                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-3157
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             * Appeal from the United States
                                          * District Court for the District
      v.                                  * of South Dakota.
                                          *
Warren Blue Bird,                         *    [UNPUBLISHED]
                                          *
                    Appellant.            *
                                     ___________

                              Submitted: February 14, 2005
                                 Filed: February 22, 2005
                                  ___________

Before MELLOY, HEANEY, and FAGG, Circuit Judges.
                           ___________

PER CURIAM.

       The Government charged Warren Blue Bird with assault with a dangerous
weapon and assault resulting in serious bodily injury in Indian country arising from
an attack on Leonard Martinez, Jr. in January 2004. The prosecution filed a pretrial
motion in limine asking the district court* to prohibit the introduction of evidence that
in September 2003, Martinez had beaten Blue Bird with a garden hoe inflicting
several scull fractures. The incident was investigated, but Blue Bird did not
cooperate with authorities and Martinez was not prosecuted. On the morning of Blue

      *
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
Bird’s trial, the district court preliminarily granted the Government’s motion, but
stated that when Blue Bird sought to introduce the evidence during the trial, he
should approach the court for a definitive ruling. Trial trans. at 4.

       Testimony at trial showed that on the night before the January attack, Blue
Bird and Martinez were both at a wake for Martinez’s grandfather at the Porcupine
community center. Martinez shook hands to greet everyone, including Blue Bird, and
had no other interaction with him. The next morning, Blue Bird was shoveling by the
ramp of the senior citizen home where he lived with his mother. Unaware that Blue
Bird lived there, Martinez came over to drink coffee and say hello to an older man
during a break in the continuing funeral ceremony. Without warning, Blue Bird
approached Martinez from behind with a knife and slashed Martinez’s face. Blue
Bird goaded Martinez to fight, but Martinez backed away, then fled. Blue Bird gave
chase, and witnesses saw Blue Bird with a knife running after Martinez, who was
bleeding. One eyewitness picked up Martinez in her truck and sped away. Martinez
was taken to a hospital emergency room where he received one hundred stitches to
close his facial wound.

      After Martinez testified, Blue Bird sought permission to introduce evidence of
the September attack to impeach Martinez’s testimony. In a bench conference, Blue
Bird’s attorney stated:
      I have evidence to show that on a prior occasion Mr. Martinez attacked
      Mr. Blue Bird . . . in an attempt to kill him; certainly injure him severely.
      And that on [the January] occasion, he came to the location where Mr.
      Blue Bird was living; came very near to Mr. Blue Bird, who was
      outside; that Mr. Blue Bird felt threatened; . . . . Mr. Blue Bird chased
      Mr. Martinez away. . . . Additionally, I believe that while we would
      offer this evidence as an attack on Mr. Martinez’s credibility, Mr.
      Martinez has testified that on the evening prior to January 16, that he
      and Mr. Blue Bird had contact, that Mr. Blue Bird shook his hand, that
      everything seemed fine. When [Mr. Martinez] gave his statement to law
      enforcement . . . he told the agent that he thought things were okay

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      between he and Mr. Blue Bird. . . .Well, the fact of the matter is, this
      man perpetrated a vicious attack on Mr. Blue Bird. The evidence is
      going to be that Mr. Blue Bird would never shake his hand; that things
      weren’t okay between the two of them; and Mr. Martinez had every
      reason to fear Mr. Blue Bird and the two of them were not friends. . . .
      And I believe the evidence of his prior attack on Mr. Blue Bird is
      relevant to impeach that version of events that he just gave. It will allow
      the jury at a minimum to consider Mr. Martinez’s credibility. So we
      have both the self-defense and/or justification reasons and explanation
      for why there was a chase, and as relates to Mr. Martinez’s credibility.

Trial trans. at 59-61. After the Government responded that there was no evidence the
January attack was provoked, the district court denied the motion as premature. Id.
at 61-62.

       The federal agent who questioned Blue Bird about the attack testified he said
that when Martinez walked over to the senior citizen home on the morning of the
attack, he believed “Martinez was going to [mess] with his mother,” they got into a
fight, and he chased him off. Blue Bird denied cutting Martinez or having a knife.
During cross-examination, the agent alluded to Blue Bird’s “past relationship with
Martinez,” Blue Bird’s theory that Martinez was injured when he fell in a ditch
during the footchase, and the fact that all was not well between Blue Bird and
Martinez. Blue Bird again sought to introduce evidence of the September attack. The
Government again responded that Blue Bird had not presented any evidence that
Martinez provoked Blue Bird in any way. The district court denied the motion. Id.
at 114-16. After presenting defense witnesses and determining that the court would
permit the jury to hear of Blue Bird’s earlier felony conviction if he testified, Blue
Bird chose not to testify on his own behalf. During the colloquy on the waiver of his
right to testify, Blue Bird told the district court he would only testify if he could
discuss the September attack. The court responded that Blue Bird could not place a
condition on his testimony. Id. at 158. Both sides rested their case, and court was
adjourned for the day.

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       The next morning, Blue Bird filed a motion for reconsideration of the motion
to reopen evidence. The court asked why Blue Bird had not testified, and Blue Bird’s
attorney stated he perceived he would not have been permitted to testify to those
things, and his fear would not make sense to the jury without the background of the
September attack, on which the district court had prohibited testimony. After the
Government stated it had released its witnesses to rebut Blue Bird’s testimony and
self-defense law does not permit a preemptive strike, the district court denied Blue
Bird’s motion. The court explained that the admission of the September altercation
would constitute a substantial mini trial, and that under Federal Rules of Evidence
404 and 405, evidence by way of reputation or opinion about Mr. Martinez’s
character for violence could be admitted, but not the specific instance of conduct in
September. Id. at 167. The court also stated it would deny admission of the evidence
under Rule 403 because introduction of the evidence would be more prejudicial than
probative on the issues in the lawsuit. Id. The court then numbered the jury
instructions and refused to submit Blue Bird’s instructions on self-defense because
the defense was not supported by the evidence. Following deliberations, the jury
convicted Blue Bird and he was sentenced to 120 months in prison.

       On appeal, Blue Bird contends the district court should have allowed him to
introduce evidence about the September assault. The district court has wide
discretion in deciding the admissibility of evidence, and did not abuse that discretion
in refusing to admit evidence of the September altercation. United States v. Waloke,
962 F.2d 824, 830 (8th Cir. 1992). Even if the evidence was admissible, its exclusion
was harmless error because Blue Bird’s own version of the January assault shows
Martinez posed no immediate threat to Blue Bird and did not fight with him. United
States v. Talamante, 981 F.2d 1153, 1157 (10th Cir. 1992). Further, the district court
could exercise its discretion to exclude the evidence on the ground that the danger of
unfair prejudice substantially outweighed the evidence’s probative value on the issue
of Martinez’s character. Waloke, 962 F.2d at 830 (applying Rule 403 analysis to
Rules 404 & 405); Firemen’s Fund Ins. Co. v. Thien, 63 F.3d 754, 760 (8th Cir. 1995)

                                         -4-
(applying Rule 403 analysis to Rule 608(b)). Evidence of the September assault
could have confused the jury and led them to believe the January attack was justified
even though there was no evidence of any legal justification for it.

       Blue Bird also contends the district court should have given his requested self-
defense instructions. Reviewing the issue de novo, we conclude the instruction was
not warranted because Blue Bird failed to present enough evidence to sustain the
defense. United States v. Davis, 237 F.3d 942, 945 (8th Cir. 2001). To find Blue
Bird acted in self-defense, the jury would have to find Blue Bird used force that he
reasonably believed was necessary to protect himself from unlawful physical harm
about to be inflicted on him by Martinez. Hall v. United States, 46 F.3d 855, 857 (8th
Cir. 1995). Here, there is no evidence that immediately before the attack, Martinez
threatened Blue Bird in any way. Id. at 857-58. Indeed, Martinez had no interaction
with Blue Bird before the assault, Blue Bird sought out Martinez to attack him, and
Martinez tried to run away from Blue Bird. Id. Because Blue Bird had no reasonable
apprehension of fear of attack, a self-defense instruction would have been improper.
Id.

      We thus affirm Blue Bird’s convictions.
                     ______________________________




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