                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       _____________

                          No. 11-1709
                         _____________


                 UNITED STATES OF AMERICA

                                v.

                        ARTHUR HEATH,
                                 Appellant

                         ______________

     APPEAL FROM THE UNITED STATES DISTRICT COURT
       FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                   (D.C. Crim. No. 2:10-cr-00565)
            District Judge: Honorable Legrome D. Davis
                          ______________

             Submitted Under Third Circuit LAR 34.1(a)
                         October 28, 2011
                         ______________

Before: SLOVITER, GREENAWAY, JR., and ALDISERT, Circuit Judges.


                (Opinion Filed: December 28, 2011)
                         ______________

                            OPINION
                         ______________
GREENAWAY, JR., Circuit Judge.
       Appellant Arthur Heath (“Heath”) was convicted by a jury in the United States

District Court for the Eastern District of Pennsylvania of a single count of gun possession

in violation of 18 U.S.C. § 922(g). He was sentenced to sixty months of imprisonment

and now appeals his conviction and sentence. We hold that the District Court did not

abuse its discretion in allowing evidence of Heath’s flight and resistance to arrest to be

introduced at trial. For the reasons stated herein, we will affirm the District Court’s

judgment and sentence.

                                   I. BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts.

       On August 24, 2010, members of the United States Marshals Warrant Squad

sought to arrest Arthur Heath on an arrest warrant issued in May 2010. The marshals

surrounded a residence located at 1733 Edgley Street in Philadelphia, Pennsylvania.

Immediately after announcing their presence, marshals stationed in the rear of the home

saw Heath throw a gun out of a barred window. The gun fell to the ground and was later

recovered and identified as a loaded nine-millimeter Glock semi-automatic pistol. Heath

escaped from the residence onto the roof of the building.

       Roughly two hours after Heath’s escape, the marshals found him hiding in the

basement of a nearby residence. Heath refused requests to surrender. Initially, the

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marshals were unable to subdue Heath, even with the use of tasers. Sometime later, with

additional efforts, he was taken into custody. Law enforcement officers on the scene

identified him as the person whom they had seen throw the gun from the window of 1733

Edgley Street earlier that day.

       Heath was indicted on one count of possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). He submitted a pretrial motion in limine to exclude

evidence that he fled from police and resisted arrest. The District Court denied the

motion. A jury found Health guilty. He was sentenced to sixty months of imprisonment.

                II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction, pursuant to 18 U.S.C. § 3231. We have

jurisdiction from the District Court’s final judgment, pursuant to 28 U.S.C. § 1291. We

“review the district court’s decision to admit evidence of prior ‘bad acts’ under Rule

404(b) for an abuse of discretion.” United States v. Daraio, 445 F.3d 253, 259 (3d Cir.

2006) (citation omitted).

                                     III. ANALYSIS

       Heath alleges that the District Court abused its discretion in denying his motion in

limine to exclude from trial evidence indicating that he fled from the police and resisted

arrest. The District Court admitted the evidence under Rule 404(b) of the Federal Rules

of Evidence because his flight from police indicated consciousness of guilt as opposed to

proving an essential element of the crime charged. Consequently, we consider four

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factors in determining whether the District Court abused its discretion in allowing the

evidence under Rule 404(b): (1) whether it was introduced for a permissible purpose; (2)

whether it was relevant; (3) whether its probative value outweighs its potential for unfair

prejudice; and (4) whether the District Court provided a limiting instruction that

“charge[s] the jury to consider the evidence only for the limited purposes for which it

[was] admitted.” United States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003) (citing

Huddleston v. United States 485 U.S. 681, 691-92 (1988)); see also United States v.

Cross, 308 F.3d 308, 320-21 (3d Cir. 2002).

       We have previously stated that “‘[o]ther acts’ evidence satisfies the first two

requirements if it is ‘probative of a material issue other than character.’” Cross, 308 F.3d

at 321 (quoting Huddleston, 485 U.S. at 685); see also Fed. R. Evid. 404(b) (allowing

evidence of other crimes, wrongs, or acts to be admitted for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident). The Government avers that the evidence of Heath’s flight and

resisting arrest are probative in that they indicate his consciousness of guilt. It further

asserts that the District Court’s decision to admit the evidence comports with Rule 404(b)

because it was not being used to prove Heath’s character “in order to show action in

conformity therewith.” Fed. R. Evid. 404(b). We agree that evidence of consciousness

of guilt is relevant and we find that evidence admitted for this purpose is proper under



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Rule 404(b). We, therefore, find that the first two prongs of the Givan/Huddleston test

are met.

       We afford the District Court great deference in reviewing its consideration of the

third prong of the test. United States v. Universal Rehab. Serv. (PA) Inc., 205 F.3d 657,

665 (3d Cir. 2000) (stating that because the trial judge is “in the best position to assess

the extent of the prejudice caused a party, [he] must be given a very substantial discretion

in balancing probative value on the one hand and unfair prejudice on the other.”) (citation

and internal quotation marks omitted). In order to justify reversal, we would have to find

the District Court’s analysis and resulting conclusion to be arbitrary or irrational. Id.

(citation and quotation marks omitted). We see no basis for such a conclusion in this

case. The District Court carefully measured the relevance and probative value of the

evidence reflecting consciousness of guilt and weighed it against the danger of unfair

prejudice, concluding that the majority of the resulting prejudice did not qualify as unfair.

Consequently, we find that the District Court did not abuse its discretion in concluding

that the probative value of the evidence was not substantially outweighed by the danger

of unfair prejudice.

       Finally, the District Court satisfied the fourth prong of the test by providing a

limiting instruction for the evidence of flight and resisting arrest. The Court explained

that the testimony relating to the flight and resisting arrest “was presented on the potential

issue of consciousness or awareness of guilt.” App. 123. It further explained how the

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jury could consider such evidence stating, “if you conclude that [Heath] fled or did the

other things because of an awareness of his culpability in this case, then that’s an

inference that you could make with respect to consciousness of guilt.” App. 124.

Finally, the Court explicitly instructed the jury that “flight or resistance standing alone

without anything else are not sufficient to establish guilt.” Id. We find that such an

instruction clearly fulfills the Givan/Huddleston requirement.

       The District Court properly applied Rule 404(b) in admitting evidence of Heath’s

flight and resisting arrest. We, therefore, conclude that the District Court did not abuse

its discretion in allowing the evidence at trial.

                                    IV. CONCLUSION

       For the reasons stated above, and for those articulated by the District Court, we

will affirm the District Court’s judgment and sentence.




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