis’s words and

their circumstances in adjudicating the murder charges. See Mathews, 485 U.S. at

63; Trombetta, 467 U.S. at 485.

The failure to inform jurors the heat of passion defense, if accepted, could

negate the element of malice required for murder caused a second error:

misinforming jurors on the government’s burden of proof. Federal murder requires

the government to prove malice aforethought beyond a reasonable doubt. 18 U.S.C.

§ 1111(a). When the defendant puts forth some evidence of provocative

informational words, the government must also prove the absence of heat of passion

beyond a reasonable doubt, as heat of passion negates malice. See Mullaney v.

76 App. Dkt. 25, GX-41a-3 (09:04:43-09:09:05).

77 App. Dkt. 20, 6-ER-1388–1389.

78 See supra 4–8.

Wilbur, 421 U.S. 684, 697–98 (1975) (prosecution required to “prove beyond a

reasonable doubt the absence of the heat of passion on sudden provocation when the

issue is properly presented in a homicide case”); United States v. Lofton, 776 F.2d

918, 920 (10th Cir. 1985) (because “malice is an element of murder” under 18 U.S.C.

§ 1111, and “[t]]he heat of passion defense is directly at odds with malice,” “[t]he

rule of law articulated in Mullaney . . . controls”). Because Mr. Burciaga’s jury was

not advised the government had to prove the absence of heat of passion, the

government was not held to its required evidentiary burden. This violated Mr.

Burciaga’s Sixth Amendment rights. U.S. Const. amend. VI.

There can be no valid argument that these errors were harmless. Mr.

Burciaga’s heat of passion defense was the critical to his defense presentation at

trial. Because his jury was not properly instructed on that defense or the

government’s burden of proof, his trial was fundamentally unfair.

This Court’s decision in United States v. Frady, 456 U.S. 152 (1982), does not

impact the harmlessness analysis here. Frady pursued habeas relief under 28

U.S.C. § 2255 and argued for the first time in collateral proceedings that the jury

instructions at his trial “compelled the jury to presume malice and thereby

wrongfully eliminated any possibility of a manslaughter verdict, since

manslaughter was defined as culpable homicide without malice.” Id. at 158. This

Court denied relief but

emphasize[d] that this would be a different case had Frady brought

before the District Court affirmative evidence indicating that he had

been convicted wrongly of a crime of which he was innocent. But

Frady, it must be remembered, did not assert at trial that he and

Richard Gordon beat Thomas Bennett to death without malice.

Instead, Frady claimed he had nothing whatever to do with the crime. .

. . Since that time, Frady has never presented colorable evidence, even

from his own testimony, indicating such justification, mitigation, or

excuse that would reduce his crime from murder to manslaughter.

Mr. Burciaga, unlike Frady, assuredly introduced largely unrebutted

evidence that he acted in a heat of passion when he stabbed Ms. Davis.79 Also

unlike Frady, Mr. Burciaga confessed to stabbing Ms. Davis during their argument

in response to Ms. Davis’s abrupt avowal that she did not want his baby.80 The

instructional error was not harmless here.

This Court’s intervention is needed.

Because the informational words exception has existed since common law,

there is no basis to believe that the federal appellate courts that have not directly

addressed the exception will do so in the foreseeable future. Moreover, by

intervening now, this Court’s review will provide nationwide consistency on the

question presented and guide the courts who have not yet resolved the issue.

This case presents an exceptionally important issue

and an ideal vehicle for resolution.

The question presented concerns two critical constitutional rights necessary

to our criminal justice system—the Fifth Amendment due process right to present a

complete defense and the Sixth Amendment right to require the government to

prove all the elements of an offense beyond a reasonable doubt. Mathews, 485 U.S.

at 63; Trombetta, 467 U.S. at 485. The Ninth Circuit’s summary decision on the

question presented substantially undermined both rights. App. 2a.

79 See supra 4–8.

80 App. Dkt. 25, GX-41a-3 (09:04:43-09:09:05).

This case presents an ideal vehicle to resolve whether federal courts should,

in accord with the prevailing view, consider both the common-law “words alone”

doctrine and the common-law informational words exception to a defendant’s heat

of passion defense by examining the nature of those words and circumstances

surrounding them. Here, Mr. Burciaga presented largely unrebutted evidence

concerning the provocative nature and circumstances of Ms. Davis’s statement that

she did not want his baby.81 He also proffered a heat of passion jury instruction and

requested its inclusion in the murder instructions to explain the government’s

burden to prove the absence of that defense to sustain a murder conviction.82

Initially, the district court correctly concluded the evidence presented warranted a

heat of passion defense instruction.83 But the district court legally erred by

incorrectly instructing the jury as to the impact of the heat of passion defense on the

murder charges. App. 7a–14a.84

The Ninth Circuit also legally erred by failing to consider the informational

words exception, summarily applying the “words alone” doctrine without regard to

the facts and circumstances of the words precipitating the killing, and ignoring the

informational words exception and prevailing view. App. 2a. These legal errors are

fully preserved and ripe for this Court’s review.

81 See supra 4–8.

82 App. Dkt. 20, 2-ER-342–347.

83 Id. at 8-ER-2056; 8-ER-2076–2077.

84 See also id. at 8-ER-2077–2080.

The Ninth Circuit’s decision is wrong.

The district court correctly found Mr. Buricaga met the requisite standard for

presenting the heat of passion to the murder charge, concluding “there’s been

evidence offered that the killing occurred in the context of the [couple’s] argument . .

. and in the broader context of the [couple’s] disagreement about” how to address

the Trisonomy-18 diagnosis.”85 This evidence included: (1) the couple’s torturous

disagreement over whether to seek medical intervention for the Trisomy-18

diagnosis; (2) Mr. Burciaga was under psychiatric care for his anxiety over the

diagnosis and, at the time of the killing, was highly intoxicated with alcohol, had

recently ingested methamphetamine, and tested positive for benzodiazepines, and

opioids, intensifying his response to perceived provocation; (3) the couple had a loud,

heated argument immediately before Ms. Davis’s death; (4) the disagreement

apexed when Ms. Davis said she did not want Mr. Burciaga’s baby; (5) Mr. Burciaga

sustained head and defensive hand injuries from the fight with Ms. Davis, the latter

of which required surgery; and (6) forensic pathologist Larry Simms concluded Ms.

Davis’s wounds were “rushed,” “chaotic,” and “not well planned.”86

The Ninth Circuit, however, stated only that “[w]ords alone . . . generally do

not make for adequate provocation” without identifying Ms. Davis’s words to Mr.

Burciaga or the circumstances surrounding them. App. 2a.

Both common law and the prevailing view demonstrate the Ninth Circuit was

wrong. Common law gave rise to both the “words alone” doctrine and the

85 Id. at 8-ER-2056

86 See supra 4–10.

informational words exception to that doctrine. The prevailing view continues to

recognize the informational words exception.87 But the Ninth Circuit considered

only the general rule, not its exception—even though Mr. Burciaga put forth

evidence in support of the exception.88 The Ninth Circuit erred by failing to consider

both the rule and its exception in conjunction with the actual words used and their

circumstances before adjudicating whether those words could engender heat of

passion. App. 2a.

The Ninth Circuit’s erroneous legal analysis gave rise to a second error—

failing to recognize criminal defendants have only a slight burden to put forth some

provocation evidence to receive a heat of passion instruction in a homicide case.

App. 21. Mr. Burciaga more than met that standard here. Indeed, a substantial

portion of his provocation evidence remains unrebutted. By not recognizing Mr.

Burciaga’s low evidentiary burden and the depth of the provocation evidence he

provided, the Ninth Circuit’ placed a new, higher evidentiary burden on defendants

seeking to advance an affirmative defense than the law allows. Compare App.

2a¸with supra 13, 21.

Finally, the Ninth Circuit’s reliance on United States v. Roston, 986 F.2d

1287, 1291 (9th Cir. 1993), and United States v. Wagner, 834 F.2d 1474, 1487

(9th Cir. 1987), provide no support for its decision. App. 2a. The Roston

defendant claimed entitlement to a heat of passion defense for killing his wife

due largely to “(1) disagreements between him and his wife over her eating

87 See supra 12–22.

88 See supra 8–9.

sweets; [and] (2) tension between them because she did not know how to use the

‘complex’ silverware settings aboard ship.” 986 F.2d at 1291. The Ninth Circuit

rejected this argument, but not because the couple had verbal disagreements or

tension. The Ninth Circuit instead concluded “neither [issue] could possibly

provoke a reasonable and ordinary person to kill.” Id. Conversely, Ms. Davis

suddenly telling Mr. Burciaga she did not want his baby under the

circumstances presented here could very likely provoke a reasonable person to

kill. Wagner is inapposite as well: “there was no evidence that Wagner stabbed

[a fellow inmate] in a ‘heat of passion,’” because “Wagner steadfastly claimed the

stabbing was an accident.” Id. at 1487. Unlike here, there were no words for the

Wagner court to consider.

The result in this case not only violated Mr. Burciaga’s Fifth and Sixth

Amendment rights, but it also created the exact situation Justice Sotomayor

expressed concern about with her statement in Black v. Tennessee, 606 U.S. ---, 145

S. Ct. 2622, 2623 (2025) (Mem). Justice Sotomayor found two jury instructions in

Black’s murder trial raised serious constitutional questions. First, Tennessee’s

second-degree murder instruction required the prosecution to prove “an unlawful

and voluntary (knowing) killing” while its voluntary manslaughter instruction

required proof of “those same two elements, plus a third: that the defendant acted

‘in a state of passion induced by adequate provocation.’” Id. Second, jurors were

advised not to consider any lesser-included offense unless they unanimously

acquitted on the immediately preceding greater offense or had a reasonable doubt of

the defendant’s guilt on that offense. Id. at 2624. Thus, “no jury instructed on both

second-degree murder and manslaughter could ever reach a manslaughter verdict.”

Id. Justice Sotomayor found it “hard to imagine” that “instructions rendering it

legally impossible for the jury to accept a legitimate defense could pass muster

under the Due Process Clause.” Id. Though the lower court in Black “did not grapple

with” these issues, Justice Sotomayor “encourage[d] the Tennessee Supreme Court

to resolve them in the first instance.” Id. at 2623.

Mr. Burciaga’s jury instructions and verdict form raise the same due process

concern Justice Sotomayor identified in Black, 145 S. Ct. at 2623–64. Only the

manslaughter instruction mentioned his heat of passion provocation defense—not

the murder instruction. App. 6a–17a. And the verdict form told jurors not to even

consider lesser-included offenses unless they first either acquitted or could not

reach a unanimous verdict on murder. App. 18a–24a. Thus, Mr. Burciaga’s jury

could never consider his heat of passion defense if it convicted on murder. Accord

Black, 145 S. Ct. at 2624. The inclusion of a heat of passion in the voluntary

manslaughter instruction could not save the faulty murder instruction here.

The Ninth Circuit’s legal analysis unconstitutionally burdens defendants,

jeopardizes the sanctity of the rights guaranteed by the Fifth and Sixth

Amendments, and is contrary to the prevailing view on the common law exception

concerning informational provocative words. This Court’s review is warranted.

Conclusion

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

Dated this 29th day of May, 2026.

Respectfully submitted,

Rene L. Valladares

Federal Public Defender

s/ Amy B. Cleary

*Amy B. Cleary

Appellate Chief, Assistant Federal

Public Defender

*Counsel of Record for Petitioner

Michael Burciaga

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.