                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 16-2800
                                    _______________

                           UNITED STATES OF AMERICA,


                                             v.

                              BRANDON MOOREFIELD,
                                          Appellant
                                 _______________

                    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
                                    _______________

                   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)
                                   _______________

                                        OPINION
                                        _________
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.
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

                                              2
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.
                                              3
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.
                                              4
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, 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.
                                              5
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).
                                               6
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.
                                               7
