                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-14112         ELEVENTH CIRCUIT
                                                      MARCH 1, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                D. C. Docket No. 08-00158-CR-ORL-22-DAB

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

SAMMY DAVID FONTANEZ-MERCADO,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (March 1, 2010)

Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     Appellant Sammy David Fontanez-Mercado appeals his conviction for
interference with the performance of a flight attendant’s duties, in violation of 49

U.S.C. § 46504. Fontanez-Mercado was on a flight from San Juan, Puerto Rico, to

Orlando, Florida, and as the plane landed, he stood and opened an overhead

compartment. A flight attendant told him to return to his seat, and, although he

used profanity, he complied. Almost immediately, however, he rose from his seat,

standing within inches of the flight attendant’s face. The flight attendant reacted

by pushing him into his seat, and a fight ensued.

      Fontanez-Mercado raises the following three arguments on appeal: (1) the

district court erred by refusing to instruct the jury on self-defense; (2) there was

insufficient evidence to support his conviction; and (3) the government committed

a discovery violation by failing to disclose a bracelet that belonged to another

flight attendant who was involved in the altercation.

                                           I.

      On appeal, Fontanez-Mercado argues that a flight attendant initiated

physical contact with him, even though his use of foul language did not justify the

use of force. He contends that multiple JetBlue employees testified that flight

attendants are trained not to initiate the use of force to obtain compliance from

difficult passengers. Fontanez-Mercado maintains that he fought with the flight

attendant to defend himself, and his constitutional right to self-defense entitled him



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to a jury instruction on that defense. Additionally, Fontanez-Mercado argues that

the district court abused its discretion in denying his motion for a new trial, related

to this jury instruction, by relying on Florida law on self-defense, not federal law.

      We review de novo the issue of whether the defense produced sufficient

evidence to sustain a requested jury instruction. United States v. Calderon, 127

F.3d 1314, 1329 (11th Cir. 1997). We review the district court's denial of a motion

for a new trial for an abuse of discretion. United States v. Lee, 586 F.3d 859, 865

(11th Cir. 2009). A district court’s refusal to give a requested instruction is

reversible error if the requested instruction was a correct statement of the law, its

subject matter was not substantially covered by other instructions, and its subject

matter dealt with an issue in the trial court that was so important “that failure to

give [it] seriously impaired the [defendant's] ability to present an effective case.”

United States v. Svete, 556 F.3d 1157, 1161 (11th Cir. 2009) (en banc) (internal

quotation marks omitted), petition for cert. filed, (U.S. Nov. 16, 2009) (09-7576).

We may affirm the district court on any basis that finds support in the record.

United States v. Mejia, 82 F.3d 1032, 1035 (11th Cir. 1996).

      “A criminal defendant has the right to have the jury instructed on [his]

theory of defense, separate and apart from instructions given on the elements of the

charged offense.” United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995). The



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defendant's burden of presenting evidence to obtain the instruction is “extremely

low,” and the district court must view the evidence in a light most favorable to the

defendant. Id. However, the requested instruction must have “some basis in the

evidence.” United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir.1990) (internal

quotation marks omitted).

      Self-defense is an affirmative defense, and “the burden is on the defendant to

prove justification by a preponderance of the evidence.” See United States v.

Flores, 572 F.3d 1254, 1266 (11th Cir. 2009), cert. denied, 130 S. Ct. 568 (2009).

“Generally, self-defense is a defense which justifies the use of a reasonable amount

of force against an adversary when a person reasonably believes that he is in

immediate danger of unlawful bodily harm from his adversary and that the use of

such force is necessary to avoid this danger.” United States v. Middleton, 690 F.2d

820, 826 (11th Cir. 1982).

      Viewing the evidence in the light most favorable to Fontanez-Mercado, he

was not defending himself when he quickly rose from his seat after the flight

attendant told him to sit down. By defying the flight attendant in an intimidating

fashion, Fontanez-Mercado had completed the crime of interfering with a flight

attendant, and his disobedience by quickly standing up was not justified by any

immediate danger of unlawful bodily harm. Accordingly, Fontanez-Mercado was



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not entitled to a self-defense jury instruction, and the district court did not err by

failing to give such an instruction.

                                            II.

      Fontanez-Mercado next argues that there was insufficient evidence to

convict him of the charged conduct because although he used foul language, he

never threatened anyone, and he told the flight attendant not to touch him.

Fontanez-Mercado asserts that multiple airline employees testified that they are

trained to defuse a situation, not use force, and the flight attendant who pushed him

acknowledged that he could have backed away from Fontanez-Mercado.

      We review de novo challenges to the sufficiency of the evidence in criminal

trials, “viewing the evidence in the light most favorable to the government.”

United States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). We assume that the

jury made all credibility choices in the way that supports the verdict. United States

v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).

      It is illegal for passengers on an airplane to interfere with the duties of the

flight crew. 49 U.S.C. § 46504. Section 46504 provides in part:

      An individual on an aircraft in the special aircraft jurisdiction of the
      United States who, by assaulting or intimidating a flight crew member
      or flight attendant of the aircraft, interferes with the performance of
      the duties of the member or attendant or lessens the ability of the
      member or attendant to perform those duties, or attempts or conspires
      to do such an act, shall be fined under title 18, imprisoned for not

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      more than 20 years, or both.

Id. The government is not required to prove that a defendant intended to interfere

with the performance of a crew member. United States v. Grossman, 131 F.3d

1449, 1451-52 (11th Cir. 1997).

      The record demonstrates that Fontanez-Mercado belligerently and profanely

defied the flight attendant’s instructions and that the flight attendant needed

assistance from a co-worker to subdue Fontanez-Mercado. The evidence also

shows that Fontanez-Mercado jumped out of his seat in an intimidating manner.

Accordingly, sufficient evidence supports Fontanez-Mercado’s conviction.

                                           III.

      Finally, Fontanez-Mercado argues that the government’s presentation of a

bracelet, which another flight attendant was wearing when she assisted her

colleague in subduing Fontanez-Mercado, was an intentional discovery violation

because the government knew enough about the bracelet to ask about it at trial.

Fontanez-Mercado maintains that he suffered prejudice because he was unable to

prepare to respond to the introduction of the bracelet by seeking to exclude it or

have an expert examine it. Moreover, he contends that the district court’s

instruction to the jury to disregard the bracelet was an inadequate remedy. Thus,

he claims that the district court abused its discretion by failing to declare a mistrial



                                            6
because of this intentional discovery violation.

      “We review cases dealing with discovery violations under Fed.R.Crim.P. 16

using an abuse of discretion standard.” United States v. Hastamorir, 881 F.2d

1551, 1559 (11th Cir. 1989). As relevant in this case, “the government must

permit the defendant to inspect and to copy or photograph . . . tangible objects, . . .

if the item is within the government’s possession, custody, or control.”

Fed.R.Crim.P. 16(a)(1)(E). The government is not required to (1) disclose items

that it does not possess, or (2) acquire items in the possession of third parties.

United States v. Sarras, 575 F.3d 1191, 1215 (11th Cir. 2009). If a discovery

violation occurs, the conviction will be reversed only if the “violation prejudices a

defendant’s substantial rights.” United States v. Chastain, 198 F.3d 1338, 1348

(11th Cir. 1999) (internal quotation marks omitted). We presume that the jury will

follow the district court’s instructions. United States v. Williams, 526 F.3d 1312,

1321 (11th Cir. 2008).

      As a practical matter, the probative value of the bracelet was minimal

because the central issue in the case was whether Fontanez-Mercado’s movement

out of his seat at the flight attendant was an attempt to assault or intimate him. The

bracelet was irrelevant as to this issue. Additionally, there is no indication in the

record that knowledge of the bracelet would have affected Fontanez-Mercado’s



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trial strategy that he was defending himself against the flight attendant’s attack. In

light of the corrective instruction given by the court, the minimal probative value

of the bracelet, and the lack of significant prejudice to Fontanez-Mercado, we

conclude that the district court did not abuse its discretion by refusing to grant the

further remedy of declaring a mistrial. Accordingly, we affirm Fontanez-

Mercado’s conviction.

      AFFIRMED.




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