                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 11-14291         ELEVENTH CIRCUIT
                          Non-Argument Calendar       MARCH 15, 2012
                        ________________________        JOHN LEY
                                                         CLERK
                   D.C. Docket No. 0:11-cr-60018-CMA-1

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                   versus


MINOR BROOKS,

                                                          Defendant-Appellant.


                        ________________________

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

                              (March 15, 2012)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Minor Brooks appeals his convictions for two counts of possession with
intent to distribute twenty-eight grams or more of crack cocaine in violation of 21

U.S.C. §§ 841(a)(1), 851. On appeal, Brooks argues that the prosecutor engaged

in misconduct during closing argument by misstating the law on the defense of

entrapment.

       We review de novo claims of prosecutorial misconduct. United States v.

Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). To establish prosecutorial

misconduct, a defendant must demonstrate that (1) the prosecutor’s remarks were

improper and (2) the remarks prejudicially affected his substantial rights. Id. “A

defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome of the trial would have

been different. When the record reveals sufficient independent evidence of guilt,

any error is harmless.” Id. (citation omitted).

       Brooks argues that the government misstated the law on the defense of

entrapment when it said: “we don’t have to show that [Brooks] was predisposed on

the date in October when he was first called” by the government informant.1 We

agree that this was improper. The Supreme Court has clearly held that when a

defendant raises the defense of entrapment, “the prosecution must prove beyond


       1
        Brooks also points to other statements that the government made during closing
argument regarding the entrapment defense, but only in an effort to show that this first statement
was not harmless.

                                                2
[a] reasonable doubt that the defendant was disposed to commit the criminal act

prior to first being approached by Government agents.” Jacobson v. United States,

503 U.S. 540, 549, 112 S. Ct. 1535, 1540 (1992) (emphasis added).

      We are not persuaded, however, that this misstatement prejudicially affected

Brooks’s substantial rights. First, after closing argument, as part of its final jury

charge, the district court instructed the jury that

             If you should find beyond a reasonable doubt from the evidence
      in the case that before anything at all occurred respecting the alleged
      offenses involved in this case the defendant was ready and willing to
      commit crimes such as charged in the Indictment whenever opportunity
      was afforded and government officers or their agents did no more than
      offer the opportunity, then you should find the defendant is not a victim
      of entrapment.

             On the other hand, if the evidence in the case should leave you
      with a reasonable doubt whether the defendant had the previous intent
      or purpose to commit an offense of the character charged apart from the
      inducement or persuasion of some officer or agent of the government,
      then it is your duty to find him not guilty.

(Emphases added.) This charge correctly pinpoints the time for which the jury

was required to make its finding on predisposition. See Jacobson, 503 U.S. at 549,

112 S. Ct. at 1540.

      We are mindful that the district court’s decision to overrule Brooks’s

objection might have given the impression that the government correctly stated the

law. Our review of the record persuades us, however, that the district court

                                            3
dispelled any potential confusion when, in response to a jury question about the

law of entrapment, it directed the jury to refer to its final charge. Given that the

jury was also repeatedly told that it had to follow the law as explained by the

court, and given that “[w]e generally presume that jurors follow their instructions,”

United States v. Hill, 643 F.3d 807, 829 (11th Cir. 2011), we conclude that the

government’s misstatement on that issue of law was harmless.

      Second, there was ample evidence by which the jury could find that Brooks

was predisposed to commit the offenses with which he was charged. There was

evidence that, after he was arrested for the alleged offenses, he told the law

enforcement officer that “he buys approximately seven grams of crack cocaine at a

time” and that “he just wanted to go to jail.” There was also evidence that on two

previous occasions, Brooks had sold crack cocaine to law enforcement officers

working undercover. The judgments of conviction that arose from those two

incidents were admitted into evidence, and thus known to the jury. In view of all

of this, we conclude that the government’s misstatement did not prejudicially

affect Brooks’s substantial rights.

      AFFIRMED.




                                           4
