                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        January 2, 2007
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-3090
          v.                                             (D. Kansas)
 SAM UEL R. RUSHIN ,                             (D.C. No. 04-CR-10207-02)

               Defendant-Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **


      A jury convicted Samuel Rushin of six counts of interference with

comm erce by robbery (violations of 18 U.S.C. § 1951), one count of brandishing

a firearm during a robbery (a violation of 18 U.S.C. § 924(c)), one count of being

a felon in possession of a firearm (a violation of 18 U.S.C. § 922 (g)(1)), and five




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).


      **
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1(G). The case is therefore
ordered submitted without oral argument.
counts of carrying a firearm during a crime of violence (violations of 18 U.S.C. §

924(c)). The district court sentenced him to 139 years’ imprisonment and three

years’ supervised release and ordered him to pay $1,770 in restitution.

      M r. Rushin’s convictions arise out of six convenience store robberies in

W ichita, Kansas between August 19 and August 24, 2004. At trial, M r. Rushin

proffered an instruction regarding eyew itness testimony. The district court

declined to give the proffered instruction, and M r. Rushin now contends that the

district court erred. W e disagree and therefore affirm M r. Rushin’s convictions.



                                I. BACKGROUND

      At trial, the prosecution presented evidence regarding six robberies of

QuikTrip convenience stores in W ichita, Kansas: one on August 19, 2004, four on

August 20, 2004, and one on August 24, 2004. As to each of these robberies, at

least one store clerk testified at trial and identified M r. Rushin as the robber. For

two of the robberies, a second clerk also identified M r. Rushin. The jury viewed

videotapes of each robbery.

      On August 24, 2004, a customer who was in the QuikTrip store at 6011

W est Central in W ichita observed the robbery, followed a yellow car leaving the

store,, and called 911. Police officers eventually found the car abandoned in a

private driveway. Inside the car, in plain view, the officers observed a firearm, a




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blue ball cap, and a black du-rag. In four of the QuikTrip robberies, the witnesses

had stated that the robber w as wearing a blue hat.

      The officers began to search the area, and the codefendant W illiam Jackson

surrendered in the middle of a nearby street. They found M r. Rushin hiding under

a table in a garage in the same neighborhood and arrested him. Underneath the

bushes outside another residence in the neighborhood, the officers found a large

amount of money wadded up inside an old charcoal grill. The owner of the

residence reported that the money did not belong to him.

      The officers then conducted a thorough search of the yellow car. In

addition to the handgun and the blue cap, they found a package of Kool cigarettes

with a tax stamp that came from QuikTrip, a wallet belonging to M r. Jackson, and

a CD case with documents that included a municipal court receipt for M r. Rushin.

They also discovered four fingerprints matching M r. Rushin and one matching

M r. Jackson. The car was registered to M r. Rushin’s wife.

      At trial, M r. Rushin requested the follow ing instruction on eyewitness

testimony:

      The value of identification testimony depends on the opportunity the
      witness had to observe the offender at the time of the offense and to
      make a reliable identification later.

      In evaluating such testimony you should consider all of the factors
      m entioned in these instructions concerning your assessment of the
      credibility of any witness, and you should also consider, in particular,
      whether the witness had an adequate opportunity to observe the person
      in question at the time of the offense. You may consider, in that regard,


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      such matters as the length of time the witness had to observe the person
      in question, the prevailing conditions at the time in terms of visibility
      or distance and the like, and whether the person had known or observed
      the person at earlier times.

      You should also observe whether the identification made by the
      witness after the offense was the product of his or her own recollection.
      You may consider, in that regard, the circumstances under which the
      identification was made, and the length of time that elapsed between the
      occurrence of the crime and the next opportunity the witness had to see
      the defendant.

      If the identification by the witness m ay have been influenced by the
      circumstances under which the defendant was presented to the w itness
      for identification, you should scrutinize the identification with great
      care.

      The Government has the burden of proving identity beyond a reasonable
      doubt. You, the jury, must be satisfied beyond a reasonable doubt of
      the accuracy of the identification of the defendant before you may find
      him guilty. If you are not convinced beyond a reasonable doubt that the
      defendant was the person w ho committed the crime, you must find the
      defendant not guilty.

Rec. doc. 43.

      The district court declined to give the proffered instruction. However, the

court did give the follow ing instruction regarding the assessment of witnesses’

testimony:

      W hile you must consider all of the evidence, you need not accept all of
      the evidence as true or accurate.

      You are the sole judges of the credibility or “believability” of each
      witness and the w eight to be given to the w itness’s testimony. In
      weighing the testimony of a witness, you should consider the w itness’s
      1) relationship to the other party or parties; 2) interest, if any, in the
      outcome of the case; 3) manner of testifying; 4) opportunity to observe
      or acquire knowledge concerning the facts about which he or she


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      testified; and 5) candor, fairness, and intelligence. You should also
      consider the extent to which other credible evidence supports or
      contradicts the witness. In short, you m ay accept or reject in whole or
      in part the testimony of any witness.

      Also, the weight of the evidence is not necessarily determined by how
      many witnesses testify as to the existence or nonexistence of any fact.
      You may find fewer witness’s testimony about any fact more credible
      than of more witnesses to the contrary.

Rec. doc. 46 (instr. no. 6).


                                 II. D ISC USSIO N

      M r. Rushin now argues that the district court erred in refusing to give his

proffered instruction about eyew itness testimony. W e review a district court’s

decision as to a particular instruction for an abuse of discretion. United States v.

Serrata, 425 F.3d 886, 898 (10th Cir. 2005). However, we must also examine de

novo the instructions as a whole, considering whether they accurately conveyed

the governing law to the jury. United States v. Schuler, 458 F.3d 1148, 1155

(10th Cir. 2006). “R eversal of a conviction is w arranted only where the failure to

give an instruction is prejudicial in view of the entire record.” Id. at 1156.

      In challenging the district court’s refusal to give the proffered instruction,

M r. Rushin focuses on the evidence supporting the August 19th robbery and the

August 20th robbery of the QuikTrip Store on 3216 E. Harry. As to each of these

robberies, he asserts, there was only one eyewitness. Additionally, he contends,

the eyewitness testimony was not reliable. In particular, the clerk who witnessed



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the August 19th robbery testified that he was very frightened, and he described a

gun that did not match the gun that was introduced at trial. As to the August 20th

robbery on Harry Street, M r. Rushin asserts that before the store clerk identified

M r. Rushin, he saw a news report of the robbery that included M r. Rushin’s mug

shot. According to M r. Rushin, these limitations in the eyewitnesses’ testimony

warranted the instruction that he submitted.

      “This circuit has rejected a rigid rule in favor of giving a special

eyewitness instruction in every case.” United States v. M cGuire, 200 F.3d 668,

676 (10th Cir. 1999). Thus, when a cautionary instruction is submitted but not

given, “we will focus on the facts of each case to determine whether the

instruction was required to fairly present the case to the jury.” United States v.

Thoma, 713 F.2d 604, 608 (10th Cir. 1983). W e consider “whether identification

was the sole or primary issue in the case, whether the evidence consisted mainly

of eyewitness identification testimony, and whether the testimony was uncertain,

qualified, or suggested a serious question whether the witness had an adequate

opportunity to observe.” Id. at 608. The key inquiry is whether “the jury’s

attention was sufficiently focused on the issue of identification.” Id.

      Upon consideration of these factors, we conclude that M r. Rushin’s

proffered instruction was “[not] required to fairly present the case to the jury.”

Thoma, 713 F.2d at 607. Even though, as to the two robberies noted by M r.

Rushin, there was only one eyewitness, the government introduced considerable


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corroborative evidence, including the items found in the yellow car that were

connected to the robberies and the w added-up money found nearby. M oreover,

the prosecution introduced videotapes of the robberies. As the government now

observes, “[a]lthough the jury may not have been able to see the robber’s face in

the videos, the videos showed the robber approach the counter in a similar way,

hold the gun in similar ways, use the same phrases, and in several robberies, wear

the same clothes.” Aple’s Br. at 18. Finally, even though the district court did

not give the proffered instruction about eyewitness testimony, the more general

instruction given by the court allowed the jury to properly evaluate the evidence.

See Rec. doc. 46, inst. 6 (stating that the jurors should consider the w itnesses’

“opportunity to observe or acquire knowledge concerning the facts about which

he or she testified”).

                                III. CONCLUSION

      Accordingly, we AFFIRM M r. Rushin’s convictions.



                                 Entered for the Court,



                                 Robert H. Henry
                                 United States Circuit Judge




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