            Case: 13-12651    Date Filed: 04/20/2015   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-12651
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 0:12-cr-60101-RSR-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

VLADIMYR JEAN BAPTISTE,

                                                           Defendant-Appellant.

                        ________________________

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

                               (April 20, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

     Vladimyr Jean Baptiste appeals his convictions for conspiracy to smuggle
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firearms from the United States, in violation of 18 U.S.C. § 371, and dealing in

firearms without a federal license, in violation of 18 U.S.C. §§ 922(a)(1)(A),

923(a), and 924(a)(1)(D). On appeal, Baptiste argues that the evidence was

insufficient because two witnesses were not credible, and most of the other

evidence only documented his legal activities, such as buying firearms, flying to

and from Haiti, and shipping personal effects and dog food to Haiti. Baptiste also

argues that the Government did not prove that he was engaged in the business of

selling firearms because it did not prove that he devoted time, attention, and labor

to selling firearms, and therefore he was not required to apply for a license from

the Attorney General.1

       We review de novo the denial of a motion for judgment of acquittal and the

sufficiency of the evidence. United States v. Hunt, 526 F.3d 739, 744 (11th Cir.

2008). In reviewing a claim of insufficient evidence, we examine the evidence in

the light most favorable to the Government and draw all reasonable inferences in

favor of the verdict. United States v. Verbitskaya, 406 F.3d 1324, 1335 (11th Cir.

2005). We affirm if a reasonable trier of fact could have found the essential

elements beyond a reasonable doubt. Id. The Court assumes that the jury made all

credibility choices in a manner that supports its verdict. United States v. Jiminez,

1
        In his reply brief, Baptiste also objects to hearsay evidence and claims a violation of his
due process rights under Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173 (1959). We will not
entertain these issues because they were not timely raised in Baptiste’s initial brief. United
States v. Levy, 379 F.3d 1241, 1242 (11th Cir. 2004).
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564 F.3d 1280, 1285 (11th Cir. 2009).

      “The elements of a conspiracy under 18 U.S.C. § 371 are (1) an agreement

among two or more persons to achieve an unlawful objective; (2) knowing and

voluntary participation in the agreement; and (3) an overt act by a conspirator in

furtherance of the agreement.” United States v. Hasson, 333 F.3d 1264, 1270

(11th Cir. 2003). The overt act may be innocent in nature as long as it furthers the

purpose of the conspiracy. United States v. Campa, 529 F.3d 980, 1002 (11th Cir.

2008). The Government may prove a conspiracy with circumstantial evidence

alone “[b]ecause the essential nature of conspiracy is secrecy.” United States v.

Adkinson, 158 F.3d 1147, 1153 (11th Cir. 1998).

      To convict a defendant of dealing in firearms without a license, the

Government must show that the defendant: (1) engaged in the business of dealing

in firearms; (2) did not have a license issued under federal law; and (3) knew that

his conduct was unlawful. See 18 U.S.C. § 922(a)(1)(A); Bryan v. United States,

524 U.S. 184, 188-89, 196, 118 S. Ct. 1939, 1943-44, 1947 (1998).

Section 921(a)(21)(C) defines “engaged in the business” relative to a dealer in

firearms as “a person who devotes time, attention, and labor to dealing in firearms

as a regular course of trade or business with the principal objective of livelihood

and profit through the repetitive purchase and resale of firearms.” 18 U.S.C.

§ 921(a)(21)(C). The fact finder examines the intent of the defendant and all


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surrounding circumstances to determine if the defendant engaged in the business of

dealing in firearms. See United States v. Bailey, 123 F.3d 1381, 1392 (11th Cir.

1997).

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

affirm.

      Baptiste’s argument, that the evidence is insufficient because two of the

witnesses, Agent Ali Berisha and Michel Bosquet, are not credible, is unavailing

because this Court assumes the jury made all credibility choices in favor of the

verdict. Jiminez, 564 F.3d at 1285. Based on Bosquet’s testimony, that Baptiste

shipped guns to Pierre Mendes, and the circumstantial evidence of Baptiste

purchasing guns, shipping dog food to Bosquet, and flying to Haiti shortly after the

purchases and shipments, the Government proved the three elements of conspiracy

under § 371. See Hasson, 333 F.3d at 1270. Baptiste’s argument, that it was legal

for him to buy firearms, ship dog food, and fly to Haiti, does not undermine the

sufficiency of the evidence because the overt acts in furtherance of the conspiracy

may be innocent acts. See Campa, 529 F.3d at 1002. Further, the testimony of

Bosquet and Berisha, if believed by the jury, supports the inference that the

firearms purchases, dog food shipments, and flights to Haiti were in furtherance of

the conspiracy. See id.

      Regarding Baptiste’s argument that he was not engaged in the business of


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dealing in firearms and therefore did not need to apply for a license from the

Attorney General, § 921(a)(21)(C) does not require a threshold number of sales,

profit, or hours spent before a person has engaged in the business of dealing in

firearms. See 18 U.S.C. § 921(a)(21)(C). A reasonable jury could infer that

Baptiste’s principal objective was livelihood and profit based on Bosquet’s

testimony that Baptiste suggested they ship guns to Haiti for Mendes to sell and the

timing of Baptiste’s firearms purchases, shipments, and flights to Haiti. See

Bailey, 123 F.3d at 1392. A jury would therefore be justified in concluding beyond

a reasonable doubt that Baptiste engaged in the business of dealing in firearms.

Accordingly, we affirm Baptiste’s convictions.

      AFFIRMED. 2




2
      The Government’s motion to strike portions of Baptiste’s reply brief is denied as moot.
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