United States v. Swain

File Name: 07a0491n.06
Filed: July 12, 2007
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 06-3214
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
DEAN SWAIN, JR., COURT FOR THE NORTHERN
DISTRICT OF OHIO
Defendant-Appellant.
/
Before: MARTIN and ROGERS, Circuit Judges, and HOOD, District Judge.*
PER CURIAM. Defendant Dean Swain, Jr. appeals his conviction for possession of cocaine
with intent to distribute in violation of 21 U.S.C. § 841(a), possession of a firearm in relation to a
drug trafficking offense in violation of 18 U.S.C. § 924(c), and for being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g). Swain raises only one issue on appeal: whether the
district court’s jury instruction on Swain’s flight from law enforcement merits reversal of his
conviction. For the reasons that follow, we find that the court did not err in instructing the jury
regarding evidence of Swain’s flight and we accordingly AFFIRM his conviction.
I.
*
The Honorable Denise Page Hood, United States District Court, Eastern District of
Michigan, sitting by designation.
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United States v. Swain
Page 2
On October 29, 2004, Swain was driving a 1985 maroon Mercury Marquis through Perkins
Township, Ohio. Police Officer Joseph Rotuno was parked in his cruiser when he noticed Swain
drive by. Officer Rotuno observed a spider-web crack in the windshield of Swain’s vehicle.
Rotuno began following Swain’s car and ran the license plate number. Rotuno recorded Swain
traveling at 50 miles per hour in a 35 mile per hour zone. Also, the license plate number on Swain’s
vehicle came back as belonging to a man named Quinton Hunter, who had a suspended license.
After receiving this information, Rotuno activated his lights and pulled Swain over.
Rotuno approached the driver’s side door of Swain’s automobile, only to find it closed and
the window rolled up. When he asked Swain to roll down his window, Swain indicated the window
was stuck and could not be rolled down. Rotuno then asked Swain to open the door. Swain opened
the door, stepped out of the car, and closed the door behind him. Rotuno asked for his license,
registration and proof of insurance. Swain was only able to provide a University of Toledo student
identification card. Finding Swain unable to produce a driver’s license, registration, or proof of
insurance, Rotuno took Swain to his cruiser and locked him into the backseat. Before putting him
in the backseat, Officer Rotuno conducted a pat-down of Swain to check for weapons. Swain was
not handcuffed or officially placed under arrest.
While Swain was in the backseat of the cruiser, Rotuno checked the relevant database and
discovered that Swain’s license had been suspended due to failure to pay child support. Driving
on a suspended license is an arrestable offense, but Rotuno decided to only issue a citation to Swain.
Nevertheless, because Swain was the only occupant of the vehicle and there were no other licensed
No. 06-3214
United States v. Swain
Page 3
drivers available, Rotuno ordered that the car be towed. Rotuno told Swain he could use his cell
phone to call for a ride.
With Swain still locked in the back of the cruiser, Rotuno called for a tow truck and began
an inventory of the vehicle per department policy. He began his inventory at the front driver’s side
door. When Rotuno opened the door, he observed a .22 caliber revolver on the floorboard between
the seat and the gas pedal. Rotuno shut the door without removing the gun, returned to the rear of
his cruiser, and radioed for backup officers to assist in what was now going to be an arrest of Swain.
When another officer arrived, Rotuno took Swain out of the backseat of his cruiser and asked him
to face the cruiser and place his hands on the roof. Then Rotuno searched Swain again. During this
second search, Swain’s waistband and pockets were more thoroughly searched (rather than just
patted down) revealing $193 in cash. Rotuno then attempted to place handcuffs on Swain, but he
broke free and fled. Soon thereafter, Swain was apprehended.
The subsequent search of Swain’s car revealed a bag containing over 4.76 grams of cocaine
located in the driver’s side door map pocket, a digital scale with cocaine residue on the console
between the driver and passenger seats, and the previously mentioned loaded revolver on the
floorboard in front of the driver’s seat.
Swain was indicted on June 2, 2005 on three counts: (1) possession with intent to distribute
cocaine, (2) using and carrying a firearm during and in relation to a drug trafficking crime, and (3)
being a felon in possession of a firearm. On August 4, 2005, after a two-day trial, Swain was
convicted on all three counts. On January 23, 2006, Swain was sentenced to 101 months’
imprisonment, to be followed by three years of supervised release.
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United States v. Swain
Page 4
II.
Swain asks us to determine whether the district court erred when it instructed the jury
regarding evidence of Swain’s flight from arresting officers. Swain argues that the flight instruction
overemphasized the evidence relating to his flight from police officers to the detriment of other
evidentiary issues in the case. This Court reviews a district court’s choice of jury instructions for
abuse of discretion. United States v. Prince, 214 F.3d 740, 761 (6th Cir. 2000). A trial court has
broad discretion in drafting jury instructions and does not abuse its discretion unless the jury charge
“fails accurately to reflect the law.” United States v. Layne, 192 F.3d 556, 574 (6th Cir. 1999)
(quoting United States v. Busacca, 863 F.2d 433, 435 (6th Cir. 1988)). Moreover, no single
provision of the jury charge may be viewed in isolation, rather, the charge must be considered as
a whole. United States v. Lee, 991 F.2d 343, 350 (6th Cir. 1993). A judgment may be reversed
based upon an improper jury instruction “only if the instructions, viewed as a whole, were
confusing, misleading, or prejudicial.” United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999)
(quoting Beard v. Norwegian Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir.1990)).
While the Supreme Court has expressed some concern regarding flight instructions, see
Alberty v. United States, 162 U.S. 499, 508-09 (1896), Wong Sun v. United States, 371 U.S. 471,
483 n.10 (1963), this court has held that “flight is generally admissible as evidence of guilt, and that
juries are given the power to determine ‘how much weight should be given to such evidence.’”
United States v. Touchstone, 726 F.2d 1116, 1119 (6th Cir. 1984) (quoting United States v. Craig,
522 F.2d 29, 32 (6th Cir. 1975)). Because evidence of flight has been held as clearly admissible,
we must decide if the jury instruction given failed accurately to reflect the law.
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The district court gave the following jury instruction regarding Swain’s flight:
You’ve heard testimony that after the crime was supposed to have been
committed, the defendant fled the scene. If you believe the defendant fled, then you
may consider this conduct, along with all the other evidence, in deciding whether
the government has proved beyond a reasonable doubt that he committed the crime
charged. This conduct may indicate that he thought he was guilty and was trying to
avoid punishment. On the other hand, sometimes an innocent person may flee for
some other reason.
JA 252.
This instruction closely followed the Sixth Circuit Pattern Instruction 7.14, which reads:
(1) You have heard testimony that after the crime was supposed to have been
committed, the defendant _________.
(2) If you believe that the defendant ________, then you may consider this
conduct, along with all the other evidence, in deciding whether the government has
proved beyond a reasonable doubt that he committed the crime charged. This
conduct may indicate that he thought he was guilty and was trying to avoid
punishment. On the other hand, sometimes an innocent person may ____ for some
other reason.
We have discussed Pattern Instruction 7.14 in two relatively recent cases: United States v.
Carter, 236 F.3d 777, 792 n.11 (6th Cir. 2001) and United States v. Diakite, 5 F. App’x 365, 370-71
(6th Cir. 2001) (unpublished). Carter approved of Pattern Instruction 7.14, finding it “states that
evidence of flight may or may not indicate a defendant’s guilty conscience or intent to avoid
punishment,” and thus “does not appear to suggest guilt on the part of [defendant] because of his
decision not to testify or explain incidents of flight.” 236 F.3d at 792 n.11. In both cases, we
approved the use of the pattern instruction where there was adequate evidence that the defendant
was fleeing apprehension by arresting authorities. See Carter, 236 F.3d at 792 n.11 (approving
instruction where defendant fled from police officer as officer approached him at a gas station);
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United States v. Swain
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Diakite, 5 F. App’x at 370-71 (approving instruction based on evidence the defendant was aware
his co-conspirators had been indicted but where there was no evidence defendant knew he had been
indicted or that the police were about arrest him).
Here, there is adequate evidence that Swain was fleeing apprehension by arresting
authorities. In fact, Swain was in the process of being handcuffed and arrested when he broke free
from the police and fled, literally leaving the police holding the jacket he had been wearing. This
evidence supports the district court’s decision to instruct the jury on flight, and the given jury
instruction tracks Pattern Instruction 7.l4 verbatim, which has previously been held by this Court
to accurately reflect the law. Accordingly, the district court did not abuse its discretion by
instructing the jury on flight using Pattern Instruction 7.14.
III.
For the foregoing reasons, we AFFIRM Swain’s conviction.