United States v. Kevin Bellinger

4th Cir.6/13/2016

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Full Opinion

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

United States v. Kevin Bellinger

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