                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUIT
                                             U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                         September 30, 2005
                            No. 04-15738                THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                D. C. Docket No. 02-00481-CR-T-23-TGW

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

DAVID LEE GAINER, SR.,
DAVID LEE GAINER, JR.,


                                                      Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                     _________________________

                          (September 30, 2005)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:
      This opinion involves the appeals of David Lee Gainer, Jr. and his father

David Lee Gainer, Sr., who were jointly tried and convicted.

      Gainer, Jr. was convicted of: one count of conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371; eleven counts of bank fraud, in violation of

18 U.S.C. §§ 1344 and 2; one count of conspiracy to commit bank fraud as an

employee of a federally insured bank through solicitation, demand, and acceptance

of commissions or gifts for procuring loans, in violation of 18 U.S.C. § 371; and

one count of receipt of commissions or gifts for procuring a loan as an employee

of a financial institution, in violation of 18 U.S.C. § 215(a)(2). He received

concurrent sentences of 46 months on each count.

      Gainer, Sr. was convicted of one count of conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371, and seven counts of bank fraud, in

violation of 18 U.S.C. §§ 1344 and 2. He received 21-month concurrent

sentences.

                                         I.

       Gainer, Jr. contends that the district court committed a Batson error in

allowing the government to use a peremptory challenge to strike a Hispanic

prospective juror, Ida Cesareo, on the basis of her race. The government contends

that Gainer, Jr. failed to make a prima facie showing of discriminatory intent. The

                                          2
government also contends that it offered a sufficient, race-neutral reason for

striking Cesareo—that Cesareo, who spoke English as a second language, did not

understand English well enough to follow the case, which involved complex

banking terminology. We need not address the prima facie case issue because it is

clear to us that the district court did not clearly err in crediting the government’s

race-neutral reason for striking Ceasaro.

      Before trial, during voir dire, the district court judge read the indictment and

asked the prospective jurors whether they understood it. Prospective juror Ida

Cesareo replied that she did not “understand a lot of the abbreviations.” She told

the judge that she had “lost track of who was who” and that she spoke English as a

second language. She indicated, however, that she could hear and understand the

judge’s questions and that she understood English well enough to follow the

proceedings. Cesareo later explained the she was born in Puerto Rico but had

lived in the United States for more than twenty years and had worked as a certified

nursing assistant. The judge again asked if she felt like she was following the

proceedings and understanding what was going on, and she said that she was.

      Upon further inquiries, Cesareo stated that she “had a bankruptcy a year and

a half ago,” and the following exchange occurred:

      District Court:      Here in this building?

                                            3
      Cesareo:            No.

      District Court:     Is it closed?

      Cesareo:            It is close around here.

      District Court:     I see. Now, is the case closed now? Is it over?

      Cesareo:            Yes, it is over.

      District Court:     And when did it get over?

      Cesareo:            Well, it is—I am still paying bankruptcy.

      The government later used a peremptory challenge to strike Cesareo from

the jury. Gainer, Jr. raised a Batson challenge to the strike. The government

responded to that challenge by asserting that it was “striking Ms. Cesareo because

she already expressed to the [c]ourt difficulty in understanding the indictment as

read. And her English spoken in court was broken.”

      Although, as the district court noted, other venire members had probably

experienced similar difficulty in making sense of the indictment, Cesareo was the

only juror who expressed confusion over what she described as the

“abbreviations” used in the indictment. The court noted that “her use of the term

‘abbreviations’ was not clear to me. Her pronunciation of the word was not clear

to me. Nor did I understand exactly how the term ‘abbreviations’ applied to what

was in the indictment.”

                                             4
      The district court noted that prospective juror “Cesareo herself raised

concerns about her understanding, although she receded somewhat from that when

questioned;” that juror “Antonio Latour, born in Cuba . . . remains on the venire,

unchallenged by the United States;” and that there was no “indication certainly in

the behavior of the United States or in the contents of these proceedings to suggest

that [the Batson] objection was meritorious, although the opportunity to make it is

presented and hard, I know, to resist.”

      “A district court’s findings regarding whether a peremptory strike was

exercised for a discriminatory reason largely involve credibility determinations

and are therefore entitled to great deference. Thus, we review a district court’s

findings in this respect only for clear error.” United States v. Novaton, 271 F.3d

968, 1001 (11th Cir. 2001) (citation and quotation marks omitted). We are to

accord “great deference” to the court’s finding that the government’s explanation

for the strike was credible. Stewart, 65 F.3d at 925. Here that deference is

unnecessary; there was no error, clear or otherwise. Ms. Cesareo was not fluent in

the English language and she demonstrated language-based difficulty

understanding terms in the indictment and communicating with the court. This

was a banking fraud case. It would be hard enough for jurors proficient in English

to understand the allegations, evidence, and instructions. Under these

                                          5
circumstances, the reason the government proffered for striking her was not only

plausible but compelling.

                                         II.

      Gainer, Jr. also contends that his Fifth Amendment rights were violated

when the government cross-examined him about what he describes as his post-

arrest silence. Almost three years before he was arrested or indicted, two police

officers and two officials from SouthTrust Bank questioned Gainer, Jr. about his

suspected fraudulent activities. During this meeting, Gainer, Jr. signed a written

statement confessing that he had received a bribe and had committed the acts

underlying the crimes that were later alleged in counts thirteen (conspiracy to

commit bank fraud as an employee of a federally insured bank through

solicitation, demand, and acceptance of commissions or gifts for procuring loans)

and fourteen (receipt of commissions or gifts for procuring a loan as an employee

of a financial institution) of the indictment. When questioned on direct about his

written confession, Gainer, Jr. testified that he was forced to make the statement

and that the police officers interrogating him were “very rough, as far as vocal,

with [him].” He explained that he had agreed to write the statement in order to

avoid being arrested.

      On cross-examination the prosecutor asked Gainer, Jr. whether, immediately

                                          6
after he made the confession (before he was arrested), he contacted the police to

protest this situation or called his lawyer to report that he had been coerced into

confessing to a federal crime. Gainer, Jr. said that he had not. He also admitted

that when FBI agents contacted him several months later (still before he was

arrested), he did not explain that he had been forced to confess to criminal

activities.

       The prosecutor concluded by asking, “And, in fact, the first time that you

ever advised anyone with the United States or Bradenton Police or South Trust

Bank that this had been coerced from you under these horrifying circumstances

was a good year after you’d been indicted for these crimes, is that correct?”

“Yes,” Gainer, Jr. replied.

       Then, during closing argument, the prosecutor emphasized that Gainer, Jr.

had not promptly reported to authorities his allegation that he had been forced to

confess to crimes he had not committed. The government reminded the jurors of

the fact that Gainer, Jr. did not assert that he had been coerced to confess “until a

year after he had been indicted in this case” and “that was the first time the

government or SouthTrust ever heard the claim that he was forced or intimidated

into [confessing].”

       Gainer, Jr. contends that the district court should have acted to prevent

                                           7
questioning about his silence following the indictment and should have stopped

the government from commenting on this testimony during its closing argument.

He also contends that the comments on his post-arrest silence violated his due

process rights and improperly shifted the burden of proof to the defense on counts

thirteen and fourteen of the indictment.

      At trial, however, Gainer, Jr. did not object to this line of questioning or to

the prosecutor’s comments in closing argument. Accordingly, our review is only

for plain error. See United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770,

1776 (1993). Plain error occurs only when the following requirements are met:

(1) the district court committed “error,” (2) the error was plain, and (3) the error

“affect[s] substantial rights.” Id. at 732, 113 S. Ct. at 1776. If all of these criteria

are satisfied, then we should correct the plain error only if it “seriously affect[s]

the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736,

113 S. Ct. at 1779 (citation and quotation marks omitted).

      A defendant cannot be questioned about post-arrest silence after he has

asserted his right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct.

2240, 2245 (1976) (explaining that Miranda warnings create an implicit assurance

that a defendant’s “silence will carry no penalty”). The reason is that “it would

be fundamentally unfair and a deprivation of due process to allow the arrested

                                            8
person’s silence to be used to impeach an explanation subsequently offered at

trial.” Id. It is permissible, however, to question a defendant about his pre-arrest

silence. See Jenkins v. Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 2130

(1980).

      The prosecutor’s questioning focused primarily on Gainer, Jr.’s pre-arrest

silence and his failure to assert promptly after he confessed that he had been

coerced into doing so. That is a proper basis for impeachment. Those questions

and the argument based on them did not constitute error. See Jenkins, 447 U.S. at

240, 100 S. Ct. at 2130.

      The prosecutor’s question about whether the first time Gainer, Jr. notified

the government that his confession was coerced was “a good year after [he had]

been indicted” did refer to a period of time following his arrest (he was arrested

two days after being indicted). Therefore, that question and the reference to the

facts brought out by it was a Doyle violation—assuming, as we will, that Miranda

warnings were given following the arrest. We have held, however, that “[a] Doyle

violation is harmless if the error had no substantial and injurious effect or

influence in determining the jury’s verdict.” United States v. Miller, 255 F.3d

1282, 1285 (11th Cir. 2001) (citations and quotation marks omitted).

      This Doyle violation does not amount to plain error because it does not meet

                                          9
the third requirement of the plain error test, which is “anything but easy” to

satisfy. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). To

pass that test, the defendant must show that error “affected the outcome of the

district court’s proceedings.” United States v. Cotton, 535 U. S. 625, 632, 122 S.

Ct. 1781, 1786 (citation and quotation marks omitted).

        Most of the prosecutor’s questions concerning Gainer, Jr.’s failure to inform

anyone that his confession was coerced referred to the pre-arrest time period.

Only one question mentioned his silence after his arrest. Given the context of the

questions and the argument based on them, Gainer, Jr. has not met his burden of

“show[ing] that the error actually did make a difference.” Rodriguez, 398 F.3d at

1300.

                                         III.

        Finally, Gainer, Jr. and Gainer, Sr. both contend that they were sentenced in

violation of Booker. Each of them made timely Blakely objections, Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), at the time of sentencing. We

review the issue but will reverse only for a harmful error. See United States v.

Paz, 405 F.3d 946, 948 (11th Cir. 2005). The government bears the burden of

demonstrating that any error is harmless. Id.

        Applying the guidelines in a mandatory fashion, the district court increased

                                          10
Gainer, Jr.’s and Gainer, Sr.’s guideline range based upon facts that were neither

alleged in the indictment nor submitted to the jury for proof beyond a reasonable

doubt. The government concedes that it cannot show that the district court’s

mandatory application of the guidelines was harmless and that Gainer, Sr. and

Gainer, Jr. are entitled to resentencing. We agree.

      The convictions of both appellants are AFFIRMED, but the sentence of

each appellant is VACATED, and the cases are REMANDED for resentencing in

compliance with the Booker decision.




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