                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4786


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KEVIN MARQUETTE BELLINGER,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:12-cr-00100-IMK-JSK-2)


Argued:   December 10, 2015                 Decided:   June 13, 2016


Before AGEE, FLOYD, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Linn Richard Walker, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Clarksburg, West Virginia; Mary Elizabeth Davis, DAVIS
& DAVIS, Washington, D.C., for Appellant.       Andrew R. Cogar,
OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia,
for Appellee. ON BRIEF: Kristen M. Leddy, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Clarksburg, West Virginia; Christopher M.
Davis, DAVIS & DAVIS, Washington, D.C., for Appellant. William
J. Ihlenfeld, II, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            After a jury trial, Kevin Bellinger (“Appellant”) was

found guilty of murder by a prisoner serving a life sentence, in

violation    of     18   U.S.C.    §§ 1111(a),     1118,      and     2,    and    second

degree murder, in violation of 18 U.S.C. §§ 1111(a)-(b), 2, and

7(3).   He was sentenced to life imprisonment.

             Appellant now challenges those convictions on appeal,

arguing the district court erred by excluding certain testimony

relating to the victim’s violent history and by refusing to give

a proposed jury instruction on imperfect self-defense.                            We find

no error in the jury instructions given at trial.                          But we agree

that the testimony in question should not have been excluded.

It was relevant, non-cumulative, non-hearsay, and raised little

potential     for    prejudice.        And      because      we      cannot    say    the

evidentiary       errors     were    harmless,         we     vacate        Appellant’s

convictions and remand to the district court.

                                          I.

                                          A.

            Appellant has been incarcerated at the United States

Penitentiary Hazelton (“USP Hazelton”) in Bruceton Mills, West

Virginia, since 2006.         He was assigned there while serving a 15-

year-to-life      sentence    for    assault     with       intent    to    kill     while

armed, and a consecutive five-to-15-year sentence for related

firearm     offenses     arising    out    of    the    same      incident.          Both

                                          2
sentences were imposed by the Superior Court of the District of

Columbia in 2002.

              The     present    appeal       stems    from    Appellant’s       dealings

with two friends he met growing up in Washington, D.C., and with

whom   he     reconnected       when    all    three    were    incarcerated         at   USP

Hazelton:          Patrick   Andrews          (“Andrews”)        and     Jesse       Harris

(“Harris”).           Appellant        and    Andrews     were     close.       In    fact,

Appellant considered the two of them to be like brothers.                                 They

remained close friends during their time in prison.                             Appellant

and Harris grew up in different neighborhoods, but they played

football       together      and       hung    out     together    prior        to    their

respective incarcerations.

              On the evening of October 7, 2007, the three friends

got    into    a    fight.      As     all    three    were    leaving    the    prison’s

outdoor recreation area, Appellant saw Andrews and a man known

as “Black Junior” suddenly begin running into a housing unit.

Harris was trailing just behind.                  At trial, Appellant testified

that since he knew all three of the men, he “wanted to make

sure . . . that everything was all right with them,” J.A. 935, 1

so he followed them.



       1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.




                                              3
             Appellant      located     Harris          and     Andrews       inside     the

housing unit at the intersection of two prison corridors.                                The

men seemed agitated.          Gerald Osborne (“Osborne”), an eyewitness

to part of the altercation, heard yelling and screaming as he

approached the scene.             Appellant claims he thought Harris was

threatening to kill Andrews.            Appellant testified that he heard

Harris threaten to “stick . . . steel” in Andrews, J.A. 952, and

that the statement was accompanied by aggressive body language

that he believed indicated an imminent fight.                       Appellant -- and

Osborne   --    noticed      Harris    grab       at     his    pocket        during    this

posturing.     Appellant interpreted that to mean that Harris had a

shank or some similar weapon that could be used to carry out his

threat.      The   situation       quickly       escalated       into     a    full    blown

fight, with Appellant and Andrews teaming up against Harris.

Appellant    was    armed    with     his       own    shank,    and     he     repeatedly

stabbed   Harris.        Harris     ultimately          suffered    22    stab       wounds,

which resulted in his death.

                                        B.

            Appellant       and   Andrews        were    indicted       in     the    United

States District Court for the Northern District of West Virginia

on October 2, 2012.         Both defendants were charged with one count

of murder by a federal prisoner serving a life sentence, in

violation of 18 U.S.C. §§ 1111(a), 1118, and 2, and one count of

second degree murder, in violation of 18 U.S.C. §§ 1111(a)-(b),

                                            4
2, and 7(3).          The district court severed the two co-defendants’

trials, and jury selection for Appellant’s trial began on June

9, 2014.

               The Government’s case consisted of 14 witnesses over

two    days.      The     defense     put     on   two   witnesses:         Osborne     and

Appellant.       Both the prosecution and the defense showed the jury

video from the prison’s security cameras, which had captured

parts of the fight and various surrounding events.

               During     the   trial,      the    district         court    made     three

rulings that Appellant challenges on appeal.                         First, the court

excluded a portion of Osborne’s testimony.                          Osborne testified

that he “walked right through” the October 7 fight that resulted

in Harris’s death.          J.A. 884.       He told the jury some of what he

saw    and   heard      while   the   fight     was    happening.           However,    the

Government objected when Appellant asked Osborne whether, prior

to the fight, “anyone ma[de] any threats toward anyone.”                            Id. at

889.     Appellant       was    trying   to     elicit    testimony         that    Osborne

heard Harris say “he was going to slam a knife in somebody” just

before the fight became physical.                     Id. at 897.           The district

court    sustained       the    Government’s       objection,        ruling     Osborne’s

response would be inadmissible hearsay.

               Second,     Appellant     challenges           the    district       court’s

exclusion of his own testimony about his knowledge of specific

past    acts     of     violence      perpetrated        by    Harris.          Appellant

                                            5
attempted to testify that he knew of the murder conviction that

resulted in Harris’s incarceration and that he also knew of a

January    2007       incident       at    USP       Hazelton,       during    which       Harris

apparently attempted to stab another inmate.                                  The Government

objected to the testimony pursuant to Federal Rule of Evidence

403, and the district court sustained the objections, ruling

that     the    proposed          testimony          was     unfairly     prejudicial          and

therefore inadmissible.               The court permitted Appellant to “go

into the general background” of his knowledge that Harris was a

dangerous individual but ruled that he could not “go into the

specifics.”         J.A. 959.

               Third,       Appellant          challenges       the     district          court’s

refusal    to       give    his    requested         jury     instruction      on     imperfect

self-defense.               “An      imperfect             self-defense       involves         the

defendant’s         unreasonable          use    of    deadly        force    to     thwart     an

assault. . . . The defense does not exonerate the defendant of

culpability for a homicide, but justifies only a manslaughter

conviction.”         United States v. Milk, 447 F.3d 593, 599 (8th Cir.

2006).         It    is    an   argument,        in    other     words,       that    though     a

defendant killed his victim, he “d[id] not have the requisite

mens    rea     to    be    guilty        of    second-degree         murder”        --    malice

aforethought.         Id.

               Imperfect self-defense can take different forms, but

here,     Appellant         wanted    to        instruct       the    jury     that,      if    he

                                                 6
possessed an “actual, though unreasonable, belief” that Andrews

“was in immediate and imminent danger of death or serious bodily

harm,”   he    should    be    found    “guilty         of   voluntary         manslaughter

rather than murder.”           J.A. 226.          The district court saw no need

to spell out Appellant’s theory of defense in such detail.                                   It

rejected the proposed instruction and observed that imperfect

self-defense simply “leads . . . to an instruction on voluntary

manslaughter,”         which     was        already      included         in     the        jury

instructions.      Id. at 870.

              Appellant’s      jury    was       thus   instructed        that    it     could

find Appellant guilty of voluntary manslaughter, but not second

degree murder, if it found that the Government failed to prove

malice aforethought.           And the jury was instructed that Appellant

should be found not guilty if his use of force was a legally

justified defense of Andrews, meaning (among other things) that

no reasonable alternative method of preventing harm to Andrews

was available.         But the jury was never expressly instructed that

voluntary       manslaughter          was     the       appropriate            verdict       if

Appellant’s      decision      to     use    deadly      force      was    based       on    an

“actual,      though    unreasonable,            belief”     that    such        force       was

necessary to save Andrews’s life.                 J.A. 226.

                                             C.

              Throughout his trial, Appellant never disputed that he

was one of the individuals who stabbed Harris.                                 Rather, his

                                             7
defense rested solely on his state of mind.                         Appellant argued

that he acted in defense of Andrews and in the heat of passion.

Both arguments relied in part on Appellant’s contention that, in

the prelude to the fight, Harris verbally threatened to stab

Andrews while aggressively grabbing at his pocket in a manner

that   Appellant      interpreted         as     indicating        that   Harris      was

carrying a weapon.        Under those circumstances, Appellant argued,

it was reasonable to react as though Harris had a shank and

intended to use it.          And even if his belief that deadly force

was necessary to save Andrews’s life was unreasonable, Appellant

argued that hearing death threats lobbed at his longtime friend

aroused such blinding anger that his ensuing actions must be

understood as taken in the heat of passion.

            After     just      one       hour     and      fifteen       minutes      of

deliberation,       the   jury        rejected     both     defenses       and     found

Appellant guilty of both charged counts.                         The district court

subsequently     entered        a     final      judgment     of     conviction       and

sentenced   Appellant      to       two   concurrent      life     sentences     to   run

consecutive to the sentences he was already serving.

            Appellant filed a timely appeal.

                                           II.

                                           A.

            We   begin    by    addressing        whether     the    district      court

committed reversible error by excluding Osborne’s testimony that

                                            8
Harris    threatened     “to    slam    a    knife    in    somebody,”    J.A.      897,

immediately    prior     to    Appellant’s       October     7,   2007    fight     with

Harris.

            “We    review      a   district       court’s      refusal        to   admit

evidence   under    an    abuse    of   discretion         standard.      A    district

court abuses its discretion when it acts in an arbitrary manner,

when it fails to consider judicially-recognized factors limiting

its discretion, or when it relies on erroneous factual or legal

premises.”     United States v. Henry, 673 F.3d 285, 291 (4th Cir.

2012)    (citations      omitted).          “Evidentiary      rulings,”       moreover,

“are subject to harmless error review, such that any error is

harmless where we may say ‘with fair assurance, after pondering

all that happened without stripping the erroneous action from

the whole, that the judgment was not substantially swayed by the

error.’”     United States v. Cone, 714 F.3d 197, 219 (4th Cir.

2013) (quoting United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010)).

                                            1.

            The    Government        concedes        that    excluding        Osborne’s

testimony as hearsay was error, and it is correct to do so.

            A statement is “not hearsay” if it is “not offered to

prove the truth of the matter asserted,” but rather, is offered

“as circumstantial evidence of [a defendant]’s state of mind.”

United States v. Leake, 642 F.2d 715, 720 (4th Cir. 1981).                             A

                                            9
statement       “in     which       [a]   decedent      threaten[s]”         a     defendant

charged with murder “bear[s] on the [defendant’s] state of mind”

and “[i]s . . . relevant in determining whether [a] killing was

second degree murder, manslaughter, or self-defense.”                                United

States     v.    Cline,       570     F.2d     731,     734-35    (8th       Cir.    1978).

Testimony about such a threat, therefore, “[i]s non-hearsay and

admissible.”      Id. at 735.

            Appellant contested whether he possessed the state of

mind necessary to commit second degree murder.                           “[T]he mental

element    of    [18       U.S.C.    § 1111     is]    malice,”    United         States   v.

Browner,    889       F.2d   549,     552    (5th     Cir.   1989),    and       Appellant’s

closing argument is replete with suggestions that he did not act

with malice.          Indeed, Appellant’s counsel went so far as to tell

the jury, “what’s going on in [Appellant’s] mind is what’s on

trial here.”           J.A. 1063.           Appellant conceded that he killed

Harris, questioning only “whether the killing was second degree

murder, manslaughter, or [defense of Andrews].”                        Cline, 570 F.2d

at   734-35.          He   was    thus      entitled    to   present     circumstantial

evidence about his state of mind during the killing.

            Osborne’s            testimony      was     undoubtedly          relevant      to

Appellant’s state of mind.                To decide this case, the jury needed

to determine whether Appellant reasonably believed Andrews was

in imminent danger of serious bodily harm.                       See United States v.

Oakie, 709 F.2d 506, 506 (8th Cir. 1983) (per curiam) (“As with

                                              10
self-defense, so too with the defense of another, one is not

justified    in    using    force     to        protect        the   other     unless     he

reasonably believes that the other is in immediate danger of

unlawful bodily harm and that force is necessary to prevent that

harm . . . .”      (quoting     W.    LaFave       &      A.     Scott,      Handbook    on

Criminal    Law   § 54,    at   398    (1972))).           Evidence       that    Harris,

within   earshot    of     Appellant,       explicitly           threatened      to     stab

Andrews quite obviously bears on the questions as to whether

Appellant believed Andrews to be in imminent danger and whether

that belief was reasonable. 2

            Osborne’s      testimony       was     thus    relevant       and    was     not

hearsay.    As the Government concedes, the district court should

not have excluded it.

                                           2.

            But an erroneous evidentiary ruling does not entitle

Appellant to his requested relief if the error was harmless.

See United States v. Cloud, 680 F.3d 396, 401 (4th Cir. 2012).

The Government does not concede this point.                          “[U]nder harmless

error, the burden is on the Government to show that . . . an

     2 Cf. United States v. Matheny, 523 F. App’x 996, 998 (4th
Cir. 2013) (per curiam) (“There was no evidence that either
victim took any action that would have given Matheny any
reasonable belief that he was in physical danger.      Prior to
Matheny pulling his weapon, neither victim threatened Matheny,
made an aggressive movement, took an aggressive posture, or
attacked him.”).



                                           11
error    did    not    affect        the     defendant’s         substantial          rights.”

United States v. Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006)

(emphasis omitted) (citing United States v. Olano, 507 U.S. 725,

734 (1993)).

              Nonconstitutional            errors     are    “harmless       where     we    may

say   ‘with    fair    assurance,          after     pondering      all      that    happened

without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error.’”                                  United

States   v.    Cone,     714     F.3d    197,       219   (4th   Cir.       2013)    (quoting

United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010)).

“We   have     identified        three      decisive        factors     in    making        this

determination: ‘(1) the centrality of the issue affected by the

error; (2) the steps taken to mitigate the effects of the error;

and (3) the closeness of the case.’”                      United States v. Ibisevic,

675 F.3d 342, 350 (4th Cir. 2012) (quoting United States v.

Ince, 21 F.3d 576, 583 (4th Cir. 1994)) (the “Ince factors”).

The   third     factor      is    most      important,        see     id.     at     352,    and

“‘involves     assessing         whether       the . . .      evidence        is     not    only

sufficient to convict, but whether it is sufficiently powerful

in relation’ to the excluded testimony to ensure the error did

not affect the outcome.”                Id. at 354 (quoting Ince, 21 F.3d at

584).

              The   first      two      Ince    factors       clearly        weigh    against

harmlessness in this case.                     First, as discussed, Appellant’s

                                               12
state of mind was the central -- indeed the only vigorously

disputed -- issue at his trial.                    Second, the district court did

not    mitigate        the    erroneous      exclusion.         Because      the   district

court did not recognize its error, it did not give a curative

instruction.            And    the   court    rebuffed        Appellant’s        attempt    to

elicit Osborne’s testimony through a compromise question. 3

                 The Government relies on the ostensibly indisputable

video      evidence      presented      to    the     jury,    the    fact       that   other

evidence establishing that Appellant thought Harris threatened

Andrews was admitted, and the jury’s brief deliberation coupled

with       its    unequivocal        verdict.         We   are      not    convinced       the

Government has carried its burden.

                 The   video     evidence       was    captured       by     surveillance

cameras that do not record audio data.                     And when the evidence in

question is a verbal threat, we think it goes without saying

that a silent video is far from indisputable.                             A jury may view

video of one person rushing at and stabbing another who grabs at

his pocket while saying something innocuous as an ambush.                                  The

same jury may think the video shows a defensive stabbing if the

ultimate         decedent     yells,    “[I’m]      going      to    slam    a     knife    in

somebody,” J.A. 897, while grabbing at his pocket just before

       3
       Appellant proposed asking Osborne, “Without saying what
anyone said, did anyone make a threat towards anyone else?”
J.A. 889. The court did not allow the question.



                                              13
the fight breaks out.    The import of the security camera footage

-- and the extent to which it is inculpatory or exculpatory --

thus turns, to some degree, on the particular words Harris said

to Andrews during the incident in question.          Without sound, the

video could not conclusively resolve the relevant and disputed

question to which Osborne’s testimony was directed: Did Harris

threaten to kill Andrews?

           The Government next points out that the district court

did not exclude all evidence supporting Appellant’s contention

that such a threat occurred inasmuch as Osborne was permitted to

testify   that,   immediately   prior   to   the   fight,   he   witnessed

Harris “touching his pockets” and “motioning for [Appellant and

Andrews] to come on.”       J.A. 891.        The court further allowed

Osborne to testify that in his opinion, as somebody who had

spent time in prison and seen violent altercations, Harris’s

gestures were threatening.       Moreover, Appellant, himself, was

allowed to testify specifically about Harris’s verbal threat. 4




     4    Q. . . . . What does [Harris] say to [Andrews]?
          A. I’m going to stick this steel in your
          bitch ass.
          Q. What does that mean?
          A. Like he going to stab him up.
          Q. With what?
          A. With a -- with a knife. Steel means like
          knife -- shank.
          Q. Did you see a knife -- homemade weapon?
(Continued)
                                  14
Arguably, then, the jury heard evidence from which it could have

concluded that Harris threatened to stab Andrews, yet the jury

still found Appellant guilty of murder.

               To be sure, “error [i]s harmless” when “the evidence

[a    party]    sought      to   introduce       [i]s   cumulative,      inasmuch     as

evidence [establishing the same facts] had already been admitted

into evidence.”         United States v. Cioni, 649 F.3d 276, 287 (4th

Cir. 2011).          But testimony that “would have added a great deal

of    substance       and    credibility”        to     a   proffered      defense    is

“not . . . ‘cumulative.’”             Washington v. Smith, 219 F.3d 620,

634 (7th Cir. 2000).                Not all evidence, in other words, is

equal, and here, the admitted evidence about Harris’s threat was

no replacement for Osborne’s excluded testimony.

               Osborne’s testimony would have provided specific and

direct   evidence       supporting     Appellant’s          contention     that   Harris

threatened Andrews, and importantly, it would have constituted

the   only     third-party       corroboration        of    Appellant’s     contention

that Harris’s threat was explicit and verbalized.                          A “defense,

discounted      by    the    jury    when   standing        alone,   may    have     been




               A. No.      But we [sic] knowing Harris,
               anything he say -- anytime he say he going
               to do something, he do it.

J.A. 952-53.



                                            15
believed when bolstered by [corroborative] testimony.”                                   United

States v. Parry, 649 F.2d 292, 296 (5th Cir. 1981); see also

Ibisevic, 675 F.3d at 350 (“The jury could have credited the

testimony of Ibisevic’s witnesses that he generally had poor

English skills yet discounted his stand-alone testimony that he

misunderstood Officer Zayas in this particular matter.                                   Because

Rahima’s       excluded        testimony            was     the     only     evidence         that

corroborated Ibisevic’s claim that he believed he was truthfully

answering questions as to the value of his checked luggage, her

testimony was not cumulative.”).                         We do not assume a jury will

afford     equal        weight          to     a        defendant’s       corroborated         and

uncorroborated testimony.                    See Ibisevic, 675 F.3d at 350.                  So we

will not assume the sole third-party corroboration of a detail

central    to       Appellant’s         self-defense         argument       would      not    have

“added     a    great       deal     of      substance       and    credibility”         to    his

defense.       Washington, 219 F.3d at 634.                        We     cannot, therefore,

say   that      allowing      Appellant            to     tell     the    jury    that    Harris

verbally       threatened          to   stab       Andrews       rendered        the   erroneous

exclusion of Osborne’s corroboration of that fact harmless.

               We    also    reject          the   Government’s          reliance      upon    the

length of the jury’s deliberative process in this case.                                         We

reject     the      invitation          to     attempt      to     read     the    tea    leaves

regarding       what    is    a     notoriously           impenetrable       process.          The

jury’s relatively brief deliberation does not establish that the

                                                   16
Government’s case was too overwhelming to be affected by the

district     court’s   error.          It    is    true     that    a     brief       jury

deliberation may evidence a categorical verdict.                        Cf. Ibisevic,

675 F.3d at 354.       And it is true that Appellant’s jury asked no

questions    and   deliberated    only       one   hour     and    fifteen    minutes

before rejecting his defenses.                But given the impact of the

excluded testimony here, we cannot say “with fair assurance”

Cone, 714 F.3d at 219 (quoting Johnson, 617 F.3d at 292), that

the jury would have viewed Appellant’s defense in the same light

had Osborne affirmed Appellant’s claim that Harris threatened to

stab   Andrews     moments    before    Appellant         engaged    in    the    fatal

fight.

            Because     the     concededly         erroneous        exclusion          of

Osborne’s testimony affected the central issue at trial, was not

mitigated,       and   left     Appellant          with     only        self-serving,

uncorroborated      testimony    to    support      a     fact    material       to   his

justification defense, it was not harmless.

                                        B.

            Appellant next argues that the district court erred by

excluding his own testimony about his knowledge of Harris’s past

acts of violence.        We agree that Appellant should have been

allowed to testify about at least one of those acts.




                                        17
                                     1.

           Appellant attempted to testify about two specific past

acts of violence perpetrated by Harris -- the homicide for which

Harris was incarcerated in the first place and a January 2007

incident at USP Hazelton during which Harris allegedly attacked

another inmate with a knife.     Appellant claimed his knowledge of

these    incidents   colored   his    reaction   when   he   saw   Harris

threatening Andrews on October 7, 2007, but the district court

excluded the testimony pursuant to Federal Rule of Evidence 403. 5

           “[A] defendant claiming self defense may show his own

state of mind by testifying that he knew of the victim’s prior

acts of violence,” United States v. Saenz, 179 F.3d 686, 689

(9th Cir. 1999), but such testimony may nonetheless be “properly

excluded pursuant to [Federal] Rule [of Evidence] 403.”            United

States v. Milk, 447 F.3d 593, 600 (8th Cir. 2006).             Rule 403

directs that evidence be excluded “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” 6



     5 After one attempt to elicit this testimony, the court
sustained a hearsay objection from the Government. That ruling
is erroneous for the reasons discussed in Part II.A.1, supra.
Circumstantial evidence offered to show a defendant’s state of
mind is not offered to prove the truth of any out of court
assertion and is not hearsay. See Leake, 642 F.2d at 720.
     6 Federal Rule of Evidence 403 also provides that evidence
should be excluded “if its probative value is substantially
outweighed by a danger of . . . confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
(Continued)
                                     18
Fed. R. Evid. 403.              A court performing this balancing must weigh

the marginal probative value of admission versus the marginal

danger     of     admission       in    view    of   the    entire       record,      including

potential evidentiary alternatives.                         See Old Chief v. United

States, 519         U.S.     172,      183-85    (1997).          “Evidence      is    unfairly

prejudicial . . . when there is a genuine risk that the emotions

of    a    jury    will      be     excited     to    irrational         behavior . . . .”

United     States       v.   Siegel,      536    F.3d      306,    319    (4th    Cir.    2008)

(quoting United States v. Williams, 445 F.3d 724, 730 (4th Cir.

2006)).      But when “the evidence sought to be excluded under Rule

403 is concededly probative, the balance under Rule 403 should

be    struck      in    favor     of    admissibility,       and     evidence      should     be

excluded only sparingly.”                   United States v. Aramony, 88 F.3d

1369, 1378 (4th Cir. 1996).

                                                a.

                 In this case, the exclusion of Appellant’s testimony

about      his    knowledge       of     Harris’s     homicide       conviction         was   an

appropriate exercise of the district court’s discretion.                                 While

the       court        excluded        testimony     specific        to     the        homicide

conviction, it allowed Appellant to testify generally that he



cumulative evidence.”   The district court, however, reasoned
only that “the prejudice is obvious,” J.A. 958, when excluding
the testimony in question, so we focus our analysis on unfair
prejudice.



                                                19
was    aware    Harris       had   been        involved       in   prior      incidents      of

violence.         This       was   a   reasonable         compromise.           The        court

respected      the        “substantial     probative          value”     of     Appellant’s

knowledge that Harris had a history of violence while “s[eeking]

to minimize any prejudice” from testimony painting the victim as

a murderer.       United States v. Myers, 280 F.3d 407, 414 (4th Cir.

2002).     Appellant’s knowledge that Harris had been convicted of

homicide lent credence to his October 2007 reaction only in a

general sense -- Appellant was aware Harris had been violent

before,     and      he     thought    Harris         might    act      violently     again.

Limiting       that        testimony      to     a     general       acknowledgment          of

Appellant’s awareness makes sense.

                                               b.

            The details of the January 2007 incident, on the other

hand, are infused with different and greater probative value.

Such     testimony         would   have    provided       insight        bearing      on    the

question as to whether Appellant’s belief that Andrews’s life

was in danger was reasonable.                        Appellant intended to testify

that Harris had previously attempted to stab another inmate in

USP    Hazelton       --    just   nine    months       prior      to   the    incident      in

question.      Knowledge of that incident constitutes knowledge that

Harris carried a knife -- and would not hesitate to use it --

while in USP Hazelton.             Those details precisely accord with what

Appellant contends he reasonably feared on October 7, 2007 --

                                               20
that   Harris    had       a    knife        and     intended      to    stab    Andrews.

Therefore,    such     testimony        is    unquestionably        relevant      to    the

determination    as    to      whether       it    was    reasonable     to     fear   that

Harris’s threat would be carried out.                        Moreover, due to the

specificity     of   the       facts    with       respect    to   the    January      2007

incident, such testimony is much more probative of Appellant’s

defense than mere awareness that Harris had a reputation for

violence.

            On the other side of the Rule 403 balance, the danger

of unfair prejudice from the additional testimony was slight.

The jury had already received substantial evidence suggesting

that Harris was a violent criminal.                      Before Appellant ever took

the stand, the jury learned that Harris was incarcerated at a

maximum    security    institution,            and    the    Government       itself    had

elicited    detailed    testimony         about       the    dangerousness       of    this

particular    prison’s         residents.            For     example,     one     of   USP

Hazelton’s corrections officers testified, “A good portion of

the inmates that are there are serving a good part of their

life, to a life sentence.”               J.A. 480.          He added, “USP Hazelton

is a gang run yard,” and its population is made up of inmates

who have accrued a certain minimum criminal history score based

on convictions for violent crimes or disciplinary infractions

while in prison.        Id.       The Government also elicited testimony

about USP Hazelton’s robust security measures.                           Staff members

                                             21
carry pepper spray.              Observational towers are plentiful within

the complex and around its perimeter.                        The exterior fence is

electrified and lethal to the touch.                      This is all to say, the

jury    already      knew   that      Harris      was   serving     time    in    a   prison

reserved for dangerous persons.                   And as mentioned, Appellant was

permitted to testify that Harris had a reputation for violence.

After    all    of    that,      learning      that     Harris    had    tried     to    stab

another inmate would not substantially increase the danger of

unfair prejudice.           See United States v. Obi, 239 F.3d 662, 668

(4th Cir. 2001) (“[T]he likelihood of additional prejudice to

the jury [from learning a defendant had been incarcerated during

a    certain    period      of    time]     was    slight[]       [where]    [t]he       jury

learned only [of] . . . an arrest about which they had already

heard evidence . . . .”).

               Rather, a court “abuse[s] its discretion under Rule

403”    by   excluding      evidence       that     “would    not    have    painted       [a

victim]      darker   than       he   already     must    have    appeared.”          United

States v. James, 169 F.3d 1210, 1215 (9th Cir. 1999) (en banc).

And we see no way to avoid that conclusion with respect to

Appellant’s       testimony       about     the    January    2007      incident.         The

testimony      had    substantial         marginal       probative      value     over    and

above the admitted testimony about Harris’s dangerousness, but

it   raised     little      additional       likelihood      of     unfair       prejudice.

When “evidence sought to be excluded under Rule 403 is . . .

                                             22
probative,      the     balance . . .         should      be    struck          in    favor    of

admissibility.”          Aramony, 88 F.3d at 1378.                   That balance should

have been struck here.

                                            2.

              Having      already      concluded         that        the        exclusion      of

Osborne’s      testimony      was    not    harmless,          there       is    no    need    to

consider whether this second error would have been harmless in

isolation.            Both    errors       undermined          the       same        aspect    of

Appellant’s defense, and we have already concluded that remand

is    necessary    to    afford      Appellant      an    adequate         opportunity         to

present his case.

                                           III.

              Appellant next objects to the jury instructions given

at     his    trial,    or    rather,      the     lack    of        a    particular          jury

instruction.           The district court refused to give Appellant’s

requested instruction on the doctrine of imperfect self-defense.

“We review for abuse of discretion the district court’s denial

of . . . proposed jury instructions.”                     United States v. Sonmez,

777    F.3d    684,     688   (4th     Cir.      2015).        We        see    no    abuse    of

discretion in this regard.

              Imperfect self-defense refers to a set of arguments

that    “operate[]      to    negate    [the]     malice”       element          of   a   murder

charge while admitting that an unlawful killing occurred.                                 Burch

v. Corcoran, 273 F.3d 577, 587 n.10 (4th Cir. 2001) (applying

                                            23
Maryland law) (quoting State v. Faulkner, 483 A.2d 759, 761 (Md.

1984)).       “[S]uccessful                invocation,”        therefore,        “does      not

completely        exonerate          the     defendant,        but    mitigates       murder

to . . . manslaughter.”              Id.

            Assertions          of    imperfect        self-defense      typically         fall

into one of two categories: “(1) the defendant unreasonably but

truly     believed       that    deadly         force    was     necessary       to   defend

himself, or (2) the defendant inadvertently caused the victim’s

death while defending himself in a criminally negligent manner.”

United States v. Milk, 447 F.3d 593, 599 (8th Cir. 2006).                                    If

“the    defendant    intend[ed]            to   use    deadly    force   [based       on    an]

unreasonable belief that he [wa]s in danger of death or great

bodily     harm,”    the        defendant        can    salvage       only   a    voluntary

manslaughter conviction, at best, from a rejected self-defense

argument.     United States v. Manuel, 706 F.2d 908, 915 (9th Cir.

1983).      But     an   argument          falling      into    the   second     of   Milk’s

categories can justify an involuntary manslaughter verdict.                                  A

“defendant[, who] attempt[ed] to use non-deadly force, but d[id]

so in a criminally negligent manner [resulting in] death,” is

entitled     to    “both    involuntary              manslaughter      and   self-defense

instructions.”       Id.

            Appellant, applying this doctrine to his argument that

he acted in defense of Andrews, requested a jury instruction



                                                24
appealing      to     the    first    of   these    categories.            His    proposed

instruction read in relevant part:

               If the defendant actually believed that the
               person   defended    was   in   immediate   and
               imminent danger of death or serious bodily
               harm, even though a reasonable person would
               not   have  so    believed,   the   defendant’s
               actual, though unreasonable, belief is a
               partial defense of another person and you
               should find the defendant is guilty of
               voluntary manslaughter rather than murder.

J.A.    226.        The     district    court     did   not   give      the      requested

instruction.

               “In general, we ‘defer to a district court’s decision

to withhold a defense . . . in a proposed jury instruction’ in

light   of     that    court’s       ‘superior     position   .   .    .    to    evaluate

evidence and formulate the jury instruction.’”                    United States v.

Powell, 680 F.3d 350, 356 (4th Cir. 2012) (quoting United States

v. Gray, 47 F.3d 1359, 1368 (4th Cir. 1995)).                     Error in refusing

to   give      such    an    instruction     is     reversible        “only      when   the

instruction ‘(1) was correct; (2) was not substantially covered

by the court’s charge to the jury; and (3) dealt with some point

in the trial so important, that failure to give the requested

instruction         seriously     impaired       the    defendant’s         ability      to

conduct his defense.’”               United States v. Passaro, 577 F.3d 207,

221 (4th Cir. 2009) (quoting United States v. Lewis, 53 F.3d 29,

32 (4th Cir. 1995)).




                                            25
            But a “district court has no discretion to refuse to

give a lesser-included instruction if the evidence warrants the

instruction and the defendant requests it,” United States v.

Baker, 985 F.2d 1248, 1259 (4th Cir. 1993), and imperfect self-

defense amounts to an argument that a defendant charged with

murder is guilty of a lesser-included manslaughter offense, see

Milk,   447    F.3d       at     599;     Burch,       273    F.3d      at     587    n.10.

Accordingly,      where     a    defendant         “assert[s] . . .       an      imperfect

self-defense” rendering “malice aforethought . . . [a] disputed

element,”     and    where       “a    jury    could    rationally       convict       [the

defendant] of . . . manslaughter and acquit him of second degree

murder,” a “district court err[s] in taking the mens rea issue

from the jury by refusing to instruct on . . . manslaughter.”

United States v. Brown, 287 F.3d 965, 975, 977 (10th Cir. 2002).

            Of course, the district court did not refuse to give a

lesser-included       instruction             in    this      case.          It      granted

Appellant’s       request        to     instruct       the     jury      on       voluntary

manslaughter, and it informed the jury that, if the Government

failed to prove malice aforethought, Appellant could be guilty

of voluntary manslaughter but not second degree murder.

            The     court       only    declined       to    give     Appellant’s      more

specific    instruction,         which    spelled       out    his     imperfect      self-

defense argument.         Establishing error here is more difficult.                      A

“district court d[oes] not abuse its discretion” by refusing a

                                              26
proposed          instruction     that       was    “clearly       covered       by     the

instructions given,” United States v. Green, 599 F.3d 360, 378

(4th Cir. 2010), just because “a more specific instruction might

have       been    desirable     to”   the    defendant,     id.    (quoting      United

States v. Patterson, 150 F.3d 382, 388 (4th Cir. 1998)).                              Here,

Appellant          points   to    no     case      that   suggests     his   proposed

instruction was anything more than a favorable elucidation of an

adequately-covered defense. 7

                  Numerous courts have held that a district court errs

by withholding a manslaughter instruction when requested by a

defendant         raising   imperfect        self-defense    to    combat    a    § 1111

charge. 8         See, e.g., United States v. Toledo, 739 F.3d 562, 569



       7
       The Government argues that a defendant may not raise an
imperfect self-defense argument when charged with violating 18
U.S.C. § 1111, and so Appellant’s instruction did not accurately
state the law.      Because the district court did not err
regardless of whether the rejected instruction was accurate, we
see no need to address the Government’s arguments at this point.
       8
       Our own circuit’s law contains no precedent directly on
point, but we did once address this question in an unpublished
opinion.   See United States v. Battle, 865 F.2d 1260 (table),
1988 WL 138687 (4th Cir. 1988) (per curiam).       There, “[w]e
f[ound] no reversible error” in the district court’s refusal to
give an imperfect self-defense instruction because “[t]he
district judge adequately instructed the jury on both the
required concept of malice and on the crime of manslaughter,”
thereby “adequately convey[ing] to the jury the law which
supported [the defendant]’s theory of defense.”      Id. at *3
(citing United States v. Dornhofer, 859 F.2d 1195, 1199 (4th
Cir. 1988)); see also United States v. Drotleff, 497 F. App’x
357, 359 (4th Cir. 2012) (per curiam) (“A defendant, who
intentionally uses deadly force in an effort to defend himself
(Continued)
                                             27
(10th    Cir.    2014)    (“The      district      court      erred    in   denying     an

involuntary manslaughter instruction.”); Brown, 287 F.3d at 977

(“The district court erred in taking the mens rea issue from the

jury    by    refusing    to   instruct      on    involuntary        manslaughter.”);

United States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000)

(“An instruction on involuntary manslaughter was thus required,

and it was error not to give the instruction.”); United States

v. Begay, 833 F.2d 900, 903 (10th Cir. 1987) (“[The defendant]’s

testimony was sufficient to support the involuntary manslaughter

instruction.”).          But Appellant does not point to, and we have

not found, any cases reversing a district court that instructed

the jury on manslaughter while refusing only a more specific

instruction      expounding       imperfect        self-defense.            This   makes

sense.       If error is committed when a court “tak[es] the mens rea

issue from the jury” despite being in dispute through imperfect

self-defense,      Brown,      287     F.3d       at   977,    it     is    avoided     by

instructing on both mens rea and the lesser-included offenses

that become relevant if mens rea is not proven.

              This is precisely what the district court did here.

It   considered     instructions       on     malice    and     manslaughter       to   be




but does not meet the requirements for self-defense, may commit
voluntary . . . manslaughter.” (citing Manuel, 706 F.2d at
915)).



                                            28
sufficient,       telling   Appellant,         “I   believe       you’ve    got   your

instruction on voluntary manslaughter, which you’re entitled to

have, which you should have, but . . . [imperfect self-defense]

only takes you to -- it’s a segue or bridge to get you to

voluntary   manslaughter,        which    you’ve      got    an   instruction     on.”

J.A. 871.     We are in agreement that these instructions were

sufficient.        And    Appellant    was     able   to     present   his    defense

inasmuch as he was permitted to argue that his testimony negated

the Government’s proof of malice as he saw fit.                     Thus, we see no

abuse of discretion here.

                                         IV.

            For     all     of   the     foregoing          reasons,       Appellant’s

conviction is vacated, and this case is remanded for further

proceedings consistent with this opinion.

                                                             VACATED AND REMANDED




                                         29
