                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                  NOT PRECEDENTIAL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



                                                3
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



                                               4
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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