                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2105
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Michael Allen Smith

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                           Submitted: February 14, 2014
                              Filed: July 25, 2014
                                 [Unpublished]
                                 ____________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

      Michael Smith was convicted of two firearms-related offenses involving his
possession of a sawed-off shotgun in April 2012. Over Smith's objection, the district
court1 instructed the jury that it may, but was not required to consider Smith's flight
from police officers as evidence of guilt. Smith also avers that the government
improperly shifted the burden of proof to the defense during closing arguments. We
affirm.

                                     I. Background
       Two patrolling Minneapolis police officers answered a call about an armed
robbery nearby. While driving up the street on which the robbery occurred, officers
observed a man, later identified as Smith, walking in the same direction. They shined
their patrol light on him, whereupon Smith turned into a vacant lot and continued
walking. One officer testified that he saw the man "pull a long object out from his
pants," drop it, and run away. The officers yelled at him to stop, but it is unclear
whether they identified themselves as police officers. One gave chase while the other
picked up the dropped object—a sawed-off shotgun. Smith admitted at trial that he
continued to run after he realized that police were chasing him. Officers apprehended
Smith a few blocks from the discarded shotgun.

         Smith was charged with being an armed career criminal in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g), 924(a), and 924(e), and possessing an
unregistered firearm, in violation of 26 U.S.C. §§ 5845(a), 5861(d), and 5871. At
trial, the government proposed—and Smith objected to—a "flight instruction" for the
jury. With a flight instruction, the jury could, but need not, consider Smith's flight
from police as evidence of guilt. The court gave the flight instruction at trial.

      During closing arguments the parties argued over the nature of DNA evidence
recovered from the gun. Smith argued that the government did not check the DNA
found on the shotgun against the criminal offender database because "the hard


      1
       The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

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physical evidence [and] the DNA . . . don't match [the officers'] story." The
government responded that the defense "can request what evidence they want" but did
not request a comparison of the DNA on the gun to the criminal offender database.
Smith objected, arguing that the government's reply improperly "put[ ] the burden on
Mr. Smith and the defense to prove his innocence."

       During a sidebar conference, Smith requested a curative instruction "that it is
always the Government's burden to prove that the Defendant is guilty beyond a
reasonable doubt. The Defendant has no burden whatsoever to present evidence to
[the jury] or to prove anything to [the jury]." Smith requested that this instruction
"come in right away." Immediately after the conference, the court issued the curative
instruction that Smith requested. During final instructions, the court again instructed
the jury as to the government's burden of proof. The jury found Smith guilty on both
charged counts.

                                    II. Discussion
      Smith argues that the district court erred by giving the flight instruction
because the evidence enabled the jury to find an innocent explanation for running
from the officers. Smith avers that "[t]he evidence that Michael Smith knew that his
armed pursuers were in fact police officers was outweighed by the evidence that he
did not know who was chasing him."

      "We review a district court's decision whether to instruct the jury on flight for
an abuse of discretion. A flight instruction may be given when such an instruction is
warranted by the evidence presented at trial." United States v. El-Alamin, 574 F.3d
915, 927 (8th Cir. 2009) (citing United States v. Webster, 442 F.3d 1065, 1067 (8th
Cir.2006)). Here, the government presented evidence that Smith began running after
seeing the officers in their marked patrol car. Smith admitted that he continued
running for at least a block after he knew that police were chasing him. While Smith



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offered an innocent explanation for running, that alone does not preclude giving of
a flight instruction. Id. The district court did not err by giving the flight instruction.

      Smith also contends that the government improperly shifted the burden of proof
to the defense during closing arguments. He contends that this amounts to
prosecutorial misconduct.

      "To obtain a reversal for prosecutorial misconduct, the defendant must
      show that (1) the prosecutor's remarks were improper, and (2) such
      remarks prejudiced the defendant's rights in obtaining a fair trial."
      United States v. King, 36 F.3d 728, 733 (8th Cir. 1994). If we find the
      comments were improper, we consider the cumulative effect of the
      improprieties, the strength of the evidence against the defendant, and
      whether the district court took any curative action. United States v.
      Beckman, 222 F.3d 512, 526 (8th Cir. 2000).

United States v. Milk, 447 F.3d 593, 602 (8th Cir. 2006).

      Assuming without deciding that the prosecutor's closing argument was
improper, we find no prejudice. Smith requested a curative instruction. The court
delivered almost verbatim the requested instruction. The court repeated the
appropriate burden of proof during final instructions. "It is presumed that a jury will
follow a curative instruction unless there is an overwhelming probability that it was
unable to do so." United States v. Uphoff, 232 F.3d 624, 626 (8th Cir. 2000) (citation
and quotation omitted). Smith has not presented any persuasive argument that the jury
was unable to follow the instructions given and has thus failed to demonstrate
prejudice.

                                  III. Conclusion
      The judgment of the district court is affirmed.
                     ______________________________


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