United States v. Robinson , 73 F. App'x 662 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4269
GARY ROBINSON, a/k/a Gary
Robertson, a/k/a Paul Thomas,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(CR-02-253-WMN)
Submitted: August 26, 2003
Decided: September 10, 2003
Before WIDENER and NIEMEYER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Melissa Moore, Staff Attor-
ney, Baltimore, Maryland, for Appellant. Thomas M. DiBiagio,
United States Attorney, Jonathan M. Mastrangelo, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. ROBINSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gary Robinson appeals his convictions for possession of a firearm
by a felon, and possession of ammunition by a felon, both in violation
of 18 U.S.C. § 922(g)(1) (2000). Robinson raises two issues on
appeal. First, he argues that the district court erred in denying his
motion for mistrial in light of the Government’s remarks offered dur-
ing its rebuttal argument. Second, Robinson asserts that the district
court improperly instructed the jury in three instances. Finding no
error, we affirm.
In determining whether a prosecutor’s remarks constitute prosecu-
torial misconduct warranting a mistrial, a court considers: (1) whether
the prosecutor’s remarks were improper; and only if so, (2) whether
the remarks prejudicially affected the defendant’s substantial rights as
to deprive the defendant of a fair trial. See United States v. Morsley,
64 F.3d 907, 913 (4th Cir. 1995). It is not prosecutorial misconduct
for the prosecution to point out that the defense’s argument relies on
an implication that the testifying police officers were not credible. See
United States v. Scott, 267 F.3d 729, 740-41 (7th Cir. 2001). Like-
wise, the Government’s statement that "at the end of the day it turns
on credibility," is a proper statement. See United States v. Diaz-
Carreon, 915 F.2d 951, 956 (5th Cir. 1990). Under this standard, the
rebuttal argument offered by the Government in response to the
defense implication that the police officers might not be credible was
not improper, and we find the district court did not abuse its discre-
tion by denying Robinson’s motion for a mistrial. See United States
v. Cole, 293 F.3d 153, 163 (4th Cir. 2002).
"This court reviews jury instructions in their entirety and as part of
the whole trial" to determine "whether the court adequately instructed
the jury on the elements of the offense and the accused’s defenses."
United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995) (quoting
UNITED STATES v. ROBINSON 3
United States v. Fowler, 932 F.2d 306, 317 (4th Cir. 1991)). A refusal
to grant a requested instruction is only reversible error if the instruc-
tion (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 impor-
tant, that failure to give the requested instruction seriously impaired
the defendant’s ability to conduct his defense. See United States v.
Patterson, 150 F.3d 382, 388 (4th Cir. 1998). First, Robinson asserts
the district court erred by refusing to instruct the jury that his mere
presence near a firearm did not establish possession. The instructions
given to the jury properly advised the jury that the Government was
required to prove the firearm and ammunition were within Robinson’s
control, and that he possessed them purposefully, voluntarily, and not
by accident or mistake. Robinson tossed the gun as he was fleeing,
the arresting officer recovered a magazine of ammunition from Rob-
inson’s pocket, and the magazine from Robinson’s pocket fit the gun
recovered from the path of his flight. Because the instructions offered
by the district court substantially covered the instruction sought by
Robinson, and the mere presence instruction did not deal with a fac-
tual situation presented at trial and not covered by the district court’s
instructions, we find the instructions offered by the district court to
the jury were adequate.
Second, Robinson contends the district court erred by refusing to
give the identification instruction requested by the defense. The
instruction Robinson sought, however, is required only in a case in
which the evidence strongly suggests the likelihood of irreparable
misidentification. United States v. Brooks, 928 F.2d 1403, 1405 (4th
Cir. 1991). Upon our review of the record, we conclude the district
court did not err in failing to give the requested instruction. There was
plenty of additional identification evidence present here.
Third, Robinson asserts the district court erred by giving an
instruction concerning flight as evidence of consciousness of guilt.
Generally, a consciousness of guilt may be deduced from evidence of
flight, and a jury’s guilty verdict may be supported by consciousness
of guilt. United States v. Obi, 239 F.3d 662, 665 (4th Cir.), cert.
denied, 534 U.S. 835 (2001). In order for a flight instruction to be
appropriate, the evidence must establish all the supporting inferences
that link the flight to consciousness of guilt for the crime charged. Id.In response to a command from a uniformed officer in a marked
4 UNITED STATES v. ROBINSON
police car to stop and raise his arms, Robinson quickly turned and ran
in the opposite direction. Robinson fled down the street and attempted
to dispose of his handgun. The jury instruction specifically cautioned
that the evidence of flight did not substitute for proof of guilt. Fur-
thermore, the jury was instructed that the Government was required
to prove that Robinson knowingly and willfully possessed the firearm
and that his possession was not by mistake or accident. We find the
district court did not abuse its discretion by giving an instruction con-
cerning flight.
Accordingly, we affirm Robinson’s convictions. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the material before the court and argument will not aid
in the decisional process.
AFFIRMED