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United States of America v. Cory Wilson

November 5, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
CORY WILSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge.)

09-4568-cr

United States v. Cory Wilson

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 5th day of November, two thousand ten.

PRESENT: DEBRA ANN LIVINGSTON, DENNY CHIN, Circuit Judges, DAVID G. LARIMER, District Judge.*fn1

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of conviction entered on October 23, 2009 is AFFIRMED.

Defendant Cory Wilson appeals from a judgment of conviction entered on October 23, 2009 following a jury trial in the Eastern District of New York convicting him of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On appeal, Wilson contends the district court erred in failing to provide, on request, a consciousness of guilt from flight instruction. We presume the parties' familiarity with the underlying facts, the procedural history, and the issues on appeal and revisit those issues only as necessary to facilitate this discussion.

I. BACKGROUND

The government's evidence at trial, viewed in the light most favorable to it, established that Wilson was arrested as he attempted to escape up a flight of stairs so as to hide a firearm in his possession. Specifically, the government offered the testimony of two arresting officers who gave chase up the flight of stairs and apprehended Wilson as he was "bent over two bags of garbage . . . pulling his hand away from the firearm" which was "poorly placed between the two bags."

The government argued, in its summation, that Wilson's flight helped establish his guilt. Specifically, it argued to the jury that actions "speak louder than words" and continued: "when this defendant saw two uniformed police officers standing at the door . . . what did he do? He ran. He ran right up those stairs. He did the best that he could to get away from those officers as quickly as possible. Why did he run? Why if he didn't know that he just had been caught red-handed did he run up those stairs?" In his summation, defense counsel did not challenge the inference the government sought to have drawn from Wilson's flight but instead argued that Wilson did not flee at all, that Wilson "had nothing to hide, . . .he was the person who didn't run." Nonetheless, the government returned to the subject in rebuttal, arguing: "why [did] Cory Wilson [run] up those stairs[?] I submit to you that there is a legal term for that type of behavior, and the term is consciousness of guilt. He knew that he had been caught and that's why he ran." In response, defense counsel requested the Sand consciousness of guilt from flight charge. That instruction provides, in relevant part, that:

You have heard evidence that defendant fled after he believed that he was about to be charged with committing a crime for which he is now on trial. If proved, the flight of a defendant . . . may tend to prove that the defendant believed that he was guilty. . .

However, flight may not always reflect feelings of guilt. Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt.

You are specifically cautioned that evidence of flight of a defendant may not be used by you as a substitute for proof of guilt. Flight ...


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