                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                           October 18, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 17-1278
                                                   (D.C. No. 1:16-CR-00071-RM-1)
 DANIEL THOMAS,                                               (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
                  _________________________________

      A jury convicted Defendant Daniel Thomas of assault with a dangerous

weapon, see 18 U.S.C. § 113(a)(3), possession of contraband in prison, see id.

§ 1791(a)(2), and assault resulting in serious bodily injury, see id. § 113(a)(6). He

was sentenced to 150 months in prison. The charges arose from two separate assaults

perpetrated by Defendant while incarcerated in federal prison. Defendant contends

on appeal that the district court should have instructed the jury on self-defense and



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
severed the charges relating to the two assaults. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                           I

      On June 9, 2015, Defendant stabbed another inmate while incarcerated at the

United States Penitentiary (USP) in Florence, Colorado. The incident was recorded

on several videos from different angles. The videos show Defendant walking down a

ramp behind another inmate to an outdoor prison yard. The other inmate looks over

his shoulder at Defendant, who, moments later, makes a striking motion to the right

side of the other inmate’s face. He follows up with two more stabbing motions

toward the victim’s abdomen. The victim turns to face Defendant while retreating

backwards down the ramp as Defendant trots after him. The two men face off in

fighting stances at the bottom of the ramp—Defendant with shank in hand—until

prison guards intervene. In a recorded statement to investigators, Defendant claimed

to have acted preemptively, in self-defense, because otherwise he “would’ve got

stabbed up by at least two guys.” Supp. R., Gov’t Ex. 15 at 3:48-51. The

government obtained a two-count indictment charging Defendant with assault with a

dangerous weapon and possession of contraband.

      On September 9, 2016, Defendant assaulted another inmate while he was

incarcerated at the Federal Correctional Institute (FCI) in Englewood, Colorado.

Defendant threw the other inmate down a flight of stairs and then stomped and kicked

the inmate. The other inmate suffered serious injuries. After this incident the

government obtained a three-count superseding indictment charging Defendant with

                                          2
the two crimes alleged in the original indictment (counts 1 and 2) as well as assault

resulting in serious bodily injury based on the FCI assault (count 3).

      Before trial, Defendant moved to sever counts 1 and 2 from count 3. He

acknowledged that the alleged offenses were similar but argued there was a great risk

of prejudice because evidence of one alleged assault might tend to show a propensity

to commit the other. He further argued that he would be prejudiced by the

cumulative evidence, which would enable the government to bolster the weaker

charges (counts 1 and 2) with evidence underlying the stronger charge (count 3). He

also asserted that severance was warranted to protect his right against

self-incrimination because, although he had important testimony to give regarding

counts 1 and 2—namely, that he acted in self-defense—he wished to stand on his

Fifth Amendment right not to testify as to count 3. At a pretrial motions hearing,

counsel for Defendant reiterated that he “may or may not want to testify about

self-defense” underlying the USP assault. R., Vol. 1 at 380. Defense counsel also

said that it was unlikely Defendant would testify about the FCI assault.

      The district court denied the severance. It was unpersuaded that evidence of

one assault might show a propensity to commit the other or that the government was

attempting to bolster a weaker case with a stronger one. It also rejected Defendant’s

Fifth Amendment argument, ruling that he failed to show he had important testimony

to give based on his claim of self-defense or provide a strong reason why he could

not testify about the FCI assault.



                                           3
      During the trial, Defendant twice unsuccessfully renewed his motion to sever,

first following admission of the evidence underlying the USP assault and a second

time at the close of the government’s case-in-chief. In support of his second motion

he made an additional proffer, indicating that he would testify that the USP assault

was an act of self-defense. He said that two days before the incident he had been

threatened in the prison chow hall by members of a Native American gang called the

“Warrior Society,” which was led by the victim of the stabbing. Also, on a separate

occasion, the victim and several associates, all of whom were known to carry knives,

surrounded him and threatened to give him a “smash down.” R. Vol. 4 at 262.

Defendant asserted that the victim threatened him just before the assault, as

corroborated on the video of the stabbing, which showed that just moments before the

assault, the victim looked over his shoulder and appeared to say something to

Defendant. Defendant also maintained that he would invoke his Fifth Amendment

right not to testify about the FCI assault. The district court denied the motion again,

ruling that the additional proffer was untimely.

      At the jury-instruction conference, Defendant requested a self-defense

instruction for the USP assault. He again argued that the portion of the video in

which the victim looked over his shoulder just before the stabbing confirmed his

belief that the victim posed a threat. He also cited the video of his statement to

investigators in which he claimed to have acted in self-defense. The district court

refused to give the instruction, ruling that there was insufficient evidence that he

acted in response to a threat of an imminent use of force. It did, however, instruct the

                                            4
jury that evidence on each count should be considered separately and that a verdict

on any one count should not influence the verdict on any other count.

                                        II

      We consider Defendant’s issues in turn.

      A. Self-Defense Instruction

      We review for abuse of discretion the district court’s refusal to give a

self-defense instruction. See United States v. Toledo, 739 F.3d 562, 567 (10th Cir.

2014). “[A] defendant is entitled to an instruction on any recognized defense for

which there is evidence sufficient for a reasonable jury to find in his favor.” Id. “For

the purposes of determining the sufficiency of the evidence, we accept the testimony

most favorable to the defendant.” Id.

      “A person may resort to self-defense if he reasonably believes that he is in

imminent danger of death or great bodily harm, thus necessitating an in-kind

response.” Id.; see United States v. Feather, 768 F.3d 735, 739 (7th Cir. 2014)

(“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.”); United States v. Bello, 194 F.3d 18, 26-27 (1st Cir.

1999) (affirming denial of self-defense instruction where defendant assaulted another

inmate because of an alleged threat some 18 hours earlier); 2 Wayne R. LaFave,

Substantive Criminal Law § 10.4(d) (2017) (“[S]elf-defense require[s] that the

defendant reasonably believe his adversary’s unlawful violence to be almost

immediately forthcoming.” (footnote omitted)).

                                             5
      There is no evidence that Defendant was threatened with imminent death or

great bodily harm. The video of the stabbing simply shows the victim walking down

the ramp with Defendant behind him. Although the victim turns his head toward

Defendant moments before the stabbing, perhaps to say something, there is no way to

tell if the victim made a verbal threat of imminent harm, nor is there any visual cue

that the victim posed an imminent danger. Defendant also relies upon the video of

the statement he gave to investigators in which he said that he acted in self-defense,

but that interview simply suggests that he perceived a possible threat of danger at

some later time; it does not assert an imminent threat. See United States v. Haynes,

143 F.3d 1089, 1090 (7th Cir. 1998) (affirming denial of self-defense instruction for

preemptive strike, in part because “‘later’ and ‘imminent’ are opposites”). He told

investigators, “I would’ve got hit,” and “I had to defend myself.” Supp. R., Gov’t

Ex. 15 at 3:37-43. He explained, “These guys already tried to jump me twice . . . .

One on the walkway, and then, uh, and at the chow hall, like just days before this

happened. I was gettin’ pressed, man.” Id. at 6:25-41 (emphasis added). Nothing in

these statements suggests Defendant faced an imminent danger. Consequently,

Defendant was not entitled to a self-defense instruction. 1

      B. Severance

      Defendant contends that the district court erred in denying his motions to sever

counts 1 and 2 from count 3. He asserts (1) that he was prejudiced by the “spillover


      1
        Absent an imminent danger, we need not consider whether Defendant was
also required to show the absence of lawful alternatives.
                                           6
effect” from evidence of one assault corroborating or showing a propensity to commit

the other, Aplt. Br. at 16, and (2) that his Fifth Amendment rights were violated

because he wished to testify that he acted in self-defense at USP but hold the

government to its burden of proof regarding the FCI assault. We reject both

arguments.

       Defendant concedes that the charges relating to the two assaults were properly

joined because they share the same or similar character. See Fed. R. Crim. P. 8(a).

Therefore, we focus on whether the charges should have been severed under Fed. R.

Crim. P. 14(a). See United States v. Hill, 786 F.3d 1254, 1257 n.2 (10th Cir. 2015)

(distinguishing between concepts of misjoinder and severance).

       Under Rule 14(a), “[i]f the joinder of offenses . . . appears to prejudice a

defendant . . . , the court may order separate trials of counts . . . or provide any other

relief that justice requires.” The denial of a severance “will not ordinarily be

reversed in the absence of a strong showing of prejudice.” Hill, 786 F.3d at 1272

(internal quotation marks omitted). “To establish prejudice, a defendant must point

to a specific trial right that was compromised or show the jury was prevented from

making a reliable judgment about guilt or innocence.” United States v. Pursley,

474 F.3d 757, 766 (10th Cir. 2007) (brackets, ellipsis, and internal quotation marks

omitted). We review the denial of a motion to sever for an abuse of discretion,

mindful that Defendant “bears a particularly heavy burden” to show an abuse of

discretion. Hill, 786 F.3d at 1272.



                                             7
      Defendant’s spillover argument fails because “[a]ny prejudice resulting from

the mere cumulative effect of the evidence underlying the multiple charges does not

mandate severance.” United States v. Thomas, 849 F.3d 906, 912 (10th Cir.),

cert. denied, 138 S. Ct. 315 (2017). Although the two assaults here occurred more

than a year apart, we have affirmed the denial of a severance for charges of the same

or similar character (robbery of a business) committed three years apart. See, e.g., id.

at 908, 912. Moreover, the evidence underlying each assault was distinct: the USP

assault involved Defendant stabbing another inmate from behind with a shank, while

the FCI assault involved his throwing another inmate down a flight of stairs and

stomping and kicking the victim. Cf. id. at 912 (“different forms [of evidence] make

it more likely that the jury was able to distinguish between counts, thereby weighing

against a finding of prejudice”). Nor does Defendant explain why the jury would not

have been able to consider the charges and the underlying evidence independently.

See United States v. Jones, 530 F.3d 1292, 1302 (10th Cir. 2008) (rejecting spillover

argument where defendant “offered no explanation of his theory that jurors could not

be expected to separate evidence of” different charges against him). Also, the district

court directed the jurors to consider the evidence underlying each count

independently. See Thomas, 849 F.3d at 912 (“[L]imiting instructions are ordinarily

sufficient to cure potential prejudice.” (internal quotation marks omitted)). “[J]uries

are presumed to follow their instructions.” Zafiro v. United States, 506 U.S. 534, 540

(1993) (internal quotation marks omitted).



                                             8
      Defendant’s Fifth Amendment argument also fails. When a defendant moves

for severance because he seeks to testify about some counts but not others, “no need

for severance exists until the defendant makes a convincing showing that []he has

both important testimony to give concerning one count and a strong need to refrain

from testifying on the other.” Jones, 530 F.3d at 1300 (internal quotation marks

omitted). “[T]he defendant must present enough information to satisfy the court that

the claim of prejudice is genuine and to enable it to intelligently weigh the

considerations of economy and expedition in judicial administration against the

defendant’s interest in having a free choice with respect to testifying.” Id. (ellipsis

and internal quotation marks omitted).

      But Defendant failed to proffer any specific information until after the district

court twice denied a severance. Previously he had asserted only that he had

important testimony to give about the USP assault that would advance his theory of

self-defense. Besides, even the proffer would not support a finding that he faced

imminent danger of death or great bodily harm, as would be necessary for a valid

claim of self-defense. And the proffer was too late to enable the district court to

weigh considerations of judicial economy against Defendant’s rights— to

accommodate Defendant’s request at that time would require declaring a mistrial on

the FCI charge. See United States v. Valentine, 706 F.2d 282, 291 (10th Cir. 1983)

(affirming denial of severance where defendant’s proffer at the close of the

government’s case was “weak” and made “at that late stage of the case”).



                                            9
      Nor has Defendant shown a strong need to refrain from testifying about the

FCI assault. Although he wanted to hold the government to its burden on that charge,

this alone fails to establish a strong need to refrain from testifying. See Jones,

530 F.3d at 1301. Indeed, “[i]f a defendant’s desire not to testify on a particular

count, without more, amounted to a compelling need not to testify, then required

severance would be the rule, and not the exception.” Id. Consequently, the district

court did not abuse its discretion in denying a severance.

                                           III

      The district court’s judgment is affirmed.



                                                       Entered for the Court


                                                       Harris L Hartz
                                                       Circuit Judge




                                           10
