United States v. Phillips

Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS August 25, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court __________________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 25-7003 THOMAS RAYMOND PHILLIPS III, Defendant - Appellant. ___________________________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 6:21-CR-00197-JFH-1) ______________________________________ Neil D. Van Dalsem, Assistant Federal Public Defender (Scott A. Graham, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Muskogee, Oklahoma, on behalf of Defendant-Appellant. Jarrod A. Leaman, Assistant United States Attorney (Christopher J. Wilson, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the brief), Muskogee, Oklahoma, on behalf of the Plaintiff-Appellee. ______________________________________________ Before HOLMES, Chief Judge, BACHARACH, and MORITZ, Circuit Judges. ______________________________________________ BACHARACH, Circuit Judge. ______________________________________________ This appeal grew out of a fatal shooting and convictions for  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 2 • committing 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)). In appealing the conviction for first-degree murder, the defendant (Mr. Thomas Raymond Phillips III) challenges the instructions on imperfect self-defense. This defense exists when defendants • believe that they need to use deadly force to prevent death or great bodily harm and • this belief is objectively unreasonable. United States v. Britt, 79 F.4th 1280, 1286–87 (10th Cir. 2023). The district court instructed on this defense, but didn’t tell the jury that disproving imperfect self-defense was an element of the government’s burden of proof. This omission constitutes plain error and requires reversal of Mr. Phillips’ conviction for first-degree murder. Mr. Phillips also raises four other challenges to this conviction. We address these challenges because they may arise again in a retrial. 1 1. Jury instruction on diminished capacity. The district court also instructed the jury on diminished capacity, stating that Mr. Phillips’ mental condition wouldn’t constitute a defense to second-degree murder or manslaughter. Did that statement constitute a clear or obvious error? We answer no. 1 In addition, Mr. Phillips raises a separate claim of cumulative error. But this claim rests on the assumption that none of the other challenges would alone require reversal of the murder conviction. Because we conclude that the instructional error on imperfect self-defense requires reversal of the conviction for first-degree murder, we need not address Mr. Phillips’ claim of cumulative error. 2  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 3 2. Explanation of heat of passion. In closing argument, the prosecutor illustrated heat of passion with an example of a husband killing an unfaithful spouse without thinking. If this example had been improper, would the prosecutor’s illustration have been harmless beyond a reasonable doubt? We answer yes. 3. Expressing a personal opinion about guilt. A prosecutor can’t express a personal opinion about the defendant’s guilt. But here the prosecutor referred twice in a single sentence to a belief that Mr. Phillips was guilty. Were these references plainly improper? We answer no. 4. Explanation of premeditation. The prosecutor explained that premeditation can develop quickly, giving an example of someone deciding which ice cream to buy. Did this example affect a substantial right? We answer no. The jury also found Mr. Phillips guilty of (1) using a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c) and (2) causing a person’s death by using a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(j). The district court recognized that these two charges were multiplicitous and dismissed the charge for the greater-included offense (causing a person’s death by using a firearm during and in relation to a crime of violence). Mr. Phillips argues that the court should instead have dismissed the charge for using a firearm during and in relation to a crime of violence. Does the district court’s choice constitute an abuse of discretion? We answer no. Background On a cold evening, Mr. Phillips and his wife went to a bar. After hours of drinking, Mr. Phillips quarreled with patrons and was told to 3  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 4 leave. The quarrel morphed into a brawl: Three patrons jumped Mr. Phillips, put him in a chokehold, slammed his head into a surface, and threw him to a concrete floor. A fourth individual broke a bottle over Mr. Phillips’ head. As Mr. Phillips was getting pummeled, he threatened to kill everyone. The patrons yelled at Mr. Phillips to leave and thrust him outside. His wife followed. Mr. Phillips went to his truck, retrieved a gun, paced, and hit his wife. Scared, she returned hurriedly to the bar and told everyone that Mr. Phillips had a gun. One patron opened the door and saw Mr. Phillips with the gun. The patron rushed inside, and everyone sought cover as Mr. Phillips fired into the bar and killed a patron. Issues Involving the Conviction for First-Degree Murder The killing led to Mr. Phillips’ conviction for first-degree murder, and he challenges the jury instructions and criticizes the prosecutor’s closing arguments. I. The district court erred in instructing on imperfect self-defense. In district court, Mr. Phillips requested an instruction on imperfect self-defense. The court granted the request, but didn’t tell the jury that the government needed to disprove this defense beyond a reasonable doubt to find Mr. Phillips guilty of first-degree murder. 4  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 5 A. We review for plain error. Mr. Phillips argues that this omission constituted error because the jury needed to know that the burden fell on the government. But Mr. Phillips didn’t make this objection in district court. So we review this argument under the plain-error standard. United States v. Flechs, 98 F.4th 1235, 1252 (10th Cir. 2024). Under this standard, Mr. Phillips needs to show that • the omission in the instructions constituted an error, • that error was clear or obvious, • the error affected Mr. Phillips’ substantial rights, and • the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005). But we apply these requirements “less rigidly” when reviewing a possible instructional error on an element of the offense because the issue involves the Sixth Amendment. United States v. Benford, 875 F.3d 1007, 1016–17 (10th Cir. 2017). That right is violated when the trial court improperly instructs “on an element of the offense.” Neder v. United States, 527 U.S. 1, 12 (1999). B. The district court committed a clear or obvious error. The alleged error involves two aspects of the jury instructions. First, the court instructed the jury on the elements of first-degree murder. These 5  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 6 elements included malice, which could be negated by imperfect self- defense. United States v. Maryboy, 138 F.4th 1274, 1281 (10th Cir. 2025) (imperfect self-defense negates malice); United States v. Kepler, 74 F.4th 1292, 1298 (10th Cir. 2023) (malice is an element for first-degree murder). But the court didn’t tell the jury that the government needed to disprove imperfect self-defense to find first-degree murder. Second, the court didn’t tell the jury that this burden required the government to disprove imperfect self-defense beyond a reasonable doubt. In both respects, the court erred. Imperfect self-defense would prevent a finding of first-degree murder. United States v. Craine, 995 F.3d 1139, 1156 (10th Cir. 2021). Although Mr. Phillips raised imperfect self-defense, the district court didn’t instruct the jury on the government’s burden to disprove the defense beyond a reasonable doubt. United States v. Maryboy, 138 F.4th 1274, 1292–93 (10th Cir. 2025). With that omission, the instructions allowed the jury to find malice even though it could be negated by imperfect self- defense. Granted, the court told the jury that Mr. Phillips would be guilty of involuntary manslaughter if he had acted in imperfect self-defense. R. vol. 2, at 586. But the court told the jury not to consider involuntary manslaughter unless the jury had already found Mr. Phillips not guilty of first-degree murder, second-degree murder, and voluntary manslaughter: 6  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 7 • “If you unanimously find the Defendant not guilty of the offense charged (first degree murder), or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the Defendant is guilty or not guilty of a lesser included offense.” • “If you unanimously find the Defendant not guilty of second degree murder or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the Defendant is guilty or not guilty of voluntary manslaughter.” • “If you unanimously find the Defendant not guilty of voluntary manslaughter or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the Defendant is guilty or not guilty of involuntary manslaughter.” Id. at 578, 580, 582. So the jury could have found malice without considering the possibility of imperfect self-defense. We addressed a similar situation in United States v. Lynn, 180 F.4th 1208 (10th Cir. 2026). There too, the district court instructed on first-degree murder without telling the jury to consider imperfect self-defense. Id. at 1222−23. The court did tell the jury that it should consider imperfect self-defense to determine whether the defendant was guilty of involuntary manslaughter. Id. at 1223. But the court also instructed the jury to consider involuntary manslaughter only if the jury were to find the defendant not guilty of first-degree murder, second-degree murder, and voluntary manslaughter: • “If you unanimously find the defendant not guilty of First Degree Murder in Indian Country, or if, after all 7  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 8 reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the defendant is guilty or not guilty of Second Degree Murder in Indian Country.” • “If (1) you unanimously find the defendant not guilty of First Degree Murder in Indian Country, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, and, (2) you unanimously find the defendant not guilty of Second Degree Murder in Indian Country, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the defendant is guilty or not guilty of Voluntary Manslaughter in Indian Country.” • “If (1) you unanimously find the defendant not guilty of First Degree Murder in Indian Country, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense; (2) you unanimously find the defendant not guilty of Second Degree Murder in Indian Country, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense; and (3) you unanimously find the defendant not guilty of Voluntary Manslaughter in Indian Country, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the defendant is guilty or not guilty of Involuntary Manslaughter in Indian Country.” Jury Instruction Nos. 25–27, United States v. Lynn, No. CR-24-76-GKR (N.D. Okla. Oct. 18, 2024) (Dkt. No. 98). We concluded that this sequence had effectively informed the jury that it should consider imperfect self-defense only in connection with involuntary manslaughter. United States v. Lynn, 180 F.4th at 1223−24. But we recognized that imperfect self-defense would negate an element of both first- and second-degree murder: malice. Id. at 1222 (stating that “imperfect self-defense negates first- and second-degree murder’s malice element”). As a result, we 8  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 9 concluded that a jury couldn’t “have deduced that imperfect self-defense was a defense to murder based on the lesser-included offense instructions.” Id. at 1224. The instructions here are virtually identical, telling the jury • to consider imperfect self-defense in connection with involuntary manslaughter and • to consider involuntary manslaughter only if the jury had already found the defendant not guilty of first- and second-degree murder. See pp. 7−8, above. Under Lynn, the instructions should have told the jury to consider imperfect self-defense in connection with the charge of first-degree murder. The instructions failed to tell the jury not only that it needed to consider imperfect self-defense for the charge of first-degree murder, but also that the government needed to disprove imperfect self-defense beyond a reasonable doubt. We held in Lynn that the district court had erred by failing to explain the need to disprove this defense beyond a reasonable doubt. United States v. Lynn, 180 F.4th at 1224. The resulting issue is whether these omissions created plain error. An instructional error is plain if it didn’t correctly state the applicable law and the error was “clear or obvious.” United States v. Kalu, 791 F.3d 1194, 1210 (10th Cir. 2015) (quoting United States v. Bader, 678 F.3d 858, 868 (10th Cir. 2012)). In assessing the clarity or obviousness of an error, we 9  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 10 consider current case law even if it hadn’t existed during the trial. United States v. Koch, 978 F.3d 719, 726 (10th Cir. 2020). And our recent opinion in Lynn characterized these two omissions as errors. See pp. 8−9; see also United States v. Maryboy, 138 F.4th 1274, 1293 (10th Cir. 2025) (concluding that the district court had committed plain error by failing to instruct the jury that it could find murder only if the government had disproved imperfect self-defense beyond a reasonable doubt). Under this holding, the district court clearly or obviously erred by failing to tell the jury • to consider imperfect self-defense in connection with the elements of first-degree murder and • to find first-degree murder only if the government were to disprove imperfect self-defense beyond a reasonable doubt. 2 C. The error affected Mr. Phillips’ substantial rights. Given the presence of a clear or obvious error, we consider whether the error affected Mr. Phillips’ substantial rights. “In the jury instruction 2 In concluding that the district court clearly or obviously erred, we have the advantage of case law that didn’t exist at the time of the trial. At that time, we hadn’t held in a published opinion that the government needed to disprove imperfect self-defense beyond a reasonable doubt. Nor did that requirement exist in our pattern jury instructions for first-degree murder. Crim. Pattern Jury Instruction Comm. for the U.S. Court of Appeals for the Tenth Circuit, Crim. Pattern Jury Instructions § 2.52 (3d ed. July 14, 2023). With case law unavailable to the district court, our pattern jury instructions now require the government to disprove imperfect self-defense beyond a reasonable doubt. Crim. Pattern Jury Instructions § 1.28 (rev. Mar. 11, 2026). We do not fault the district court for applying the case law and pattern jury instructions that existed at the time of trial. 10  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 11 context, ‘an error affects substantial rights if it concerns a principal element of the defense or an element of the crime.’” United States v. Brown, 128 F.4th 1358, 1368–69 (10th Cir. 2025) (quoting United States v. Piette, 45 F.4th 1142, 1162 (10th Cir. 2022)); see also United States v. Duran, 133 F.3d 1324, 1330 (10th Cir. 1998) (“A plainly erroneous jury instruction affects a defendant’s ‘substantial rights’ if the instruction concerns a principal element of the defense or an element of the crime, thus suggesting that the error affected the outcome of the case.”). So we have often found an effect on the defendant’s substantial rights when a district court errs in instructing on a principal element of an offense. See United States v. Duran, 133 F.3d 1324, 1333 (10th Cir. 1998) (“When a district court gives a legally incorrect jury instruction on the principal elements of the offense or a defense, we often have concluded that the legal error affected the outcome of the trial proceedings”), quoted with approval in United States v. Benford, 875 F.3d 1007, 1017 (10th Cir. 2017). Here too, the error involves the failure to instruct on a principal element of first-degree murder: the absence of imperfect self-defense. See pp. 5–9, above. The government downplays Mr. Phillips’ evidence of imperfect self-defense. But the district court considered the evidence sufficient to justify an instruction on this defense. We agree because six 11  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 12 pieces of evidence suggested that Mr. Phillips had irrationally feared an imminent attack: 1. A neuropsychologist testified that Mr. Phillips had post-traumatic stress disorder, that the fight could have caused a traumatic brain injury, and that the fight could have exacerbated his condition, creating confusion, hyperarousal, inability to accurately assess dangers, and susceptibility to an inappropriate response to stimuli. 2. The government’s expert witness acknowledged that post- traumatic stress disorder could have interfered with Mr. Phillips’ ability to assess danger, that the fight could have caused a traumatic brain injury, and that some aspects of Mr. Phillips’ behavior were consistent with a traumatic brain injury. 3. A pathologist testified that the fight could have killed Mr. Phillips. 4. The wife of Mr. Phillips testified that he was so disoriented that he appeared not to recognize her. 5. An officer testified that right after the shooting, Mr. Phillips couldn’t remember details and said that he had been tackled in the parking lot (even though he hadn’t). 6. A witness testified that Mr. Phillips had started shooting right after a bar patron opened the door, suggesting that Mr. Phillips could have thought that the patrons were going to attack him in the parking lot. The government also argues that the instructional errors didn’t matter because the jury had found premeditation. It’s true that • the jury found premeditation and • judges in other jurisdictions have disagreed among themselves on whether premeditation and imperfect self-defense are consistent. 12  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 13 Compare People v. Schuller, 533 P.3d 908, 926−27 (Cal. 2023) (Liu, concurring) (concluding that a jury could have found both premeditation and imperfect self-defense), with State v. Bell, 121 P.3d 972, 979 (Kan. 2005) (stating that premeditation and imperfect self-defense are mutually exclusive). In our court, we’ve said only that the jury might have been less likely to find imperfect self-defense if the jury had found premeditation. See United States v. Lynn, 180 F.4th 1208, 1225 (10th Cir. 2026) (“Granted, the likelihood of a different outcome may be diminished when a jury finds premeditation beyond a reasonable doubt.”); see also United States v. Beard, No. 25−7031, slip op. at 11 (10th Cir. Aug. 3, 2026) (to be published) (stating that a finding of premeditation supports the jury’s conclusion that the defendant hadn’t acted in perfect or imperfect self-defense). For example, we have recognized that a finding of premeditation could affect the likelihood that a jury would find imperfect self-defense because • “a rational jury that believed the defendant had formed a plan to kill with reflection and consideration amounting to deliberation, could not have also believed a mitigating defense” and • given the jury’s finding of premeditation, the jury “was not likely to conclude that [the defendant had] actually killed only out of fear for his life.” United States v. Maryboy, 138 F.4th 1274, 1294 (10th Cir. 2025) (cleaned up). At the same time, however, we’ve not regarded premeditation and 13  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 14 imperfect self-defense as inherently inconsistent. For example, we regarded the same instructional errors as reversible in United States v. Lynn even though the jury had found premeditation. 180 F.4th at 1223−25. The error here requires reversal too, because we have no way of knowing whether a properly instructed jury would have found first-degree murder. The jury found first-degree murder, but we don’t know whether the jury considered the possibility of imperfect self-defense when finding malice. And the jury had no way of knowing that the government needed to disprove imperfect self-defense beyond a reasonable doubt. Granted, Mr. Phillips didn’t testify. But his statements came into evidence through a law-enforcement officer, who testified that Mr. Phillips had said that he had been tackled in the parking lot. R. vol. 5, at 359–61. Similarly, the Lynn defendant didn’t testify and his out-of-court statements had come into evidence through other witnesses; and we held there that the instructional error required reversal. Lynn, 180 F.4th at 1223–25; see also United States v. Brown, 128 F.4th 1358, 1368 (10th Cir. 2025) (concluding that the district court had plainly erred by failing to instruct on imperfect defense of another when the defendant hadn’t testified); accord United States v. Scout, 112 F.3d 955, 960 (8th Cir. 1997) (stating that “[t]he defendant does not have to testify” to trigger a need to instruct on self- defense (quoting Closs v. Leapley, 18 F.3d 574, 580 (8th Cir. 1994))). 14  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 15 Even without Mr. Phillips’ testimony, a properly instructed jury could have found an inability to rationally assess the situation because someone had just bashed Mr. Phillips’ head, he might have sustained a traumatic brain injury, and his post-traumatic stress disorder could have interfered with his ability to process what was happening. This possibility was supported by Mr. Phillips’ behavior: He said that he had been tackled in the parking lot, and his wife testified that Mr. Phillips had looked like he didn’t even know who she was. In these circumstances, the failure to properly instruct on an element of the government’s burden affected Mr. Phillips’ substantial rights. D. The instructional error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. The remaining issue is whether the instructional error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See p. 5, above. The government doesn’t contest satisfaction of this requirement. We conclude that this requirement is satisfied. When a failure to properly instruct on murder affects the defendant’s substantial rights, we ordinarily conclude that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Maryboy, 138 F.4th 1274, 1295 (10th Cir. 2025). Moreover, the fairness or integrity of the proceedings is seriously affected when an instructional error is 15  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 16 coupled with substantial evidence supporting a defense. See United States v. Duran, 133 F.3d 1324, 1330 (10th Cir. 1998) (stating that “the fairness or integrity of a defendant’s trial is ‘seriously affected’ when the defendant has presented substantial evidence in support of an affirmative defense which has been undermined by an erroneous instruction”). We assess the fairness of the proceedings based on the instructions and the evidence. The jury was instructed on imperfect self-defense, which indicated that the court thought there was enough evidence to justify the instruction. We agree. 3 Though Mr. Phillips didn’t testify, he presented substantial evidence of his inability to rationally assess the possible danger. He had post-traumatic stress disorder, which could affect his thinking; and the fight could have caused a traumatic brain injury, further affecting his mental processes. And he appeared disoriented according to his wife. Given this evidence, a properly instructed jury could have found imperfect self-defense. See pp. 11–12, 14−15, above. Coupled with the evidence of Mr. Phillips’ mental disturbance, the instructional errors on 3 To raise imperfect self-defense, Mr. Phillips bore the burden of production; but that burden was not onerous. United States v. Britt, 79 F.4th 1280, 1286 (10th Cir. 2023). That burden required the instruction if imperfect self-defense was “supported by some evidence and the law.” Id. (quoting United States v. Beckstrom, 647 F.3d 1012, 1016 (10th Cir. 2011)). In determining whether some evidence existed, we view the testimony and exhibits in a light “most favorable to the defendant.” United States v. Toledo, 739 F.3d 562, 567 (10th Cir. 2014). 16  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 17 imperfect self-defense seriously affected the fairness or integrity of the proceedings. We thus conclude that the district court committed plain error in its instructions on imperfect self-defense. II. The district court didn’t otherwise commit reversible error as to the charge of first-degree murder. Given the possibility of a retrial, we consider Mr. Phillips’ other challenges to his conviction for first-degree murder. A. The district court didn’t plainly err in instructing on diminished capacity. These challenges include the jury instruction on diminished capacity. Defense counsel did not object to the instruction, so we apply the plain-error standard. See p. 5, above. Under this standard, Mr. Phillips needed to show an error that was clear or obvious. See pp. 5, 9–10, above. The district court instructed the jury on diminished capacity, allowing consideration of Mr. Phillips’ possible post-traumatic stress disorder and traumatic brain injury. In instructing the jury, however, the court explained that these conditions wouldn’t provide a defense to second-degree murder or manslaughter. This explanation was right: Second-degree murder and manslaughter are general-intent crimes, which aren’t subject to defenses involving mental defects. See United States v. Brown, 326 F.3d 1143, 1147 n.2 (10th Cir. 2003) (“The use of psychological or psychiatric evidence to negate an element of the 17  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 18 government’s case is limited to offenses requiring proof of a specific intent.”). Granted, Mr. Phillips’ mental condition could support heat of passion and imperfect self-defense, which served as defenses to the charge of first-degree murder. We assume for the sake of argument that the instructions could have more clearly explained the effect of Mr. Phillips’ mental condition on heat of passion or imperfect self-defense. But the instructions didn’t expressly bar the jury from considering the evidence of Mr. Phillips’ mental condition or its impact on his defenses. So Mr. Phillips hasn’t shown a clear or obvious error in the instructions on diminished capacity. B. The prosecutor’s closing argument doesn’t require reversal of the conviction for first-degree murder. Mr. Phillips also challenges the prosecutor’s closing argument, asserting that it • included improper examples of heat of passion and premeditation and • asserted a personal opinion on guilt. The statements in closing argument don’t require reversal. 1. The prosecutor’s examples of heat of passion and premeditation don’t require reversal. The government alleged premeditation, and Mr. Phillips attributed the shooting to heat of passion. The prosecutor gave examples of heat of 18  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 19 passion and premeditation, and Mr. Phillips argues on appeal that these examples were improper. Heat of Passion The prosecutor illustrated heat of passion with a scenario involving a husband killing his wife’s lover. R. vol. 5, at 588. Defense counsel objected, and the district court overruled the objection. Because the issue was preserved, we conduct de novo review. United States v. Anaya, 727 F.3d 1043, 1052 (10th Cir. 2013). Through such review, we consider whether the prosecutor’s statement was improper; if it was, the government needed to prove that the improper statement was harmless beyond a reasonable doubt. Id. Heat of passion is “a passion of fear or rage in which the defendant loses his normal self-control as a result of circumstances that would provoke such a passion in an ordinary person, but which did not justify the use of deadly force.” United States v. Currie, 911 F.3d 1047, 1054 (10th Cir. 2018) (quoting United States v. Serawop, 410 F.3d 656, 664–65 (10th Cir. 2005)). Given this definition, Mr. Phillips argues that the prosecutor’s statement was improper because people can act in the heat of passion even when they don’t react immediately to a triggering event. For the sake of argument, we can assume that the prosecutor’s statement was improper. With that assumption, we must consider whether the statement would be harmless. 19  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 20 The government needed to prove harmlessness beyond a reasonable doubt. United States v. Farmer, 770 F.3d 1363, 1365 (10th Cir. 2014). In assessing the government’s proof of harmlessness, we look “to the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case as a whole.” United States v. Sierra-Ledesma, 645 F.3d 1213, 1227 (10th Cir. 2011) (cleaned up). Applying these factors, we consider two factors in concluding that the prosecutor’s statement was harmless beyond a reasonable doubt. First, the district court gave its own definition when instructing on heat of passion: “The term ‘heat of passion’ means a passion, fear, or rage in which the Defendant loses his normal self-control, as a result of circumstances that provoke such a passion in an ordinary person, but which did not justify the use of deadly force.” R. vol. 2, at 457–58, 462. We assume that the jury followed the court’s definition even if the prosecutor’s statement had been misleading. Bland v. Sirmons, 459 F.3d 999, 1015 (10th Cir. 2006). Second, the disputed aspect of the prosecutor’s statement involved an ambiguity. The prosecutor illustrated heat of passion with an example of an angry spouse who acts immediately. But was the prosecutor also saying that heat of passion exists only when someone acts immediately? It’s impossible to say. See Dodd v. Trammell, 753 F.3d 971, 992 (10th Cir. 2013) (declining to interpret a prosecutor’s ambiguous remark to have its 20  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 21 “most damaging meaning” (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974))). Given these two factors, we conclude that if the prosecutor’s statement had been improper, the impropriety would have been harmless beyond a reasonable doubt. Premeditation Mr. Phillips also challenges the prosecutor’s discussion of premeditation. In closing argument, the prosecutor illustrated premeditation with a last-minute decision about what kind of ice cream to buy. R. vol. 5, at 563–64. For the sake of argument, we may assume that this illustration was plainly improper. But Mr. Phillips didn’t object at trial. So even if the illustration were plainly improper, it wouldn’t require reversal unless it affected a substantial right. See United States v. Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011). To assess the possible effect on a substantial right, we consider the prosecutor’s statements in the context of the entire trial. United States v. Lopez-Medina, 596 F.3d 716, 738 (10th Cir. 2010). The context here includes the district court’s instructions and defense counsel’s own arguments about premeditation. First, we consider the district court’s instructions. When the instructions are proper and tell the jury to rely on its understanding of the evidence rather than what the attorneys say, we ordinarily reject claims of 21  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 22 plain error in the closing arguments. United States v. Vann, 776 F.3d 746, 760 (10th Cir. 2015). These circumstances exist here because the district court correctly instructed the jury on the meaning of premeditation 4 and explained that the prosecutor’s statements didn’t constitute evidence. 5 We assume that the jury followed these instructions by applying the district court’s explanation for premeditation rather than drawing contrary meaning from the prosecutor’s example. United States v. Gordon, 173 F.3d 761, 769 (10th Cir. 1999). Second, we consider defense counsel’s rejoinder to the prosecutor’s explanation. See United States v. Gallagher, 735 F.2d 641, 644 (1st Cir. 1984) (stating that defense counsel’s closing argument tended to neutralize the harm from the prosecutor’s remarks). Defense counsel responded to the prosecutor’s example, arguing to the jury that changing an ice cream order wouldn’t constitute premeditation. R. vol. 5, at 582. 4 The court properly instructed the jury that a killing is premeditated • “when it is the result of planning or deliberation” and • the “amount of time needed for premeditation of a killing depends on the person and the circumstances.” R. vol. 2, at 577. 5 The district court instructed the jury to decide “based only on the evidence,” adding that “[t]he lawyers’ statements and arguments are not evidence.” R. vol. 2, at 565. 22  Appellate Case: 25-7003 Document: 55-1 Date Filed: 08/25/2026 Page: 23 Given the district court’s instructions and defense counsel’s rejoinder, Mr. Phillips didn’t show an effect on his substantial rights from the prosecutor’s example of premeditation. 2. The prosecutor didn’t plainly express an opinion that Mr. Phillips was guilty of first-degree murder. Mr. Phillips also alleges improper expression of a personal opinion about guilt on the charge of first-degree murder. During closing argument, the prosecutor said: “[W]e believe, and I believe and I submit to you, that these actions were premeditated, that they were intentional, that they were willful, and they were with malice aforethought.” R. vol. 5, at 564. Mr. Phillips didn’t object, so we address these allegations under the plain- error standard. United States v. Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011). Under this standard, Mr. Phillips must show that the statements were “plainly improper” and “affected his . . . substantial rights.” Id.; see p. 21, above. A prosecutor can’t express a personal opinion that the defendant is guilty. United States v. Little, 119 F.4th 750, 785 (10th Cir. 2024). But people often preface remarks by using phrases like I believe or We believe. These prefatory remarks may simply suggest improvisation. See Donnelly v. DeChristoforo, 416 U.S. 637, 646–47 (1974) (stating th