Plain-Error Reversal When Jury Isn’t Told Government Must Disprove Imperfect Self-Defense Beyond a Reasonable Doubt

Introduction

In United States v. Phillips (10th Cir. Aug. 25, 2026), the Tenth Circuit reviewed federal convictions arising from a fatal shooting after a bar fight in the Eastern District of Oklahoma. The defendant, Thomas Raymond Phillips III, was convicted of:

  • First-degree murder in Indian Country (18 U.S.C. §§ 1111(a), 1151, 1153), and
  • Using a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)), along with a separate § 924(j) count that the district court later dismissed as multiplicitous.

The appeal centered on jury instructions for imperfect self-defense. Although the district court gave an imperfect self-defense instruction, it did not tell the jury that the government had to disprove imperfect self-defense beyond a reasonable doubt as part of its burden to prove murder (specifically, the malice element). Phillips also raised additional instructional and prosecutorial-misconduct issues likely to recur on retrial, and challenged the district court’s remedy for multiplicity between § 924(c) and § 924(j).

Summary of the Opinion

The Tenth Circuit reversed Phillips’s first-degree murder conviction under plain-error review because the instructions failed to inform jurors that:

  • imperfect self-defense must be considered in connection with the murder charge (as it negates malice), and
  • the government must disprove imperfect self-defense beyond a reasonable doubt.

The court rejected Phillips’s other challenges to the murder conviction (diminished capacity instruction; prosecutor’s heat-of-passion and premeditation illustrations; alleged personal opinion on guilt), but addressed them to guide proceedings on remand.

As to multiplicity, the court held the district court did not abuse its discretion by dismissing the § 924(j) count rather than the § 924(c) count. The panel remanded and directed the district court to determine whether the imperfect-self-defense instructional error also “taints” the remaining § 924(c) conviction, as the parties had not briefed that question.

Analysis

Precedents Cited

1) Imperfect self-defense, malice, and the government’s burden

  • United States v. Britt, 79 F.4th 1280, 1286-87 (10th Cir. 2023): Defined imperfect self-defense as a genuine belief in the need for deadly force to prevent death or great bodily harm, where the belief is objectively unreasonable. The court also cited Britt on the defendant’s low burden of production for receiving the instruction.
  • United States v. Kepler, 74 F.4th 1292, 1298 (10th Cir. 2023): Confirmed malice is an element of first-degree murder—critical because imperfect self-defense negates malice.
  • United States v. Maryboy, 138 F.4th 1274, 1281 (10th Cir. 2025): Held imperfect self-defense negates malice.
    United States v. Maryboy, 138 F.4th 1274, 1292-93 (10th Cir. 2025): Held it is plain error not to instruct that the government must disprove imperfect self-defense beyond a reasonable doubt.
    United States v. Maryboy, 138 F.4th 1274, 1294 (10th Cir. 2025): Discussed how a premeditation finding can reduce (but not eliminate) the likelihood a jury would accept an imperfect-self-defense theory.
    United States v. Maryboy, 138 F.4th 1274, 1295 (10th Cir. 2025): Supported the conclusion that such an instructional defect typically satisfies the fourth plain-error prong in murder cases.
  • United States v. Craine, 995 F.3d 1139, 1156 (10th Cir. 2021): Recognized that imperfect self-defense prevents a murder conviction by negating malice.
  • United States v. Lynn, 180 F.4th 1208 (10th Cir. 2026): Provided the immediate template for error. In Lynn, the jury instructions effectively confined imperfect self-defense to involuntary manslaughter, preventing jurors from applying it to murder’s malice element.
    United States v. Lynn, 180 F.4th 1208, 1222−25 (10th Cir. 2026): Held (i) imperfect self-defense negates the malice element of first- and second-degree murder, and (ii) the failure to instruct that the government must disprove it beyond a reasonable doubt was reversible plain error—even with a premeditation finding.
  • United States v. Brown, 128 F.4th 1358, 1368 (10th Cir. 2025): Used to frame substantial-rights analysis for instructional errors on key elements/defenses, and cited for the proposition that a self-defense-related instruction may be required even if the defendant does not testify.
  • United States v. Piette, 45 F.4th 1142, 1162 (10th Cir. 2022) and United States v. Duran, 133 F.3d 1324, 1330, 1333 (10th Cir. 1998): Informed the court’s “substantial rights” and “fairness/integrity” analysis, emphasizing that wrong instructions on principal elements/defenses often affect outcomes.
  • Neder v. United States, 527 U.S. 1, 12 (1999) and United States v. Benford, 875 F.3d 1007, 1016-17 (10th Cir. 2017): Supported the panel’s less rigid application of plain-error requirements where an instructional flaw implicates the Sixth Amendment right to a jury finding on each element.
  • United States v. Flechs, 98 F.4th 1235, 1252 (10th Cir. 2024), United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005), United States v. Kalu, 791 F.3d 1194, 1210 (10th Cir. 2015), United States v. Bader, 678 F.3d 858, 868 (10th Cir. 2012), and United States v. Koch, 978 F.3d 719, 726 (10th Cir. 2020): Provided the doctrinal structure of plain-error review and the rule that “current” law governs whether an error is clear or obvious.
  • United States v. Beckstrom, 647 F.3d 1012, 1016 (10th Cir. 2011) and United States v. Toledo, 739 F.3d 562, 567 (10th Cir. 2014): Supported the standard for whether evidence is sufficient to warrant a defense instruction (viewing evidence in the light most favorable to the defendant).
  • United States v. Scout, 112 F.3d 955, 960 (8th Cir. 1997) and Closs v. Leapley, 18 F.3d 574, 580 (8th Cir. 1994): Cited for the proposition that a defendant need not testify to be entitled to self-defense-related instructions.

2) Prosecutorial argument: heat of passion, premeditation, and personal opinion

  • United States v. Currie, 911 F.3d 1047, 1054 (10th Cir. 2018) and United States v. Serawop, 410 F.3d 656, 664-65 (10th Cir. 2005): Provided the governing definition of heat of passion.
  • United States v. Anaya, 727 F.3d 1043, 1052 (10th Cir. 2013), United States v. Farmer, 770 F.3d 1363, 1365 (10th Cir. 2014), and United States v. Sierra-Ledesma, 645 F.3d 1213, 1227 (10th Cir. 2011): Supplied the standard of review and harmlessness framework for preserved prosecutorial-misconduct objections.
  • Bland v. Sirmons, 459 F.3d 999, 1015 (10th Cir. 2006): Supported the presumption that jurors follow the court’s instructions (mitigating harm from counsel’s statements).
  • Dodd v. Trammell, 753 F.3d 971, 992 (10th Cir. 2013) and Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974): Applied to ambiguous remarks; courts avoid adopting the “most damaging meaning” when interpretation is uncertain.
  • United States v. Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011), United States v. Lopez-Medina, 596 F.3d 716, 738 (10th Cir. 2010), United States v. Vann, 776 F.3d 746, 760 (10th Cir. 2015), and United States v. Gordon, 173 F.3d 761, 769 (10th Cir. 1999): Framed plain-error review of unobjected-to closing argument and emphasized the importance of correct jury instructions and “argument is not evidence.”
  • United States v. Gallagher, 735 F.2d 641, 644 (1st Cir. 1984): Cited for the idea that defense counsel’s rebuttal can neutralize potential prejudice from a prosecutor’s remark.
  • United States v. Little, 119 F.4th 750, 785 (10th Cir. 2024): Restated the rule that prosecutors may not express a personal opinion that the defendant is guilty.
  • United States v. Gabriel, 715 F.2d 1447, 1451-52 (10th Cir. 1983) and United States v. Carleo, 576 F.2d 846, 851-52 & n.1 (10th Cir. 1978): Treated “I think/I believe” phrasing as potentially a rhetorical mannerism rather than improper personal opinion—especially where it does not imply extra-record knowledge.
  • United States v. Rios, 611 F.2d 1335 (10th Cir. 1979), United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974), United States v. Latimer, 511 F.2d 498 (10th Cir. 1975), United States v. Gonzalez Vargas, 558 F.2d 631 (1st Cir. 1977), and United States v. Garza, 608 F.2d 659 (5th Cir. 1979): Distinguished as more extreme examples involving vouching, extra-record assertions, or repeated statements of personal belief in guilt.
  • United States v. Meinenberg, 263 F.3d 1177 (10th Cir. 2001): Noted because the prosecutor there conceded improper personal-opinion argument, yet the conviction was still affirmed due to negligible impact.
  • United States v. Harenberg, 732 F.2d 1507, 1516 (10th Cir. 1984) and United States v. Shelton, 736 F.2d 1397, 1406-07 (10th Cir. 1984): Supported distinguishing earlier vouching/contrived-fact cases when the prosecutor does not emphatically vouch or invent facts.

3) Diminished capacity and “general intent” limitations

  • United States v. Brown, 326 F.3d 1143, 1147 n.2 (10th Cir. 2003): Provided the key doctrinal rule: psychological or psychiatric evidence used to negate the government’s proof is limited to crimes requiring proof of specific intent; general-intent crimes (like second-degree murder and manslaughter as characterized by the panel) are not subject to diminished-capacity defenses in that way.

4) Multiplicity, § 924(c) vs. § 924(j), and remedy selection

  • United States v. Lopez-Avila, 665 F.3d 1216, 1218-19 (10th Cir. 2011): Provided the abuse-of-discretion standard for reviewing the district court’s choice of remedy for multiplicitous convictions.
  • United States v. Morehead, 959 F.2d 1489, 1507 (10th Cir. 1992): Articulated the general preference for vacating the lesser-included offense when convictions are multiplicitous.
  • United States v. Peel, 595 F.3d 763, 768 (7th Cir. 2010): Referenced for the common practice that the conviction carrying the lesser penalty is vacated.
  • Lora v. United States, 599 U.S. 453, 455 (2023): Critical to Phillips’s remedy argument; Lora held that federal law does not bar concurrent sentences for § 924(j), unlike § 924(c)’s consecutive requirement.
  • United States v. Brown, 151 F.4th 647, 655-56 (5th Cir. 2025): Cited for the proposition that when an anomaly yields a stiffer sentence on the lesser-included offense, the district court may have discretion in choosing which conviction to vacate.
  • United States v. Faunce, 66 F.4th 1244, 1258 (10th Cir. 2023) and United States v. Rodriguez, 858 F.3d 960, 963 (5th Cir. 2017): Reinforced that abuse-of-discretion review is bounded by what the parties actually presented to the district court.
  • United States v. Beard, No. 25-7031, slip op. at 24-27 (10th Cir. Aug. 3, 2026) (to be published): Recently held the district court did not err in dismissing § 924(j) rather than § 924(c), and recognized government latitude to “choose” which conviction to keep.
  • Barrett v. United States, 607 U.S. 128, 145, 149 (2026): The Supreme Court clarified Congress did not authorize convictions for both § 924(c) and § 924(j) for a single act (multiplicity), and the panel used Barrett (as read through Beard) to support the government’s ability to keep § 924(c) in this remedial posture.
  • United States v. Barrett, 102 F.4th 60 (2d Cir. 2024): Noted as the government’s (ultimately unsuccessful) position that the charges were not multiplicitous—superseded by the Supreme Court’s reversal in Barrett.

Legal Reasoning

1) The core holding: imperfect self-defense must be tied to murder’s elements and disproved beyond a reasonable doubt

The panel treated imperfect self-defense as functionally negating the malice element of murder. Because malice is an element of first-degree murder (United States v. Kepler) and imperfect self-defense negates malice (United States v. Maryboy), the absence of imperfect self-defense becomes part of what the government must establish beyond a reasonable doubt once the defense is supported by “some evidence.”

The district court’s instructions were structurally problematic because they:

  • listed the elements of first-degree murder (including malice) without connecting malice to imperfect self-defense, and
  • referenced imperfect self-defense only in the instruction for involuntary manslaughter—while telling jurors to reach involuntary manslaughter only after acquitting (or deadlocking) on first-degree murder, second-degree murder, and voluntary manslaughter.

Under United States v. Lynn, this sequencing effectively signals to jurors that imperfect self-defense is relevant only to manslaughter, even though it negates malice for murder. The Phillips panel applied Lynn’s logic nearly point-for-point and deemed the omissions clear or obvious under current law (United States v. Koch), even though the district court did not have the benefit of later pattern-instruction revisions.

2) Plain-error application, with Sixth Amendment sensitivity

Phillips did not preserve the burden-of-proof objection, so the panel applied plain-error review per United States v. Flechs and United States v. Gonzalez-Huerta. It applied the plain-error prongs “less rigidly” because the defect implicated the Sixth Amendment right to a jury determination on elements (United States v. Benford; Neder v. United States).

On substantial rights, the panel emphasized both doctrine and evidence:

  • Doctrinally, failure to properly instruct on an element/principal defense typically affects substantial rights (United States v. Duran; United States v. Brown).
  • Factually, the defense was supported by evidence suggesting an irrational fear of imminent attack (PTSD, possible traumatic brain injury, disorientation, memory gaps, and evidence he began shooting when someone opened the door).

The government’s argument that the jury’s premeditation finding cures the defect did not prevail. The panel acknowledged debate elsewhere (citing People v. Schuller, 533 P.3d 908, 926−27 (Cal. 2023) (Liu, concurring) and State v. Bell, 121 P.3d 972, 979 (Kan. 2005)) and reiterated that in the Tenth Circuit, premeditation may reduce the likelihood of imperfect self-defense but does not render the instructional defect harmless as a matter of law (United States v. Lynn; United States v. Maryboy; United States v. Beard (to be published)).

On the fourth prong, the panel followed United States v. Maryboy and United States v. Duran in holding that undermining a defense supported by substantial evidence in a murder case seriously affects fairness, integrity, or public reputation.

3) Other issues addressed for retrial guidance

  • Diminished capacity instruction: No plain error. The instruction accurately conveyed that diminished capacity is not a defense to general-intent crimes (second-degree murder and manslaughter) under United States v. Brown, 326 F.3d 1143, 1147 n.2 (10th Cir. 2003). The panel accepted that the instruction could have been clearer about how mental condition evidence might relate to heat of passion or imperfect self-defense, but it did not “expressly bar” that use.
  • Heat of passion example: Even assuming impropriety, it was harmless beyond a reasonable doubt because (i) the court correctly instructed the jury on heat of passion and jurors are presumed to follow that instruction (Bland v. Sirmons), and (ii) the prosecutor’s remark was ambiguous and brief (Dodd v. Trammell; Donnelly v. DeChristoforo).
  • Premeditation “ice cream” illustration: Even assuming it was plainly improper, no substantial-rights impact given correct instructions that arguments are not evidence, proper definition of premeditation, and defense counsel’s rebuttal neutralizing the example (United States v. Vann; United States v. Gordon; United States v. Gallagher).
  • “I believe / we believe” remark: Not plainly improper. The panel distinguished cases involving extra-record assertions, vouching, or repeated personal opinions of guilt (United States v. Ludwig; United States v. Latimer; United States v. Gonzalez Vargas; United States v. Garza; and differentiated United States v. Rios). It aligned the remark with cases treating such phrasing as rhetorical mannerism where it does not suggest extra-record knowledge (United States v. Gabriel; United States v. Carleo), while reaffirming the governing constraint in United States v. Little.

4) Multiplicity remedy: discretion where statutory sentencing “anomaly” exists and arguments were not preserved

The panel accepted that § 924(c) and § 924(j) were multiplicitous in light of Barrett v. United States, 607 U.S. 128, 149 (2026). The usual practice of vacating the lesser-included offense (United States v. Morehead) was complicated by Lora v. United States, which makes § 924(j) potentially more favorable in total sentence structure because it does not require consecutive sentences.

Still, the panel found no abuse of discretion because:

  • Phillips did not object when the government moved to dismiss § 924(j), limiting the district court’s need to address the “anomaly” argument; and
  • United States v. Beard (to be published) supported that the government may “choose” to keep § 924(c), with remedial discretion informed by Barrett v. United States.

Impact

  • Jury-instruction discipline in murder cases involving imperfect self-defense: Phillips reinforces (and operationalizes) the Lynn/Maryboy rule that jurors must be told imperfect self-defense negates malice and must be disproved beyond a reasonable doubt. Instructions that confine imperfect self-defense to a lesser-included manslaughter path—especially with sequential “consider only if you acquit” language—risk automatic reversal under plain-error review.
  • Pattern instruction evolution matters, but does not insulate outcomes: The panel explicitly noted that, at the time of trial, the Tenth Circuit had not yet issued published authority on the beyond-a-reasonable-doubt burden and the pattern instruction did not yet include it. Nonetheless, under United States v. Koch, the “clear or obvious” inquiry uses current law; and the revised pattern instructions (Crim. Pattern Jury Instructions § 1.28 (rev. Mar. 11, 2026)) now track the rule the panel enforced.
  • Premeditation findings do not categorically cure self-defense burden errors: Phillips rejects a categorical harmlessness argument based on premeditation, aligning with United States v. Lynn and the nuance in United States v. Maryboy.
  • Multiplicity remedy after Barrett, with Lora complications: The decision suggests that even when § 924(j) may be sentencing-favorable due to concurrency (per Lora), the district court’s remedy choice may still be upheld—especially where the defendant did not meaningfully litigate the issue below and where United States v. Beard supports prosecutorial choice to retain § 924(c).
  • Open question on remand: § 924(c) “taint”: The panel flagged (without deciding) whether reversal of the murder conviction, based on an imperfect-self-defense instruction defect, undermines the related § 924(c) conviction—leaving the district court to resolve it first.

Complex Concepts Simplified

  • Imperfect self-defense: A partial defense where the defendant actually believed deadly force was necessary to prevent death or great bodily harm, but that belief was objectively unreasonable. In the Tenth Circuit, it can reduce what would otherwise be murder by negating “malice.”
  • Malice aforethought (“malice”): A required mental element for murder. If imperfect self-defense is present, malice is absent—so the government cannot prove murder as charged.
  • Plain error: A demanding appellate standard applied when the defendant did not object at trial. The defendant must usually show (1) error, (2) clear/obvious under current law, (3) effect on substantial rights, and (4) serious effect on the fairness/integrity of proceedings. When the error concerns an element of the offense, courts may apply the test “less rigidly” because the Sixth Amendment requires a jury finding on each element.
  • Heat of passion: A mitigated mental state involving passion, fear, or rage that causes loss of self-control due to provocation that would affect an ordinary person, but does not justify deadly force.
  • Premeditation: Killing that results from planning or deliberation; the time required can be very short depending on the person and circumstances (as the jury instruction stated).
  • Multiplicity / lesser-included and greater-included offenses: Multiplicity occurs when a single act yields multiple convictions that Congress did not authorize to be punished separately. Often courts vacate the lesser-included offense, but anomalies in sentencing structure can complicate which conviction is more favorable.
  • § 924(c) vs. § 924(j): Section 924(c) generally requires a consecutive sentence. Section 924(j), when tied to death resulting, may allow concurrent sentencing (Lora v. United States). After Barrett v. United States, both cannot stand for the same act.
  • Indian Country jurisdiction: Federal statutes (including 18 U.S.C. §§ 1151 and 1153) extend federal criminal jurisdiction over certain serious offenses committed in Indian Country, depending on factors such as the status of the defendant/victim and the location.

Conclusion

United States v. Phillips establishes a clear instructional mandate in the Tenth Circuit: when imperfect self-defense is supported by some evidence, jurors must be told that it negates malice and that the government must disprove it beyond a reasonable doubt to convict of murder. Sequencing that relegates imperfect self-defense to a lesser-included manslaughter instruction—while requiring jurors to reach that lesser offense only after convicting on murder—creates reversible plain error.

The decision also narrows the practical force of premeditation findings as an appellate “cure,” underscores the importance of updated pattern instructions, and—post-Barrett v. United States— confirms substantial remedial discretion in resolving § 924(c)/§ 924(j) multiplicity when the parties’ arguments below are limited and sentencing anomalies exist after Lora v. United States.