           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 10, 2007

                                       No. 06-31038                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

ISREAL CALDWELL

                                                  Defendant - Appellant



                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:06-CR-00023


Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Isreal Caldwell was convicted of assault resulting in
serious bodily injury in violation of 18 U.S.C. § 113(a)(6). He appeals his
conviction, contending that the district court committed reversible error by (1)
excluding a job performance evaluation of the victim from being introduced into
evidence and (2) finding insufficient evidence to warrant a justification
instruction. We affirm.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                No. 06-31038

                       I. FACTS AND PROCEEDINGS
      At the time of the incident giving rise to this appeal, Caldwell and the
victim of the assault, Gheorghe Catana, worked aboard the M/V DULARGE,
Caldwell as a cook and Catana as an able-bodied seaman and crane operator.
Catana stood 6'2", weighed over 200 pounds, and was described as “very fit”;
Caldwell was a foot shorter and weighed twenty to thirty pounds less than
Catana.
      On October 17, 2003, Caldwell was cooking breakfast in the galley when
Catana entered and criticized Caldwell’s cooking and appearance. Following an
exchange of words, Caldwell left his food preparation post in the galley,
approached Catana, and either pushed or slapped him. Catana responded in
turn by either slapping or punching Caldwell, and in response Caldwell took out
a knife and stabbed Catana in the left side of his abdomen. Catana was
evacuated by Coast Guard helicopter and underwent emergency surgery for a
twice-punctured colon. Treating surgeon Dr. Paul Mace testified that Catana’s
injuries would have been fatal had he not received medical attention.
      The stabbing on October 17, 2003 was the culmination of a series of
exchanges between the two men. The previous evening, Catana had complained
that Caldwell had undercooked the dinner, asking Caldwell, an African
American, if he “had been cooking for cannibals in Africa.” Caldwell retorted
that Catana’s girlfriend had left him because he complained too much. The two
men ultimately resolved their argument that evening and shared a cigarette.
The morning of the stabbing, Catana arrived at the galley shortly after 4 a.m.,
about an hour early for breakfast. When Catana noticed that Caldwell was not
at his food preparation post, he proceeded to Caldwell’s cabin to wake him.
Catana knocked on Caldwell’s door, and, when Caldwell failed to respond,
Catana opened the door and told Caldwell to get up and prepare breakfast. This



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                                     No. 06-31038

angered Caldwell. About a half-hour after this exchange, the men got into the
altercation that resulted in Catana’s stabbing.
      Caldwell was indicted on January 27, 2006 for assault with a dangerous
weapon with intent to do bodily harm on the territorial waters of the United
States, in violation of 18 U.S.C. § 113(a)(3). The case proceeded to trial in May
2006, but it ended in a hung jury two days later. Thereafter, the grand jury
returned a one-count superseding indictment charging Caldwell with assault
resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6).
      At the second trial, Caldwell attempted to introduce into evidence a job
performance evaluation of Catana that had been prepared by Captain Albert
“Chet” Adams in December 2003, approximately two months after the stabbing.
The evaluation was offered in support of Caldwell’s contention that Catana was
“a bully.” That evaluation is a single-sheet form, which, in pertinent part, lists
ten categories relevant to job performance that are scored on a 1-5 basis, with
a score of 1 denoting “poor” performance and a score of 5 denoting “excellent.”1
Catana’s scores were relatively poor, ranging from 1 to 3 in each category.
Additionally, there is room on the form next to each category in which brief
notations may be made, as well as a general “Comments” section at the bottom
of the form. Notably, next to the category “Works Well with Others,” Adams had
written “gets into altercations,” and next to “Conducts Self in a Professional
Manner,” Adams had written “argues and wants to fight.” And, in the general
“Comments” section, Adams “recommend[ed] termination if [Catana] continues
to get into arguments/altercations with crew members.”
      In excluding the evaluation from evidence, the court noted that it was
cumulative as it did not “tend to show a character or a character trait that’s


      1
       The categories consist of “Works Safely,” “Attitude,” “Hygiene,” “Shows Initiative,”
“Dependable,” “Productivity,” “Accepts Work Willingly,” “Begins Work at Appointed Time,”
“Works Well with Others,” and “Conducts Self in a Professional Manner.”

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                                        No. 06-31038

material to the case other than what already has been brought out” and that
“anything that [the document] would lend to the jury’s exposure to Mr. Catana
has been covered and will be covered with other witnesses . . . .” The court also
observed that admission of the evaluation would have the potentiality of
confusing and misleading the jury, as it would lead to the admission of other
evidence that did not concern the incident at issue. Pursuant to Federal Rule of
Evidence 404(a)(1), if evidence pertaining to a victim’s violent character is
allowed, then evidence of the assailant’s violent character is also admissible.2
The court remarked that the prejudicial effect of both sides’ character evidence
might “take the jury’s focus off of this case and put[] it on other cases.” Finally,
the court questioned the relevance of what Catana did after he returned to work,
including the fact that his job performance was poor.
       At trial, Caldwell also requested that the court instruct the jury on
justification for the use of deadly force. The court refused to give the instruction,
finding that Caldwell had not established an evidentiary foundation for the
defense.
       Caldwell was ultimately convicted and sentenced to a ninety-month term
of imprisonment. He timely filed a notice of appeal.




       2
         In preparation for trial, the government sought unsuccessfully to introduce evidence
of other violent acts by Caldwell, including resisting arrest with violence as well as allegations
that he assaulted his wife with a kitchen knife.

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                                         No. 06-31038

                                        II. ANALYSIS
A.     Evaluation
       We review the district court’s evidentiary ruling for abuse of discretion.3
If we find an abuse of discretion, we review the ruling under the harmless-error
doctrine.4
       Caldwell contends that the December 21, 2003 evaluation of Catana
should have been admitted as character evidence under Federal Rule of
Evidence 404(a)(2) and as impeachment evidence. Rule 404(a)(2) carves out an
exception to the rule against character evidence for that relating to “a pertinent
trait of character of the alleged victim of the crime offered by an accused.”5
Caldwell argues that the evaluation concerned Catana’s belligerent and violent
nature, which was critical to supporting Caldwell’s claim of self-defense.
Additionally, Caldwell asserts that the evaluation contradicted testimony offered
at trial, which portrayed Catana as merely socially inept and abrasive, rather
than as a violent aggressor. Accordingly, Caldwell maintains that the evaluation
should have been admitted as impeachment evidence.
       After carefully considering the briefs and the record on appeal, we
conclude that Caldwell’s objections to the evidentiary decision made by the
district court are without merit. Federal Rule of Evidence 403 specifies that
“[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,




       3
        United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003) (citing United States v.
Guerrero, 169 F.3d 933, 943 (5th Cir. 1999)).
       4
           Id. (citing United States v. Townsend, 31 F.3d 262, 268 (5th Cir. 1994)).
       5
           FED. R. EVID. 404(a)(2).

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or needless presentation of cumulative evidence.”6 We conclude that the district
court did not abuse its discretion in ruling that any probative value of the
evaluation was substantially outweighed by the aforementioned considerations.
       A victim’s character is not an essential element of a self-defense claim7;
however, reputation or opinion evidence of a victim’s violent character may be
used to support a claim of self-defense.8 The evaluation of Catana, though, is not
particularly probative of his violent character. Adams made only brief notations
that Catana “argues and wants to fight” and “gets into altercations.” Such
comments are ambiguous at best as they could relate to oral disagreements,
rather than physical ones. Moreover, the evaluation was completed by Adams
on December 21, 2003 – more than two months after the stabbing incident – and
was limited to the preceding “hitch.”9               As such, the evaluation does not
necessarily speak to Catana’s violent propensities at the time of the incident.
His poor work performance and hostile behavior might well be attributed to the
physical and emotional aftermath of the trauma he suffered on October 17, 2003.
       Additionally, the evaluation was cumulative in view of the repeated
testimony that Catana was argumentative and often engaged in verbal
altercations with other crew members. Adams testified that Catana had an
ongoing problem with “slackers” and often engaged in arguments with crew
members who he felt were not doing their jobs. First mate Tommy Mathis


       6
           FED. R. EVID. 403.
       7
        United States v. Gregg, 451 F.3d 930, 934 & n.5 (8th Cir. 2006) (citing “the better rule”
in United States v. Keiser, 57 F.3d 847, 855 (9th Cir. 1995)).
       8
           See, FED. R. EVID. 404(a)(2); FED. R. EVID. 404 advisory committee’s note.
       9
        A “hitch” is a two-week stint; crew members generally serve two weeks on board
followed by two weeks off. In the general “Comments” section of the December 21, 2003
evaluation form, Adams notes that he “[c]ounselled George [sic] on above problems this hitch,”
which suggests that the evaluation is limited to the two-week period preceding the December
21, 2003 evaluation.

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                                  No. 06-31038

testified that Catana was rude, impolite, tactless, and lacking in social skills.
Neither man testified that Catana had any history of physical violence: Adams
clarified that Catana’s altercations were “always verbal,” and Mathis described
Catana as non-threatening. Given this testimony and the fact that Caldwell had
an opportunity to examine Adams – who completed the evaluation form and was
in a position to elaborate on the meaning of his own comments – as well as other
crew members, the evaluation would have contributed little to the evidence
introduced at trial.
        Moreover, any probative value of the evaluation was substantially
outweighed by its potential for confusion and unfair prejudice. The introduction
of the form could have shifted the jury’s focus to Catana’s work history following
the incident, which is wholly irrelevant. Additionally, had the court admitted
the evaluation under Federal Rule of Evidence 404(a)(2) as evidence of Catana’s
violent character, then evidence of Caldwell’s violent criminal history and
behavior would have been admissible as well. The consequent opening of the
door to the admission of Caldwell’s character evidence may well have confused
the jury by taking its focus off of the incident at issue and putting it on earlier
ones.
        Finally, we reject Caldwell’s contention that the evaluation should have
been admitted as impeachment evidence. The evaluation’s comments pertaining
to Catana’s interaction with the crew members were not inconsistent with the
testimony offered at trial. Moreover, any conflict between the evaluation and the
testimony regarding Catana’s work performance is irrelevant.
        Based on the questionable probative value of the evaluation, its
cumulative nature, and the danger of confusion of the issues as well as unfair
prejudice, we conclude that the district court did not abuse its discretion by
refusing to admit the December 21, 2003 job performance evaluation, and any
error in doing so was harmless.

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                                         No. 06-31038

B.     Jury Instruction
       We review the district court’s refusal to give Caldwell’s proposed
justification instruction for abuse of discretion.10 “As a general proposition a
defendant is entitled to any instruction as to any recognized defense for which
there exists evidence sufficient for a reasonable jury to find in his favor.”11
Abuse of discretion is presumed where the district court denies an instruction
for which there is an evidentiary foundation and which, if believed by the jury,
would be legally sufficient to render the accused innocent.12 The district court
may, however, refuse to give a requested instruction that lacks a sufficient
foundation in the evidence.13 The evidence must be viewed in the light most
favorable to the proponent in determining if there is a sufficient evidentiary
foundation for a requested instruction.14
       As illustrated by the Fifth Circuit’s pattern justification instruction, to
succeed on such a defense, the defendant must prove by a preponderance of the
evidence that:
       (1) The defendant was under an unlawful present, imminent, and
       impending threat of such a nature as to induce a well-grounded fear
       of death or serious bodily injury to himself; and
       (2) The defendant had not recklessly or negligently placed himself
       in a situation in which it was probable that he would be forced to
       choose the criminal conduct; and



       10
            United States v. Branch, 91 F.3d 699, 711 (5th Cir. 1996).
       11
            Id. at 711-12 (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)).
       12
            Id. at 712 (quoting United States v. Rubio, 834 F.2d 442, 446 (5th Cir. 1987)).
       13
            Id. (citing United States v. Tannehill, 49 F.3d 1049, 1057 (5th Cir. 1995)).
       14
         United States v. Dixon, 185 F.3d 393, 402 (5th Cir. 1999) (quoting United States v.
Davis, 132 F.3d 1092, 1094 (5th Cir. 1998)).

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                                      No. 06-31038

       (3) The defendant had no reasonable, legal alternative to violating
       the law, that is, he had no reasonable opportunity to avoid the
       threatened harm; and
       (4) A reasonable person would believe that by committing the
       criminal action he would directly avoid the threatened harm.15
       Caldwell argues that the evidence introduced at trial was sufficient for a
reasonable jury to find that each element was met by a preponderance of the
evidence. We conclude that the district court did not abuse its discretion in
finding that Caldwell failed to establish an evidentiary foundation for elements
(2) and (3) of the justification defense.
       It is undisputed that Caldwell, in response to Catana’s insults, left his food
preparation post in the galley, approached the unarmed Catana, physically
assaulted him, and, when Catana struck back, stabbed him in the abdomen.
Given that Caldwell relocated himself to within arms’ length of Catana and then
struck him, the district court fairly concluded that Caldwell recklessly or
negligently placed himself in a situation in which it was more probable that he
would be forced to choose the criminal conduct. We reject Caldwell’s contention
that a reasonable jury could have found that he needed to resort to physical
violence to stand up to Catana and establish a working relationship with him,
as well as to gain the respect of other crew members. Moreover, we agree with
the district court that Caldwell had numerous reasonable opportunities to avoid
the threatened harm: He could have (1) exercised self-restraint and ignored
Catana’s offensive remarks; (2) responded in kind with oral insults, as he had
done in his prior exchanges with Catana; or (3) vacated the area. Instead, he
availed himself of none of these alternatives. Considering that Caldwell cannot
demonstrate that he pursued any of these alternatives or that they were


       15
          Fifth Circuit Pattern Jury Instruction (Criminal) 1.36 (2001 ed.); see also United
States v. Gant, 691 F.2d 1159, 1162-63 (5th Cir. 1982).

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foreclosed, he was not entitled to raise the justification defense.16 There is no
need to examine whether the other elements are met, as all are required for a
justification defense.
      Based on Caldwell’s inability to meet the aforementioned elements, we
conclude that the district court did not abuse its discretion in ruling that
Caldwell failed to establish an evidentiary foundation for the jury instruction on
justification for the use of deadly force.
                                    III. CONCLUSION
      The district court did not abuse its discretion when it excluded Catana’s
December 21, 2003 job evaluation from being introduced into evidence or when
it refused to instruct the jury on the justification defense. Caldwell’s conviction
is AFFIRMED.




      16
           See Gant, 691 F.2d at 1163-64 (quoting United States v. Bailey, 444 U.S. 394 (1980)).

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