NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No . 16

- 2800

_______________ UNITED STATES OF AMERICA,

v. BRANDON MOOREFIELD,

Appell ant

_______________ On Appeal from the United States District Court for the Western District of Pennsylvania ( Crim. No. 2 : 14

- cr - 00 284

- 001 ) District Judge: T he H onorable Gustave Diamond

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

February 7, 2017
Before: McKEE , COWEN , and FU E NTES, Circuit Judges

( Opinion Filed: March 20, 2017 )

_______________ OPINION 

_________ FUENTES, Circuit Judge

. The appellant Brandon Moorefield appeals from a jury conviction of one cou nt 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
instructin g 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 notice d a man walking in front of them on Swissvale
Ave nue 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 pol ice, 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 behi nd Penn Avenue, the officers dro ve up to cut off one of the exits of Stoner Way. T he man then took off on foot back towards Penn Avenue, at which point he wa s stopped by one of the police officers. The person the police captured is defendant Brandon Moorfield, but at the time of capture, he ha d 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 as3

the person they initially enc ountered when they drove up to the man carrying a gun under his shirt and as the person they ultimately apprehended. The eye witness 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’ testimonie s , he never went toward or into Stoner Way. After three days of deliberations, the jurors returned a guilty verdict against
Moorefield. Moorefield was subsequent ly 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 argumen ts. First, he argues that the District
C ourt “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 legisl ative power under the Commerce C lause. As Moorefield acknowledges, our holding in United States v. Singletar y is dispositive on the

1 The District C ourt 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 18.4

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 ra ises 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

conc edes, the instruction that the D istrict C ourt gave is not only a correct statem ent of the law but taken directly from the Third Circuit model jury instruction s
. 6 Instead, he argues
that the D istrict C ourt 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, t hat is not the standard by which this
C ircuit evaluates the appropriateness of a particular ju ry instruction. Instead, a party is “entitled to an instruction on his theory of the case where the record cont ains 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. Gree n , 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 C ri minal Jury Instruction 4.30. 7 Appellant’s Br. at 19.5

support for it, ” 8 and upon review, “ we look to see if the charge, taken as a whole and viewed in the light of the evidence, fai rly 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 t hat 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
Mooref ield ran because he was guilty o f possessing a weapon,” rather than Moorefield’s

ver sion 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 t hat 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 av oid 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 a n 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 Un ited States v. Adams , 759 F.2d 1099, 1116 (3d Cir. 1985)). 10 Reply Br. at 7. 11 A 303

- 04.6

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 v ersion 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 sim ilar opp ortunity 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 M oorefield 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) (hol ding the d istrict c ourt 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 con sciousness 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).7

from this C ircuit to the contrary. 16 Th us, we do not believe that the D istrict C ourt 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 cou rt s ’ use of such instruction s
. 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 n either case held that gi ving the flight instruction was an abuse of discr etion. 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 se eks here.