[DO NOT PUBLISH]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).
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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.
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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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