           Case: 15-11965    Date Filed: 12/15/2015   Page: 1 of 9


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11965
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cr-20126-JAL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

LARK SUDDITH,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (December 15, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
                Case: 15-11965         Date Filed: 12/15/2015     Page: 2 of 9


       Lark Suddith appeals his federal conviction for physically assaulting an

employee of the United States, in violation of 18 U.S.C. § 111(a)(1). On appeal,

Suddith argues that the district court abused its discretion by rejecting his proposed

jury instruction regarding a theory of self-defense based on a security officer’s use

of excessive force. After careful review of the record and briefs, we affirm.

                                  I.      BACKGROUND

A.     Offense Conduct 1

       On February 20, 2014, Angelo Guagenti, a federal contract security officer,

was working in the lobby of the controlled access Claude Pepper Federal Building

in Miami, Florida. Defendant Suddith, who was waiting in the visitors’ line to

clear security, began using obscenities to loudly complain that other individuals,

mainly lawyers and judges, were allowed to skip ahead of him. Officer Guagenti

asked Suddith to calm down and explained to him that he would just have to be

patient. Suddith continued shouting obscenities. Officer Guagenti again asked

Suddith to remain calm and warned Suddith that, if he continued shouting, he

would have to leave.

       Despite Officer Guagenti’s warning, Defendant Suddith continued shouting

and cursing. Officer Guagenti approached Suddith and asked him to step out of the
       1
        We recount the description of Suddith’s offense conduct from the trial transcript and the
video recording published to the jury at trial. The video has no audio. As discussed later,
Officer Guagenti testified as to what was happening as the video was played and paused several
times before the jury.

                                                2
              Case: 15-11965     Date Filed: 12/15/2015    Page: 3 of 9


line, but Suddith refused to remove himself. Officer Guagenti then tapped Suddith

on the elbow, but Suddith swatted Officer Guagenti’s hand away. At that point,

Officer Guagenti could not see Suddith’s right side and decided, as a safety

precaution, that he would have to forcibly remove Suddith from the line.

      Officer Guagenti placed his hands on Suddith’s arms and shoulders, forcibly

pulled him out of the line, and forcibly moved him towards the entrance hallway of

the building. Once they reached the door to the entrance hallway, Suddith punched

Officer Guagenti in the face with a closed fist, which caused Officer Guagenti to

temporarily lose his hearing. Officer Guagenti later suffered neck spasms due to

the blow to his face.

B.    Trial, Charge Conference, and Jury Deliberation

      At trial, Officer Guagenti testified for the government and gave his account

of the offense conduct. During Officer Guagenti’s testimony, the government

published to the jury a video recording of the offense conduct, taken from a lobby

security camera. Officer Guagenti testified as to what was happening as the video

was played and paused. Defendant Suddith did not testify.

      After the close of evidence, the district court conducted a charge conference

and reviewed the parties’ proposed jury instructions. Defendant Suddith requested

that the district court instruct the jury regarding Officer Guagenti’s alleged use of

excessive force as follows:


                                           3
              Case: 15-11965     Date Filed: 12/15/2015    Page: 4 of 9


             Federal security officers are prohibited from using unnecessary
      force against visitors to federal buildings. Any force used by a federal
      security officer must be reasonable given all the surrounding
      circumstances.

             It is Lark Suddith’s theory of defense that although he may
      have initiated physical contact with the security guard he did so in an
      effort to resist unnecessary and excessive force which was employed
      by the federal security officer.

              Although an individual is not justified in using force for the
      purpose of resisting the performance of a duty by a federal security
      officer within the scope of his official duties, an individual may be
      justified in using force to resist excessive force used by a federal
      security officer.

            Excessive force is force that was unreasonable or unnecessary
      under the circumstance, that is, greater than the amount of force that
      was objectively reasonable.

             The reasonableness of a particular use of force depends on the
      circumstances of each case, including the severity of the offense at
      issue and whether the suspect poses an immediate threat to the safety
      of the officer or others.

            If you find that Lark Suddith’s actions were caused by the
      federal security officer’s use of unnecessary or excessive force, you
      must find the Defendant not guilty.

The district court asked where there was any evidence that Officer Guagenti used

excessive force and Suddith replied that the evidence was in the video, which

showed that Officer Guagenti unnecessarily went “hands on” without asking

Suddith why he was there that day.

      The district court rejected Defendant Suddith’s proposed jury instruction

after finding that there was neither an evidentiary foundation nor a legal basis to
                                          4
                 Case: 15-11965        Date Filed: 12/15/2015        Page: 5 of 9


support such an instruction.2 Instead, the district court agreed to include an

instruction that “[a]ny force used by a federal security officer must be reasonable,

given all the surrounding circumstances confronting the federal security officer.”

Suddith argued, however, that the district court’s instruction was confusing, as the

jury did not know what to do if it found that the force was unreasonable.

Accordingly, Suddith asked the district court to supplement its instruction by

stating: “If you find that the force was unreasonable, then you must find the

Defendant not guilty.” The district court declined to implement this supplemental

language.

       After closing arguments, the district court recited its charge to the jury,

which ultimately included an instruction that “[a]ny force used by a federal

security officer must be reasonable, given all the surrounding circumstances

confronting the federal security officer.”

       During jury deliberations, the district court received a note from the jury,

which stated as follows: “If a juror feels that officer used excessive force, then

does that mean they are not guilty, or can you feel it was excessive and still think

Defendant is guilty?” Defendant Suddith proposed that the district court respond

by stating that, “if the officer used excessive force, then [Suddith] should be found

not guilty.” The district court denied Suddith’s request, noting that “there is

       2
         The district court also rejected the government’s alternative proposed self-defense
instruction, but Suddith does not challenge the rejection of this alternative instruction on appeal.
                                                  5
                 Case: 15-11965        Date Filed: 12/15/2015        Page: 6 of 9


neither an evidentiary basis in the record nor is there case law that supports the

requested theory of defense instruction.” The district court responded to the jury’s

note as follows: “Members of the jury, you have received all of the Court’s

instructions on the law that apply to this case. You should consider all of my

instructions as a whole.”

       Initially, the jury was not able to reach a unanimous verdict, but the district

court instructed the jury to keep deliberating. The jury ultimately returned a

unanimous guilty verdict.

                                    II.     DISCUSSION 3

A.     Jury Instructions

       A criminal defendant has the right to a jury instruction on a proposed theory

of defense, provided it is a legally cognizable defense and there is some evidence

at trial to support the instruction. See United States v. Lanzon, 639 F.3d 1293,

1302 (11th Cir. 2011). The district court, however, is not required sua sponte to

instruct the jury on an affirmative defense that has not been requested by the

defendant. United States v. Gutierrez, 745 F.3d 463, 472 (11th Cir. 2014).

       The district court’s refusal to give a requested jury instruction warrants

reversal when (1) the requested instruction is a substantially correct statement of

the law; (2) the jury charge given did not address the requested instruction; and

       3
         We review the district court’s refusal to give a requested jury instruction for abuse of
discretion. Hill, 799 F.3d at 1320.
                                                 6
               Case: 15-11965      Date Filed: 12/15/2015    Page: 7 of 9


(3) the failure to give the requested instruction seriously impaired the defendant’s

ability to present an effective defense. See United States v. Hill, 799 F.3d 1318,

1320 (11th Cir. 2015); see also United States v. Richardson, 532 F.3d 1279, 1289

(11th Cir. 2008). Because these elements are stated in the conjunctive, if the

requesting party’s proposed instruction is not a substantially correct statement of

the law, then the district court does not commit reversible error by rejecting it. See

United States v. Jennings, 991 F.2d 725, 731 (11th Cir. 1993).

B.    Defense to 18 U.S.C. § 111 Crime

      The jury convicted Defendant Suddith of physically assaulting an employee

of the United States, in violation of 18 U.S.C. § 111(a)(1). That statute provides

that it is a crime to “forcibly assault[], resist[], oppose[], impede[], intimidate[], or

interfere[] with any [officer or employee of the United States] while engaged in or

on account of the performance of official duties.” 18 U.S.C. § 111(a)(1).

      A defendant charged under 18 U.S.C. § 111 may assert, as an affirmative

defense, a theory of self-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




                                            7
                Case: 15-11965        Date Filed: 12/15/2015       Page: 8 of 9


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

820, 826 (11th Cir. 1982) (emphasis added). 4

C.     Analysis

       Here, the district court did not abuse its discretion in denying Defendant

Suddith’s proposed jury instruction because that instruction was not a correct

statement of the law. Hill, 799 F.3d at 1320; Jennings, 991 F.2d at 731. Suddith’s

proposed instruction did not include language regarding two requirements: (1) that

the defendant reasonably believed he was in “immediate danger of unlawful bodily

harm,” and (2) that the defendant’s use of force was “necessary to avoid this

danger.” Middleton, 690 F.2d at 826. Specifically, Suddith’s proposed instruction

did not require the jury to consider whether Suddith reasonably believed that

Officer Guagenti placed him in immediate danger of unlawful bodily harm, or

whether the degree of force Suddith used was necessary to avoid the immediate

danger posed by Officer Guagenti. See id.

       Thus, Defendant Suddith’s requested jury instruction was not a

“substantially correct statement of the law,” and, therefore, the district court

committed no reversible error in rejecting it. Hill, 799 F.3d at 1320. Moreover,

the district court did not err by failing to sua sponte provide the jury with the

       4
         Defendant Suddith argues that this Court’s decision in Jennings established the legal
basis for his proposed jury instruction regarding excessive force. Jennings, however, involved
the application of rules and regulations of the Bureau of Prisons, codified in the Code of Federal
Regulations, that are plainly inapplicable to the present case. See Jennings, 991 F.2d at 731.
                                                8
                Case: 15-11965       Date Filed: 12/15/2015       Page: 9 of 9


correct formulation of a self-defense instruction. Gutierrez, 745 F.3d at 472.

Because the district court committed no reversible error, we must affirm. 5

       AFFIRMED.




       5
         Because we conclude that Suddith’s proposed jury instruction was not a correct
statement of the law, we need not consider the factual sufficiency of Suddith’s proposed theory
of self-defense. Accordingly, we express no opinion as to whether there existed a sufficient
factual basis to assert a theory of self-defense under the facts of this case. Nor do we mean to
preclude any putative § 111 defendant from asserting a legally cognizable theory of self-defense.
                                                9
