NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-2800

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UNITED STATES OF AMERICA,

v.

BRANDON MOOREFIELD,

 Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(Crim. No. 2:14-cr-00284-001)

District Judge: The Honorable Gustave Diamond

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

February 7, 2017

Before: McKEE, COWEN, and FUENTES, Circuit Judges

(Opinion Filed: March 20, 2017)

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OPINION

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FUENTES, Circuit Judge.

The appellant Brandon Moorefield appeals from a jury conviction of one count of 

possession of firearm after having been convicted of a felony, in violation of 18 U.S.C. § 

 

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

922(g)(1), for which he was sentenced to 70 months’ imprisonment. He challenges his 

conviction on two grounds: first, that the District Court abused its discretion by 

instructing the jury that they may consider evidence of flight as probative of 

consciousness of guilt; and second, that § 922(g) is facially unconstitutional because it 

exceeds Congress’s power to legislate on interstate commerce. We will affirm the 

conviction. 

I.

On November 13, 2014, two police officers were driving down Swissvale Avenue 

in Wilkinsburg, Pennsylvania, conducting field visits. As they were driving down this 

street towards Penn Avenue, they noticed a man walking in front of them on Swissvale 

Avenue who appeared to have a gun and magazine under his shirt. The two police 

officers, both in plainclothes but with their badges visible, drove up next to this man, with 

the intent to stop him. As soon as one of the officers identified himself as the police, 

however, the man began to run away in the direction of Penn Avenue. As he ran away, 

the officers observed that this man had a gun in his hand. Noticing that the man was 

running towards Stoner Way, an alley behind Penn Avenue, the officers drove up to cut 

off one of the exits of Stoner Way. The man then took off on foot back towards Penn 

Avenue, at which point he was stopped by one of the police officers. The person the 

police captured is defendant Brandon Moorfield, but at the time of capture, he had no gun 

on him. The police found the gun later back in Stoner Way, on the roof of a building. 

Moorfield was arrested and charged with possession of a firearm by a felon. At 

trial, the two police officers testified and recounted this story, identifying Moorfield as 
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the person they initially encountered when they drove up to the man carrying a gun under 

his shirt and as the person they ultimately apprehended. The eyewitness testimonies of 

these two officers were the only identifying evidence because the forensic scientists were 

unable to confirm or exclude Moorefield’s DNA or fingerprints from those collected on 

the firearm. 

Moorefield’s defense was one of misidentification. A defense witness who knew 

Moorefield testified that he observed several men, including Moorefield, running away 

from the police car on the day and time in question. The witness testified that Moorefield 

ran along Penn Avenue the entire time until he was captured by the police, and that, 

contrary to the police officers’ testimonies, he never went toward or into Stoner Way. 

After three days of deliberations, the jurors returned a guilty verdict against 

Moorefield. Moorefield was subsequently sentenced to 70 months’ imprisonment, 

followed by three years of supervised release, and a special assessment of $100. Pending 

before this Court is Moorefield’s appeal from that conviction.1

II.

On appeal, Moorefield raises two arguments. First, he argues that the District 

Court “abused its discretion by instructing the jury that flight may indicate consciousness 

of guilty.”2 Second, he challenges the constitutionality of 18 U.S.C. § 922(g) as an 

invalid exercise of Congress’s legislative power under the Commerce Clause. As 

Moorefield acknowledges, our holding in United States v. Singletary is dispositive on the 

 

1 The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have 

jurisdiction to hear this appeal under 28 U.S.C. § 1291. 

2 Appellant’s Br. at 18. 
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latter challenge—“proof . . . that the gun had traveled in interstate commerce, at some 

time in the past, was sufficient to satisfy the interstate commerce element.”3 

Understanding that we are bound by this precedent, Moorefield raises this challenge 

“solely to preserve them for Supreme Court review.”4 Consequently, we will reject this 

argument and focus instead on Moorefield’s first argument. 

Jury instructions are reviewed for abuse of discretion, and we will reverse “only 

when the district court’s decision is ‘arbitrary, fanciful, or clearly unreasonable,’” and 

“where ‘no reasonable person would adopt the district court’s view.’”5 As Moorefield 

concedes, the instruction that the District Court gave is not only a correct statement of the 

law but taken directly from the Third Circuit model jury instructions.

6

 Instead, he argues 

that the District Court abused its discretion because it failed to adequately consider 

whether “giving the charge would result in unfair prejudice to the defendant or balance 

this concern against the probative value of charging the jury that it could consider flight 

as evidence of a guilty conscious.”7 However, that is not the standard by which this 

Circuit evaluates the appropriateness of a particular jury instruction. Instead, a party is 

“entitled to an instruction on his theory of the case where the record contains evidentiary 

 

3 268 F.3d 196, 205 (3d Cir. 2001).

4 Appellant’s Br. at 22. 

5 United States v. Steiner, 847 F.3d 103, 110 (3d Cir. 2017) (quoting United States v. 

Starnes, 583 F.3d 196, 214 (3d Cir. 2009)).

6 See United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) (“We have held in the past 

that evidence of a defendant’s flight after a crime has been committed is admissible to 

prove his consciousness of guilt.” (internal quotations and alterations omitted)); Third 

Circuit Model Criminal Jury Instruction 4.30.

7 Appellant’s Br. at 19. 
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support for it,”

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and upon review, “we look to see if the charge, taken as a whole and 

viewed in the light of the evidence, fairly and adequately submits the issues in the case to 

the jury.”9 

Moorefield does not dispute here that there is evidence to support a flight charge. 

Instead, Moorefield argues that the charge is overly prejudicial precisely because it is 

undisputed that he fled from the police. Moorefield posits that inclusion of this charge 

“necessarily gives judicial weight to the government’s version of the facts, i.e., that 

Moorefield ran because he was guilty of possessing a weapon,” rather than Moorefield’s 

version of the facts that he fled the scene for other reasons.

10

 We disagree. 

The instruction given here is fair and balanced. 

If you believe that the defendant did flee from law enforcement, then you 

may consider this conduct, along with all of the other evidence, in deciding 

whether the government has proven beyond a reasonable doubt that the 

defendant committed the crime that he is charged with. This conduct may 

indicate that the defendant thought he was guilty of the crime charged and 

was trying to avoid punishment. On the other hand, sometimes an innocent 

person may flee from law enforcement for some other reason. Whether or 

not this evidence causes you to find that the defendant is conscious of guilt 

of the crime charged, and whether that indicates that he committed the 

crime charged, is entirely up to you as the sole judges of the facts.11

The instruction is clear that while the jury may credit the government’s version of 

the facts, the jury need not so credit, and may instead find that “sometimes an innocent 

 

8 United States v. Weatherly, 525 F.3d 265, 270 (3d Cir. 2008) (quoting United States v. 

Davis, 183 F.3d 231, 250 (3d Cir. 1999)).

9 United States v. Hart, 273 F.3d 363, 373 (3d Cir. 2001) (quoting United States v. 

Adams, 759 F.2d 1099, 1116 (3d Cir. 1985)). 

10 Reply Br. at 7. 

11 A 303-04.
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person may flee from law enforcement for some other reason.”12 That the government, in 

its closing, made reference to Moorefield’s undisputed attempt to flee, is not evidence 

that “the instruction would give judicial weight to the government’s version of the 

facts.”13 After all, the jury was specifically instructed that it was up to the individual 

jurors to decide for themselves whether evidence of flight is indicative of consciousness 

of guilt of the crime charged. The defense had a similar opportunity to present the 

innocent explanation for Moorefield’s flight for the jury’s consideration, and it did. In 

closing, the defense argued to the jury that “[g]uys scatter when police pull up. Guys run. 

That’s not unusual. That’s not hard to believe.”14 The jury was presented both sides and 

evidently chose to believe the government’s version rather than the defendant’s. 

We have consistently upheld similarly worded instructions where the government 

has submitted evidence of flight or concealment.

15 Moorefield has pointed to no case law

 

12 Id.

13 Reply Br. at 8. 

14 A 285.

15 See United States v. Hart, 273 F.3d 363, 373 (3d Cir. 2001); United States v. Terry, 

518 F. App’x 125, 129 (3d Cir. 2013) (holding the district court did not abuse its 

discretion by granting the government’s request for an instruction on evidence of flight as 

consciousness of guilt where there was evidence from which the jury could conclude that 

the defendant attempted to flee); United States v. Thomas, 322 F. App’x 177, 184 (3d Cir. 

2009); United States v. Fisher, 306 F. App’x 733, 735 (3d Cir. 2009); Cf. United States v. 

Arrington, 530 F. App’x 143, 145-46 (3d Cir. 2013) (permitting evidence that defendant 

absconded from parole at the time of the arrest of his alleged co-conspirators for the 

limited purpose of proving consciousness of guilt, and the district court instructed the 

jury to consider the evidence only for the limited purpose of deciding whether the 

defendant had a consciousness of guilt); United States v. Elwell, 515 F. App’x 155, 162 

(3d Cir. 2013) (same); United States v. Heath, 456 F. App’x 102, 104 (3d Cir. 2011).
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from this Circuit to the contrary.16 Thus, we do not believe that the District Court abused 

its discretion in giving the charge in this case.

III.

For the foregoing reasons, we will affirm the judgment of conviction.

 

16 Instead, Moorefield relies exclusively on out-of-circuit opinions that have discouraged 

district courts’ use of such instructions. See United States v. Mundy, 539 F.3d 154, 156-

57 (2 Cir. 2008); United States v. Telfaire, 469 F.2d 552, 557 (D.C. Cir. 1972). However, 

even these cases do not support Moorefield’s position because neither case held that 

giving the flight instruction was an abuse of discretion. In both cases, the courts merely 

affirmed the district courts’ decisions to not give the instruction. Consequently, as 

persuasive as these cases are, they do not compel the remedy that Moorefield seeks here.