Scout was originally indicted on a charge of assaulting a

1

federal officer with a dangerous weapon under 18 U.S.C. § 111(a)(1)

(1994), which would have carried a maximum sentence of ten years

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
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sentenced Scout to fourteen months imprisonment. At trial Scout maintained

that he had no memory of the alleged assault because of an alcohol-induced

black-out. On appeal, Scout contends that the district court erred in (1)

refusing to give a requested jury instruction on self-defense; (2) refusing

to allow a psychologist 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 their

friend Anthony Brave Heart gathered at Scout's and Manuel's home in the

Evergreen Housing complex on the Pine Ridge Indian Reservation in South

Dakota. The group consumed two half-gallons of vodka and a six-pack of

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 the

reservation. See Trial Tr. at 28 (testimony of Paul Rooks, Chief of Police

of the Oglala Tribal Public Safety Commission, discussing Resolution 88-

12). Oglala Sioux Tribe Public Safety Commission Officers Lloyd Bianas and

John Attack Him received information on August 15 that Brave Heart and two

others were intoxicated and causing a disturbance 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, and

Scout. The three men fled, and the officers pursued and 
-3-

apprehended them. Officer 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 overtaken Brave

Heart and Scout. When Officer Attack Him arrived, Officer Bianas had

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 Attack

Him placed Brave Heart in the back of the police car and then assisted

Officer Bianas in securing Scout.

After the officers placed Scout in the police car, Officer Bianas

stated that he had been hurt. Officer Attack Him noticed that Officer

Bianas's shirt had been torn and that he had a scrape on his forearm. Upon

searching the area, the officers discovered on the ground a seven-inch long

utensil described as a fondue fork.

Officer Bianas testified at trial that he apprehended Brave Heart

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 the

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, you

know, something scratched me, so I jumped back and maced him

and he come at me again.
David Scout testified at trial that the fondue fork was used 3

to jimmy open the door to Manuel's room because the key to that

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.

Officer Bianas noticed "a sharp pain on the lower left side of the

rib cage area," id. at 71, and a scratch on his left wrist. Officer

Bianas's uniform shirt was torn and his undershirt was scratched. Officer

Bianas and Officer Attack Him discovered the fondue fork in the area where

Officer Bianas had apprehended Scout. Officer Bianas sought medical

attention for his scratches, but had no serious injuries.

A day after the arrests, Manuel Scout signed a statement describing

the events of the previous night. Manuel, Scout's brother, asserted that

he had previously seen the fondue fork discovered at the arrest site and

that "we have these at 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 going

for a walk." Trial Tr. at 120 (question to Manuel Scout, quoting Ex. 9).3

Although Manuel indicated that Scout's left eye was bleeding and shut

as Scout was brought to the police car, Manuel gave no other indication of

police abuse in his signed statement. At trial, however, Manuel testified

that he saw the officers beat Brave Heart by striking 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

Question by prosecutor: You didn't know it was Lloyd

[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 of

Lloyd Bianas, because you didn't know it was Lloyd Bianas

until the next day?

. . .

A. Yes.

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Brave Heart signed a statement the day after his arrest asserting

that his head had been struck against a police car twice by Officer Attack

Him. At trial, Brave Heart testified that Officer Bianas arrested him "and

started banging my head off the hood, I would estimate probably three to

four times." Trial Tr. at 128. Although Brave Heart stated that he "got

a broken nose and I should say two black eyes and a cracked chin," id. at

129, he never received medical treatment, and "let [his injuries] heal on

its own." Id. at 134. Brave Heart also testified that he was maced while

in the back of the police car, and that he saw Officer Bianas's leg "going

up to" Scout's face when Scout was "going down to the ground . . . ." Id.

at 129. Both Officers Bianas and Attack Him denied having used unnecessary

force.

Scout testified that he had virtually no memory of the arrest because

of an alcohol-induced black-out. Scout stated that he "blanked out" while

listening to music in his home, see Trial Tr. at 147, and that the next

thing that he remembered was that he "was outside walking by Nathan Elk's

driveway, I heard someone say, 'the cops.' And then I took off." Id.

Scout further testified that he did not learn that Officer Bianas was

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.

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had no memory of his alleged assault on Officer Bianas. 

Scout complained 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 officers kicked him four times. Id. at 148. Scout sought medical

treatment and received drops for his eye. Scout also testified that he had

been arrested by Officer Bianas in the past, and that during a previous

arrest Officer Bianas had slapped him with the back of his hand twice

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 pursue

a defense of self-defense at trial. During the trial, Scout’s attorney

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 Myrna Young Bear). Scout also asserted that he had heard of Officer

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 peaceful personality and would not have started a fight with Officer

Bianas.
-7-

Scout submitted a proposed jury instruction to the district court

which stated:

If a person reasonably believes that force is necessary to

protect himself from what he reasonably believes to be unlawful

physical harm about to be inflicted by another and uses such

force, then he acted in self[-]defense. In order to convict

the Defendant of any charge, you must find beyond a reasonable

doubt that the Defendant was not acting in self[-]defense

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 selfdefense instruction.

After a witness expressed her opinion that Officer Bianas had a

violent reputation, a jury member sent the district court a note which

asked, "Have the witnesses seen Mr. Bianas being violent or only heard

reports from others? What is the source of his reputation for violence?"

Trial Tr. at 186-87 (quoting note from juror). The district court notified

the parties about this note, and Scout submitted a proposed jury

instruction to clarify Federal Rule of Evidence 405's limitation of

admissible character evidence. The proposed instruction stated:

Generally, evidence of a person's character or a trait of

character is not admissible at trial for the purpose of proving

action in conformity therewith on a particular occasion.

However, evidence of a pertinent trait of character offered by

an accused and evidence of a pertinent trait of character of

the alleged victim of the crime charged offered by an accused,

and evidence by the prosecution to rebut such evidence offered

by an accused is admissible at trial for the purpose of proving

action in conformity therewith on a particular occasion.

When 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, inquiry is allowable into relevant specific

instances of conduct.

Appellant's Add. at 12. The district court declined to give the proposed

instruction, and instead provided the following instruction:

You are instructed that evidence of the community

reputation of Lloyd Bianas for violence has been received

through the opinion of certain witnesses. This evidence does

not relate to specific instances of conduct but relates to the

witnesses['] knowledge of such reputation. You may give the

evidence such weight as you think it deserves considering the

testimony presented including the government's crossexamination.

Appellee's Br. at 9.

The jury convicted Scout of the lesser included charge of assaulting

a federal officer without a weapon, in violation of 18 U.S.C. § 111. Scout

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 the

defendant's requested jury instructions only for an abuse of discretion."

United States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir. 1994), cert.

denied, 115 S. Ct. 1167 (1995). However, "whether there is sufficient

evidence to submit an affirmative defense [instruction] . . . to the jury

is a question of law for the court," id., which we review de novo. Id.
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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 proper

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]he defendant does not have to testify or even offer any

evidence; the basis for the defendant's theory may derive from

the testimony of government witnesses on direct or crossexamination. Finally, the evidence to support a theory of

defense need not be overwhelming; a defendant is entitled to an

instruction on a theory of defense even though the evidentiary

basis for that theory is weak, inconsistent, or of doubtful

credibility. 

Closs v. Leapley, 18 F.3d 574, 580 (8th Cir. 1994) (quotations and

citations omitted).

Despite this liberal standard, however, a defendant still has the

burden of identifying some evidence to support his theory. "[T]he district

court is not required to put the case to the jury on a basis that

essentially indulges and even encourages speculations." United States v.

Branch, 91 F.3d 699, 712 (5th Cir. 1996)(quotations and citations omitted)

(affirming district court'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):

A self-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 insufficient to require

the instruction. To sustain the defense, the jury would have

to find that [the defendant] used such force that he reasonably

believed was necessary to protect himself from unlawful

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-defense

instruction) (citations, quotations, and alterations omitted) (emphasis

added). See also United States v. Alvarez, 755 F.2d 830, 842 n.12 (11th

Cir. 1985) ("[S]elf-defense is an affirmative defense on which the

defendant bears the burden of production. In a federal prosecution,

however, once the defendant has met the burden of production, the

government must satisfy the burden of persuasion and must negate selfdefense beyond a reasonable doubt." (citation omitted)). 

Scout has pointed to no direct evidence that he assaulted Officer

Bianas in self-defense. Officer Bianas testified that Scout's attack was

unprovoked, Scout testified that he cannot remember what took place after

he ran from the police, and no other witnesses testified that they saw

Scout's attack on Officer Bianas. Scout instead relies on evidence that

Officer Bianas had a violent reputation, that Scout had a peaceful

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], that

[Officer Bianas] then started to kick the Defendant about his

head as [Scout] lay on the ground and that if the Defendant

acted aggressively towards [Officer Bianas] it was in response

to being kicked about his head.

Reply Br. at 3-4.

Scout's scenario is founded on sheer speculation. There was no

medical testimony that Scout's alleged head injuries were caused by Scout’s

being kicked. Instead, all the evidence indicates that Scout received the

injuries when being taken to the ground after
By Scout's own testimony, at the time of his assault on

5

Officer Bianas, Scout was so intoxicated that he could not even

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 general

reputation for passivity.

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his assault on Officer Bianas. See Trial Tr. at 69-70 (Question by

prosecutor: "Did you take [Scout] down hard enough to cause that apparent

injury by his cheek and eye?" Answer by Officer Bianas: "Yes, I did. I

took him down hard."); id. at 129 (testimony of Brave Heart describing

Officer Bianas's leg "going up" into Scout's face 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 alleged

reputation for violence 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 trial that he had a reputation for

passivity. While this evidence may have lent support to an otherwise

properly-founded theory of self-defense, we do not believe that this

5

reputation evidence, standing alone, was sufficient to mandate a jury

instruction on self-defense. See Branch, 91 F.3d at 712 ("[W]hile a

particular piece of evidence standing alone may support inferences that

warrant an instruction, those inferences may evaporate after reviewing the

entire record."); cf. United States ex rel. Rooney v. Housewright, 568 F.2d

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 appears that the petitioner, for his own reasons, calmly and

deliberately went about the business of killing [the victim]. The

petitioner's own testimony puts petitioner in the 
Brave Heart's and Manuel's testimony that Officers Bianas and 6

Attack Him maced and beat Brave Heart and Scout after they had been

arrested and handcuffed is, of course, disturbing. If the

testimony is believed--and we express no opinion on the credibility

of this evidence--it might well support disciplinary action or

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 his

assault on Officer Bianas. At best, this evidence suggests that

Officer Bianas engaged in retributional violence against Scout

following Scout's initial assault; but this alleged post hoc

aggression cannot transform Scout's initial assault into an act of

self-defense. 

-12-

role of an armed aggressor who first shot, without sufficient provocation,

a fleeing, apparently unarmed man, and then again 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 jury

speculation of the facts, see Branch, 91 F.3d at 712 ("[T]he district court

is not required to put the case to the jury on a basis that essentially

indulges and even encourages speculations." (quotations and citations

omitted)), or nullification of the law. See United States v. Drefke, 707

F.2d 978, 982 (8th Cir. 1983) (per curiam) ("[F]ederal courts have

uniformly recognized the right and duty of the judge to instruct the jury

on the law and the jury's obligation to apply the law to the facts, and

that nullification instructions should not be allowed."). Scout has

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 relevant

evidence, a self-defense instruction in this case would have served no

legitimate purpose. Accordingly, the district court did not err in

refusing to issue a jury instruction on self-defense. 
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III.

Scout next contends that the district court erred in refusing to

allow a psychologist to testify that Scout had a peaceful personality and

that Scout would not have started a fight. "Expert testimony is admissible

only when the expert's specialized knowledge will help the jury understand

the evidence or determine a fact in issue." United States v. Nunn, 940

F.2d 1148, 1149 (8th Cir. 1991). Here, the psychologist's testimony would

have done no more than bolster Scout's contention that Scout was normally

a peaceful person. As we have discussed above, this contention was

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

shed no light on the elements of [the defendant's affirmative] defense.

Thus, the district court did not abuse its discretion in excluding the

testimony."). 

IV.

Finally, Scout contends that the district court erred in refusing to

issue Scout's requested jury instruction regarding the witnesses' testimony

of Officer Bianas's reputation. The instruction given by the district

court correctly stated the law regarding character evidence, see Fed. R.

Evid. 405(a), while Scout's requested instruction placed an undue emphasis

on the prosecutor's ability to elicit specific acts testimony on crossexamination. We do not believe that the district court abused its

discretion in instructing the jury on character evidence. See United

States v. Dreamer, 88 F.3d 655, 658 (8th Cir. 1996) 
In addition, we note that any possible error in this matter

7

would have been harmless. As discussed above, Scout testified that

he did not know the identity of the police officers pursuing him.

Because Officer Bianas's alleged reputation for violence could

therefore not have affected Scout's state of mind when assaulting

Officer Bianas, Officer Bianas's reputation--and how it was

derived--was irrelevant.

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(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.