                           In the
 United States Court of Appeals
                For the Seventh Circuit
                        ____________

No. 02-1235
UNITED STATES   OF   AMERICA,
                                             Plaintiff-Appellee,
                              v.

ERIC EBERT,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
            No. 01 CR 80—John C. Shabaz, Judge.
                        ____________
      ARGUED MAY 23, 2002—DECIDED JUNE 26, 2002
                    ____________


 Before FLAUM, Chief Judge, BAUER, and ROVNER, Circuit
Judges.
  ROVNER, Circuit Judge. On July 18, 2001, Eric Ebert was
indicted for misdemeanor assault and interference with a
federal officer, in violation of 18 U.S.C. § 111(a)(1). That
charge arose from an incident that occurred on March 20,
2001, at the Federal Correctional Institute at Oxford, Wis-
consin, while Ebert was an inmate there. Ebert apparently
drank 1½ - 2 gallons of homemade wine on that day and
fought with other inmates. Inmates who are suspected of
drinking in prison are asked to provide a breath sample
for determining blood alcohol level, and if they refuse
they are sent to a Physician’s Assistant for examination and
then placed in the Special Housing Unit. Ebert refused to
2                                              No. 02-1235

submit a breath sample although he was aware there
would be adverse consequences from that choice. He was
taken to a Physician’s Assistant’s office. While there, he
was combative and would not comply with instructions to
sit on a table. The guards had to physically restrain him
from leaving, and he refused to submit to an exam. The
activities lieutenant was called to help with the situation,
but Ebert also failed to heed his instruction to get on the
examination table. When the lieutenant and one of the
guards attempted to physically place him on the examina-
tion table, he began kicking at them and struck one of them
on the shin. Ebert testified that he did not intentionally
kick at them, but also testified that he feared that they
were going to sedate him, and that he did not want to re-
ceive such a shot. Ebert continued to kick at all of the
individuals present and at a glass cabinet, and one of the
guards was sent to procure leg restraints. That guard re-
turned with the restraints and with three other guards,
and they were able to place the restraints on him. At that
point, they completed the examination and escorted him
to the Special Housing Unit. No one testified that any med-
ical instruments or needles were present during the in-
cident. At one point during the examination, Ebert stated
that he “isn’t going to take no shots,” and the lieutenant
told him that he was not going to be given a shot. Ebert was
convicted on the charge and sentenced to twelve months
incarceration to run consecutively to his term of incarcera-
tion for the underlying offense, followed by twelve months
of supervised release.
  On appeal, Ebert raises two challenges to his conviction.
First, he asserts that the court erred in refusing to give
his proposed jury instruction on self-defense. His theory
for the instruction was that he reasonably feared that he
was going to be sedated and that his actions in resisting
that sedation constituted self-defense. Second, he argues
that the government, in arguing against the self-defense
No. 02-1235                                                  3

instruction, “stipulated” that Ebert lacked the intent to kick
the officer, thus defeating its case on the merits. Neither
argument is meritorious.
  The statements by the government which Ebert charac-
terizes as a stipulation are quite clearly nothing of the sort.
Those remarks are as follows:
    Your Honor, what in essence the defendant must say
    is that he intentionally acted to prevent the reason-
    able belief of unlawful force. Here, the defendant’s [sic]
    claiming none of the acts were intentional, it was all
    an accident. That’s different than self-defense. In fact
    the last question I think Mr. Pagel asked him was were
    any of these kicks, were any of these actions inten-
    tional, and he said no.
    And I think that once you, sort of like you either say,
    Hey, I intentionally wanted to do it, I was trying to get
    out of the way, or you don’t. In this case all he’s saying
    is, Hey, I did a bunch of accidental acts while I was
    trying to get away. That goes to the question of intent.
    That’s not carrying the burden of persuasion in the
    first instance on the affirmative defense of self-defense.
    So I don’t believe that he’s entitled to the self-defense
    instruction at this time.
R. 48, p. 104. That argument merely points out that Ebert’s
proffer of the self-defense instruction was inconsistent with
his own version of the incident. In order to constitute self-
defense, a defendant must have used force in reasonable
fear of imminent unlawful force. Federal Criminal Jury
Instructions of the Seventh Circuit 6.01 (1999); United
States v. Whalen, 940 F.2d 1027, 1032 n.1 (7th Cir. 1991).
Because Ebert denied intentionally kicking anyone, his
theory of the case appeared to be to dispute that he know-
ingly assaulted a federal officer, whereas the self-defense
instruction assumed that he acted intentionally. In charac-
terizing the self-defense instruction as inconsistent with
4                                               No. 02-1235

Ebert’s own representations, the government does not some-
how stipulate that his version was correct. Instead, the gov-
ernment’s argument merely emphasized that Ebert’s re-
quest for a self-defense instruction was inconsistent with
the defense Ebert presented to the jury. In pointing out that
inconsistency, the government does not thereby adopt as
true the defense that Ebert had presented to the jury.
Ebert’s interpretation of the statements by the government
ignores the plain language and the context of the govern-
ment’s position and therefore the argument is meritless.
  The defendant next complains that the court erred in
refusing the self-defense instruction. Self-defense is an
affirmative defense, and therefore Ebert was only entitled
to the instruction if he presented sufficient evidence to
require its submission to the jury. United States v. Talbott,
78 F.3d 1183, 1186 (7th Cir. 1996). Specifically, “[a] defen-
dant in a criminal case is entitled to a particular theory
of defense if he satisfies four requirements: (1) the defen-
dant proposes a correct statement of the law; (2) the defen-
dant’s theory is supported by the evidence; (3) the defen-
dant’s theory of defense is not part of the charge; (4) the
failure to include an instruction on the defendant’s theory
of defense would deny the defendant a fair trial.” United
States v. Toney, 27 F.3d 1245, 1249 (7th Cir. 1994), citing
United States v. Douglas, 818 F.2d 1317, 1320-21 (7th
Cir. 1987). The court refused the instruction because Ebert
failed to introduce any evidence on one aspect of self-
defense—that the action was a response to imminent un-
lawful force. Ebert contends on appeal that we can infer
unlawful force based on “evidence that the guards did not
tell him what was going on and evidence from which one
could conclude that the guards were lying about the
shot.” That evidence, however, does not support an infer-
ence that unlawful force was being used. Ebert essentially
is arguing that because the guards did not say anything
about sedating him, and because one guard stated that he
No. 02-1235                                               5

was not going to get a shot, Ebert therefore could reason-
ably believe not only that he would be sedated, but that the
sedation would be unlawful. This inference is argued de-
spite the absence of any evidence of a needle in the room,
and despite the absence of any evidence that sedation
was ever contemplated by the guards. There is no reason-
able basis for the inference Ebert would have us draw.
  Moreover, Ebert has presented no argument that it
would in fact be unlawful for the physician’s assistant to
sedate him in these circumstances, which further defeats
his claim here. In short, Ebert failed to present any evi-
dence that his action in assaulting the guards was in re-
sponse to imminent unlawful force, and therefore the court
properly refused to give the self-defense instruction. The
decision of the district court is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-97-C-006—6-26-02
