United States v. Antoine ( 1997 )

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                                [NOT FOR PUBLICATION]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.





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                    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


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                      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



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          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.











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