                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                  No. 08-14424              ELEVENTH CIRCUIT
                                                             SEPTEMBER 1, 2009
                              Non-Argument Calendar
                                                             THOMAS K. KAHN
                            ________________________
                                                                  CLERK

                      D.C. Docket No. 08-00021-CR-3-MCR

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

JAVIER AYALA,
a.k.a. Javier Diaz,
a.k.a. Javier Ayala Diaz,

                                                        Defendant-Appellant.

                            ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________
                               (September 1, 2009)

Before CARNES, WILSON and COX, Circuit Judges.

PER CURIAM:
       Two men, wearing jackets and masks to disguise their identities, robbed a

Pensacola, Florida cash advance store. One waived a silver revolver during the

robbery. The men drove away from the store in a white van and were pursued by the

police. After driving down a one-way street, they abandoned the van, attempted to

set it on fire, and fled on foot. An officer with the Pensacola Police Department’s K-9

unit, assisted by his dog, tracked the men to a residence. Shortly thereafter, officers

stopped a vehicle on its way to that residence, and upon searching the vehicle,

recovered a small silver revolver, a black jacket, and a skull cap. The officers

handcuffed and arrested Javier Ayala, a passenger in the vehicle, and placed him in

the back seat of a police cruiser for transport to a jail. En route to the jail, Ayala freed

his right hand from the handcuffs and broke open a plexiglass divider separating the

front and rear compartments of the cruiser by striking it with his fists and feet,

fracturing his ankle in the process. The transporting officer later testified that Ayala

was trying to gain access to the driver’s area, and the officer used his weapon and

emergency driving procedures to keep Ayala in the car.

       Ayala was indicted, tried, and convicted of the following charges: (1)

interference with commerce by robbery; (2) possession of a firearm in furtherance of

a violent crime; (3) arson of a vehicle; and (4) possession of a firearm by a convicted

felon. Ayala appeals these convictions, arguing the district court erred when it

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instructed the jury it could consider evidence he attempted to escape police custody

as probative of his consciousness of guilt. He also argues the district court erred

when it refused a requested instruction to instruct the jury that the Government was

required to prove his identity as the perpetrator of the charged offenses beyond a

reasonable doubt.

                                           I.

      This court accepts “a defendant’s flight, escape, resistance to arrest,

concealment, assumption of a false name, and related conduct as admissible evidence

of ‘consciousness of guilt, and thus of guilt itself.’” United States v. Wright, 392 F.3d

1269, 1277-78 (11th Cir. 2004) (quoting United States v. Borders, 693 F.2d 1318,

1324-25 (11th Cir. 1982) (emphasis omitted). The probative value of this evidence

      depends upon the degree of confidence with which four inferences can
      be drawn: (1) from the defendant’s behavior to flight; (2) from flight to
      consciousness of guilt; (3) from consciousness of guilt to consciousness
      of guilt concerning the crime charged; and (4) from consciousness of
      guilt concerning the crime charged to actual guilt of the crime charged.

Id. at 1278 (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)).

To consider flight evidence, “the government must make certain that each link in the

chain of inferences that concludes with a consciousness of guilt of the crime charged

is sturdily supported.” Id.



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      The district court did not err in finding there was sufficient evidence supporting

each of the inferences for the jury to consider Ayala’s conduct in the cruiser as

probative of consciousness of guilt. Thus, the court did not abuse its discretion when

it instructed the jury it could consider Ayala’s conduct after his arrest, in light of all

the other evidence in the case, in determining his guilt or innocence.

                                           II.

      This court will find a refusal to give a requested jury instruction a reversible

error “only if ‘(1) the requested instruction correctly stated the law; (2) the actual

charge to the jury did not substantially cover the proposed instruction; and (3) the

failure to give the instruction substantially impaired the defendant’s ability to present

an effective defense.’” United States v. Palma, 511 F.3d 1311, 1315 (11th Cir.), cert.

denied, 129 S. Ct. 215 (2008) (quoting United States v. Fulford, 267 F.3d 1241, 1245

(11th Cir. 2001). In deciding whether a defendant’s requested jury instruction was

substantially covered in the actual charge given to the jury, we “need only ascertain

whether the charge, when viewed as a whole, fairly and correctly states the issues and

the law.” United States v. Gonzalez, 975 F.2d 1514, 1517 (11th Cir. 1995).




                                            4
       Ayala requested that the district court give the Eleventh Circuit pattern jury

instruction on identification testimony.1 The district court refused; nevertheless, it

instructed the jury repeatedly that the Government was required to prove beyond a

reasonable doubt that Ayala personally committed the charged offenses.2 The


       1
         The pattern jury instruction on identification testimony reads as follows:
                          In any criminal case the Government must prove, of course,
                 the identity of the Defendant as the person who committed the alleged
                 crime.
                          When a witness points out and identifies a Defendant as the
                 person who committed a crime, you must first decide, as with any
                 other witness, whether that witness is telling the truth. Then, if you
                 believe the witness was truthful, you must still decide how accurate
                 the identification was. Again, I suggest that you ask yourself a
                 number of questions: Did the witness have an adequate opportunity
                 at the time of the crime to observe the person in question? What
                 length of time did the witness have to observe the person? What were
                 the prevailing conditions at the time in terms of visibility or distance
                 and the like? Had the witness known or observed the person at earlier
                 times?
                          You may also consider the circumstances surrounding the
                 later identification itself including, for example, the manner in which
                 the Defendant was presented to the witness for identification, and the
                 length of time that elapsed between the incident in question and the
                 witness’[s] identification of the Defendant.
                          After examining all of the testimony and evidence in the case,
                 if you have a reasonable doubt as to the identity of the Defendant as
                 the perpetrator of the offense charged, you must find the Defendant
                 not guilty.
11th Cir. Pattern Jury Instructions (Criminal), Special Instructions § 3 (2003). When the
court decided the instruction was not relevant to the evidence, Ayala objected and requested
that the first and last paragraph be given. The court also denied this request.
       2
         The issue of identity is implicit in several of the jury instructions. For example, the court
instructed the jury to consider whether Ayala “knowingly obtained or took the personal property of
another,” whether he “knowingly carried or possessed a firearm,” and whether he “destroyed the
vehicle as described in the indictment . . . .” (R.8-114 at 222-25.) These instructions adequately
cover the question of the identity of the perpetrator of the crimes.

                                                  5
instructions, when viewed as a whole, fairly and correctly state the issues and the law

concerning identity. Therefore, the district court did not abuse its discretion by

refusing Ayala’s proposed instruction.

      For the foregoing reasons, we affirm Ayala’s convictions.

      AFFIRMED.




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