United States v. Kevin Bellinger

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4786
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN MARQUETTE BELLINGER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:12-cr-00100-IMK-JSK-2)
Argued: December 10, 2015 Decided: June 13, 2016
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Linn Richard Walker, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Clarksburg, West Virginia; Mary Elizabeth Davis, DAVIS
& DAVIS, Washington, D.C., for Appellant. Andrew R. Cogar,
OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia,
for Appellee. ON BRIEF: Kristen M. Leddy, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Clarksburg, West Virginia; Christopher M.
Davis, DAVIS & DAVIS, Washington, D.C., for Appellant. William
J. Ihlenfeld, II, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Kevin Bellinger (“Appellant”) was
found guilty of murder by a prisoner serving a life sentence, in
violation of 18 U.S.C. §§ 1111(a), 1118, and 2, and second
degree murder, in violation of 18 U.S.C. §§ 1111(a)-(b), 2, and
7(3). He was sentenced to life imprisonment.
Appellant now challenges those convictions on appeal,
arguing the district court erred by excluding certain testimony
relating to the victim’s violent history and by refusing to give
a proposed jury instruction on imperfect self-defense. We find
no error in the jury instructions given at trial. But we agree
that the testimony in question should not have been excluded.
It was relevant, non-cumulative, non-hearsay, and raised little
potential for prejudice. And because we cannot say the
evidentiary errors were harmless, we vacate Appellant’s
convictions and remand to the district court.
I.
A.
Appellant has been incarcerated at the United States
Penitentiary Hazelton (“USP Hazelton”) in Bruceton Mills, West
Virginia, since 2006. He was assigned there while serving a 15-
year-to-life sentence for assault with intent to kill while
armed, and a consecutive five-to-15-year sentence for related
firearm offenses arising out of the same incident. Both
2
sentences were imposed by the Superior Court of the District of
Columbia in 2002.
The present appeal stems from Appellant’s dealings
with two friends he met growing up in Washington, D.C., and with
whom he reconnected when all three were incarcerated at USP
Hazelton: Patrick Andrews (“Andrews”) and Jesse Harris
(“Harris”). Appellant and Andrews were close. In fact,
Appellant considered the two of them to be like brothers. They
remained close friends during their time in prison. Appellant
and Harris grew up in different neighborhoods, but they played
football together and hung out together prior to their
respective incarcerations.
On the evening of October 7, 2007, the three friends
got into a fight. As all three were leaving the prison’s
outdoor recreation area, Appellant saw Andrews and a man known
as “Black Junior” suddenly begin running into a housing unit.
Harris was trailing just behind. At trial, Appellant testified
that since he knew all three of the men, he “wanted to make
sure . . . that everything was all right with them,” J.A. 935, 1
so he followed them.
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
Appellant located Harris and Andrews inside the
housing unit at the intersection of two prison corridors. The
men seemed agitated. Gerald Osborne (“Osborne”), an eyewitness
to part of the altercation, heard yelling and screaming as he
approached the scene. Appellant claims he thought Harris was
threatening to kill Andrews. Appellant testified that he heard
Harris threaten to “stick . . . steel” in Andrews, J.A. 952, and
that the statement was accompanied by aggressive body language
that he believed indicated an imminent fight. Appellant -- and
Osborne -- noticed Harris grab at his pocket during this
posturing. Appellant interpreted that to mean that Harris had a
shank or some similar weapon that could be used to carry out his
threat. The situation quickly escalated into a full blown
fight, with Appellant and Andrews teaming up against Harris.
Appellant was armed with his own shank, and he repeatedly
stabbed Harris. Harris ultimately suffered 22 stab wounds,
which resulted in his death.
B.
Appellant and Andrews were indicted in the United
States District Court for the Northern District of West Virginia
on October 2, 2012. Both defendants were charged with one count
of murder by a federal prisoner serving a life sentence, in
violation of 18 U.S.C. §§ 1111(a), 1118, and 2, and one count of
second degree murder, in violation of 18 U.S.C. §§ 1111(a)-(b),
4
2, and 7(3). The district court severed the two co-defendants’
trials, and jury selection for Appellant’s trial began on June
9, 2014.
The Government’s case consisted of 14 witnesses over
two days. The defense put on two witnesses: Osborne and
Appellant. Both the prosecution and the defense showed the jury
video from the prison’s security cameras, which had captured
parts of the fight and various surrounding events.
During the trial, the district court made three
rulings that Appellant challenges on appeal. First, the court
excluded a portion of Osborne’s testimony. Osborne testified
that he “walked right through” the October 7 fight that resulted
in Harris’s death. J.A. 884. He told the jury some of what he
saw and heard while the fight was happening. However, the
Government objected when Appellant asked Osborne whether, prior
to the fight, “anyone ma[de] any threats toward anyone.” Id. at
889. Appellant was trying to elicit testimony that Osborne
heard Harris say “he was going to slam a knife in somebody” just
before the fight became physical. Id. at 897. The district
court sustained the Government’s objection, ruling Osborne’s
response would be inadmissible hearsay.
Second, Appellant challenges the district court’s
exclusion of his own testimony about his knowledge of specific
past acts of violence perpetrated by Harris. Appellant
5
attempted to testify that he knew of the murder conviction that
resulted in Harris’s incarceration and that he also knew of a
January 2007 incident at USP Hazelton, during which Harris
apparently attempted to stab another inmate. The Government
objected to the testimony pursuant to Federal Rule of Evidence
403, and the district court sustained the objections, ruling
that the proposed testimony was unfairly prejudicial and
therefore inadmissible. The court permitted Appellant to “go
into the general background” of his knowledge that Harris was a
dangerous individual but ruled that he could not “go into the
specifics.” J.A. 959.
Third, Appellant challenges the district court’s
refusal to give his requested jury instruction on imperfect
self-defense. “An imperfect self-defense involves the
defendant’s unreasonable use of deadly force to thwart an
assault. . . . The defense does not exonerate the defendant of
culpability for a homicide, but justifies only a manslaughter
conviction.” United States v. Milk, 447 F.3d 593, 599 (8th Cir.
2006). It is an argument, in other words, that though a
defendant killed his victim, he “d[id] not have the requisite
mens rea to be guilty of second-degree murder” -- malice
aforethought. Id.
Imperfect self-defense can take different forms, but
here, Appellant wanted to instruct the jury that, if he
6
possessed an “actual, though unreasonable, belief” that Andrews
“was in immediate and imminent danger of death or serious bodily
harm,” he should be found “guilty of voluntary manslaughter
rather than murder.” J.A. 226. The district court saw no need
to spell out Appellant’s theory of defense in such detail. It
rejected the proposed instruction and observed that imperfect
self-defense simply “leads . . . to an instruction on voluntary
manslaughter,” which was already included in the jury
instructions. Id. at 870.
Appellant’s jury was thus instructed that it could
find Appellant guilty of voluntary manslaughter, but not second
degree murder, if it found that the Government failed to prove
malice aforethought. And the jury was instructed that Appellant
should be found not guilty if his use of force was a legally
justified defense of Andrews, meaning (among other things) that
no reasonable alternative method of preventing harm to Andrews
was available. But the jury was never expressly instructed that
voluntary manslaughter was the appropriate verdict if
Appellant’s decision to use deadly force was based on an
“actual, though unreasonable, belief” that such force was
necessary to save Andrews’s life. J.A. 226.
C.
Throughout his trial, Appellant never disputed that he
was one of the individuals who stabbed Harris. Rather, his
7
defense rested solely on his state of mind. Appellant argued
that he acted in defense of Andrews and in the heat of passion.
Both arguments relied in part on Appellant’s contention that, in
the prelude to the fight, Harris verbally threatened to stab
Andrews while aggressively grabbing at his pocket in a manner
that Appellant interpreted as indicating that Harris was
carrying a weapon. Under those circumstances, Appellant argued,
it was reasonable to react as though Harris had a shank and
intended to use it. And even if his belief that deadly force
was necessary to save Andrews’s life was unreasonable, Appellant
argued that hearing death threats lobbed at his longtime friend
aroused such blinding anger that his ensuing actions must be
understood as taken in the heat of passion.
After just one hour and fifteen minutes of
deliberation, the jury rejected both defenses and found
Appellant guilty of both charged counts. The district court
subsequently entered a final judgment of conviction and
sentenced Appellant to two concurrent life sentences to run
consecutive to the sentences he was already serving.
Appellant filed a timely appeal.
II.
A.
We begin by addressing whether the district court
committed reversible error by excluding Osborne’s testimony that
8
Harris threatened “to slam a knife in somebody,” J.A. 897,
immediately prior to Appellant’s October 7, 2007 fight with
Harris.
“We review a district court’s refusal to admit
evidence under an abuse of discretion standard. A district
court abuses its discretion when it acts in an arbitrary manner,
when it fails to consider judicially-recognized factors limiting
its discretion, or when it relies on erroneous factual or legal
premises.” United States v. Henry, 673 F.3d 285, 291 (4th Cir.
2012) (citations omitted). “Evidentiary rulings,” moreover,
“are subject to harmless error review, such that any error is
harmless where we may say ‘with fair assurance, after pondering
all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
error.’” United States v. Cone, 714 F.3d 197, 219 (4th Cir.
2013) (quoting United States v. Johnson, 617 F.3d 286, 292 (4th
Cir. 2010)).
1.
The Government concedes that excluding Osborne’s
testimony as hearsay was error, and it is correct to do so.
A statement is “not hearsay” if it is “not offered to
prove the truth of the matter asserted,” but rather, is offered
“as circumstantial evidence of [a defendant]’s state of mind.”
United States v. Leake, 642 F.2d 715, 720 (4th Cir. 1981). A
9
statement “in which [a] decedent threaten[s]” a defendant
charged with murder “bear[s] on the [defendant’s] state of mind”
and “[i]s . . . relevant in determining whether [a] killing was
second degree murder, manslaughter, or self-defense.” United
States v. Cline, 570 F.2d 731, 734-35 (8th Cir. 1978).
Testimony about such a threat, therefore, “[i]s non-hearsay and
admissible.” Id. at 735.
Appellant contested whether he possessed the state of
mind necessary to commit second degree murder. “[T]he mental
element of [18 U.S.C. § 1111 is] malice,” United States v.
Browner, 889 F.2d 549, 552 (5th Cir. 1989), and Appellant’s
closing argument is replete with suggestions that he did not act
with malice. Indeed, Appellant’s counsel went so far as to tell
the jury, “what’s going on in [Appellant’s] mind is what’s on
trial here.” J.A. 1063. Appellant conceded that he killed
Harris, questioning only “whether the killing was second degree
murder, manslaughter, or [defense of Andrews].” Cline, 570 F.2d
at 734-35. He was thus entitled to present circumstantial
evidence about his state of mind during the killing.
Osborne’s testimony was undoubtedly relevant to
Appellant’s state of mind. To decide this case, the jury needed
to determine whether Appellant reasonably believed Andrews was
in imminent danger of serious bodily harm. See United States v.
Oakie, 709 F.2d 506, 506 (8th Cir. 1983) (per curiam) (“As with
10
self-defense, so too with the defense of another, one is not
justified in using force to protect the other unless he
reasonably believes that the other is in immediate danger of
unlawful bodily harm and that force is necessary to prevent that
harm . . . .” (quoting W. LaFave & A. Scott, Handbook on
Criminal Law § 54, at 398 (1972))). Evidence that Harris,
within earshot of Appellant, explicitly threatened to stab
Andrews quite obviously bears on the questions as to whether
Appellant believed Andrews to be in imminent danger and whether
that belief was reasonable. 2
Osborne’s testimony was thus relevant and was not
hearsay. As the Government concedes, the district court should
not have excluded it.
2.
But an erroneous evidentiary ruling does not entitle
Appellant to his requested relief if the error was harmless.
See United States v. Cloud, 680 F.3d 396, 401 (4th Cir. 2012).
The Government does not concede this point. “[U]nder harmless
error, the burden is on the Government to show that . . . an
2 Cf. United States v. Matheny, 523 F. App’x 996, 998 (4th
Cir. 2013) (per curiam) (“There was no evidence that either
victim took any action that would have given Matheny any
reasonable belief that he was in physical danger. Prior to
Matheny pulling his weapon, neither victim threatened Matheny,
made an aggressive movement, took an aggressive posture, or
attacked him.”).
11
error did not affect the defendant’s substantial rights.”
United States v. Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006)
(emphasis omitted) (citing United States v. Olano, 507 U.S. 725,
734 (1993)).
Nonconstitutional errors are “harmless where we may
say ‘with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.’” United
States v. Cone, 714 F.3d 197, 219 (4th Cir. 2013) (quoting
United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010)).
“We have identified three decisive factors in making this
determination: ‘(1) the centrality of the issue affected by the
error; (2) the steps taken to mitigate the effects of the error;
and (3) the closeness of the case.’” United States v. Ibisevic,
675 F.3d 342, 350 (4th Cir. 2012) (quoting United States v.
Ince, 21 F.3d 576, 583 (4th Cir. 1994)) (the “Ince factors”).
The third factor is most important, see id. at 352, and
“‘involves assessing whether the . . . evidence is not only
sufficient to convict, but whether it is sufficiently powerful
in relation’ to the excluded testimony to ensure the error did
not affect the outcome.” Id. at 354 (quoting Ince, 21 F.3d at
584).
The first two Ince factors clearly weigh against
harmlessness in this case. First, as discussed, Appellant’s
12
state of mind was the central -- indeed the only vigorously
disputed -- issue at his trial. Second, the district court did
not mitigate the erroneous exclusion. Because the district
court did not recognize its error, it did not give a curative
instruction. And the court rebuffed Appellant’s attempt to
elicit Osborne’s testimony through a compromise question. 3
The Government relies on the ostensibly indisputable
video evidence presented to the jury, the fact that other
evidence establishing that Appellant thought Harris threatened
Andrews was admitted, and the jury’s brief deliberation coupled
with its unequivocal verdict. We are not convinced the
Government has carried its burden.
The video evidence was captured by surveillance
cameras that do not record audio data. And when the evidence in
question is a verbal threat, we think it goes without saying
that a silent video is far from indisputable. A jury may view
video of one person rushing at and stabbing another who grabs at
his pocket while saying something innocuous as an ambush. The
same jury may think the video shows a defensive stabbing if the
ultimate decedent yells, “[I’m] going to slam a knife in
somebody,” J.A. 897, while grabbing at his pocket just before
3
Appellant proposed asking Osborne, “Without saying what
anyone said, did anyone make a threat towards anyone else?”
J.A. 889. The court did not allow the question.
13
the fight breaks out. The import of the security camera footage
-- and the extent to which it is inculpatory or exculpatory --
thus turns, to some degree, on the particular words Harris said
to Andrews during the incident in question. Without sound, the
video could not conclusively resolve the relevant and disputed
question to which Osborne’s testimony was directed: Did Harris
threaten to kill Andrews?
The Government next points out that the district court
did not exclude all evidence supporting Appellant’s contention
that such a threat occurred inasmuch as Osborne was permitted to
testify that, immediately prior to the fight, he witnessed
Harris “touching his pockets” and “motioning for [Appellant and
Andrews] to come on.” J.A. 891. The court further allowed
Osborne to testify that in his opinion, as somebody who had
spent time in prison and seen violent altercations, Harris’s
gestures were threatening. Moreover, Appellant, himself, was
allowed to testify specifically about Harris’s verbal threat. 4
4 Q. . . . . What does [Harris] say to [Andrews]?
A. I’m going to stick this steel in your
bitch ass.
Q. What does that mean?
A. Like he going to stab him up.
Q. With what?
A. With a -- with a knife. Steel means like
knife -- shank.
Q. Did you see a knife -- homemade weapon?
(Continued)
14
Arguably, then, the jury heard evidence from which it could have
concluded that Harris threatened to stab Andrews, yet the jury
still found Appellant guilty of murder.
To be sure, “error [i]s harmless” when “the evidence
[a party] sought to introduce [i]s cumulative, inasmuch as
evidence [establishing the same facts] had already been admitted
into evidence.” United States v. Cioni, 649 F.3d 276, 287 (4th
Cir. 2011). But testimony that “would have added a great deal
of substance and credibility” to a proffered defense is
“not . . . ‘cumulative.’” Washington v. Smith, 219 F.3d 620,
634 (7th Cir. 2000). Not all evidence, in other words, is
equal, and here, the admitted evidence about Harris’s threat was
no replacement for Osborne’s excluded testimony.
Osborne’s testimony would have provided specific and
direct evidence supporting Appellant’s contention that Harris
threatened Andrews, and importantly, it would have constituted
the only third-party corroboration of Appellant’s contention
that Harris’s threat was explicit and verbalized. A “defense,
discounted by the jury when standing alone, may have been
A. No. But we [sic] knowing Harris,
anything he say -- anytime he say he going
to do something, he do it.
J.A. 952-53.
15
believed when bolstered by [corroborative] testimony.” United
States v. Parry, 649 F.2d 292, 296 (5th Cir. 1981); see also
Ibisevic, 675 F.3d at 350 (“The jury could have credited the
testimony of Ibisevic’s witnesses that he generally had poor
English skills yet discounted his stand-alone testimony that he
misunderstood Officer Zayas in this particular matter. Because
Rahima’s excluded testimony was the only evidence that
corroborated Ibisevic’s claim that he believed he was truthfully
answering questions as to the value of his checked luggage, her
testimony was not cumulative.”). We do not assume a jury will
afford equal weight to a defendant’s corroborated and
uncorroborated testimony. See Ibisevic, 675 F.3d at 350. So we
will not assume the sole third-party corroboration of a detail
central to Appellant’s self-defense argument would not have
“added a great deal of substance and credibility” to his
defense. Washington, 219 F.3d at 634. We cannot, therefore,
say that allowing Appellant to tell the jury that Harris
verbally threatened to stab Andrews rendered the erroneous
exclusion of Osborne’s corroboration of that fact harmless.
We also reject the Government’s reliance upon the
length of the jury’s deliberative process in this case. We
reject the invitation to attempt to read the tea leaves
regarding what is a notoriously impenetrable process. The
jury’s relatively brief deliberation does not establish that the
16
Government’s case was too overwhelming to be affected by the
district court’s error. It is true that a brief jury
deliberation may evidence a categorical verdict. Cf. Ibisevic,
675 F.3d at 354. And it is true that Appellant’s jury asked no
questions and deliberated only one hour and fifteen minutes
before rejecting his defenses. But given the impact of the
excluded testimony here, we cannot say “with fair assurance”
Cone, 714 F.3d at 219 (quoting Johnson, 617 F.3d at 292), that
the jury would have viewed Appellant’s defense in the same light
had Osborne affirmed Appellant’s claim that Harris threatened to
stab Andrews moments before Appellant engaged in the fatal
fight.
Because the concededly erroneous exclusion of
Osborne’s testimony affected the central issue at trial, was not
mitigated, and left Appellant with only self-serving,
uncorroborated testimony to support a fact material to his
justification defense, it was not harmless.
B.
Appellant next argues that the district court erred by
excluding his own testimony about his knowledge of Harris’s past
acts of violence. We agree that Appellant should have been
allowed to testify about at least one of those acts.
17
1.
Appellant attempted to testify about two specific past
acts of violence perpetrated by Harris -- the homicide for which
Harris was incarcerated in the first place and a January 2007
incident at USP Hazelton during which Harris allegedly attacked
another inmate with a knife. Appellant claimed his knowledge of
these incidents colored his reaction when he saw Harris
threatening Andrews on October 7, 2007, but the district court
excluded the testimony pursuant to Federal Rule of Evidence 403. 5
“[A] defendant claiming self defense may show his own
state of mind by testifying that he knew of the victim’s prior
acts of violence,” United States v. Saenz, 179 F.3d 686, 689
(9th Cir. 1999), but such testimony may nonetheless be “properly
excluded pursuant to [Federal] Rule [of Evidence] 403.” United
States v. Milk, 447 F.3d 593, 600 (8th Cir. 2006). Rule 403
directs that evidence be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” 6
5 After one attempt to elicit this testimony, the court
sustained a hearsay objection from the Government. That ruling
is erroneous for the reasons discussed in Part II.A.1, supra.
Circumstantial evidence offered to show a defendant’s state of
mind is not offered to prove the truth of any out of court
assertion and is not hearsay. See Leake, 642 F.2d at 720.
6 Federal Rule of Evidence 403 also provides that evidence
should be excluded “if its probative value is substantially
outweighed by a danger of . . . confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
(Continued)
18
Fed. R. Evid. 403. A court performing this balancing must weigh
the marginal probative value of admission versus the marginal
danger of admission in view of the entire record, including
potential evidentiary alternatives. See Old Chief v. United
States, 519 U.S. 172, 183-85 (1997). “Evidence is unfairly
prejudicial . . . when there is a genuine risk that the emotions
of a jury will be excited to irrational behavior . . . .”
United States v. Siegel, 536 F.3d 306, 319 (4th Cir. 2008)
(quoting United States v. Williams, 445 F.3d 724, 730 (4th Cir.
2006)). But when “the evidence sought to be excluded under Rule
403 is concededly probative, the balance under Rule 403 should
be struck in favor of admissibility, and evidence should be
excluded only sparingly.” United States v. Aramony, 88 F.3d
1369, 1378 (4th Cir. 1996).
a.
In this case, the exclusion of Appellant’s testimony
about his knowledge of Harris’s homicide conviction was an
appropriate exercise of the district court’s discretion. While
the court excluded testimony specific to the homicide
conviction, it allowed Appellant to testify generally that he
cumulative evidence.” The district court, however, reasoned
only that “the prejudice is obvious,” J.A. 958, when excluding
the testimony in question, so we focus our analysis on unfair
prejudice.
19
was aware Harris had been involved in prior incidents of
violence. This was a reasonable compromise. The court
respected the “substantial probative value” of Appellant’s
knowledge that Harris had a history of violence while “s[eeking]
to minimize any prejudice” from testimony painting the victim as
a murderer. United States v. Myers, 280 F.3d 407, 414 (4th Cir.
2002). Appellant’s knowledge that Harris had been convicted of
homicide lent credence to his October 2007 reaction only in a
general sense -- Appellant was aware Harris had been violent
before, and he thought Harris might act violently again.
Limiting that testimony to a general acknowledgment of
Appellant’s awareness makes sense.
b.
The details of the January 2007 incident, on the other
hand, are infused with different and greater probative value.
Such testimony would have provided insight bearing on the
question as to whether Appellant’s belief that Andrews’s life
was in danger was reasonable. Appellant intended to testify
that Harris had previously attempted to stab another inmate in
USP Hazelton -- just nine months prior to the incident in
question. Knowledge of that incident constitutes knowledge that
Harris carried a knife -- and would not hesitate to use it --
while in USP Hazelton. Those details precisely accord with what
Appellant contends he reasonably feared on October 7, 2007 --
20
that Harris had a knife and intended to stab Andrews.
Therefore, such testimony is unquestionably relevant to the
determination as to whether it was reasonable to fear that
Harris’s threat would be carried out. Moreover, due to the
specificity of the facts with respect to the January 2007
incident, such testimony is much more probative of Appellant’s
defense than mere awareness that Harris had a reputation for
violence.
On the other side of the Rule 403 balance, the danger
of unfair prejudice from the additional testimony was slight.
The jury had already received substantial evidence suggesting
that Harris was a violent criminal. Before Appellant ever took
the stand, the jury learned that Harris was incarcerated at a
maximum security institution, and the Government itself had
elicited detailed testimony about the dangerousness of this
particular prison’s residents. For example, one of USP
Hazelton’s corrections officers testified, “A good portion of
the inmates that are there are serving a good part of their
life, to a life sentence.” J.A. 480. He added, “USP Hazelton
is a gang run yard,” and its population is made up of inmates
who have accrued a certain minimum criminal history score based
on convictions for violent crimes or disciplinary infractions
while in prison. Id. The Government also elicited testimony
about USP Hazelton’s robust security measures. Staff members
21
carry pepper spray. Observational towers are plentiful within
the complex and around its perimeter. The exterior fence is
electrified and lethal to the touch. This is all to say, the
jury already knew that Harris was serving time in a prison
reserved for dangerous persons. And as mentioned, Appellant was
permitted to testify that Harris had a reputation for violence.
After all of that, learning that Harris had tried to stab
another inmate would not substantially increase the danger of
unfair prejudice. See United States v. Obi, 239 F.3d 662, 668
(4th Cir. 2001) (“[T]he likelihood of additional prejudice to
the jury [from learning a defendant had been incarcerated during
a certain period of time] was slight[] [where] [t]he jury
learned only [of] . . . an arrest about which they had already
heard evidence . . . .”).
Rather, a court “abuse[s] its discretion under Rule
403” by excluding evidence that “would not have painted [a
victim] darker than he already must have appeared.” United
States v. James, 169 F.3d 1210, 1215 (9th Cir. 1999) (en banc).
And we see no way to avoid that conclusion with respect to
Appellant’s testimony about the January 2007 incident. The
testimony had substantial marginal probative value over and
above the admitted testimony about Harris’s dangerousness, but
it raised little additional likelihood of unfair prejudice.
When “evidence sought to be excluded under Rule 403 is . . .
22
probative, the balance . . . should be struck in favor of
admissibility.” Aramony, 88 F.3d at 1378. That balance should
have been struck here.
2.
Having already concluded that the exclusion of
Osborne’s testimony was not harmless, there is no need to
consider whether this second error would have been harmless in
isolation. Both errors undermined the same aspect of
Appellant’s defense, and we have already concluded that remand
is necessary to afford Appellant an adequate opportunity to
present his case.
III.
Appellant next objects to the jury instructions given
at his trial, or rather, the lack of a particular jury
instruction. The district court refused to give Appellant’s
requested instruction on the doctrine of imperfect self-defense.
“We review for abuse of discretion the district court’s denial
of . . . proposed jury instructions.” United States v. Sonmez,
777 F.3d 684, 688 (4th Cir. 2015). We see no abuse of
discretion in this regard.
Imperfect self-defense refers to a set of arguments
that “operate[] to negate [the] malice” element of a murder
charge while admitting that an unlawful killing occurred. Burch
v. Corcoran, 273 F.3d 577, 587 n.10 (4th Cir. 2001) (applying
23
Maryland law) (quoting State v. Faulkner, 483 A.2d 759, 761 (Md.
1984)). “[S]uccessful invocation,” therefore, “does not
completely exonerate the defendant, but mitigates murder
to . . . manslaughter.” Id.
Assertions of imperfect self-defense typically fall
into one of two categories: “(1) the defendant unreasonably but
truly believed that deadly force was necessary to defend
himself, or (2) the defendant inadvertently caused the victim’s
death while defending himself in a criminally negligent manner.”
United States v. Milk, 447 F.3d 593, 599 (8th Cir. 2006). If
“the defendant intend[ed] to use deadly force [based on an]
unreasonable belief that he [wa]s in danger of death or great
bodily harm,” the defendant can salvage only a voluntary
manslaughter conviction, at best, from a rejected self-defense
argument. United States v. Manuel, 706 F.2d 908, 915 (9th Cir.
1983). But an argument falling into the second of Milk’s
categories can justify an involuntary manslaughter verdict. A
“defendant[, who] attempt[ed] to use non-deadly force, but d[id]
so in a criminally negligent manner [resulting in] death,” is
entitled to “both involuntary manslaughter and self-defense
instructions.” Id.
Appellant, applying this doctrine to his argument that
he acted in defense of Andrews, requested a jury instruction
24
appealing to the first of these categories. His proposed
instruction read in relevant part:
If the defendant actually believed that the
person defended was in immediate and
imminent danger of death or serious bodily
harm, even though a reasonable person would
not have so believed, the defendant’s
actual, though unreasonable, belief is a
partial defense of another person and you
should find the defendant is guilty of
voluntary manslaughter rather than murder.
J.A. 226. The district court did not give the requested
instruction.
“In general, we ‘defer to a district court’s decision
to withhold a defense . . . in a proposed jury instruction’ in
light of that court’s ‘superior position . . . to evaluate
evidence and formulate the jury instruction.’” United States v.
Powell, 680 F.3d 350, 356 (4th Cir. 2012) (quoting United States
v. Gray, 47 F.3d 1359, 1368 (4th Cir. 1995)). Error in refusing
to give such an instruction is reversible “only when the
instruction ‘(1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.’” United States v. Passaro, 577 F.3d 207,
221 (4th Cir. 2009) (quoting United States v. Lewis, 53 F.3d 29,
32 (4th Cir. 1995)).
25
But a “district court has no discretion to refuse to
give a lesser-included instruction if the evidence warrants the
instruction and the defendant requests it,” United States v.
Baker, 985 F.2d 1248, 1259 (4th Cir. 1993), and imperfect self-
defense amounts to an argument that a defendant charged with
murder is guilty of a lesser-included manslaughter offense, see
Milk, 447 F.3d at 599; Burch, 273 F.3d at 587 n.10.
Accordingly, where a defendant “assert[s] . . . an imperfect
self-defense” rendering “malice aforethought . . . [a] disputed
element,” and where “a jury could rationally convict [the
defendant] of . . . manslaughter and acquit him of second degree
murder,” a “district court err[s] in taking the mens rea issue
from the jury by refusing to instruct on . . . manslaughter.”
United States v. Brown, 287 F.3d 965, 975, 977 (10th Cir. 2002).
Of course, the district court did not refuse to give a
lesser-included instruction in this case. It granted
Appellant’s request to instruct the jury on voluntary
manslaughter, and it informed the jury that, if the Government
failed to prove malice aforethought, Appellant could be guilty
of voluntary manslaughter but not second degree murder.
The court only declined to give Appellant’s more
specific instruction, which spelled out his imperfect self-
defense argument. Establishing error here is more difficult. A
“district court d[oes] not abuse its discretion” by refusing a
26
proposed instruction that was “clearly covered by the
instructions given,” United States v. Green, 599 F.3d 360, 378
(4th Cir. 2010), just because “a more specific instruction might
have been desirable to” the defendant, id. (quoting United
States v. Patterson, 150 F.3d 382, 388 (4th Cir. 1998)). Here,
Appellant points to no case that suggests his proposed
instruction was anything more than a favorable elucidation of an
adequately-covered defense. 7
Numerous courts have held that a district court errs
by withholding a manslaughter instruction when requested by a
defendant raising imperfect self-defense to combat a § 1111
charge. 8 See, e.g., United States v. Toledo, 739 F.3d 562, 569
7
The Government argues that a defendant may not raise an
imperfect self-defense argument when charged with violating 18
U.S.C. § 1111, and so Appellant’s instruction did not accurately
state the law. Because the district court did not err
regardless of whether the rejected instruction was accurate, we
see no need to address the Government’s arguments at this point.
8
Our own circuit’s law contains no precedent directly on
point, but we did once address this question in an unpublished
opinion. See United States v. Battle, 865 F.2d 1260 (table),
1988 WL 138687 (4th Cir. 1988) (per curiam). There, “[w]e
f[ound] no reversible error” in the district court’s refusal to
give an imperfect self-defense instruction because “[t]he
district judge adequately instructed the jury on both the
required concept of malice and on the crime of manslaughter,”
thereby “adequately convey[ing] to the jury the law which
supported [the defendant]’s theory of defense.” Id. at *3
(citing United States v. Dornhofer, 859 F.2d 1195, 1199 (4th
Cir. 1988)); see also United States v. Drotleff, 497 F. App’x
357, 359 (4th Cir. 2012) (per curiam) (“A defendant, who
intentionally uses deadly force in an effort to defend himself
(Continued)
27
(10th Cir. 2014) (“The district court erred in denying an
involuntary manslaughter instruction.”); Brown, 287 F.3d at 977
(“The district court erred in taking the mens rea issue from the
jury by refusing to instruct on involuntary manslaughter.”);
United States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000)
(“An instruction on involuntary manslaughter was thus required,
and it was error not to give the instruction.”); United States
v. Begay, 833 F.2d 900, 903 (10th Cir. 1987) (“[The defendant]’s
testimony was sufficient to support the involuntary manslaughter
instruction.”). But Appellant does not point to, and we have
not found, any cases reversing a district court that instructed
the jury on manslaughter while refusing only a more specific
instruction expounding imperfect self-defense. This makes
sense. If error is committed when a court “tak[es] the mens rea
issue from the jury” despite being in dispute through imperfect
self-defense, Brown, 287 F.3d at 977, it is avoided by
instructing on both mens rea and the lesser-included offenses
that become relevant if mens rea is not proven.
This is precisely what the district court did here.
It considered instructions on malice and manslaughter to be
but does not meet the requirements for self-defense, may commit
voluntary . . . manslaughter.” (citing Manuel, 706 F.2d at
915)).
28
sufficient, telling Appellant, “I believe you’ve got your
instruction on voluntary manslaughter, which you’re entitled to
have, which you should have, but . . . [imperfect self-defense]
only takes you to -- it’s a segue or bridge to get you to
voluntary manslaughter, which you’ve got an instruction on.”
J.A. 871. We are in agreement that these instructions were
sufficient. And Appellant was able to present his defense
inasmuch as he was permitted to argue that his testimony negated
the Government’s proof of malice as he saw fit. Thus, we see no
abuse of discretion here.
IV.
For all of the foregoing reasons, Appellant’s
conviction is vacated, and this case is remanded for further
proceedings consistent with this opinion.
VACATED AND REMANDED
29