[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-10331

Non-Argument Calendar

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

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

JEAN BERNABE, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(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 crossexamine 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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