Opposition Brief — Michael Burciaga, Petitioner v. United States

No. 25-7543

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

MICHAEL BURCIAGA, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

D. JOHN SAUER

Solicitor General

Counsel of Record

A. TYSEN DUVA

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the district court committed reversible error in declining to instruct the jury that, for petitioner to be found

guilty of first-degree murder, the government must prove the absence of a sudden quarrel or heat of passion beyond a reasonable

doubt.

(I)

ADDITIONAL RELATED PROCEEDING

United States District Court (D. Nev.):

United States v. Burciaga, No. 20-cr-60 (Sept. 28, 2023)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 25-7543

MICHAEL BURCIAGA, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The memorandum of the court of appeals (Pet. App. 1a-4a) is

available at 2025 WL 3187361.

The orders of the district court

are available at 2023 WL 3505514 and 2023 WL 6197335.

JURISDICTION

The judgment of the court of appeals was entered on November

14, 2025.

A petition for rehearing was denied on March 3, 2026

(Pet. App. 5a).

The petition for a writ of certiorari was filed

on May 29, 2026.

The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the District of Nevada, petitioner was convicted of firstdegree murder in Indian country, in violation of 18 U.S.C. 1111,

1151, and 1152; causing the death of an unborn child in Indian

country, in violation of 18 U.S.C. 1841(a)(1), 1111, 1151, and

1152; and domestic assault by a habitual offender in Indian country, in violation of 18 U.S.C. 117(a)(1), 1151, and 1152.

Judgment 1-2.

Am.

The district court sentenced petitioner to life

plus an additional 240 months of imprisonment, to be followed by

five years of supervised release.

appeals affirmed.

1.

Id. at 3-4.

The court of

Pet. App. 1a-4a.

Shortly after midnight on December 15, 2020, petitioner

stabbed his pregnant girlfriend, Amanda Davis, and her unborn child

to death in front of her three minor children.

Gov’t C.A. Br. 4-5.

C.A. E.R. 92-93;

After Davis had become pregnant with peti-

tioner’s child, the baby was diagnosed with the Trisomy-18 chromosomal defect.

Gov’t C.A. Br. 3.

While the diagnosis made it

likely that the child would die within days of delivery, Davis

informed her doctor that she wished to continue the pregnancy.

Ibid.

She had not yet decided whether to seek medical interven-

tion, or instead seek postnatal palliative care. Ibid. Petitioner

favored medical intervention.

C.A. E.R. 1388-1389.

On the night of the murder, petitioner came home from a day

of drinking and asked to cuddle with Davis in bed.

Gov’t C.A. Br.

3

3.

Davis declined.

Ibid.

After briefly leaving the room, peti-

tioner returned and asked, “what the fuck is up,” to which Davis

responded that nothing was going on.

Ibid. (citation omitted).

Petitioner and Davis then had an argument, in which Davis called

petitioner “a motherfucker” and stated she did not want his baby.

Id. at 4 (citation omitted).

Petitioner then grabbed a knife near the bed and stabbed Davis

with such force that the knife broke. Gov’t C.A. Br. 4. Petitioner

left the room to retrieve another knife from the kitchen.

Ibid.

The assault awakened Davis’s three minor children, who retreated

to Davis’s bedroom.

Ibid.

Davis locked the door and attempted to

barricade it with a dresser.

Ibid.

She grabbed a softball bat to

defend herself and gave one of her children a wooden dowel.

Ibid.

That child called 911 and informed the dispatcher that petitioner

had stabbed Davis and was trying to reenter the bedroom.

Ibid.

Petitioner returned from the kitchen with another knife and

broke through the barricaded door.

Gov’t C.A. Br. 5.

Davis in the bathroom and began stabbing her again.

He cornered

Ibid.

At one

point, petitioner dropped the knife and again left to retrieve

another.

Ibid.

bing Davis.

He then returned to the room and continued stab-

Ibid.

In all, petitioner stabbed Davis 18 times and

inflicted over 20 additional incision wounds.

Petitioner then left the house.

Ibid.

Gov’t C.A. Br. 5.

After the

police arrived, petitioner returned and police arrested him. Ibid.

Paramedics transported him to the hospital to treat a laceration

4

on his hand.

Id. at 5-6.

At the hospital, petitioner presented

with alcohol intoxication and reported that he had used methamphetamine three days earlier.

Id. at 6.

After learning that Davis had died, petitioner confessed to

police that he had stabbed her.

Gov’t C.A. Br. 7-8.

He explained:

“I didn’t snap. I did it because I couldn’t take her shit anymore.”

Id. at 8 (citation and ellipsis omitted).

2.

A grand jury in the District of Nevada charged petitioner

with first-degree murder in Indian country, in violation of 18

U.S.C. 1111, 1151, and 1152; causing the death of an unborn child

in Indian country, in violation of 18 U.S.C. 1841(a)(1), 1111,

1151, and 1152; and domestic assault by a habitual offender in

Indian country, in violation of 18 U.S.C. 117(a)(1), 1151, and

1152.

Superseding Indictment 2-3.

Before trial, petitioner requested various jury instructions.

C.A. E.R. 342-343.

Among the instructions that he requested were

instructions that “[i]t is not first degree murder if [petitioner]

acted upon a sudden quarrel or heat of passion, or otherwise acted

without malice aforethought”; that “[h]eat of passion may be provoked by fear, rage, anger or terror”; that “[p]rovocation, in

order to be adequate, must be such as might arouse a reasonable

and ordinary person to kill someone”; and that “the government

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

* * *

beyond a reasonable doubt.”

Id. at 344.

The district court

5

declined to give those instructions as part of the first-degree

murder instructions.

See Pet. App. 2a.

The district court instructed the jury that, for petitioner

to be found guilty of first-degree murder, the government had to

prove beyond a reasonable doubt the killing was “premeditated” and

committed “with malice aforethought.”

Pet. App. 7a.

The court

also separately instructed the jury that, for petitioner to be

found guilty of the lesser included offense of voluntary manslaughter, the government had to prove beyond a reasonable doubt

that petitioner killed Davis “while in a sudden quarrel or heat of

passion, caused by adequate provocation.”

Id. at 9a.

And it

added, in the voluntary-manslaughter instructions, that “[h]eat of

passion may be provoked by fear, rage, anger, or terror,” and that

“[p]rovocation, in order to be adequate, must be such as might

arouse a reasonable and ordinary person to kill someone.”

The jury found petitioner guilty on all counts.

1a.

Ibid.

Pet. App.

The district court sentenced him to life plus an additional

240 months of imprisonment, to be followed by five years of supervised release.

3.

Am. Judgment 3-4.

The court of appeals affirmed in an unpublished memo-

randum opinion.

Pet. App. 1a-4a.

The court found no error in the

district court’s jury instructions.

Id. at 2a.

It recognized

that a defendant “is entitled to an instruction upon his theory of

the case if the record contains evidentiary support for the theory

and the theory is supported by law.”

Ibid. (quoting United States

6

v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987)).

But it observed

that in this case, petitioner had “presented only three statements

by Davis that he alleges constitute sufficient evidence of provocation.”

Ibid.; see Pet. C.A. Br. 5-6 (highlighting Davis having

“declined” petitioner’s request to cuddle, having “cursed” at him,

and having “said she did not want his baby”).

that “[w]ords alone

provocation.”

* * *

The court then noted

generally do not make for adequate

Pet. App. 2a.

“Therefore,” the court continued,

“we find that the statements in this case are insufficient evidence

of provocation to warrant a defense theory instruction on heat of

passion.”

Ibid.

ARGUMENT

Petitioner renews his contention (Pet. 12-31) that he was

entitled to a jury instruction stating that, for him to be found

guilty of first-degree murder, the government had to prove beyond

a reasonable doubt that he did not act in the heat of passion or

upon a sudden quarrel.

The court of appeals correctly rejected

that contention, and its unpublished decision does not conflict

with any decision of this Court, another court of appeals, or a

state supreme court. In addition, this case would be an unsuitable

vehicle for resolving the question presented because any error was

harmless.

1.

No further review is warranted.

The court of appeals correctly found no error in the

district court’s jury instructions on first-degree murder.

7

a.

“Murder is the unlawful killing of a human being with

malice aforethought.”

18 U.S.C. 1111(a).

Voluntary manslaughter,

by contrast, is “the unlawful killing of a human being

[u]pon a sudden quarrel or heat of passion.”

* * *

18 U.S.C. 1112(a).

Accordingly, “evidence of a sudden quarrel or heat of passion can

serve as a defense to the murder charge because a heat of passion

and adequate provocation finding ‘negates the malice that would

otherwise attach.’”

United States v. Begay, 33 F.4th 1081, 1088

(9th Cir.) (en banc) (citations omitted), cert. denied, 143 S. Ct.

340 (2022).

“A defendant who acts in the heat of passion is guilty

of voluntary manslaughter rather than murder.”

Ibid.

This Court

has held only that “the Due Process Clause requires the prosecution

to prove beyond a reasonable doubt the absence of the heat of

passion on sudden provocation when the issue is properly presented.”

Mullaney v. Wilbur, 421 U.S. 684, 704 (1975).

At common law, “mere words alone” could “not reduce the grade

of the killing from murder to manslaughter.”

States, 164 U.S. 492, 497 (1896).

Allen v. United

More recently, courts have

allowed that “[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.’”

United States v. Sockey, 157 F.4th 1282,

1287 (10th Cir. 2025) (ultimately quoting 2 Wayne R. LaFave, Substantive Criminal Law § 15.2(b)(5) (3d ed. 2025)).

Under that

“modern development in heat of passion law, * * * although mere

8

‘insults’ or ‘abusive’ words are never sufficient on their own to

provoke heat of passion, words that convey information of an actual

fact or injury may be sufficient.”

§ 15.2(b)(6)).

Ibid. (quoting 2 LaFave

But courts nonetheless continue to recognize the

overarching rule that “‘[m]ere words’ generally provide inadequate

provocation to negate a finding of malice.”

E.g., United States

v. Slager, 912 F.3d 224, 236 (4th Cir.) (quoting Allen, 164 U.S.

at 497), cert. denied, 587 U.S. 1045 (2019).1

b.

The decision below properly applied that framework.

It

correctly recognized that although “‘[a] defendant is entitled to

an instruction upon his theory of the case if the record contains

evidentiary support for the theory and the theory is supported by

law,’” mere “[w]ords alone

adequate provocation.”

1

* * *

generally do not make for

Pet. App. 2a (emphasis added; citation

Accord, e.g., Rountree v. State, 889 S.E.2d 803, 806

(Ga. 2023) (“[W]ords alone generally are not sufficient provocation to excite the passion necessary to give rise to voluntary

manslaughter.”) (citation omitted); People v. Yarbrough, 645

N.E.2d 423, 426 (Ill. App. Ct. 1994) (“Generally, mere words are

not considered serious provocation regardless of how aggravated,

abusive, opprobrious or indecent the language.”), appeal denied,

657 N.E.2d 637 (Ill. 1995) (Tbl.); Commonwealth v. Anderson, 486

N.E.2d 19, 24 (Mass. 1985) (“[M]ere words alone generally do not

constitute sufficient provocation to warrant a manslaughter

charge.”); People v. Mitchell, 835 N.W.2d 615, 619 n.2 (Mich. Ct.

App. 2013) (“[M]ere words will not generally constitute adequate

provocation.”); State v. Funderburg, 137 A.3d 441, 449 (N.J. 2016)

(“The generally accepted rule is that words alone, no matter how

offensive or insulting, do not constitute adequate provocation to

reduce murder to manslaughter.”) (citation omitted); 40 C.J.S.

Homicide § 126 (2014)(“[M]ere words or gestures, whether offensive, insulting, abusive, or threatening, are generally not sufficient provocation to reduce a homicide, committed in a passion

provoked thereby, to manslaughter.”).

9

omitted).

which

And it found that the “three statements by Davis” on

petitioner

relied

constituted

“insufficient

evidence

of

provocation to warrant a defense theory instruction on heat of

passion.”

Ibid.

Although petitioner reads the court of appeals’ decision to

have “considered only the general rule” disallowing words as provocation, “not [the] exception” to that rule, Pet. 29, the court

found that “the statements in this case are insufficient evidence

of provocation,” Pet. App. 2a (emphasis added).

That finding,

while informed by the general rule, is a case-specific determination about “the statements in this case.”

Ibid.

Although peti-

tioner had argued that Davis’s statement about not wanting to have

petitioner’s baby “is at least equally provocative” as “one spouse

telling the other spouse about the former’s infidelity,” Pet. C.A.

Reply Br. 17, the court did not agree.

Petitioner’s suggestion (Pet. 29) that the court of appeals’

decision is not grounded in the facts of this case is a factbound

assertion that does not warrant this Court’s review.

See United

States v. Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a

certiorari to review evidence and discuss specific facts.”); Sup.

Ct. R. 10 (“A petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous factual findings or

the misapplication of a properly stated rule of law.”). Petitioner

objects (Pet. 28) that the decision below did not specifically

“identif[y] Ms. Davis’s words to [petitioner] or the circumstances

10

surrounding them.”

But the court of appeals began its unpublished

memorandum opinion by noting that the opinion “presume[d] the parties’ familiarity with the facts and discuss[ed] them only as

necessary for context.”

Pet. App. 1a.

Contrary to petitioner’s contention, the decision below does

not categorically preclude any heat-of-passion defense based on

“words alone.”

Pet. 27 (citation omitted).

unpublished and nonprecedential.

The decision below is

See Pet. App. 1a n.*.

Nor do

the prior circuit decisions that it cites categorically foreclose

consideration of provocation through words.

See id. at 2a (citing

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

denied, 510 U.S. 874 (1993); United States v. Wagner, 834 F.2d

1474, 1487 (9th Cir. 1987)).

And in a relatively recent en banc

decision, the court of appeals considered, but ultimately rejected

on plain-error review, the defendant’s argument that specific

statements made in his case warranted a jury instruction that the

government bore the burden of proving beyond a reasonable doubt

that he did not act upon a sudden quarrel or in the heat of passion

based on a heated argument about infidelity.

Begay, 33 F.4th at

1088-1089.

2.

Petitioner identifies no conflict in the lower courts

warranting further review.

As an initial matter, because the

unpublished memorandum opinion below “is not precedent,” Pet. App.

1a n.*, it cannot establish binding law in the court below that

would conflict with another circuit’s.

Nor would it conflict with

11

any of the circuit or state supreme court decisions that petitioner

cites (Pet. 17-23) in any event.

Seven of the decisions cited by petitioner accord with the

decision below in that they similarly rejected a defendant’s claim

that the record evidence required the trial court to instruct the

jury on the government’s burden to disprove his heat-of-passion or

sudden-quarrel provocation defense to a murder charge.2 Similarly,

two

decisions

rejected

defendants’

heat-of-passion

or

sudden-

quarrel contentions on the facts in the posture of ascertaining

whether an underlying offense is murder for sentencing-guidelines

purposes.3

None of those decisions rejecting jury-instructions

claims could conclusively illustrate that the deciding court would

be bound to grant relief on the facts of this case.

Petitioner’s other cited decisions -- some of which are now

more than a century old -- also do not conflict with the decision

below.

They variously concluded that (1) a jury instruction on a

heat-of-passion

2

defense

was

warranted

on

other

case-specific

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

cert. denied, 444 U.S. 862 (1979); Sockey, 157 F.4th at 1287; State

v. Thompson, 836 N.W.2d 470, 478 (Iowa 2013); State v. Thille, 570

P.3d 18, 25 (Kan. 2025); Commonwealth v. Bermudez, 348 N.E.2d 802,

804-805 (Mass. 1976); People v. Pouncey, 471 N.W.2d 346, 351 (Mich.

1991); Washington v. State, 989 P.2d 960, 968-969 (Okla. Crim.

App. 1999).

3

United States v. Velazquez, 246 F.3d 204, 212-215 (2d

Cir. 2001) (vacating district court’s “finding that the assailants

acted in the heat of passion,” id. at 213, and remanding for

further proceedings); Slager, 912 F.3d at 232-237 (district “court

did not reversibly err by determining that Defendant’s malice was

not negated by ‘sudden quarrel or heat of passion,’” id. at 237).

12

facts4; (2) the specific facts of the case warranted the admission

of additional evidence regarding a heat-of-passion claim5; or

(3) the trial evidence was insufficient to support the malice

element of the charged murder offense, rather than a killing in

the heat-of-passion as a matter of law.6

Those factbound decisions

all rested on the specific circumstances of the victim’s death and

4

People v. Berry, 556 P.2d 777, 780 (Cal. 1976) (en banc)

(victim “continually provoked defendant with sexual taunts and

incitements, alternating acceptance and rejection of him, * * *

accompanied by repeated references to her involvement with another

man”); People v. Valentine, 169 P.2d 1, 4 (Cal. 1946) (victim

accused defendant of trespassing and “peering into” victim’s

“bathroom window”); Raines v. State, 277 S.E.2d 47, 49 (Ga. 1981)

(per curiam) (victim “wife was carrying a letter she had written

to her boyfriend and upon her husband’s discovery of it not only

admitted her adultery but taunted him with it as well as with

degrading comments about his disability”); Commonwealth v. Ronchi,

202 N.E.3d 499, 508-509, 511-512 (Mass. 2023) (victim girlfriend

told defendant, “It’s not your child” after couple had decided to

have child together, and defendant presented evidence of his “numerous neurological impairments” and additional stressors; but

court prospectively eliminated “adultery” exception to common-law

rule in favor of more circumstance-specific approach); Haley v.

State, 85 So. 129, 130 (Miss. 1920) (defendant’s wife confessed

that victim committed adultery with her and had “boasted of having

illicit relations with [defendant’s] adult daughter”); State v.

Erazo, 594 A.2d 232, 236 (N.J. 1991) (victim “purposely cut her

hand” and “threatened to call the police, with the intention of

telling them that defendant had inflicted the wound,” so that “the

State would again revoke defendant’s parole and return him to

prison”); Sells v. State, 653 P.2d 162, 163 (N.M. 1982) (victim

wife told defendant that she had committed adultery and “enjoyed

her sexual relationship with her boyfriend”); Commonwealth v.

Berry, 336 A.2d 262, 265 (Pa. 1975) (victim had just physically

assaulted defendant’s mother).

5

State v. Flory, 276 P. 458, 459-460, 463–464 (Wyo. 1929)

(defendant had just learned his wife’s father raped her).

6

Toler v. State, 260 S.W. 134, 137 (Tenn. 1924) (defendant

had just learned victim sexually assaulted his young daughter).

13

the evidence of provocation in each case, none of which is on all

fours with Davis’s statements here.7

3.

At all events, this case would be an unsuitable vehicle

to address the question presented because any instructional error

was harmless, as the government argued below.

See Gov’t C.A. Br.

25-28; Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970) (a

prevailing party may rely on any ground to support the judgment,

even if not considered below).

Like “‘most constitutional errors,’” a jury instruction that

misstates an element of the offense “can be harmless” and must be

disregarded where it is “harmless ‘beyond a reasonable doubt.’”

Neder v. United States, 527 U.S. 1, 7-8 (1999) (citations omitted).

Here, the jury found petitioner guilty of first-degree murder,

which necessarily entailed a finding that his killing of Davis was

“premeditated.”

Pet. App 7a (jury instructions); see 18 U.S.C.

1111(a) (first-degree murder includes “premeditated killing”).

As

this Court has observed, a “rational jury” that finds a defendant

guilty of premeditated murder “could not also have believed that

7

Petitioner’s remaining cited decisions from other jurisdictions do not address the distinction between murder and voluntary manslaughter and so do not implicate the question presented.

See Wakaksan v. United States, 367 F.2d 639, 641–642 (8th Cir.

1966) (rejecting defendant’s challenges to admission of evidence

and government’s closing argument in affirming voluntary manslaughter conviction), cert. denied, 386 U.S. 994 (1967); Black v.

Workman, 682 F.3d 880, 889 (10th Cir. 2012) (certifying state-law

procedural question to Oklahoma Court of Criminal Appeals); Nolan

v. State, 61 So. 3d 887, 893-895 (Miss. 2011) (rejecting sufficiency challenge to manslaughter conviction).

14

he acted in ‘sudden passion aroused by adequate provocation.’”

United States v. Frady, 456 U.S. 152, 174 (1982) (ellipsis omitted).

Accordingly, the verdict here establishes that the jury

“would not have found passion and provocation” even if the district

court had offered petitioner’s proposed heat-of-passion jury instruction.

Ibid.; cf. Demetrulias v. Davis, 14 F.4th 898, 911

(9th Cir. 2021) (“An additional voluntary manslaughter instruction

based on heat of passion would not have changed this result, ‘as

the jury necessarily determined the killing was first degree murder, not manslaughter, under other properly given instructions.’”)

(citation omitted), cert. denied, 143 S. Ct. 132 (2022); Lannon v.

Hogan, 719 F.2d 518, 523 (1st Cir. 1983) (“[B]y convicting Lannon

of first-degree murder, the jury necessarily found beyond a reasonable doubt that he had acted with premeditation and without

adequate provocation.”), cert. denied, 465 U.S. 1105 (1984).

For that additional reason, further review is unwarranted in

this case.

See Supervisors v. Stanley, 105 U.S. 305, 311 (1882)

(this Court does not grant a writ of certiorari to “decide abstract

questions of law

* * *

which, if decided either way, affect no

right” of the parties).

While petitioner disputes (Pet. 25-26)

the application of the harmless-error standard to the record evidence here, that additional dispute shows at minimum that this

case is not an “ideal vehicle,” Pet. 27, to consider the question

presented.

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

A. TYSEN DUVA

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

SEPTEMBER 2026