                              In the

    United States Court of Appeals
                For the Seventh Circuit

No. 13-2725

UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,

                                v.

CLEVELAND J. WHITE FEATHER,
                                              Defendant-Appellant.


           Appeal from the United States District Court
                 for the Southern District of Illinois.
           No. 4:11CR40060-001 — J. Phil Gilbert, Judge.



    ARGUED APRIL 7, 2014 — DECIDED SEPTEMBER 29, 2014



   Before WOOD, Chief Judge, and KANNE and SYKES, Circuit
Judges.
    SYKES, Circuit Judge. Cleveland White Feather killed his
cellmate, Robert Running Bear, in their cell at the federal
prison in Marion, Illinois. He did this by disemboweling the
victim using a disassembled Bic razor, having first choked him
into unconsciousness during a late-night fight of rather opaque
2                                                  No. 13-2725

origins. White Feather was charged with murder by a federal
prisoner, see 18 U.S.C. § 1118, and before trial the government
moved to preclude him from offering a defense of self-defense.
The district judge deferred ruling and permitted White Feather
to present evidence in support of the defense at trial. In the
end, however, the judge concluded that White Feather was not
entitled to a self-defense jury instruction because the evidence
did not support it. The jury swiftly found White Feather guilty,
and he now appeals. The sole issue for our review is the
judge’s refusal to instruct the jury on self-defense. We affirm.


                        I. Background
    On December 1, 2009, White Feather and Running Bear
were housed together in Cell 202 of L Unit at the United States
Penitentiary in Marion, Illinois (“USP-Marion”). White Feather
was serving a life sentence for murder. Running Bear was
serving a 24-month sentence for failing to register as a sex
offender. At six feet tall and 170 pounds, Running Bear was the
larger man; White Feather is five feet seven inches tall and
weighs 140 pounds. White Feather was also older (age 54 at the
time of these events) and has a history of medical problems
including bleeding ulcers and an unspecified foot condition.
No evidence suggests that Running Bear had any physical
infirmities.
    Each cell in L Unit is equipped with a duress button to
summon guards in the event of an emergency. This button,
affixed to the wall of the cell, emits a loud sound in the guard
station when pressed. The alarm cannot be silenced remotely
but must be manually reset in the cell by the guard who
No. 13-2725                                                     3

responds to the call. Trial testimony established that the duress
button in Cell 202 was never pushed on the night of
December 1.
    At some point that night, an argument erupted between
White Feather and Running Bear. What actually transpired is
known to us primarily through White Feather’s own state-
ments in two interviews with FBI agents and from his testi-
mony at trial. The genesis of the dispute appears to be that
White Feather wanted to keep the cell lights on to continue
writing a letter, while Running Bear wanted to turn the lights
off. White Feather’s account varies in his different tellings, but
the important fact is that the argument quickly turned violent.
White Feather claims that Running Bear came at him brandish-
ing a blade from a disassembled Bic razor. White Feather
testified that when he saw Running Bear wielding the razor
blade, he resolved to kill him. (“Q. At that moment, you were
going to kill him; right? A. Yes. Q. No matter what happened,
at that moment you decided, I’m going to kill this man.
A. Yes.”)
   White Feather managed to subdue Running Bear at several
points during the altercation. In his initial statement to FBI
investigators, White Feather said that when Running Bear first
assaulted him, he was able to maneuver and put him in a
choke hold, rendering him unconscious. Additional details
emerged at trial: White Feather testified that he used a sharp
thumb-jab to Running Bear’s throat to knock him out. While
his cellmate was unconscious, White Feather retrieved the
razor blade and placed it in a blue folder, where it was later
4                                                  No. 13-2725

found. White Feather sustained a small cut on his finger in this
initial assault.
    At some point Running Bear regained consciousness and,
according to White Feather’s account, rushed at him with a
second razor blade that “came out of the middle of nowhere.”
White Feather again managed to incapacitate his adversary by
choking him until he lost consciousness. After waiting a minute
or two, White Feather put his hand over Running Bear’s mouth
and nose to suffocate him until he stopped moving. He
admitted on cross-examination that he was trying to kill his
cellmate, not just incapacitate him in order to buy time to
summon help.
    White Feather testified that at this point he began to feel
unwell. He started to throw up blood—apparently a manifesta-
tion of his bleeding ulcers, not any injury sustained in the
fight—and he said he “felt like [he] was about ready to go to
sleep.” Running Bear remained unconscious, lying on the floor
of the cell with his legs partly under his bunk. White Feather
decided that he needed a makeshift method to detect if
Running Bear started to regain consciousness, so he put some
toilet paper over his unconscious cellmate’s mouth. When
White Feather saw the paper move, he dragged Running Bear
out from under the bed and said, “I’m sorry, you wanted to kill
me? Now I’m going to kill you.”
    White Feather then gutted his victim with the razor blade,
slicing Running Bear’s abdomen with “a sawing motion” for
approximately four minutes. When the opening in Running
Bear’s abdomen was large enough, he reached his hand inside
and attempted to pull out Running Bear’s heart “to make sure
No. 13-2725                                                   5

that he could never get back up.” As he told the jury: “I just
stuck my hand inside and reached as far as I could and
grabbed whatever I could just feel and pull.” When he could
not find the heart, he eventually settled on Running Bear’s
liver. When he was done, he placed Running Bear on his bed
and covered him with a blanket.
    White Feather then turned his attention to cleaning up the
scene. He put the razor blade in an envelope and placed it on
an unoccupied third bunk in the cell. He tried without success
to wipe the blood off the floor with a blanket. He then stayed
awake until about 4:30 a.m. talking to Running Bear and
listening to gurgling noises emanating from his body.
   White Feather left his cell at 5:57 a.m. on December 2, and
surveillance video shows him going about his day for the next
couple of hours. At about 8:30 a.m., shortly after the 8 a.m.
change of shift for prison guards, a corrections officer noticed
that Cell 202 had a sheet covering its entrance and instructed
White Feather to remove it. White Feather replied that he
wanted to talk to the officer about something. The officer took
White Feather aside, handcuffed him, and called for assistance.
Responding officers found Running Bear’s body under a
blanket on his bed in Cell 202. USP-Marion officials placed
Unit L on lockdown. Medical personnel were called, but
Running Bear had been dead for some time.
    The FBI was notified and agents soon arrived on the scene
and took control of the investigation. They gave White Feather
Miranda warnings, and he gave them a statement recounting
the events of the night of December 1 and early morning hours
6                                                 No. 13-2725

of December 2. His account in this first interview was substan-
tially the same as the one we’ve described above.
    An autopsy of the victim was performed on December 3;
the forensic pathologist who performed it testified extensively
at trial. He noted that the wound to Running Bear’s abdomen
measured 14 x 7 centimeters and that some of the victim’s
internal organs were protruding from it. There was damage to
his liver consistent with tearing or grinding and blood in the
abdominal cavity from both the cutting of the abdomen and
the damage to the liver. The pathologist concluded that
Running Bear died from abdominal trauma, with asphyxia
playing a contributory role.
    White Feather’s story changed a bit during a second
interview with FBI agents a few months later. He claimed that
Running Bear hit him during the altercation, knocking a tooth
out. Other minor details varied as well. For example, White
Feather said he was angry at Running Bear for not showing
him sufficient respect. He also gave a different account about
what he did with the razor blade after choking or suffocating
Running Bear into unconsciousness.
    White Feather was charged with murder by a federal
prisoner serving a life sentence. See 18 U.S.C. § 1118. The
government moved in limine to preclude any justification
defense of self-defense. The district court reserved ruling and
allowed White Feather to present his testimony in support of
self-defense at trial. At the close of the evidence, the judge
declined to instruct the jury on self-defense, concluding as a
matter of law that Running Bear “was not imposing an
imminent threat of … harm or deadly force” when White
No. 13-2725                                                       7

Feather sliced into his abdomen with the razor. The jury took
less than an hour to return a verdict of guilty.


                          II. Discussion
    White Feather limits his appeal to the district court’s refusal
to instruct the jury on self-defense. A defendant is entitled to
a jury instruction if, among other things, “the instruction
reflects a theory that is supported by the evidence,” and “the
failure to include the instruction would deny the [defendant]
a fair trial.” United States v. Jackson, 598 F.3d 340, 345 (7th Cir.
2010) (quoting United States v. Prude, 489 F.3d 873, 882 (7th Cir.
2007)).
    In order to offer a defense of self-defense, a defendant must
“as a condition precedent, establish that he faced an imminent
threat and had no reasonable legal alternatives to avoid that
threat.” United States v. Tokash, 282 F.3d 962, 969 (7th Cir. 2002);
see also United States v. Haynes, 143 F.3d 1089, 1091 (7th Cir.
1998); United States v. Bailey, 444 U.S. 394, 410–11 (1980). 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.
Tokash, 282 F.3d at 969–71.
    We review de novo a district court’s refusal to allow a jury
instruction on a defendant’s theory of defense. Jackson, 598 F.3d
at 345. The district court may properly refuse a jury instruction
on an affirmative defense if the defendant has failed to support
each element of the defense with some evidence. Tokash,
282 F.3d at 967 (explaining that the defendant must present
8                                                      No. 13-2725

“more than a scintilla of evidence” on each of the legal require-
ments for the proposed defense (quoting United States v.
Blassingame, 197 F.3d 271, 279 (7th Cir. 1999))).
    This circuit recognizes three “lesser-evil” defenses that may
justify otherwise unlawful action: duress, necessity, and self-
defense. Haynes, 143 F.3d at 1091. Each of these defenses “rests
on the belief that a person facing harm is justified in perform-
ing an act, otherwise illegal, less injurious than the impending
loss.” Id. Critically, to warrant a jury instruction on a lesser-evil
justification defense, the defendant must present evidence that
he faced actual, imminent harm and had no reasonable legal
alternatives to avoid it. Tokash, 282 F.3d at 969.
    Imminence is an essential element for self-defense because
the threatened harm may, in fact, be avoidable: “[I]f the threat
is not imminent, a retreat or similar step avoids injury.”
Haynes, 143 F.3d at 1091. Importantly, a defendant’s subjective
belief that he had no available legal alternatives—even if
objectively reasonable—is not enough to proceed with a
justification defense if the evidence is insufficient to establish
an actual, imminent threat of physical harm. Tokash, 282 F.3d
at 969 (rejecting an argument that the defendant’s reasonable
belief that he had no legal alternatives should suffice to permit
a justification defense in the absence of a showing of immi-
nence). For self-defense claims in particular, we have consis-
tently held that the defendant must have evidence that he was
under an imminent threat of death or serious bodily harm and
that he had no reasonable legal alternatives to avoid that
threat. Id.
No. 13-2725                                                  9

    The requirement of imminence is no less applicable in a
prison than anywhere else. For example, in Tokash we rejected
a necessity defense in a case involving inmates at USP-Marion
who were caught in possession of concealed weapons. Id. at
965–68. The defendants pointed to an atmosphere of racial
tension and frequent outbreaks of violence at the prison and
argued that because the threat of violence was pervasive, they
were entitled to assert a necessity defense. We resoundingly
rejected this argument, explaining that evidence of frequent
violence in a prison—an “inherently dangerous place[] …
inhabited by violent people”—does not establish the kind of
imminent threat required to support a necessity defense. Id. at
970 (citing Haynes, 143 F.3d at 1091; United States v. Sotelo,
94 F.3d 1037, 1040 (7th Cir. 1996)). Haynes involved a violent
preemptive strike by a prisoner against a fellow inmate who
frequently tormented him. 143 F.3d at 1089–90. We noted that
“although prisons are nasty places, they are not jungles,” and
held that the imminence requirement was fully applicable. Id.
    Here, the district court held that White Feather lacked
evidence of an imminent threat. No other conclusion is
remotely possible. Even if Running Bear was the initial
aggressor, he was unconscious when White Feather dragged
him out from under his bed and attacked him with the razor.
An unconscious adversary does not pose an imminent threat
of death or serious bodily harm.
    White Feather insists that he waited to see if Running Bear
“was alive and therefore an imminent threat again” before he
acted. The “critical moment,” he argues, is the point at which
the toilet paper on Running Bear’s face moved; it was then that
10                                                   No. 13-2725

he believed he needed to kill or be killed. As an initial matter,
this argument contradicts White Feather’s own testimony. He
admitted on cross-examination that he had resolved to kill
Running Bear earlier in the altercation, at the moment he was
first assaulted, or at least at the point when he suffocated his
unconscious victim. Perhaps more importantly, by White
Feather’s own account, Running Bear was still unconscious
when he dragged him out from under the bed and cut his
abdomen open:
       Q. So you pull him—he’s been laying there doing
       nothing. You pull him out, he’s doing nothing,
       and then you slice him up; right?
       A. Right.
    That alone defeats the claim of self-defense, but for com-
pleteness we note that White Feather also failed to present
evidence that he had no alternatives to the use of deadly force.
A defendant seeking to justify his actions as a lesser evil must
avail himself of reasonable legal alternatives to the use of
unlawful force. Again, this requirement applies equally in
prison: “If prisoners could decide for themselves when to seek
protection from the guards and when to settle matters by
violence, prisons would be impossible to regulate.” Haynes,
143 F.3d at 1091; see also Bailey, 444 U.S. at 410 (“Under any
definition of these defenses one principle remains constant: if
there was a reasonable, legal alternative to violating the law, ‘a
chance both to refuse to do the criminal act and also to avoid
the threatened harm,’ the defenses will fail.” (quoting WAYNE
LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW
379 (1972))).
No. 13-2725                                                  11

   White Feather had several legal alternatives to the use of
deadly force. Most obviously, the cell was equipped with a
duress button, and the government presented ample evidence
about the operation of the duress signal and how it was
designed to require prison guards to respond to the source of
the alarm. In addition, the officer on duty in the L Unit on the
night of December 1 testified that the unit was “very quiet,”
and that if an inmate yelled or banged on his cell door, a guard
would hear and immediately respond.
   White Feather claims that prisoners at USP-Marion were
never instructed on the use of the duress button. He admitted,
however, that he thought it was a “medical button” and
understood that “[i]f you pushed it, doctors would come.” So
White Feather knew that he needed only to push the button
and someone would come. He also acknowledged that during
any of the several periods of time when Running Bear was
unconscious, he could have yelled or “banged on the [cell]
door and asked for help” but simply did not.
    In short, even accepting that Running Bear was the initial
aggressor, there is no evidence that he posed an imminent
threat when White Feather cut him open with the razor or that
alternatives to this use of deadly force were unavailable. White
Feather killed Running Bear slowly, deliberately, and savagely,
while his victim was unconscious and posing no imminent
threat, and in the presence of reasonable legal alternatives to
the use of deadly force. Because no evidence supports White
Feather’s claim of self-defense, the district court properly
refused to instruct the jury on the defense.
                                                     AFFIRMED.
