                                     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                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
No. 06-3214
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.
No. 06-3214
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.
No. 06-3214
United States v. Swain
Page 5
        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);
No. 06-3214
United States v. Swain
Page 6
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.
