             Case: 13-10331     Date Filed: 08/21/2013   Page: 1 of 15


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                           ________________________

                                 No. 13-10331
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 0:12-cr-60111-WPD-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JEAN BERNABE,

                                                             Defendant-Appellant.



                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (August 21, 2013)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

      Jean Bernabe appeals his convictions for three counts of making false

statements in connection with the purchase of firearms, in violation of 18 U.S.C.
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§ 922(a)(6). Defendant-Appellant Bernabe was convicted after a jury trial and

sentenced to 27 months’ imprisonment on each count, running concurrently.

Bernabe testified at his trial. Bernabe raises for the first time on appeal objections

to some of the prosecutor’s questions of him during cross-examination and some of

the prosecutor’s closing arguments. After plain-error review, we affirm Bernabe’s

convictions and sentences.

                               I. TRIAL EVIDENCE

       We begin by setting forth the trial evidence. A key issue at trial was

whether, after purchasing firearms, Bernabe transferred those guns to individuals

in Haiti, or whether he kept them himself, either at his home in the United States or

at his home in Haiti.

       Bernabe was born in Haiti and moved to the United States when he was 25

years old. He is an American citizen. After coming to the United States, he lived

in Florida, where he worked for the local school district and served as a part-time

reservist in the Army.

       Bernabe maintains close ties to Haiti. Most of his family members continue

to live there, including his brother, sister, cousin, uncles, and aunts. Bernabe’s

wife and children also are there. In 2009, Bernabe started making frequent trips to

Haiti. Although his primary home is in Florida, at some point, he acquired a house

in Haiti.


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      A.     The Firearms Purchases

      Each count in the indictment was based on a 2011 gun purchase. On March

4, 2011, Bernabe purchased from the Peoples Pawn & Jewelry in Lauderdale

Lakes, Florida, a .40 caliber Taurus pistol (count one). On June 8, 2011, Bernabe

purchased a .40 caliber Beretta “Px Storm” pistol from the Arizona Shooting

Range Guns and Knives, also in Lauderdale Lakes, Florida (count two).

      One week later, on June 15, 2011, Bernabe returned to the Arizona Shooting

Range and purchased three more firearms—a Glock seventeen, nine millimeter

semi-automatic pistol; a Glock nineteen semi-automatic pistol; and a Beretta Px4

Storm semi-automatic pistol (count three).

      Before completing each purchase, Bernabe filled out a Bureau of Alcohol,

Tobacco, Firearms and Explosives Form 4473 (“Form 4473”), a federal form used

to document the identity of a gun purchaser and to ensure that the individual is

eligible to lawfully purchase a firearm. Form 4473’s question 11.a is: “Are you the

actual transferee/buyer of the firearm/firearms listed on this form? Warning: You

are not the actual buyer if you are acquiring the firearms on behalf of another

person. If you are not the actual buyer, the dealer cannot transfer the

firearms to you.”




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      On each Form 4473 that he completed, Bernabe stated that he was the

“actual buyer” of the firearm or firearms. Additionally, the back of Form 4473

contains the following:

      I certify that my answers to section A are true, correct, and complete.
      I have read and understand the notices, instructions, and definitions on
      ATF Form 4473. I understand that answering ‘yes’ to Question 11.a,
      if I am not the actual buyer, is a crime punishable as a felony under
      federal law . . . .
      ....
      I also understand that making any false oral or written statement, or
      exhibiting any false or misrepresented identification with respect to
      this transaction, is a crime punishable as a felony under federal
      law . . . .

Bernabe signed beneath these certifications on each Form 4473 that he completed.

      At trial, Bernabe did not dispute that he had purchased the five firearms

named in the indictment, or that he had signed a federal form after each purchase

stating that he was the “actual buyer” of those weapons. The dispute at trial was

whether Bernabe’s signed statements, made under the possibility of federal

prosecution were false. At trial, the government’s ATF agent testified that

Bernabe admitted to him that he had purchased the guns on behalf of individuals in

Haiti and sent the guns to Haiti shortly thereafter. Thus, Bernabe was not the

“actual buyer” and his statements were false.

      Bernabe’s main defense was that he had never confessed to buying the guns

for others, that he had bought them for himself, and that he still possessed at least

some of the guns at his house in Haiti. For example, during his opening statement,

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Bernabe’s attorney said: “[A]s far as the guns go, . . . he has the guns. The guns

have not been transferred to anyone.”

B.    Government’s Witnesses

      Ali Berisha, a special agent with the Bureau of Alcohol, Tobacco, Firearms

and Explosives (“ATF”) testified for the government. After the June 2011

purchases, Agent Berisha received a routine notification from the Arizona

Shooting Range that Bernabe had purchased more than two handguns in a five-day

period. Upon receiving this notice, Agent Berisha contacted Bernabe and set up a

meeting with him.

      At that meeting, which occurred on July 7, 2011 Agent Berisha asked

Bernabe where the firearms were that he had recently purchased. Bernabe

responded that they were in Haiti. Bernabe told Agent Berisha that his friends in

Haiti “pre-ordered” firearms from Bernabe, after which Bernabe would go to the

United States, purchase the firearms, travel back to Haiti, and give the guns to the

person who had pre-ordered them.

      According to Agent Berisha, Bernabe told him that this was what had

happened to the Taurus pistol purchased on March 4, 2011. Sometime before that

date, a friend of Bernabe’s in Haiti—identified only as “Rosemont”—had given

Bernabe money to purchase the pistol in the United States. Bernabe did so, buying

it with Rosemont’s money. Afterwards, Bernabe flew to Haiti with the pistol


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checked in his luggage. Upon arrival, he gave the gun to Rosemont. During his

investigation, Agent Berisha obtained airline records showing that Bernabe had

flown from Miami to Port-au-Prince, Haiti on March 6, 2011 with the Taurus pistol

in his checked luggage.

      Bernabe had more trouble getting the other four guns (those purchased in

June 2011) to Haiti, Agent Berisha testified. When Bernabe tried to check those

guns in his luggage, as he had done before, the airline had not let him do so. To

get the firearms to Haiti, Bernabe had paid his friend—identified first as

“McIntosh”—$200 per firearm to ship them there by boat. A few days after that

initial interview, Bernabe told Agent Berisha that “McIntosh” was actually an

individual named Giscard Borgard who lived in Tampa, Florida.

      Agent Berisha and Bernabe remained in contact for a few weeks after the

initial interview, speaking frequently on the telephone. Shortly after the July 2011

interview, Bernabe left Florida for a month-long period of military training in

Wisconsin. Bernabe even called Agent Berisha to let him know that he would be

leaving Florida temporarily. During each call, Bernabe stuck with his original

story—that he had purchased the guns for individuals in Haiti and then transferred

them to those Haitian purchasers.

      In October 2011, Bernabe contacted Agent Berisha and changed his story.

Now, Bernabe claimed that he had kept the guns with him in Florida, and that


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before he left for his military service in Wisconsin, he had given the guns to

Borgard for safekeeping. Agent Berisha testified that Bernabe had reported as

stolen with local police four guns—two Glock pistols and two Beretta pistols (the

guns purchased on June 8 and June 15). As discussed later, the government’s

evidence indicated that Bernabe’s police report was a sham that he had obtained

only after becoming concerned about ATF’s investigation of him.

      During cross-examination of Agent Berisha, Bernabe’s attorney attempted to

raise the possibility that Bernabe still possessed the guns. Bernabe’s attorney

asked Agent Berisha: “Where are [the guns]?” Agent Berisha responded that the

airline records showed that the Taurus pistol purchased on March 4, 2011 had been

taken to Haiti, but that he had no way of knowing if it was still there; as for the

other guns, he did not know where they were. Bernabe’s attorney suggested that

the Taurus pistol “could be in [Bernabe’s] house in Haiti.” He also suggested that

Bernabe “could have all of . . . . the guns that he purchased.”

      The government’s evidence also included the testimony of Deputy Ricardo

Perez of the Broward County Sheriff’s Office, to whom Bernabe reported four

guns as missing on September 29, 2011. Deputy Perez’s testimony refuted

Bernabe’s claims that Borgard had “stolen” the four guns. For example: (1)

Bernabe just reported the weapons as missing and did not state that they had been

stolen; and (2) Bernabe did not ask the police for assistance in recovering the guns


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or encourage the police to investigate their whereabouts. Deputy Perez stated that

the report that he prepared based on Bernabe’s statements was “an FYI type of

thing, for your information report” and that the report had not triggered any police

action. Deputy Perez testified that Bernabe had told him that the reason he was

filing a police report was because ATF agents had contacted him about the location

of the guns and he wanted some report to document that “he didn’t know the

whereabouts of his firearms.”

C.    Defendant’s Testimony and Closing Statements

      At trial, Bernabe testified. Bernabe refuted Agent Berisha’s testimony.

Bernabe testified that he did not sell guns to people in Haiti. According to

Bernabe, the Taurus pistol purchased on March 4, 2011 and the Beretta pistol

purchased on June 8, 2011 were “in [his] house in Haiti.” Bernabe indicated that

he had taken them to Haiti to protect himself while there because “Haiti is a very

dangerous country.” As for the three guns purchased on June 15, 2011, Bernabe

testified that those guns were in his Florida home when he received his summons

for military duty. For security reasons, Bernabe did not want to leave them there

while he was away. Thus, he gave the guns to his friend, Borgard, for safekeeping.

      Bernabe’s statements about the location of the Beretta named in count two

were contradictory. On the one hand, he said that that pistol was “in [his] house in

Haiti.” On the other, he indicated that he gave this gun to Borgard for safekeeping


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in Florida. Specifically, Bernabe testified that he gave four guns to Borgard—two

Glock pistols and two Beretta pistols. Thus, during his testimony, Bernabe

appeared to say that the count two Beretta was both in Haiti and somewhere with

Borgard. 1

       In any event, when Bernabe returned from his military service, he could not

find Borgard. After searching exhaustively for him, Bernabe reported the four

guns as missing with local police in Florida.

       During cross-examination, the government repeatedly asked Bernabe about

the locations of the guns. Although he had previously testified only that he had

taken two guns to Haiti—the Taurus pistol purchased on March 4 and the Beretta

pistol purchased on June 8—on cross examination, Bernabe testified that “three

weapons . . . [were] presently at [his] house in Haiti”—two Taurus pistols and one

Beretta pistol. Bernabe stated that he had offered to bring these guns back to the

United States, but that Agent Berisha had advised him that doing so “would be

breaking the law of the United States.”

       The challenged cross-examination questions followed. In response to

Bernabe’s statement, the prosecutor asked, “Sir, where are the pictures of the

guns?” When Bernabe gave a non-responsive answer, the prosecutor again asked,


       1
        Because there is no indication that Bernabe possessed Beretta or Glock pistols other than
those named in the indictment, the two Beretta pistols he gave to Borgard were inferentially
those named in counts two and three of the indictment.

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“Where are the pictures of the guns that you currently have in your house in Haiti

that would show that you still have them?” Bernabe again did not directly answer

the question. On appeal, Bernabe now challenges these two questions. Bernabe’s

trial attorney never objected to them though.

      During closing arguments, the prosecutor returned to the lack of pictures of

the guns that Bernabe claimed were at his house. The prosecutor stated: “[T]he

defendant, who testified that he has lots of family in Haiti, could very easily have

taken a picture of the guns. And that didn’t happen.” On appeal, Bernabe now

challenges this statement, but Bernabe’s trial attorney did not object to this closing

statement either.

      The jury found Bernabe guilty on all three counts. After calculating

Bernabe’s guidelines range as 27 to 33 months, the district court imposed

concurrent sentences of 27 months’ imprisonment on each count.

                                 II. DISCUSSION

      On appeal, Bernabe contends that the prosecutor committed prosecutorial

misconduct by asking the above two questions and making argument concerning

pictures of the guns, which Bernabe now claims improperly shifted the burden of




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proof to him to prove his innocence. Because of the lack of objections at trial, we

review these issues for plain error. 2

       Prosecutorial misconduct requires reversal only when a prosecutor makes

statements at trial that (1) are improper, and (2) prejudice the defendant’s

substantive rights. United States v. Frank, 599 F.3d 1221, 1237 (11th Cir. 2010).

A defendant’s substantive rights “are prejudicially affected when a reasonable

probability arises that, but for the [prosecutor’s] remarks, the outcome of the trial

would have been different.” United States v. Merrill, 513 F.3d 1293, 1307 (11th

Cir. 2008) (internal quotation marks omitted).

       When a criminal defendant testifies, the prosecutor is entitled to cross-

examine the defendant. United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir.

2009). “[A] cross-examination necessarily entails testing the plausibility of a

defendant’s account.” Id. For example, a prosecutor does not commit misconduct

simply by asking a testifying defendant whether someone “could corroborate her

testimony” when the defendant’s testimony contradicted the government’s

evidence. See United States v. Schmitz, 634 F.3d 1247, 1267 (11th Cir. 2011).


       2
         Ordinarily, we review claims of prosecutorial misconduct de novo. United States v.
Schmitz, 634 F.3d 1247, 1259 (11th Cir. 2011). However, “[i]f the defendant fails to object to
the alleged misconduct below, this Court reviews for plain error.” United States v. Frank, 599
F.3d 1221, 1238 (11th Cir. 2010). In such cases, the defendant must show: “(1) an error, (2) the
error is plain or obvious, and (3) the error affects the defendant’s substantial rights.” Id. This
Court has stated in the context of a prosecutorial misconduct claim, “[t]he plain error rule should
be used sparingly, and a conviction should be reversed only if a miscarriage of justice would
otherwise result.” Id. (internal quotation marks omitted).

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      However, during cross-examination of the defendant, or during arguments to

the jury, the prosecutor “may not make comments that would shift the burden of

proof to the defendant.” United States v. Bernal-Benitez, 594 F.3d 1303, 1315

(11th Cir. 2010). Burden-shifting comments are those that “suggest that the

defendant has an obligation to produce any evidence or to prove innocence.”

United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992).

      A prosecutor’s burden-shifting statements require reversal when they are “so

pronounced and persistent that [prosecutorial misconduct] permeates the entire

atmosphere of the trial.” Id. (internal quotation marks omitted). “[P]rejudice from

the comments of a prosecutor which may result in a shifting of the burden of proof

can be cured by a court’s instruction regarding the burden of proof.” Id. at 1087.

Additionally, reversal is not required when “there is sufficient independent

evidence of guilt.” Merrill, 513 F.3d at 1307 (internal quotation marks omitted).

      Bernabe has not met his plain-error burden. We doubt whether any error

occurred at all. The government contends that because Bernabe testified and

claimed that the government’s whole case was fabricated, the government was

entitled to ask questions that “tested the plausibility of [his] story.” See Schmitz,

634 F.3d at 1267. The government could do so by asking him to corroborate his

testimony about the location of the guns. See id. In short, Bernabe opened the

door to the government’s asking him for corroborating evidence, and the


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government’s questions and arguments simply called into question whether

Bernabe’s story made sense and was supported by the record evidence.

      However, we need not conclude that all of the prosecutor’s statements and

questions were proper. Even if we assume that some portion of them was

erroneous, no such error was plain or affected Bernabe’s substantial rights.

      First, the district court cured any prejudice during its instructions. The

district court told the jury that Bernabe was “presumed . . . to be innocent.” The

district court further explained that “the law does not require a defendant to prove

innocence or to produce any evidence at all. The government has the burden of

proving a defendant guilty beyond a reasonable doubt, and if it fails to do so, you

must find the defendant not guilty.” The district court advised the jury that it was

to decide the case based “only [on] the evidence that I have admitted in the case.”

The jury learned that “[e]vidence includes the testimony of witnesses and the

exhibits admitted. But anything the lawyers say is not evidence and isn’t binding.”

      Because we presume that the jury followed these instructions, the

instructions “purge[d] the taint” of any allegedly improper questions or statements

the prosecutor may have made. See Simon, 964 F.2d at 1086–89 (holding that

“although the prosecutor’s remarks were probably improper, the district court

rendered any error harmless by the repeated instructions to the jury that the

defendant had no burden to produce any evidence”); see also Schmitz, 634 F.3d at


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1267 (“[E]ven if some of the prosecutor’s questions slightly suggested that

Schmitz had the burden of proof, the district court cured any possibility of

prejudice with its clear and repeated instructions on the prosecution’s burden of

proof.”).

      Second, the government produced ample evidence for us to conclude that the

outcome of the trial would not have been different without the prosecutor’s

remarks. The government’s evidence included the testimony of Agent Berisha,

who had 13 years’ experience working for the ATF. Agent Berisha’s testimony

was corroborated by flight history documents, was consistent, and was plausible.

The government’s other evidence from Deputy Perez further discredited Bernabe’s

story and established that Bernabe had obtained a sham police report after he

became aware that the ATF was investigating him.

      In contrast, Bernabe’s testimony was uncorroborated, internally inconsistent,

and difficult to follow. By choosing to testify, Bernabe ran “a substantial risk of

bolstering the [g]overnment’s case.” See United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995). This is because, if the jury did not consider Bernabe’s testimony

to be credible, it was entitled to conclude the opposite was true. Id. (“[A]

statement by a defendant, if disbelieved by the jury, may be considered as

substantive evidence of the defendant’s guilt.”). In light of the government’s

evidence, Bernabe on appeal has shown no plain error in his trial.


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Accordingly, we affirm Bernabe’s convictions and sentences.

AFFIRMED.




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