
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           United States Court of Appeals                                For the First Circuit                                ____________________          No. 95-2246                                   UNITED STATES,                                      Appellee,                                         v.                                  GUILIANO ANTOINE,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Patti B. Saris, U.S. District Judge]                                ____________________                                       Before                                Lynch, Circuit Judge,                  Hill and John R. Gibson,  Senior Circuit Judges.                                _____________________               Charles P. McGinty, Federal Defender Office, for appellant.               James                      F.                         Lang, Assistant United States Attorney, with whom          Donald K. Stern                        , United States Attorney, was on brief for appellee.                                ____________________                                 September 15, 1997                                ____________________                                         Of the Eleventh Circuit, sitting by designation.           Of the Eighth Circuit, sitting by designation.                    HILL,                          Senior Circuit Judge                                             . Guiliano Antoine was charged          with conspiracy to engage in the business of dealing in firearms          without a license, in violation of 18 U.S.C. S 371, and with the          substantive offense of engaging in the business of dealing in          firearms without a license, in violation of 18 U.S.C.          S 922(a)(1)(A). At trial, the court admitted evidence of flight          and instructed the jury regarding that evidence. Antoine was          convicted. This appeal ensued.                                         I.                    The government's principal witness at trial was Roy          Boone. Boone testified that he cooperated with Bureau of Alcohol,          Tobacco, and Firearms (ATF) agents as required by his plea          agreement on firearms charges against him. The government believed          Antoine had been illegally purchasing guns from Boone. Boone          agreed to offer to sell more guns to Antoine and to allow the          government to record his conversations with Antoine and set up the          arrangements for the "buy."                     Boone contacted Antoine and offered to sell him nine          millimeter handguns. Boone told Antoine to meet him at a motel          near Boston to see the guns. A video camera hidden in the room          recorded the events. Antoine and two companions arrived and          examined the guns (provided by the ATF). Boone and Antoine          negotiated a price for the guns. Antoine stated that he was low on          cash, but gave Boone a $250 deposit for several of the guns and          promised to pay the rest and collect the guns later that night.                                          -2-                    As soon as Antoine and his companions left the motel          room, ATF agents and Boston Police officers moved in to arrest          them. An ATF agent testified without objection that Antoine ran          across the parking lot "attempting to flee." The agent gave chase,          and Antoine was apprehended.                    Antoine was indicted and charged with conspiracy to deal          in and dealing in firearms without a license. On the fifth day of          his trial, just prior to the closing arguments, the court held a          brief charge conference (having held a more lengthy conference the          day before). The court indicated       sua                                                        sponte that it was          considering giving a consciousness of guilt instruction based on          the testimony that Antoine had fled from police immediately prior          to his arrest. After much discussion with counsel, the court gave          the following instruction:                      In determining whether the government met                      its burden of proving the defendant acted                      wilfully--remember we discussed this                      before--how do you decide someone's state                      of mind? You may consider the direct                      evidence before you, as well as the                      circumstantial evidence as to his state of                      mind.                      The one thing that you can also consider                      is you've heard testimony that Mr. Antoine                      at one point fled right after the purchase                      of--well, right after whatever happened in                      that motel room.                      The government claims that the flight or                      the--                        (Pause.)                      Well, let me just say, if you do find that                      the defendant did flee, if you find that                      he fled, you're permitted to consider                      whether such actions indicate feelings of                                         -3-                      guilt by Mr. Antoine and whether in terms                      of feeling guilt might tend to show actual                      guilt on these charges.                      You are not required to draw such                      inferences and you should not do so unless                      they appear to be reasonable in light of                      all the circumstances of the case.                       If you decide that such inferences are                      reasonable, it will be up to you to decide                      how much importance to give them. But you                      should always remember that there may be                      many reasons why an innocent person might                      flee. Such conduct does not necessarily                      reflect feelings of guilt. Please bear in                      mind that a person who's innocent might                      flee and a person having feelings of guilt                      is not necessarily guilty in fact.                      Because such feelings are sometimes found                      in innocent people.                       If you find that the defendant did flee,                      the government has proven beyond a                      reasonable doubt, in order to divert                      suspicion or for any other reason that you                      find reflect feelings of guilt, you may,                      but are not required to, infer that Mr.                      Antoine believed that he was guilty. You                      may not, however, infer on this basis                      alone that the defendant is, in fact,                      guilty of the crime for which he is                      charged. Whether or not the evidence as                      to the defendant's statements--excuse me,                      to the defendant's fleeing shows that Mr.                      Antoine believed that he was guilty and                      the significance, if any, to be attached                      to any such evidence of flight are matters                      for you, the jury, to decide.                      But first you have to decide beyond a                      reasonable doubt whether or not the                      government has proven that he fled and                      then you have to decide what inference, if                      any, to draw from that.                    At the conclusion of the charge, defense counsel objected          to the consciousness of guilt instruction, noting that while the          court had cautioned the jury that an innocent person might flee, it                                         -4-          had not also stated that a person "might flee from something he          perceived as a crime, which conduct doesn't bear on" the charged          offense. After consultation, the court gave the following          supplemental instruction:                      [O]n the tail-end of the charge, I talked                      to you briefly about what weight, if any,                      you were going to give to flight. And I                      just want to point out to you, that not                      only do sometimes innocent people flee,                      but sometimes people can be guilty of a                      crime or think that they are guilty of a                      crime and flee. But that crime may have                      absolutely nothing to do with the crime                      charged here.                                              So that you have to decide whether or not                      the government has proven flight and                      whether or not there's any inference to be                      drawn from that, given the crime charged                      here. Not some other crime or some other                      perception, but the crime charged here.                    Following the supplemental instruction, the court          inquired whether either party had any further concerns about the          charge. Both counsel said that they had none.                                         II.                    Antoine raises only one issue on appeal--whether the          district court abused its discretion by giving a consciousness of          guilt jury instruction that was based on his attempt to flee from          the arresting officers. We hold that it did not.                    Evidence of flight may be admitted at trial as indicative          of a guilty mind, so long as there is an adequate factual predicate          creating an inference of guilt of the crime charged.                                                               United States          v. Camilo                     Montoya, 917 F.2d 680, 683 (1st Cir. 1990) (quoting          United                  States v.  Hernandez-Bermudez, 857 F.2d 50, 52 (1st Cir.                                         -5-          1988)). There was an adequate factual predicate for the charge          given in this case.                    The evidence at trial established that Antoine and Boone          had an agreement whereby Boone would purchase handguns in Georgia,          transport them to Boston, and sell them to Antoine. Pursuant to          this agreement, Boone purchased guns in Georgia which he          subsequently sold to Antoine in Boston. After being confronted by          ATF agents and agreeing to cooperate with their investigation,          Boone had one electronically monitored meeting and several          telephone conversations with Antoine in which they discussed          Antoine's purchase of additional handguns from Boone. Antoine went          to Boone's motel room for the express purpose of viewing the          handguns. In the room, Antoine and two companions viewed the guns,          selected certain of them for purchase, and Antoine made a partial          payment to Boone for the weapons. Antoine told Boone he would pay          for and take custody of the remaining guns later that same night          after he acquired more money. After exiting the room, Antoine and          the other two men attempted to flee on foot from the agents. The          flight evidence was admitted without objection.                     These facts establish a completely adequate factual          predicate for the crimes charged against Antoine. Under these          facts, the jury could reasonably infer that Antoine was guilty of          illegal dealing in arms. The jury could also reasonably infer that          Antoine ran from authorities because he believed his conspiratorial          gun dealing activities with Boone had been discovered, i.e., that          he was conscious of his guilt. Based on the presence of numerous                                         -6-          agents and police officers outside the motel room, a reasonable          jury could have inferred that Antoine fled because he recognized          that he had been "set up" by Boone and that the authorities were          well aware of their prior course of illegal conduct.   See, e.g.,          United                  States v. Romero-Carrion, 54 F.3d 15, 17 (1st Cir. 1995)          (attempt to flee evidences a keen consciousness of guilt); United          States v.                    Luciano-Mosquero, 63 F.3d 1142, 1156 (1st Cir. 1995) (as          long as there is an adequate factual predicate supporting an          inference of guilt on the crime charged, evidence of flight may be          admitted to show consciousness of guilt).                    Antoine argues that his flight merely reflected knowledge          that he had just left a motel room full of guns, not that he          intended to buy any. If so, the fact of flight would not support          any inference of guilt as to the offenses charged.                    The court, however, very carefully and fully instructed          the jury that Antoine's flight may have been for innocent reasons.          The court reminded the jury that they need not draw any conclusions          from the flight evidence and to weigh the importance of such          inferences should they find them reasonable. This instruction did          not invite the jury to convict based upon an inference of guilt as          to another crime, and was not an abuse of discretion.  See United                                         Antoine also argues that the court's instruction allowed the jury          to infer from flight that he knew of the federal license          requirement for dealing in firearms--a necessary component of the          willfulness element of the gun-dealing charge. This argument is          without merit. The other evidence was sufficient to permit the          jury to infer that Antoine knew his course of conduct was illegal.          The jury was instructed that they might infer from flight that          Antoine was conscious of his guilt.                                         -7-          States v.  Hernandez, 995 F.2d 307, 314-15 (1st Cir. 1993)          (significance of evidence of flight is for the jury) (citing          Hernandez-Bermudez, 857 F.2d at 52); United                                                       States v. Noone, 913          F.2d 20, 29-31 (1st Cir. 1991) (no error if flight instruction sets          out appropriate legal framework for jury consideration of          contention that accused fled for entirely innocent reasons);                                                                      United          States v. Camilo                            Montoya, 917 F.2d 680, 683 (1st Cir. 1990) (no          error if flight instruction has a solid evidentiary basis and the          instruction a correct statement of the law).     See                                                                also  United          States v. Martinez, 83 F.3d 371, 373 (11th Cir. 1996) (where the          act for which defendant claims to have fled and the offense charged          are sufficiently related, evidence of flight and a consciousness of          guilt instruction are not abuse of discretion).                                         III.                    Antoine did not object to the admission of evidence of          his flight from the scene of the crime charged to him. The jury          heard this evidence, and they were permitted to consider it. The          court undertook to instruct them as to its proper use. The court          cautioned the jury against overly broad inferences, and against any          inference at all if they felt it unreasonable to do so. The          instruction was not an abuse of discretion. The conviction is          affirmed.                                         -8-
