             Case: 13-10576     Date Filed: 12/11/2013   Page: 1 of 17


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-10576
                             Non-Argument Calendar
                           ________________________

                  D.C. Docket No. 3:12-cr-00033-UAMH-JRK-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

ANTWAN TYRONE CAMERON,

                                                               Defendant-Appellant.

                           ________________________

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

                               (December 11, 2013)

Before HULL, JORDAN and FAY, Circuit Judges.

PER CURIAM:

      After a jury trial, Antwan Tyrone Cameron appeals his conviction and 60-

month sentence for making a false or fictitious statement to a federally licensed
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firearm dealer, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). After a

thorough review of the record and briefs, we affirm.

                                I.      BACKGROUND

A.    Attempted Firearm Purchase

      In November 2011, Defendant Cameron and Allison Gornail visited

Shooters of Jacksonville (“Shooters”), a store that sells firearms and ammunition.

Cameron and Gornail spoke with the store manager. Gornail expressed an interest

in purchasing an AK-47 assault rifle for herself.

      The store manager suspected that Gornail was actually purchasing the

firearm for Cameron, and not for her own personal use, because Gornail did not

know why she was buying the firearm, whereas Cameron was very knowledgeable

about the firearm. After Cameron attempted to pay for the firearm, the store

manager asked Cameron to fill out a Bureau of Alcohol, Tobacco, Firearms, and

Explosives Form 4473 (“ATF form”), which has to be completed before an

individual can buy a firearm.

      The ATF form requires a buyer of a firearm to provide his name and address

and state whether the buyer is the “actual transferee/buyer” of the firearm. The

ATF form also includes a warning, which provides that “[y]ou are not the actual

buyer if you are acquiring the firearm(s) on behalf of another person. If you are

not the actual buyer, the dealer cannot transfer the firearm(s) to you.”


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       Question 11i of the ATF form asks whether the buyer, here Defendant

Cameron, has a conviction for a misdemeanor crime of domestic violence. The

instructions for question 11i of the ATF form set forth the statutory definition of a

“misdemeanor crime of domestic violence.” 1 If a buyer represents on the ATF

form that he has a conviction for a misdemeanor crime of domestic violence, the

buyer is disqualified from buying a firearm. 2

       In filling out the ATF form, Defendant Cameron represented that he, and not

Gornail, was the actual transferee/buyer of the AK-47. Cameron also represented

that he had never been convicted in a court of a misdemeanor crime of domestic

violence. Finally, Cameron certified that his answers on the ATF form were true

and correct and that he read and understood the notices, instructions, and

definitions on the form.

       After Defendant Cameron completed the form, Shooters conducted a

background check of Cameron through the Florida Department of Law

Enforcement (“FDLE”). The FDLE reported that Cameron was ineligible to buy


       1
         A “misdemeanor crime of domestic violence” is statutorily defined, inter alia, as any
offense under federal or state law that “has, as an element, the use or attempted use of physical
force” and is committed by either (1) a current or former spouse, parent, or guardian of the
victim, (2) by a person with whom the victim shares a child in common, (3) by a person who is
cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or (4) by a
person similarly situated to a spouse, parent, or guardian of the victim. 18 U.S.C.
§ 921(a)(33)(A).
       2
       A person who has committed a “misdemeanor crime of domestic violence” is prohibited
from possessing a firearm. 18 U.S.C. § 922(g)(9).
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the firearm. Thus, Shooters could not sell Cameron the firearm. Once Cameron

and Gornail left Shooters, the store manager notified law enforcement about

Cameron’s attempt to purchase the AK-47.

B.    Indictment and Trial

      A federal grand jury returned an indictment charging Cameron with making

a false or fictitious statement to a federally licensed firearm dealer. The indictment

alleged that, on the ATF form that Cameron completed at Shooters, Cameron

falsely represented that he had not been convicted in any court of a misdemeanor

crime of domestic violence.

      At Cameron’s trial, a government witness testified that, in November 2004,

Cameron pled guilty to actually and intentionally touching or striking a family or

household member, against her will or intentionally causing bodily harm to that

person, in violation of Fla. Statutes §§ 784.03 and 741.28. There was no objection

to this testimony. The government introduced into evidence the information

charging Cameron with domestic battery and the judgment.

      Later at trial, Cameron testified in his own defense that, in November 2011,

Gornail asked for his assistance in purchasing a firearm for her protection. He

went with Gornail to Shooters to assist her in purchasing a firearm. Cameron also

intended to pay for the firearm Gornail selected. At the store, once Cameron

indicated that he would pay for the firearm, a Shooters employee asked Cameron


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to fill out an ATF form. Cameron testified that, on the ATF form, he represented

that he was the actual transferee/buyer of the firearm because he believed that, if he

did not make that representation, Shooters would not complete the firearm sale.

       Cameron further testified that, on the ATF form, he represented that he did

not have a prior conviction for a misdemeanor domestic violence conviction

because the documents in his possession showed that he only had a prior

conviction for battery, not domestic battery. 3 Furthermore, prior to pleading guilty

to what he now knew was domestic battery, he only “vaguely” remembered the

judge explaining to him the details about the charges against him.

       On cross-examination, the government asked Cameron about the events of

October 6, 2004, the date of the domestic battery. At side bar, Cameron’s counsel

objected to the government eliciting the underlying details of the domestic battery

offense because Cameron had admitted he committed the battery. Cameron’s

counsel stated that it was “irrelevant and overly prejudicial to get into the details of

the battery.” The district court requested that the government first ask questions

that related to Frison’s relationship with Cameron and whether Cameron admitted

to having committed the battery. The court stated that, depending on Cameron’s

answers, the government might not need to address the underlying conduct that


       3
         Cameron introduced into evidence a criminal history report he obtained from the
Jacksonville Sheriff’s Office in 2009 and again in 2011. The exhibit provides that Cameron was
arrested for “battery” in October 2004.
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constituted the battery. Following the court’s resolution of his objection, Cameron

stated “[o]kay.”

      The government thus asked Cameron whether he recalled committing a

battery on Mikeisha Frison on October 6, 2004, and he answered affirmatively.

Cameron clarified that he did not know at the time of the 2011 attempted firearm

purchase that he had committed a domestic battery, because he thought that he and

Frison had to be “official boyfriend and girlfriend” for his actions toward Frison to

constitute domestic battery.

      Cameron affirmed that he now knew, “if you batter the mother of your child,

that . . . is domestic battery.” At the time of the battery, Cameron, however, was

uncertain as to whether he was the father of Frison’s child. Cameron claimed that,

although he had never contested paternity, he had doubts as to whether he was

actually the child’s father because Frison had cheated on him. Nevertheless, on the

date of the battery, Cameron knew that, “at least, according to the child’s mother,

the birth certificate and anybody else who had ever been told,” he was the father of

Frison’s child. The government then asked whether Frison was pregnant with

Cameron’s second child at the time of the battery, and Cameron responded

affirmatively.

      Cameron also testified that he recalled being charged with two offenses in

connection with the October 2004 incident. Cameron conceded that his public


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defender offered Cameron a plea bargain with respect to one of the charges, which

was a felony charge, but he did not want to take that offer. The following

exchange then occurred between the government and Cameron, which led to this

discussion of the details of the battery:

       Q.     And why didn’t you want to take the offer?

       A.     At the time, I felt since I called the police, that I wasn’t wrong.
       But apparently in those situations, I’m wrong, regardless of who
       actually called the police.

       Q.     You’re not denying that you struck Mikeisha Frison on October
       6th, 2004, are you?

       A.    I’m not denying it. She had a bruise. I can’t say when it
       became apart, but she had a bruise and, subsequently, we were
       struggling at a point.

       Q.     Okay. You were struggling and fighting with her?

       A.     Yes, sir.

       Cameron, however, did not subsequently object to the government’s

questions or move to strike his responsive testimony. On appeal, Cameron

argues that the district court abused its discretion in admitting this discussion

of the details of the battery. 4

C.     Jury Instructions and Excused Juror


       4
        The government argues that we should review this evidentiary issue only for plain error.
Because we later conclude that the district court did not abuse its discretion in allowing the
admission of the details of the domestic battery offense, we need not decide whether Cameron
adequately objected or whether plain error review applies.

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      Following closing arguments, the district court instructed the jury.

The court cautioned that the jury could consider Cameron’s prior domestic

battery only to determine “whether the elements of the offense charged

against the Defendant in the indictment have been established. The fact that

the Defendant was previously found guilty of another crime does not mean

that he committed the crime for which he is on trial here.” The court further

cautioned, “[y]ou must not consider this prior conviction for any purpose

other than to establish the existence of the prior conviction.” The court also

cautioned the jury that Cameron was on trial “only for the specific crime

charged in the indictment” and that the jury was only to determine whether

Cameron was guilty or not guilty of the specific crime.

      The district court sent the jury home for the evening with

deliberations set to begin the next day. When the district court reconvened

proceedings the next morning, it announced that a juror had received a

Facebook friend request from Cameron the night before. According to the

juror, she had not accepted the request or viewed Cameron’s Facebook

profile page. Nevertheless, the juror found the friend request unsettling.

Therefore, the district court excused the juror and replaced her with an

alternate juror.

D.    Verdict and Sentencing


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      The jury deliberated and found Cameron guilty of making a false or

fictitious statement to a federally licensed firearm dealer.

      The probation officer prepared a Presentence Investigation Report

(“PSI”), stating that Cameron’s base offense level was 20, pursuant to

U.S.S.G. § 2K2.1. The probation officer applied a two-level increase for

obstruction of justice, pursuant to U.S.S.G. § 3C1.1, based on Cameron

using his personal Facebook account to contact one of the jurors hearing his

case. With no further adjustments, Cameron’s total offense level was 22,

and his criminal history category was III. His advisory guidelines range was

51 to 63 months’ imprisonment.

      In his written objections and at sentencing, Cameron objected to the

two-level enhancement for obstruction of justice, arguing that he lacked the

“specific intent to obstruct justice,” necessary for application of the

enhancement.

      The district court found that Cameron obstructed justice by willfully

sending a Facebook friend request to a juror who was preparing to deliberate

in his trial. The district court thus overruled Cameron’s objection and

applied the obstruction-of-justice enhancement.

      The district court further stated that, even if Cameron had not sent the

Facebook friend request, his trial testimony was sufficient to support the


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obstruction-of-justice enhancement because he made at least two material

false statements during his testimony. First, Cameron testified that Gornail

was actually purchasing the firearm, and second, he testified that he did not

know that he had a prior domestic violence conviction. The district court

concluded that both statements were clearly false and were rejected by the

jury. Further, Cameron did not make the false statements as a result of

confusion or mistake, but rather with the intent to mislead the jury. The

court determined that these false statements independently warranted the

obstruction-of-justice enhancement.

      The district court adopted the advisory guidelines range set forth in

the PSI and sentenced Cameron to 60 months’ imprisonment. Afterwards,

Cameron’s counsel stated that Cameron maintained his objection to the

obstruction-of-justice enhancement. However, Cameron’s counsel did not

specifically object to the court’s alternative basis for imposing the

enhancement. Cameron now appeals.

                              II.    DISCUSSION

A.    Admissibility of Evidence about Domestic Battery Conviction

      On appeal, Cameron argues that the district court abused its discretion

by allowing the government to introduce the details of his 2004 domestic

battery conviction because those details were irrelevant and unduly


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prejudicial. According to Cameron, the only relevant issue at trial was

whether Cameron knew that the conviction was for a domestic battery, and

thus, the evidence should have been limited to discussion of the relationship

between himself and Frison.

      We generally review a district court’s evidentiary rulings for an abuse of

discretion. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007).

      Once a defendant voluntarily testifies on his own behalf, he may be cross-

examined as to (1) matters “reasonably related” to the subject matter of the direct

examination, and (2) matters affecting credibility. United States v. Pilcher, 672

F.2d 875, 877 (11th Cir. 1982) (internal quotation marks omitted).

      Only relevant evidence is admissible, and Federal Rule of Evidence 401

defines “relevant evidence” as evidence having any tendency to make a fact of

consequence more or less probable than it would be without the evidence. Fed. R.

Evid. 401, 402. A party’s concession as to a matter sought to be proved in a case

may, at times, call for the exclusion of evidence offered to prove the point

conceded. Old Chief v. United States, 519 U.S. 172, 184, 117 S. Ct. 644, 652

(1997); see Fed. R. Evid. 401 advisory committee’s notes, 1972 Proposed Rules.

      Such a ruling, or exclusion, however, should be made on the basis of such

considerations as waste of time and undue prejudice under Federal Rule of

Evidence 403, rather than under any general requirement that evidence is


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admissible only where it is in dispute. Old Chief, 519 U.S. at 184, 117 S. Ct. at

652; see Fed. R. Evid. 401 advisory committee’s notes, 1972 Proposed Rules.

Rule 403 permits a court to “exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

      “Rule 403 is an extraordinary remedy which should be used only sparingly

since it permits the trial court to exclude concededly probative evidence. In

criminal trials relevant evidence is inherently prejudicial. Thus, the rule permits

exclusion only when unfair prejudice substantially outweighs probative value.”

United States v. Merrill, 513 F.3d 1293, 1301 (11th Cir. 2008) (brackets and

internal quotation marks omitted). “In doubtful cases, ‘the balance under Rule 403

should be struck in favor of admissibility.’” United States v. Gibson, 708 F.3d

1256, 1282 (11th Cir.) (brackets omitted), cert. denied, (U.S. Oct. 7, 2013) (No.

13-5826). Limiting instructions minimize the prejudicial effect of evidence.

United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992).

      Here, evidence of the details of the October 2004 domestic battery was

relevant under Rule 401, regardless of whether Cameron conceded that he

committed a battery against Frison. See Old Chief, 519 U.S. at 184, 117 S. Ct. at

652. Cameron testified that he struck Frison, that he struggled and fought with


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Frison, that Frison was pregnant at that time, and that Frison was bruised during

the battery. This evidence was relevant as to Cameron’s credibility and to

establish that Cameron knowingly and falsely represented on the ATF form that he

did not have a misdemeanor offense of domestic battery in relation to the October

2004 incident. Evidence showing that Cameron had actually committed the

elements of a domestic battery offense, that is, he had struck Frison, who was

pregnant with his child at that time, made it more probable that, at the time he

filled out the ATF form, he knew he had been convicted of domestic battery not

just battery, notwithstanding his direct testimony that he was unaware that he had a

conviction for domestic battery. See Fed. R. Evid. 401.

      Moreover, the details of the 2004 domestic battery offense had a high

probative value that was not substantially outweighed by unfair prejudice, such

that the district court should have found the evidence inadmissible. See Merrill,

513 F.3d at 1301. On cross-examination, Cameron testified that he had doubts as

to whether Frison was the mother of one of his children, and thus, the government

elicited further details about his relationship with Frison, including that she was

pregnant with his second child at the time of the domestic battery, in order to show

the domestic nature of Cameron’s relationship with Frison. Further, Cameron

testified that he was unwilling to plead guilty to any crime in connection with the

battery incident because he believed that he had not committed any wrongful act


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against Frison, and this testimony placed in dispute whether Cameron had actually

committed a battery against Frison.

      Any unfair prejudice resulting from Cameron’s testimony of the details of

the domestic battery offense was slight, as the jury had already heard the

unobjected-to testimony of a government witness providing that Cameron had pled

guilty to either intentionally touching or striking Frison against her will or causing

her bodily harm. In addition, Cameron volunteered that Frison had a bruise and

that he struggled with Frison before the government asked any specific questions

as to these details. Finally, the district court’s limiting instructions minimized any

prejudice arising from the jury hearing the details of the domestic battery

conviction. See Fortenberry, 971 F.2d at 721. We conclude that the district court

did not abuse its discretion in allowing the admission of the details of the domestic

battery offense.

B.    Obstruction-of-Justice Enhancement

      Cameron argues that the district court clearly erred in finding the

government’s evidence sufficient to support the two-level obstruction-of-justice

enhancement under § 3C1.1 based on his sending a Facebook friend request to a

juror. Cameron claims the evidence did not show that his conduct was willful and

thus was insufficient to show obstruction of justice.




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      In reviewing the district court’s application of an obstruction-of-justice

sentencing enhancement, we review the district court’s factual findings for clear

error and its application of the sentencing guidelines de novo. United States v.

Doe, 661 F.3d 550, 565 (11th Cir. 2011), cert denied, 132 S. Ct. 1648 (2012). The

government bears the burden of proving the facts needed to support a sentencing

enhancement by a preponderance of the evidence. United States v. Turner, 626

F.3d 566, 572 (11th Cir. 2010).

      Section 3C1.1 of the sentencing guidelines provides a two-level

enhancement for obstruction of justice where “the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice with

respect to the investigation, prosecution, or sentencing of the instant offense of

conviction.” U.S.S.G. § 3C1.1. The enhancement applies where the defendant,

inter alia, (1) directly or indirectly threatens, intimidates, or otherwise unlawfully

influences, a juror, or attempts to do so, or (2) commits perjury. Id., comment.

(n.4). Where the enhancement is based on a defendant’s commission of perjury, a

district court must find that the elements of perjury are satisfied. United States v.

Ellisor, 522 F.3d 1255, 1276 (11th Cir. 2008). A witness testifying under oath

commits perjury where he gives false testimony concerning a material matter with

the willful intent to provide false testimony, rather than as a result of confusion,

mistake, or faulty memory. Id. at 1277 n.34.


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      Cameron challenges the district court’s imposition of a two-level

enhancement for obstruction of justice based on a finding that he willfully

attempted to obstruct the administration of justice by sending a juror a Facebook

friend request on the eve of deliberations. The district court based the

enhancement on this finding, but it also alternatively based the enhancement on the

finding that Cameron committed perjury at trial by making at least two materially

false statements when he testified that (1) the firearm was not actually being

purchased for him, and (2) he did not know his prior conviction was for domestic

battery. The district court found that these statements were not made as a result of

confusion or mistake, but rather were made with the intent to mislead the jury.

      Although Cameron argues that the district court clearly erred in imposing the

enhancement on the basis of the Facebook friend request sent to a juror, he does

not challenge on appeal the district court’s independent alternative basis for the

enhancement that he committed perjury by making two materially false statements

during his trial. This finding was sufficient to support the application of the

enhancement, and by failing to address this finding in his initial brief Cameron has

abandoned it on appeal. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8

(11th Cir. 2003) (holding that issues not raised in an appellant’s initial brief are

deemed abandoned). Thus, we uphold the application of the obstruction-of-justice




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enhancement on the basis of the district court’s alternative finding that Cameron

committed perjury.

      Alternatively, we also conclude there is no merit to Cameron’s claims that

there was insufficient evidence to support the obstruction-of-justice enhancement.

The record evidence adequately supported the district court’s findings both as to

the Facebook friend request and as to the perjury.

      Upon review of the record and consideration of the parties’ briefs, we affirm

Cameron’s conviction and sentence.

      AFFIRMED.




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