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38.3 Second Degree Murder 18 USC § 1111 Title 18, United States Code, Section 1111, makes it a Federal crime or offense for anyone to murder another human being within the [special maritime] or [territorial] jurisdiction of the United States. The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt: First: That the victim named in the indictment is dead; Second: That the Defendant caused the death of the victim with " malice aforethought ," as charged; Third: That the killing occurred within the [special maritime] [territorial] jurisdiction of the United States. To kill with " malice aforethought" means to kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life; but the Government need not prove that the Defendant hated the person killed or felt ill will toward the victim at the time. Neither must the Government prove that t he Defendant acted with premeditated intent to kill. Premeditation is typically associated with killing in cold blood and requires a period of time in which the accused deliberates, or thinks the matter over before acting. The crime charged here is second degree murder, and it is sufficient if the Government proves beyond a reasonable doubt that the Defendant killed the victim deliberately and intentionally (but without premeditation), or that the Defendant killed the victim by acting with callous and wanton disregard f or human life. You are instructed that the location of the alleged murder, as described in the indictment , if you find beyond a reasonable doubt that such offense occurred there, would be within the [special maritime] [territorial] jurisdiction of the United States. ANNOTATIONS AND COMMENTS 18 USC § 1111 provides: (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, sabot age, aggravated sexual abuse or sexual abuse, burglary, or robbery; 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 t he second degree. (b) Within t he special maritime and territorial jurisdiction of t he United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. First degree murder under Section 1111 (including murder by transferred intent) requires both a finding of malice aforethought and premeditation (or felony murder). United States v. Weise, 89 F.3d 502, 505 (8th Cir. 1996) (" first degree murder is a killing with malice aforethought and premeditation, second degree murder is a killing wit h malice aforethought . . ." ); Unit ed States v. Shaw, 701 F.2d 367, 392 (5th Ci r. 1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984) (" Sect ion 1111 retains the common law distinction between second degree murder, which requires a killing with malice aforethought, and first degree murder, which in addition to malice aforethought requires a killing with premeditation and deliberation." ) Malice aforethought is " a term of art t hat bears little if any relationship to the ordinary meaning of t he word." United States v. Browner, 889 F.2d 549, 551 (5t h Cir. 1 98 9). Under both the common law and the federal murder statute, malice aforethought encompasses three distinct mental states: (1) intent to kill; (2) intent to do serious bodily injury ; and (3 ) extreme recklessness and want on disregard for human life (i.e. a " depraved heart" ). Lara v. U. S. Parole Commission, 990 F.2d 839, 841 (5th Cir. 1993); United States v. Browner, supra, 889 F.2d at 551-52; see also Unit d States v. Harrelson, 7 66 F.2d 1 86 , 1 89 n.5 (5t h Cir.) (" ` Malice aforethought ' means an intent , at the time of the killing, willfully to take the life of a human being, or an intent willfully to action callous and want on disregard of the consequences to human life. . . .") (quoting 2 E. Devit t & C. Blackmar, Federal Jury Practice and Instructions 215 (1977)), cert. denied, 474 U.S. 908, 1 06 S.Ct. 27 7, 88 L.Ed.2 d 24 1 (1 985). In Unit ed States v. Milt on, 27 F.3d 203, 206-207 (6t h Cir. 1994), and United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995), cert. denied, U.S. , 116 S.C. 749, 133 L.Ed.2d 697 (1996), the Sixth Circuit recently adopt ed essentially the same definition of malice aforethought : malice aforethought may be established by (1) "evidence of conduct which is ` reckless and wanton, and a gross deviation from a reasonable standard of care, of such nature that a jury is warrant ed in inferring that defendant was aware of a serious risk of death or serious bodily harm.'" United States v. Black Elk, 579 F.2d 49, 51 (8t h Cir. 19 78) (citing United States v. Cox, 509 F.2d 390, 39 2 (D.C. Cir. 1 974)); (2 ) evidence that the defendant " intentionally commit [t ed] a wrongful act without legal justification or excuse." United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 19 75); or (3) " circumstances which show ` a wanton and deprived spirit , a mind bent on evil mischief without regard to it s consequences.' " Id. In the case of a felony murder, t he malice aforethought requirement of section 1111 is satisfied if t he murder results from the perpetration of the enumerated crime. See Unit ed States v. Thomas, 34 F.3d 44, 49 (2d Cir.), cert. denied, U.S., 115 S.Ct 527, 130 L.Ed.2d 431 (1994).