United States v. Fisher , 306 F. App'x 733 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-15-2009
USA v. Fisher
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4730
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 07-4730
UNITED STATES OF AMERICA
v.
OTIS FISHER,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 07-cr-00019E)
District Judge: Honorable Sean J. McLaughlin
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2009
Before: SLOVITER and BARRY, Circuit Judges, and POLLAK,* District Judge
(Filed: January 15, 2009)
OPINION
*
Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.
Appellant Otis Fisher, who was convicted after a jury trial of possessing a
prohibited weapon in a federal correctional institution in violation of 18 U.S.C. §§
1791(a)(2) and 1791(b)(3), appeals, challenging the District Court’s order denying his
motion in limine to exclude or limit evidence of his prior conviction and the Court’s
instruction to the jury on consciousness of guilt.
I.
Because we write primarily for the parties, we will only briefly discuss the facts
and the proceedings below.
Fisher was incarcerated at FCI McKean where metal detectors are used to prevent
inmates “from attempting to move contraband throughout the compound.” App. at 97.
On April 18, 2007, as Fisher passed through one of the metal detectors it was activated
and he was found to have a pointy shank in his coat lining. Thereafter, Fisher attempted
to leave the building.
Fisher filed a pre-trial motion in limine to exclude or limit evidence of his prior
conviction of conspiracy to distribute and possess with intent to distribute crack cocaine
and marijuana and aiding and abetting the possession of firearms in furtherance of a drug
offense. The District Court denied Fisher’s motion, finding that the prejudicial effect of
such evidence did not outweigh its probative value.
We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. To the
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extent the review is based on the interpretation of a Federal Rule of Evidence (“FRE”),
our review is plenary. United States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).
Decisions to admit or exclude evidence under FRE 609(a)(1) are reviewed for an abuse of
discretion. Johnson v. United States, 302 F.3d 139, 152 (3d Cir. 2002) (citations
omitted).
II.
On appeal Fisher raises two issues. First, Fisher contends that the District Court
misinterpreted and misapplied FRE 609. He argues that the details of his prior conviction
had no probative value and were unfairly prejudicial because of the similarity between the
current and prior charges. Second, Fisher alleges that the District Court failed to charge
the jury correctly on a matter of law. He contends that the consciousness of guilt
instruction given was “unnecessary, inaccurate and misleading.” Appellant’s Br. at 22.
In considering the first issue, we note that after the District Court’s adverse ruling
on Fisher’s in limine motion, Fisher testified at trial introducing evidence of his prior
conviction in his direct testimony. Because he did so, Fisher has lost his challenge to the
admission of his prior conviction. “Only when the Government exercises its option to
elicit the testimony is an appellate court confronted with a case where . . . the defendant
can claim the denial of a substantial right if in fact the district court’s . . . ruling proved to
be erroneous.” Ohler v. United States, 529 U.S. 753, 759 (2000). In this case, Fisher
volunteered this information on direct. It is the defendant’s choice whether to “remove
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the sting” by introducing a prior conviction on direct or wait to have the government elicit
this information. Id. at 758. Fisher made a tactical choice that produced a less than
desired result.
It follows that – assuming arguendo that the District Court’s in limine ruling
permitting impeachment by prior conviction was erroneous – any possible harm from this
ruling is speculative. Luce v. United States, 469 U.S. 38, 41 (1984). Arguably, Fisher
may have believed that he had no choice but to “remove the sting” by introducing
evidence of his prior conviction in light of the District Court’s in limine ruling. However,
Fisher did not even renew his objection at trial, and thus did not ascertain whether the
trial court would change its mind about the in limine ruling. Therefore, it was not an
abuse of discretion for the District Court to have ruled as it did.
Moreover, even if we were to review the issue on the merits, the result would be
the same. The District Court reviewed the factors pertinent under FRE 609(a)(1), and we
agree with its analysis.
Turning to the second issue, we review the Court’s decision to give or “refusal to
give a particular instruction or the wording of instructions for abuse of discretion.”
United States v. Jimenez, 513 F.3d 62, 74 (3d Cir. 2008) (quoting United States v. Leahy,
445 F.3d 634, 642 (3d Cir. 2006)). The total instruction is considered, not just a sentence
or paragraph in isolation. Id. at 74-75.
We disagree with Fisher’s contention that the consciousness of guilt instruction to
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the jury was “unnecessary, inaccurate and misleading.” Appellant’s Br. at 22. It is well
established that evidence of flight is admissible as evidence of consciousness of guilt.
United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994). In this case, once Fisher
activated the alarm when he walked through the metal detector, he made a U-turn in an
attempt to exit the building. In light of the prison environment, that was akin to flight
after commission of a crime. Fisher argues that the instruction on consciousness of guilt
usurped the jury’s fact-finding function, but we disagree. The Court specified in its
instruction that “[t]his conduct may indicate he thought he was guilty of the crime
charged . . . . On the other hand, sometimes an innocent person may engage in such
conduct for some other reason. Whether or not this evidence causes you to find that the
defendant was conscious of his 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.”
App. at 254. This instruction was neither inaccurate nor misleading.
Further, Fisher’s assertion that when he contemplated fleeing the crime had not
been completed is without merit. The alleged crime was the possession of the shank. The
shank was in Fisher’s possession, hence the crime was completed.
III.
For the above-stated reasons, we will affirm.
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