dissenting.
To hold that the district court’s failure to proffer a lesser-included offense instruction was “error” and to then hold that such error was “harmless” represents, given the nature of the analysis required, a gross contradiction in terms. I must, therefore, dissent from the majority’s resolution of what it admits is “the most substantial issue” raised in this appeal.1
It has long been “beyond dispute that the defendant is entitled to an instruction on a lesser-included offense if the evidence would permit a jury rationally to find him guilty of a lesser offense and acquit him of the greater.”2 Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). See also Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 635, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392 (1980); Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965). Two inquiries must be made in order to determine whether a lesser-included offense instruction should be given: (1) Does the greater offense require proof of a disputed factual element not required to be proved in the lesser-included offense? Sansone v. United States, 380 U.S. at 349-50, 85 S.Ct. at 1009-1010; (2) Is there evidence in the trial which, if believed, would permit a jury to rationally convict the defendant on the lesser charge? Id.; see also Hopper v. Evans, 101 S.Ct. at 2052. An examination of the instant case clearly reveals that both of these elements are satisfied.
In order to prove murder, as defined in 18 U.S.C. § 1111, the prosecution must establish four elements: (1) a homicide, (2) malice aforethought, (3) premeditation and/or deliberation, and (4) intent. The proof required for a conviction for second-degree murder differs from the above in that it does not require a finding of premeditation. Beardslee v. United States, 387 F.2d 280, 292 (8th Cir.1967). Voluntary manslaugh*1546ter, defined in 18 U.S.C. § 1112, is an unlawful intentional killing committed without malice aforethought, while in the sudden heat of passion due to adequate provocation. As can be gleaned from these definitions, the difference between murder and manslaughter is the existence of malice, express or implied. The charged offense in the present case requires the jury to find all of the elements of manslaughter plus the additional element of malice. This clearly satisfies the first prong of the test articulated in Sansone.
The second requirement embodies the recognition that a defendant is not entitled to a lesser offense charge merely because he contests those elements of the greater offense which distinguish it from the lesser. Rather, there must be sufficient evidence presented at trial to justify a reasonable juror’s conclusion that the defendant committed the lesser, and not the greater, offense. Hopper v. Evans, supra; Beck v. Alabama, 447 U.S. at 637, 100 S.Ct. at 2389. See also United States v. Basil, 592 F.2d 513, 525 (2d Cir.1978). In this case, then, Guyon was entitled to a lesser-included offense instruction if, and only if, from the evidence presented, a rational juror could have concluded that he acted without malice in killing the FBI agent.
The nature of the analysis required in determining whether and when this requirement is satisfied was first set out in Stevenson v. United States, 162 U.S. 313, 323, 16 S.Ct. 839, 842, 40 L.Ed. 980 (1896):
A judge may be entirely satisfied from the whole evidence in the case that the person doing the killing was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.
The Supreme Court has adhered to this analysis; see Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); Beck v. Alabama, supra, as have most of the lower courts considering the issue. See e.g. People of the Territory of Guam v. Fejeran, 687 F.2d 302 (9th Cir.1982); United States v. Lincoln, 630 F.2d 1313, 1320 (8th Cir.1980); Strauss v. United States, 376 F.2d 416 (5th Cir.1967). In Strauss, the Fifth Circuit explained the trial court’s role as follows:
We find no requirement that a requested charge encompass in the trial judge’s eyes, a believable or sensible defense. The judge is the law-giver. He decides whether the facts constituting the defense framed by the jury are legally sufficient to render the accused innocent. The jury is the factfinder. If the trial judge valuates or screens the evidence supporting a proposed defense, and upon such evaluation declines to charge on that defense, he dilutes the defendant’s jury trial by removing the issue from the jury’s consideration. In effect, the trial judge directs a verdict on that issue against the defendant. This is impermissible.
* * * * * *
The jury did not have to believe the defenses but it should have been given the opportunity. This is true even if the defense is fragile. A defendant cannot be short changed nor his jury trial truncated by a failure to charge.
Id. at 419. Most recently, in Hopper v. Evans, supra, the Supreme Court emphasized that, in the context of this’ inquiry, the evidence presented by the defendant is to be taken as true. The Court indicated that a lesser-included offense instruction is appropriate in circumstances “when there [is] evidence which, if believed, could reasonably have led to a verdict of guilt of a lesser offense.” 102 S.Ct. at 2052 (emphasis added).
Viewed under this standard, the evidence presented at trial clearly demonstrated that: (1) prior to the actual homicide, there was “bad blood” between the defendant and Preston Mathis; (2) the defendant, just pri- or to the FBI’s entrance into the apartment, viewed Mathis through the peep hole; (3) *1547after the “break-in” there was a great deal of noise and commotion; and (4) prior to shooting agent Oliver, the defendant purportedly thought “Preston [Mathis] must have some heavy friends to have a white guy come up here with a pump shotgun.” Under such circumstances, a reasonable jur- or could have found that the defendant was acting out of fear. As the majority notes, the requisite heat of passion for manslaughter may be produced by fear as well as by rage. See Kinard v. United States, 96 F.2d 522, 526 (D.C.Cir.1938).
Though the majority opinion is rather vague, the first paragraph on page sixteen seems to amount to a finding that the trial court did err in failing to proffer the requested manslaughter instruction. The Court finds it “difficult to say that Guyon’s claim that he killed agent Oliver because he mistook him for someone recruited by Mathis in Mathis’ pursuance of their quarrel can be disregarded as a matter of law,” then recognizes that heat of passion can include fear and that the testimony of Guy-on and Little raise the possibility of such fear, and, finally, concludes that the trial judge “would have been well advised to have charged on the crime of manslaughter.” This progression, and the majority’s reference to Keeble v. United States, supra, indicates a recognition of the test and standards set out above and an admission that both prongs of Sansone are easily satisfied on the facts of this case.
The majority concludes, however, that the trial court’s error in failing to give the requested manslaughter instruction was “harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” The majority bases this conclusion on several arguments: (1) the evidence is otherwise sufficient to support the conclusion that Guyon committed first-degree murder; (2) the jury’s refusal to acquit on the basis of self-defense should be read as a “finding” of premeditation and malice, and an implicit rejection of a “heat of passion theory;” and (3) the jury’s refusal to return a second-degree murder verdict represents a rejection of all defenses raised and would “have prevented the jury from returning a manslaughter verdict.” All three arguments are wholly without merit.
The majority does not cite, nor could I locate, any case discussing the propriety of a lesser-included offense charge in which, once it concluded that such a charge would be appropriate, the court proceeded to find that the error was harmless under a Chapman analysis. Rather, a Chapman-type evaluation of the evidence and/or of the prejudice inuring to the defendant, should occur fully during an analysis of the second element of Sansone, obviating the need to go further. Thus, even conceding that a Chapman analysis would be technically appropriate once a Sansone analysis were complete, I believe that a court employing the two could rarely justify reaching contrary results. I find this to be particularly true where the finding of harmless error is predicated on an evaluation of the weight of the evidence; the end result could not help but be a self contradiction.
The Chapman standard simply does not significantly differ from that required under Sansone. Under Chapman and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), an appellate court is not to find an error harmless unless it is satisfied that it is “harmless beyond a reasonable doubt.” Such a finding is only justified where there is no “reasonable possibility” that the error affected the jury’s verdict. Chapman, 386 U.S. at 23-24, 87 S.Ct. at 827-828. See also Kampshoff v. Smith, 698 F.2d 581 (2d Cir.1983). A conclusion that the evidence at trial “could reasonably have led to a verdict of guilt of a lesser offense,” Hopper v. Evans, 102 S.Ct. at 2052, would appear, therefore, to foreclose a finding that there was no “reasonable possibility” that the jury verdict was affected by the failure to tender the lesser-included offense instruction. The majority’s assertion that the presence of certain contrary evidence “convinces” it “that this case is a proper candidate for decision under the harmless error rule,” is simply insufficient. The questions of harmless error and sufficiency of the evidence *1548are not coterminous. Kampshoff v. Smith, supra. The Supreme Court itself admonished against giving undue weight to even overwhelming evidence of guilt, stating that errors affecting the substantial rights of defendants cannot be considered harmless. Harrington v. California, 385 U.S. at 254, 89 S.Ct. at 1728, citing Chapman, 386 U.S. at 23, 87 S.Ct. at 827.
The similarity between the Sansone and Chapman standards is emphasized by the majority’s own reference to Krzeminski v. Perini, 614 F.2d 121 (6th Cir.1980), in support of its application of the harmless error standard in this Circuit. There, the district court instructed the jury that they were to presume that a killing had been unlawful. On appeal, the defendant claimed that this impermissibly negated a key defense — i.e. any claim that the killing had been lawful. The error was deemed harmless in light of the evidence attributable to the defendant himself: he had, on numerous occasions, admitted to the murder of his wife. In addition, he at no time claimed that the killing was not unlawful, his only claim was that he should be found not guilty of an otherwise unlawful offense by reason of his insanity. Similarly, the only case in which the Supreme Court has found that a lesser-included offense instruction was not required once the first prong of Sansone had been met was one in which the defendant’s own testimony affirmatively negated his claim that the killing with which he was charged was unintentional. Hopper v. Evans, supra. The analysis, paralleling this Court’s in Krzeminski, was conducted solely to determine whether the evidence justified the giving of the lesser-included offense instruction in the first instance.
It appears, therefore, that the majority’s two conclusions — that error occurred and that the error was harmless- — represent wholly inconsistent evaluations of the evidence and of the prejudice to the defendant. In fact, Justice Brennan’s opinion in Keeble v. United States, supra, clearly indicates that once a court concludes that the jury could rationally have found the defendant guilty of the lesser, rather than the greater offense, the inquiry should be at an end, and reversal required. He wrote:
Moreover, it is no answer to petitioner’s demand for a jury instruction on the lesser offense to argue a defendant may be better off without such instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault to commit great bodily injury, or acquitting him outright. We cannot say that the availability of the third option — convicting the defendant of simple assault— could not have resulted in a different verdict.
Id. at 212-13, 93 S.Ct. at 1997-98 (emphasis added).3
The majority’s alternative grounds for finding the error acceptable similarly miss the mark. First, the assertion that the jury’s failure to accept the self-defense *1549claim is to be read as a finding of malice ignores the substance of the very instruction quoted at length in the majority opinion. The jury was carefully instructed on the elements needed to establish the complete defense of self-defense. They were told simply that if they found that all the requisite elements had been established, they must find that the defendant was not guilty of any crime. Nowhere was the absence of malice presented as an element of the defense and, more pointedly, nowhere was the absence of the elemeiits of self-defense equated with the presence of malice. The jury’s rejection of the defense, as set out in the court’s charge, simply cannot be interpreted as an implicit finding of malice. There is no basis in logic for the majority’s interpretation of this aspect of the jury verdict.
Moreover, whenever a claim of self-defense is presented, the defendant’s possible motives and mental attitudes toward the victim are especially important. See Wakaksan v. United States, 367 F.2d 639, 645-46 (8th Cir.1966). This is particularly true where a defendant honestly, yet unreasonably, believes that he is in imminent danger of harm. In such eases, though the claim of self-defense may be imperfect, the honest apprehension of harm may be sufficient to mitigate the resultant crime, reducing it from murder to voluntary manslaughter. Cf. United States Ex Rel Crosby v. Brierley, 404 F.2d 790, 797 n. 17 (3rd Cir.1968). In the present case the jury was clearly instructed that the defendant’s self-defense claim must be rejected if they found that his fear of harm was unreasonable. They were not, however, given the option of finding that the fear, though unreasonable, was sufficient to justify an alternate, less complete defense — i.e. that the killing was committed in a heat of passion caused by that fear and, thus, lacked malice. This is precisely the kind of limitation on the jury’s options which the Supreme Court found impermissible in Keeble and Beck.
The majority’s emphasis on the fact that the jury returned a first-degree murder charge, when given the option to find the defendant guilty of second-degree murder, also lends no support to the conclusion that the error was harmless. Any emphasis on the finding of premeditation is essentially a red herring. The proper place for emphasis in the present case is on the distinction between murder and manslaughter — i.e. whether the defendant acted with malice aforethought. The defendant claims that though his conduct may have appeared sufficiently willful to prompt a juror faced only with the options of first-degree murder, second-degree murder and acquittal to choose the first, his actions were actually taken without malice. Where the presence or absence of malice is the issue, second-degree murder is no “closer” to manslaughter than is first-degree murder and the failure to present a fourth option to the jury, voluntary manslaughter, deprives the defendant of a defense based on the lack of malice and of the right to be protected from arbitrary decisionmaking by the jury. Keeble, supra.
In Stevenson v. United States, supra, the Supreme Court addressed this precise distinction and concluded that it was reversible error to refuse to submit the malice issue to the jury with proper instructions. Following a quarrel with a deputy United States Marshal named Gaines, Stevenson entered a saloon armed with a shotgun. Gaines fired a shot through the door blindly, missing Stevenson. Stevenson fired back, killing Gaines. The trial court instructed the jury on murder and self-defense, but not on manslaughter. The Supreme Court found that the evidence raised a question of fact as to whether “the effect of the conduct of the deceased ... was such as naturally tended to and did excite in the mind of the plaintiff in error sudden passion, either of rage or fear, and under the influence of which he fired and shot and killed the deceased willfully and unlawfully, but at the same time without malice.” 162 U.S. at 320, 16 S.Ct. at 841. See also People of the Territory of Guam v. Fejeran, 687 F.2d at 306.
In Fejeran, an officer was killed following a struggle over a gun and a shoot-out. Though the defendant possessed a gun and pointed it at another officer as a threat, he *1550testified that he was “scared” when firing the fatal shot. The district court refused to tender a manslaughter instruction. The circuit court analyzed the rationale of Stevenson and concluded as follows:
We may be satisfied on the whole evidence, as was the trial judge, that Fejer-an did not shoot the officers “under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse;” in light of Stevenson, however, we cannot say a rational jury could not reach the opposite conclusion. The question was one of fact to be submitted to the jury under proper instructions.
Id. at 306 (citations omitted).
It is obvious that the key issue in the present case, the one the majority fails to address in its harmless error analysis, is whether or not a rational juror could have concluded, under the proper instructions, that the defendant acted without malice— not whether the jury could or did find premeditation. The majority’s approach ignores the basic common law distinction now embodied in 18 U.S.C. §§ 1111 and 1112, between murder and manslaughter, the true basis of the appellant’s argument and the clear mandates of Stevenson and its progeny.
I recognize that this case is a difficult one to grapple with. I am deeply troubled by the fact that an FBI agent was killed and am mindful of the violent path the appellant has walked. I am also aware that, but for the fatal flaw I have addressed here, the trial judge conducted a very careful and fair trial. It is precisely in such cases, however, that we must be cautious not to let our outrage propel us into overlooking errors affecting a defendant’s substantial rights, or to countenance the cutting of corners. What is at stake is the defendant’s right to an informed jury verdict. The jury’s verdict here cannot be said to have been informed. I respectfully dissent.
. The majority characterizes the record evidence surrounding the fatal confrontation as “undisputed,” particularly noting what it calls “the FBI’s repeated warnings.” My reading of the record does not permit me to reach such a conclusion. Guyon’s fugitive status, for whatever period of time, is irrelevant to his mental state at the moment of confrontation. Such a status does not preclude him from receiving a proper instruction on included offenses where the record shows, as it does here, that a jury could have believed Guyon’s contention that in an instant of acute fear he thought the agents were in fact a squad of thugs out to kill him.
. It is unclear to what extent this entitlement stems from due process requirements. In Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), the Court found that it was reversible error for the lower court to refuse a lesser-included offense instruction on the facts presented. While the Court did note that such a failure raised difficult constitutional questions, it did not explicitly hold that due process guaranteed the right to the included offense instruction.
In Beck v. Alabama, 447 U.S. 625, 635, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392 (1980), the Court did, however, hold that due process at least guarantees such an instruction, where warranted, in a capital case. The only Supreme Court case addressing the issue since, Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), reiterated the principle in Beck, but still refused to extend it to noncapital cases since the facts did not require such an extension.
. This rationale is in accord with the Court’s holding in United States v. Blane, 375 F.2d 249, 252 (6th Cir.1967), where we remarked:
In a criminal case, it is reversible error for a trial judge to refuse to present adequately a defendant’s theory of defense, especially where a proper request therefor is proffered.