### Scout was originally indicted on a charge of assaulting a 1 

### federal officer with a dangerous weapon under 18 U.S.C. § 11 1(a)(1) (1994), which would have carried a maximum sentence of ten year s imprisonment. See 18 U.S.C. § 111(b) (1994). Scout was convicted for the lesser included charge of assault without a weapon, which allows a maximum three-year sentence. See 18 U.S.C. § 111(a ) (1994). The Honorable Richard H. Battey, United States District Judge 2 

### for the District of South Dakota.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3307

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. David Scout, also known as * David White Face, * * Appellant. *

___________ Submitted: February 11, 1997 Filed: May 1, 1997

___________ Before MAGILL, BEAM, and LOKEN, Circuit Judges.

___________ MAGILL, Circuit Judge.
A jury convicted David Scout, who is also known as David White Face, of assaulting a federal officer without a weapon, in violation of 18 U.S.C
. § 111(a)(1) (1994). The district court 1 2

### -2-

sentenced Scout to fourteen months imprisonment. At trial Scout maintaine d that he had no memory of the alleged assault bec ause of an alcohol-induced black-out. On appeal, Scout contends that the d istrict court erred in (1) refusing to give a requested jury instruction on self-defense; (2) refusin g to allow a psychologi st to testify that Scout had a peaceful personality; and (3) refusing to change a jury instruction regarding character evidence
. We affirm.

I.

On August 15, 1995, Scout, his brother Manuel Scout, and thei r friend Anthony Brave Heart gathered at Scout's and Manuel's home in th e Eve rgreen Housing complex on the Pine Ridge Indian Reservation in Sout h Dakota. The group consumed two half-gallons of vodka and a six-pack o f malt liquor. Late that evening Scout, Manuel, and Brave Heart left Scout' s home to walk to a friend's house nearby.

Tribal law prohibits public and private intoxication on th e reservation. See Trial Tr. at 28 (testimony of Paul Rooks, Chief of Polic e of the Oglala Tribal Public Safety Commission, discussing Resolution 88- 12). Oglala Sioux Tribe Public Safety Commission Officers Lloyd Bianas an d John Attack Him received information on August 1 5 that Brave Heart and two others were intoxicated and causing a disturbanc e in the Evergreen Housing complex. After stopping at the home of Nathan Elk, a police officer who lived in the Evergreen Housing complex, Officers Bianas and Attack Him saw Brave Heart, Manuel, and Scout walking through the housing complex.

Officers Bianas and Attack Him approached Brave Heart, Manuel, an d Scout. The three men fled, and the officers pursued and

### -3-

apprehended them. Of ficer Attack Him testified that he first apprehended Manuel , who was "pretty intoxicated" and struggled against the officer
. See Trial Tr. at 41. After placing Manuel in the back of the police car, Officer Attack Him drove the car to find the other suspects.
Officer Attack Him soon found Officer Bianas, who had overtakenBrave Heart and Scout. When Officer Attack Him arrived, Officer Bianas ha d already subdued Brave Heart by spraying him with mace and handcuffing him. Officer Bianas also had Scout on the ground in an arm-lock. Officer Attac k Him plac ed Brave Heart in the back of the police car and then assiste d Officer Bianas in securing Scout.

After the officers placed Scout in the police car, Officer Biana s stated that he had been hurt. Officer Attack Him noticed that Office r Bianas's shirt had been torn and that he had a scrape on his forearm. Upo n searching the area, the officers discovered on the ground a seven-inch lon g utensil described as a fondue fork.

Officer Bianas testified at trial that he apprehended Brave Hear t first, after pursuing him for a quarter of a mile. Brave Heart resisted arrest, and swung his fists at Officer Bianas. Officer Bianas maced Brave Heart, forced him to the ground, handcuffed him, and placed him against th e hood of a nearby car.

Officer Bianas then looked for Scout . Officer Bianas testified that he found Scout hiding in some weeds, and that
I walked up to [Scout], told him he was under arrest. He just come at me, like, you know, like he was going to jump on me ; and when I grabbed his arm, felt like I got a scratch, yo u know, something scratched me, so I jumped back and maced hi m and he come at me again.

### David Scout test ified at trial that the fondue fork was used 3 

### to jimmy open the door to Manuel's room because the key to tha t room was missing. See Trial Tr. at 150. -4- Trial Tr. at 69. Officer Bianas then forced Scout to the ground. After Scout was handcuffed, Officer Attack Him helped Officer Bianas place Scout in the police car.

Office r Bianas noticed "a sharp pain on the lower left side of th e ri b cage area," id. at 71, and a scratch on his left wrist. Office r Bianas's uniform shirt was torn and his undershi rt was scratched. Officer Bianas and Officer Attack Him discovered the fon due fork in the area where Office r Bianas had apprehended Scout. Officer Bianas sought medica l attention for his scratches, but had no serious injuries.
A day aft er the arrests, Manuel Scout signed a statement describing the events of the pre vious night. Manuel, Scout's brother, asserted that he had previously seen the fondue fork discovered at the arrest site and that "we have these a t our house. Mom uses those to cook, maybe to fry a hot dog. . . . I don't know what [David] needed it for. We were just goin g for a walk." Trial Tr. at 120 (quest ion to Manuel Scout, quoting Ex. 9). 3
Although Manuel indicated that Scout's left eye was bleeding an d shut as Scout was brought to the police car, Manuel g ave no other indication of police abuse in his signed statement. At trial, however, Manuel testified that he saw the officers beat Brave Heart by str iking his head against the police car, and that the officers maced Scout and Brave Heart while they were handcuffed in the back of the police car.

### Scout provided the following testimony at trial: 4 

### Questi on by prosecutor: You didn't know it was Lloy d [Bianas] and John [A]ttack [H]im? Answer by Scout: No. Q. When did you find out it was Lloyd Bianas?
A. The next day. Q. So you weren't running because you were afraid o f LloydBianas, because you didn't know it was Lloyd Biana s until the next day?

. . . A. Yes.

-5- Brave Heart signed a statement the day after his arrest assertin g that his head had been struck against a police c ar twice by Officer Attack Him. At trial, Brave Heart testified that Officer Bianas arrested him "an d started banging my head off the hood, I would estimate probably three to four times." Trial T r. at 128. Although Brave Heart stated that he "got a broken nose and I s hould say two black eyes and a cracked chin," id. at 129, he never receive d medical treatment, and "let [his injuries] heal on its own." Id. at 134. Brave Heart also testifi ed that he was maced while in the back of the police car, and that he saw O fficer Bianas's leg "going up to" Scout's face when Scout was "going down t o the ground . . . ." Id. at 129. Both Officers Bianas and Attack Him denied having used unnecessar y force.
Scout testified that he had virtually no memory of the arrest b ecause of an alcohol-induced black-out. Scout stated t hat he "blanked out" while liste ning to music in his home, see Trial Tr. at 147, and that the nex t thing that he remembe red was that he "was outside walking by Nathan Elk's driv eway, I heard someone say, 'the cops.' And then I took off." Id
. Scout further testified that he did not learn that Officer Bianas wa s among the police officers pursuing him until the next day, see id. at 153- 54, and that he 4

### Q. You don't know what happened out there, do you?

A. No. Trial Tr. at 153-54. -6- had no memory of his alleged assault on Officer Bianas.

Scout com

plained of four injuries that he allegedly received during his arrest--including a swollen cheek, a bump on the back of his head, a cut on his forehead, and a shut eye--and testified that he "assumed" that the offi cers kicked him four times. Id. at 148. Scout sought medica l treatment and received drops for his eye. Scout also testified that he ha d been arre sted by Officer Bianas in the past, and that during a previou s arr est Officer Bianas had slapped him with the back of his hand twic e because Scout asked why he was being arrested. See Trial Tr. at 143.

Scout was indicted on a charge of assaulting a federal officer with
a weapon, in violation of 18 U.S.C. § 111(a)(1). Scout attempted to pursu e a defense of self-defense at trial. During the trial, Scout’s attorne y elicited testimony from two community members--both of whom were related to Scout--that Officer Bianas had a reputation for violence. See Trial Tr
. at 94 (testimony of Aldeen Mary Steele Yellow Boy); id. at 99 (testimony of Myrn a Young Bear). Scout also asserted that he had heard of Office r Bianas beating other prisoners. See id. at 144. The district court did not allow a psychologist who interviewed Scout to testify that Scout had
a pea ceful personality and would not have started a fight with Office r Bianas.

### -7- Scout submitted a proposed jury instruction to the district cour t which stated:

If a person reasonably believes that force is necessary t o protect himself from what he reasonably believes to be unlawful physical harm about to be inflicted by another and uses suc h force, then he acted in self[-]defense. In order to convic t the Defendant of any cha rge, you must find beyond a reasonable doubt t hat the Defendant was not acting in self[-]defens e during the incident in question.
Appellant’s Add. at 10. The district court did not issue this instruction to the jury, concluding that the evidence submitted did not support a self

defense instruction.

After a w itness expressed her opinion that Officer Bianas had a viole nt reputation, a jury member sent the district court a note whic h asked , "Have the witnesses seen Mr. Bianas being violent or only hear d reports from others? What is the source of his reputation for violence?" Trial Tr. at 186-87 (quoting note from juror). The district court notifie d th e parties about this note, and Scout submitted a proposed jur y instru ction to clarify Federal Rule of Evidence 405's limitation o f admissible character evidence. The proposed instruction stated:

Generally, evidence of a person's chara cter or a trait of character is not admissible at trial for the purpos e of proving actio n in conformity therewith on a particular occasion
. However, evidence of a p ertinent trait of character offered by an accused and evidence of a pertinent trait of character o f the alleged victim of th e crime charged offered by an accused, and evidence by the pros ecution to rebut such evidence offered by an accused is admissible at trial for the purpos e of proving action in conformity therewith on a particular occasion. Wh en the accused seeks to offer evidence of character , the proof is limited only to testimony as to reputation or by testimony in the form of opinion. On

### -8- cross-examination, inqui ry is allowable into relevant specific instances of conduct.
Appellant's Add. at 1 2. The district court declined to give the proposed instruction, and instead provided the following instruction:

Yo u are instructed that evidence of the communit y reputat ion of Lloyd Bianas for violence has been receive d through the opinion of certain witnesses. This evidence does not relate to specific i nstances of conduct but relates to the wit nesses['] knowledge of such reputation. You may give th e evidence such weight as you think it deserves considering the test imonypresented including the government's cross

examination.
Appellee's Br. at 9.
The jury convicted Scout of the less er included charge of assaulting
a federal officer without a weapon, in violation of 18 U.S.C. § 111. Scou t now appeals.

II.

Scout argues that the district court erred in refusing to give a proposed jury instruction on a defense of self-defense. We disagree.

"We generally review the district court's refusal to give th e defendant's requestedjury instructions only for an abuse of discretion." Uni ted States v. Long Crow , 37 F.3d 1319, 1323 (8th Cir. 1994), cert
. denie d , 115 S. Ct. 1167 (1995). However, "whether there is sufficien t evidence to submit anaffirmative defense [instruction] . . . to the jury is a question of law for the court," id. , which we review de novo. Id.

### -9- We "have long held that a defendant is entitled to an instruction on his theory of the case if there is evidence to support it and a prope r request has been entered." Id. (quotations and citations omitted). The burden on the defense to demonstrate that there is sufficient evidence to warrant an instruction is not onerous; indeed,
[t]h e defendant does not have to testify or even offer an y evidence; the basis for the defendant's theory may derive from the tes timony of government witnesses on direct or cross

exa mination. Finally, the evidence to support a theory o f defense need not be overwhelming; a defendant is en titled to an instruction on a theory of defense even though the evidentiary bas is for that theory is weak, inconsistent, or of doubtfu l credibility.

Clo ss v. Leapley , 18 F.3d 574, 580 (8th Cir. 1994) (quotations an d citations omitted).
Despite this liberal standard, however, a defendant still has th e burden of identifying some evidence to support his theory. "[T]he distric t court is not required to put the case to the jury on a basis tha t essentially indulges and even encourages speculations." United States v. Branch , 91 F.3d 699, 712 (5th Cir. 1996)(quotati ons and citations omitted) (affirming district c ourt's denial of self-defense instruction), petition for cert. filed , 65 U.S.L.W. 3468 (U.S. Dec. 19, 1996) (No. 96-989). As we explained in Hall v. United States , 46 F.3d 855 (8th Cir. 1995): Aself-defense instruction must be given if there is evidence upon which the jury could rationally sustain the defense. A mere scintilla of evidence, however, is insufficien t to require the instruction. To sustain the defense, the jury would have to find that [the defendant] used such force that h e reasonably beli eved was necessary to protect himself from unlawfu l physical harm about to be inflicted upon him by another. Nor is the defendant entitled to an instruction when the evidence does not

### -10- support it.

Id. at 857 (affirming district court's denial of proposed self-defens e ins truction) (citations, quotations, and alterations omitted) (emphasi s added). See also United States v. Alvarez , 755 F.2d 830, 842 n.12 (11th Cir. 1 985) ("[S]elf-defense is an affirmative defense on which th e defe ndant bears the burden of production. In a federal prosecution , howev er, once the defendant has met the burden of production, th e government must satisfy the burden of persuasion and must negate self

defense beyond a reasonable doubt." (citation omitted)).

Scout has pointed to no direct evidence that he assaulted Office r Bianas in self-defens e. Officer Bianas testified that Scout's attack was unprovoked, Scout tes tified that he cannot remember what took place after he ran from the police, and no other witnesses testified that they sa w Scout's attack on Officer Bianas. Scout instead relies on evidence that Officer Bianas had a violent reputation, that Scout had a peacefu l reputation, and that Scout was injured during his arrest. Based on this evidence, Scout asserts that, when he was arrested, Scout

did not get up when approached by [Officer Bianas], tha t [Officer Bianas] then started to kick the Defendant about his he ad as [Scout] lay on the ground and that if the Defendan t acted aggressively towar ds [Officer Bianas] it was in response to being kicked about his head.
Reply Br. at 3-4.

Scout's s cenario is founded on sheer speculation. There was n o medical testimony that Scout's alleged head injuries were caused by Scout’ s being kicked. Instead, all the evidence indicat es that Scout received the injuries when being taken to the ground after

### ByScout's own testimony, at the time of his assault o n 5 

### Officer Bianas, Scout was so intoxicated that he could not eve n remember what had occurred. In light of Scout's altered state of mind at the time of the events in issue, it is questionable whether a reasonable jury would have placed any value on Scout's genera l reputation for passivity. -11- his assau lt on Officer Bianas. See Trial Tr. at 69-70 (Question b y prosecutor: "Did you take [Scout] down hard eno ugh to cause that apparent injury by his cheek a nd eye?" Answer by Officer Bianas: "Yes, I did. I took him down hard."); id. at 129 (testimony of Brave Heart describin g Officer Bianas's leg "going up" into Scout's fac e as Scout "was going down to the ground . . . ."). Scout's assumption that he had been kicked was not evidence, but rather was mere conjecture. Officer Bianas's allege d reputation for violen ce could have had no effect on Scout's state of mind at the time of Scout' s assault on Officer Bianas, because Scout testified that he did not know which police officer was apprehending him.
Scout also relied on testimony at tr ial that he had a reputation for passivity. While this evidence may have lent support to an otherwis e properly -founded theory of self-defense, we do not believe that thi s 5 reputa tion evidence, standing alone, was sufficient to mandate a jur y inst ruction on self-defense. See Branch , 91 F.3d at 712 ("[W]hile a partic ular piece of evidence standing alone may support inferences tha t warrant an instruction, those inferences may eva porate after reviewing the entire record."); cf. United States ex rel. Rooney v. Housewright , 568 F.2 d 516, 519-20 (7th Cir. 1977) ("There is not a shred of evidence to suggest that what happened was to any degree in self-defense, regardless of what
a bad character the decedent may have been known to be. From the record it appear s that the petitioner, for his own reasons, calmly an d delibe ratelywent about the business of killing [the victim]. Th e petitioner's own testimony puts petitioner in the

### Brave Heart's and Manuel's testimony that Offi cers Bianas and 6 

### Attack Him maced and beat Brave Heart and Scout after they h ad been arr ested and handcuffed is, of course, disturbing. If th e testimony is believed--and we express no opinion on the cred ibility of this evidence--it might well support disciplinary action o r civil or criminal liability against the officers. This testimony does not, however, shed any light on Scout's actions prior to his restraint, nor to his motivations and state of mind during hi s assault on Officer Bianas. At best, this evidence suggests tha t Office r Bianas engaged in retributional violence against Scou t follow ing Scout's initial assault; but this alleged post ho c aggression cannot transform Sc out's initial assault into an act of self-defense. -12- role of an armed aggressor who first shot, witho ut sufficient provocation, a fleeing, apparently unarmed man, and then agai n charged at him firing to complete the assault, intending to finish him off by using the pistol, a substantial weapon, as a club if need be. That being so, the decedent's reputation and petitioner's knowledge of it were not relevant."). 6 It is not the purpose of a jury instruction to invite jur y speculation of the facts, see Branch , 91 F.3d at 712 ("[T]he district cour t is no t required to put the case to the jury on a basis that essentiall y ind ulges and even encourages speculations." (quotations and citation s omitted)), or nullifi cation of the law. See United States v. Drefke , 707 F.2d 978 , 982 (8th Cir. 1983) (per curiam) ("[F]ederal courts hav e uniformly recognized the right and duty of the judge to instruct the jury
on th e law and the jury's obligation to apply the law to the facts, an d that n ullification instructions should not be allowed."). Scout ha s pointed to no evidence which could have led any rational jury to find that Scout assaulted Officer Bianas in self-defense. In the absence of relevan t evidence, a self-defense instruction in this case would have served n o legitimate purpose. Accordingly, the district court did not err i n refusing to issue a jury instruction on self-defense.

### -13- III.

Sc out next contends that the district court erred in refusing t o allow a psychologist to testify that Scout had a peaceful personality and that Scout would not have started a fight. "Expert testimony is admissibl e only when the expert's specialized knowledge wil l help the jury understand the evi dence or determine a fact in issue." United States v. Nunn , 94 0 F.2d 1148, 1149 (8th Cir. 1991). Here, the psyc hologist's testimony would have done no more tha n bolster Scout's contention that Scout was normally
a peacefu l person. As we have discussed above, this contention wa s insufficient to warrant a jury instruction on self-defense. Because the psychologist's testimony would not have shed light on a fact at issue in the trial, the district court did not err in disallowing the psychologist' s testimony. See id. at 1149-50 ("The psychologist's testimony would have she d no light on the elements of [the defendant's affirmative] defense
. Thus, the district court did not abuse its discretion in excluding th e testimony.").

IV.
Finally, Scout contends that the dis trict court erred in refusing to issue Scout's requested jury instruction regarding the witnesses' testimon y of Officer Bianas's reputation. The instruction given by the distric t court correctly stated the law regarding character evidence, see Fed. R. Evid. 405(a), while Scout's requested instructio n placed an undue emphasis
on the prosecutor's ability to elicit specific acts testimony on cross

exa mination. We do not believe that the district court abused it s discret ion in instructing the jury on character evidence. See Unite d States v. Dreamer , 88 F.3d 655, 658 (8th Cir. 1996)

### In addition, we note that any possible error in this matte r 7 

### would have been harmless. As discussed above, Scout testifi ed that he did not know the identity of the police officers pursuing him. Becaus e Officer Bianas's alleged reputation for violence coul d therefore not have affected Scout's state of mind when assaulting Offic er Bianas, Officer Bianas's reputation--and how it wa s derived--was irrelevant. -14- (standard of review). 7
Accordingly, we affirm the judgment of the district court.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.