United States v. Thomas ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 18, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1278
(D.C. No. 1:16-CR-00071-RM-1)
DANIEL THOMAS, (D. Colo.)
Defendant - Appellant.
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ORDER AND JUDGMENT *
_________________________________
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
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A jury convicted Defendant Daniel Thomas of assault with a dangerous
weapon, see 18 U.S.C. § 113(a)(3), possession of contraband in prison, see id.§ 1791(a)(2), and assault resulting in serious bodily injury, see id. § 113(a)(6). He
was sentenced to 150 months in prison. The charges arose from two separate assaults
perpetrated by Defendant while incarcerated in federal prison. Defendant contends
on appeal that the district court should have instructed the jury on self-defense and
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
severed the charges relating to the two assaults. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I
On June 9, 2015, Defendant stabbed another inmate while incarcerated at the
United States Penitentiary (USP) in Florence, Colorado. The incident was recorded
on several videos from different angles. The videos show Defendant walking down a
ramp behind another inmate to an outdoor prison yard. The other inmate looks over
his shoulder at Defendant, who, moments later, makes a striking motion to the right
side of the other inmate’s face. He follows up with two more stabbing motions
toward the victim’s abdomen. The victim turns to face Defendant while retreating
backwards down the ramp as Defendant trots after him. The two men face off in
fighting stances at the bottom of the ramp—Defendant with shank in hand—until
prison guards intervene. In a recorded statement to investigators, Defendant claimed
to have acted preemptively, in self-defense, because otherwise he “would’ve got
stabbed up by at least two guys.” Supp. R., Gov’t Ex. 15 at 3:48-51. The
government obtained a two-count indictment charging Defendant with assault with a
dangerous weapon and possession of contraband.
On September 9, 2016, Defendant assaulted another inmate while he was
incarcerated at the Federal Correctional Institute (FCI) in Englewood, Colorado.
Defendant threw the other inmate down a flight of stairs and then stomped and kicked
the inmate. The other inmate suffered serious injuries. After this incident the
government obtained a three-count superseding indictment charging Defendant with
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the two crimes alleged in the original indictment (counts 1 and 2) as well as assault
resulting in serious bodily injury based on the FCI assault (count 3).
Before trial, Defendant moved to sever counts 1 and 2 from count 3. He
acknowledged that the alleged offenses were similar but argued there was a great risk
of prejudice because evidence of one alleged assault might tend to show a propensity
to commit the other. He further argued that he would be prejudiced by the
cumulative evidence, which would enable the government to bolster the weaker
charges (counts 1 and 2) with evidence underlying the stronger charge (count 3). He
also asserted that severance was warranted to protect his right against
self-incrimination because, although he had important testimony to give regarding
counts 1 and 2—namely, that he acted in self-defense—he wished to stand on his
Fifth Amendment right not to testify as to count 3. At a pretrial motions hearing,
counsel for Defendant reiterated that he “may or may not want to testify about
self-defense” underlying the USP assault. R., Vol. 1 at 380. Defense counsel also
said that it was unlikely Defendant would testify about the FCI assault.
The district court denied the severance. It was unpersuaded that evidence of
one assault might show a propensity to commit the other or that the government was
attempting to bolster a weaker case with a stronger one. It also rejected Defendant’s
Fifth Amendment argument, ruling that he failed to show he had important testimony
to give based on his claim of self-defense or provide a strong reason why he could
not testify about the FCI assault.
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During the trial, Defendant twice unsuccessfully renewed his motion to sever,
first following admission of the evidence underlying the USP assault and a second
time at the close of the government’s case-in-chief. In support of his second motion
he made an additional proffer, indicating that he would testify that the USP assault
was an act of self-defense. He said that two days before the incident he had been
threatened in the prison chow hall by members of a Native American gang called the
“Warrior Society,” which was led by the victim of the stabbing. Also, on a separate
occasion, the victim and several associates, all of whom were known to carry knives,
surrounded him and threatened to give him a “smash down.” R. Vol. 4 at 262.
Defendant asserted that the victim threatened him just before the assault, as
corroborated on the video of the stabbing, which showed that just moments before the
assault, the victim looked over his shoulder and appeared to say something to
Defendant. Defendant also maintained that he would invoke his Fifth Amendment
right not to testify about the FCI assault. The district court denied the motion again,
ruling that the additional proffer was untimely.
At the jury-instruction conference, Defendant requested a self-defense
instruction for the USP assault. He again argued that the portion of the video in
which the victim looked over his shoulder just before the stabbing confirmed his
belief that the victim posed a threat. He also cited the video of his statement to
investigators in which he claimed to have acted in self-defense. The district court
refused to give the instruction, ruling that there was insufficient evidence that he
acted in response to a threat of an imminent use of force. It did, however, instruct the
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jury that evidence on each count should be considered separately and that a verdict
on any one count should not influence the verdict on any other count.
II
We consider Defendant’s issues in turn.
A. Self-Defense Instruction
We review for abuse of discretion the district court’s refusal to give a
self-defense instruction. See United States v. Toledo, 739 F.3d 562, 567 (10th Cir.
2014). “[A] defendant is entitled to an instruction on any recognized defense for
which there is evidence sufficient for a reasonable jury to find in his favor.” Id. “For
the purposes of determining the sufficiency of the evidence, we accept the testimony
most favorable to the defendant.” Id.“A person may resort to self-defense if he reasonably believes that he is in
imminent danger of death or great bodily harm, thus necessitating an in-kind
response.” Id.; see United States v. Feather, 768 F.3d 735, 739 (7th Cir. 2014)
(“Self-defense is a viable legal justification only if the defendant was faced with an
actual, imminent threat of physical harm. This is so even in prisons, where threats
and violence are common.”); United States v. Bello, 194 F.3d 18, 26-27 (1st Cir.
1999) (affirming denial of self-defense instruction where defendant assaulted another
inmate because of an alleged threat some 18 hours earlier); 2 Wayne R. LaFave,
Substantive Criminal Law § 10.4(d) (2017) (“[S]elf-defense require[s] that the
defendant reasonably believe his adversary’s unlawful violence to be almost
immediately forthcoming.” (footnote omitted)).
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There is no evidence that Defendant was threatened with imminent death or
great bodily harm. The video of the stabbing simply shows the victim walking down
the ramp with Defendant behind him. Although the victim turns his head toward
Defendant moments before the stabbing, perhaps to say something, there is no way to
tell if the victim made a verbal threat of imminent harm, nor is there any visual cue
that the victim posed an imminent danger. Defendant also relies upon the video of
the statement he gave to investigators in which he said that he acted in self-defense,
but that interview simply suggests that he perceived a possible threat of danger at
some later time; it does not assert an imminent threat. See United States v. Haynes,
143 F.3d 1089, 1090 (7th Cir. 1998) (affirming denial of self-defense instruction for
preemptive strike, in part because “‘later’ and ‘imminent’ are opposites”). He told
investigators, “I would’ve got hit,” and “I had to defend myself.” Supp. R., Gov’t
Ex. 15 at 3:37-43. He explained, “These guys already tried to jump me twice . . . .
One on the walkway, and then, uh, and at the chow hall, like just days before this
happened. I was gettin’ pressed, man.” Id. at 6:25-41 (emphasis added). Nothing in
these statements suggests Defendant faced an imminent danger. Consequently,
Defendant was not entitled to a self-defense instruction. 1
B. Severance
Defendant contends that the district court erred in denying his motions to sever
counts 1 and 2 from count 3. He asserts (1) that he was prejudiced by the “spillover
1
Absent an imminent danger, we need not consider whether Defendant was
also required to show the absence of lawful alternatives.
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effect” from evidence of one assault corroborating or showing a propensity to commit
the other, Aplt. Br. at 16, and (2) that his Fifth Amendment rights were violated
because he wished to testify that he acted in self-defense at USP but hold the
government to its burden of proof regarding the FCI assault. We reject both
arguments.
Defendant concedes that the charges relating to the two assaults were properly
joined because they share the same or similar character. See Fed. R. Crim. P. 8(a).
Therefore, we focus on whether the charges should have been severed under Fed. R.
Crim. P. 14(a). See United States v. Hill, 786 F.3d 1254, 1257 n.2 (10th Cir. 2015)
(distinguishing between concepts of misjoinder and severance).
Under Rule 14(a), “[i]f the joinder of offenses . . . appears to prejudice a
defendant . . . , the court may order separate trials of counts . . . or provide any other
relief that justice requires.” The denial of a severance “will not ordinarily be
reversed in the absence of a strong showing of prejudice.” Hill, 786 F.3d at 1272
(internal quotation marks omitted). “To establish prejudice, a defendant must point
to a specific trial right that was compromised or show the jury was prevented from
making a reliable judgment about guilt or innocence.” United States v. Pursley,
474 F.3d 757, 766 (10th Cir. 2007) (brackets, ellipsis, and internal quotation marks
omitted). We review the denial of a motion to sever for an abuse of discretion,
mindful that Defendant “bears a particularly heavy burden” to show an abuse of
discretion. Hill, 786 F.3d at 1272.
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Defendant’s spillover argument fails because “[a]ny prejudice resulting from
the mere cumulative effect of the evidence underlying the multiple charges does not
mandate severance.” United States v. Thomas, 849 F.3d 906, 912 (10th Cir.),
cert. denied, 138 S. Ct. 315 (2017). Although the two assaults here occurred more
than a year apart, we have affirmed the denial of a severance for charges of the same
or similar character (robbery of a business) committed three years apart. See, e.g., id.
at 908, 912. Moreover, the evidence underlying each assault was distinct: the USP
assault involved Defendant stabbing another inmate from behind with a shank, while
the FCI assault involved his throwing another inmate down a flight of stairs and
stomping and kicking the victim. Cf. id. at 912 (“different forms [of evidence] make
it more likely that the jury was able to distinguish between counts, thereby weighing
against a finding of prejudice”). Nor does Defendant explain why the jury would not
have been able to consider the charges and the underlying evidence independently.
See United States v. Jones, 530 F.3d 1292, 1302 (10th Cir. 2008) (rejecting spillover
argument where defendant “offered no explanation of his theory that jurors could not
be expected to separate evidence of” different charges against him). Also, the district
court directed the jurors to consider the evidence underlying each count
independently. See Thomas, 849 F.3d at 912 (“[L]imiting instructions are ordinarily
sufficient to cure potential prejudice.” (internal quotation marks omitted)). “[J]uries
are presumed to follow their instructions.” Zafiro v. United States, 506 U.S. 534, 540
(1993) (internal quotation marks omitted).
8
Defendant’s Fifth Amendment argument also fails. When a defendant moves
for severance because he seeks to testify about some counts but not others, “no need
for severance exists until the defendant makes a convincing showing that []he has
both important testimony to give concerning one count and a strong need to refrain
from testifying on the other.” Jones, 530 F.3d at 1300 (internal quotation marks
omitted). “[T]he defendant must present enough information to satisfy the court that
the claim of prejudice is genuine and to enable it to intelligently weigh the
considerations of economy and expedition in judicial administration against the
defendant’s interest in having a free choice with respect to testifying.” Id. (ellipsis
and internal quotation marks omitted).
But Defendant failed to proffer any specific information until after the district
court twice denied a severance. Previously he had asserted only that he had
important testimony to give about the USP assault that would advance his theory of
self-defense. Besides, even the proffer would not support a finding that he faced
imminent danger of death or great bodily harm, as would be necessary for a valid
claim of self-defense. And the proffer was too late to enable the district court to
weigh considerations of judicial economy against Defendant’s rights— to
accommodate Defendant’s request at that time would require declaring a mistrial on
the FCI charge. See United States v. Valentine, 706 F.2d 282, 291 (10th Cir. 1983)
(affirming denial of severance where defendant’s proffer at the close of the
government’s case was “weak” and made “at that late stage of the case”).
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Nor has Defendant shown a strong need to refrain from testifying about the
FCI assault. Although he wanted to hold the government to its burden on that charge,
this alone fails to establish a strong need to refrain from testifying. See Jones,
530 F.3d at 1301. Indeed, “[i]f a defendant’s desire not to testify on a particular
count, without more, amounted to a compelling need not to testify, then required
severance would be the rule, and not the exception.” Id. Consequently, the district
court did not abuse its discretion in denying a severance.
III
The district court’s judgment is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
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