United States of America v. Francis G. Grady

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1390
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCIS G. GRADY,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:12-cr-00077 — William C. Griesbach, Chief Judge.
ARGUED DECEMBER 6, 2013 — DECIDED MARCH 27, 2014
Before KANNE and ROVNER, Circuit Judges, and DURKIN,
District Judge.*
KANNE, Circuit Judge. Francis Grady was convicted of arson
and intentionally damaging the property of a facility providing
reproductive health services. Grady now appeals, arguing that
the district court erred in defining the term “maliciously” in
the jury instructions. For the following reasons, we affirm.
Of the Northern District of Illinois, sitting by designation.
*

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I. BACKGROUND
On April 1, 2012, Grady drove to Daniel Wolf’s house and
told Wolf that he wanted to blow up the Planned Parenthood
clinic in Grand Chute, Wisconsin. After Wolf refused to
provide him gasoline, Grady drove to a nearby gas station and
made two separate gasoline purchases, depositing some in his
van and a smaller amount in a plastic bottle. He then drove to
the Planned Parenthood clinic, parked his van, and
approached the facility with a hammer and the plastic con-
tainer of gasoline. Grady broke a window with the hammer,
poured the gasoline into the building, and set it on fire.
The next morning, after seeing news reports of the fire,
Wolf called police and informed them that Grady may have
been responsible. The police arrested Grady and then ques-
tioned him in a videotaped interview. During the interview,
Grady admitted that he “lit the clinic up” and that his “inten-
tion was to light the building.” He also stated that he told
friends shortly after lighting the fire, he “thought as far as I
know I thought it f*****’ burned right down.”
Grady was charged with arson and intentionally damaging
the property of a facility providing reproductive health
services. At trial, Grady continued to express his discomfort at
what was happening at Planned Parenthood and reiterated
that it was his desire to burn down the clinic. He also claimed,
prior to lighting the fire, to have “said a prayer for all them
children that passed away in there from abortion.” Nonethe-
less, he admitted that his intent was to damage the building. A
Planned Parenthood facilities coordinator testified that the fire
caused considerable damage to the building, which required

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No. 13-1390 3
extensive repairs and forced Planned Parenthood to cancel all
clinic services the following day.
The parties disputed how to define the term “maliciously”
under 18 U.S.C. § 844(i) for the arson charge in the proposed
jury instructions. Neither the Seventh Circuit Pattern Jury
Instructions nor this court has defined the term. Grady wanted
to utilize the definition found in the Eighth Circuit Pattern Jury
Instructions whereas the government proposed use of the
definition from the Eleventh and Fourth Circuit Pattern Jury
Instructions.
The district court elected to use the government’s defini-
tion, explaining that Grady’s proposed instruction would shift
the burden to the government to prove that the defendant
acted without justification.
The jury found Grady guilty of both arson and intentionally
damaging the property of a facility providing reproductive
health services. Grady now appeals, asserting that the district
court erred in instructing the jury regarding the definition of
the term “maliciously” as it appears in the arson statute, 18
U.S.C. § 844(i).
II. ANALYSIS
We review jury instructions as a whole to determine
whether they fairly and accurately summarize the law. United
States v. Swan, 250 F.3d 495, 499 (7th Cir. 2000). In making this
determination, our review of the instructions is de novo. United
States v. Quintero, 618 F.3d 746, 753 (7th Cir. 2010). We afford
considerable discretion to the district court “with respect to the
precise wording of instructions so long as the final result, read

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as a whole, completely and correctly states the law.” United
States v. Lee, 439 F.3d 381, 387 (7th Cir. 2006). We will reverse
“only if the instructions, when viewed in their entirety, so
misguided the jury that they led to appellant’s prejudice.”
Quintero, 618 F.3d at 753.
The sole issue on appeal is whether the district court fairly
and accurately summarized the law with respect to the
meaning of the word “maliciously” in the jury instructions.
The arson statute under which Grady was charged punishes
anyone who “maliciously damages or destroys, or attempts to
damage or destroy, by means of fire or an explosive, any
building, vehicle, or other real or personal property used in
interstate or foreign commerce.” 18 U.S.C. § 844(i) (emphasis
added). The statute does not define the term “maliciously.”
Grady proposed that the term be defined as ”intentionally
caus[ing] damage without just cause or reason.” This definition
was taken from the 2011 Model Criminal Jury Instructions of
the Eighth Circuit. The district court adopted the government’s
proposed instruction, however, which defined the term as
“[acting] intentionally or with deliberate disregard of the
likelihood that damage or injury will result.” Grady objected
to the definition and argued that his proposed instruction
offered a more common sense definition of the term.
Though our circuit does not define “maliciously” in our
jury instructions, the definition used by the district court is not
without a legal basis. As we recently noted, this definition of
the term is “indeed a common definition of the word (or
cognates of it, such as ‘malice’), and makes perfectly good
sense when the damage involves a harm to a third person.”
United States v. McBride, 724 F.3d 754, 759 (7th Cir. 2013)

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No. 13-1390 5
(citations omitted). Moreover, Grady’s proposed instruction is
taken from the Eighth Circuit’s 2011 model instructions, which
has since adopted the definition that was used by the district
court. See Eighth Circuit Manual of Model Jury Instructions
(Criminal) § 6.18.844 (2013); see also United States v. Whaley, 552
F.3d 904, 907 (8th Cir. 2009). The definition is also found in
both the Fourth and Eleventh Circuit Pattern Jury Instructions
and is how the common law traditionally defined the term. See
United States v. Gullet, 75 F.3d 941, 947 (4th Cir. 1996). Finally,
numerous other circuits have employed this same definition in
construing “maliciously” in the arson statute. See, e.g., United
States v. Monroe, 178 F.3d 304, 307–08 (5th Cir. 1999); United
States v. Wiktor, 146 F.3d 815, 818 (10th Cir. 1998); Gullet, 75
F.3d at 947–48; United States v. McFadden, 814 F.2d 144, 145–46
(3d Cir. 1987).
The instruction told the jury that Grady acted “maliciously”
if he acted intentionally or with deliberate disregard of the
likelihood that damage or injury would result in setting the fire
at the Planned Parenthood facility. This allowed the jury to
properly weigh the intent of Grady in starting the fire. We find
no error by the district court in applying this definition.
Grady contends that the district court erred in rejecting his
proposed instruction and in particular the phrase “without just
cause or reason.” His argument relies on our recent opinion
United States v. McBride, which held that for “the federal arson
statute to make sense, ‘maliciously’ has to mean deliberately
(or in willful disregard of known or suspected consequences)
using fire to do a harmful act.” 724 F.3d at 759. Yet nothing in
McBride—which concerned the sufficiency of evidence to
establish malicious intent rather than jury instructions—creates

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the need for a specific jury instruction now. And as the court
in McBride recognized, the definition used by the district court
is perfectly rational when the harm done is to a third party. Id.
Grady clearly caused harm to a third party, Planned Parent-
hood, when he set the fire in their building that resulted in
extensive damage and forced the facility to cancel all services
for a whole day.
Regardless, the district court’s decision to omit the “with-
out just cause or reason” language from the instruction is well-
supported by the record. A “jury instruction should be given
only when it addresses an issue reasonably raised by the
evidence.” United States v. Tanner, 628 F.3d 890, 904 (7th Cir.
2010). Grady has failed to point to any cognizable legal
justification for starting the fire at the Planned Parenthood
facility. Nothing in the record suggests otherwise. At trial,
Grady asserted that his proposed definition of the term was a
“more common sense definition” and did not contend that any
legal justification existed for his behavior. There was simply no
legal basis to include the phrase and the district court acted
well within its discretion in omitting it. Accordingly, we find
no error with the instruction.
III. CONCLUSION
Because we find no error with the instruction as given, we
AFFIRM Grady’s conviction.

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