FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 AUGUST 6, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-17254

Non-Argument Calendar

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D. C. Docket No. 08-20463-CR-MGC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN LUIS ORELLANA,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 6, 2009)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant Juan Luis Orellana appeals his conviction for knowingly and
willfully delivering a package containing firearms to a common carrier without

written notice, in violation of 18 U.S.C. §§ 922(e) and 924(a)(1)(D). On appeal,

Orellana argues that the evidence presented at trial was insufficient to support his

conviction. In addition, Orellana identifies several potential trial errors, and he

argues that the cumulative effect of those errors deprived him of his Sixth

Amendment right to a fair trial. First, he asserts that the district court erred by

admitting evidence related to the purchase of the two rifles found in the package.

Next, he argues that testimony by a government agent, Special Agent DeVito,

regarding statements made by him and his wife in Spanish was impermissible

hearsay because Agent DeVito testified that she was not fluent in Spanish, and

explained that another agent had translated Orellana’s statements for her. Orellana

also asserts that admission of Agent DeVito’s testimony violated his rights under

the Confrontation Clause because the agent who translated his statements did not

testify at trial.

In addition, Orellana argues that the prosecutor’s cross-examination of his

wife concerning an appraisal listing for the Orellanas’ home and the prosecutor’s

comments during closing argument violated his constitutional rights. Finally,

Orellana argues that the district court’s jury instructions were erroneous because

they failed to include all the mens rea elements of his offense.

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I.

“We review de novo whether there is sufficient evidence in the record to

support a jury's verdict in a criminal trial, viewing the evidence in the light most

favorable to the government, and drawing all reasonable inferences in favor of the

jury's verdict.” United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009). The

test is whether “a reasonable trier of fact could find that the evidence established

guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted). “It is

not necessary for the evidence to exclude every reasonable hypothesis of innocence

or be wholly inconsistent with every conclusion except that of guilt.” United

States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (internal quotation marks

omitted).

In relevant part, 18 U.S.C. § 922(e) provides:

It shall be unlawful for any person knowingly to deliver or cause to be

delivered to any common or contract carrier for transportation or

shipment in interstate or foreign commerce, to persons other than

licensed importers, licensed manufacturers, licensed dealers, or

licensed collectors, any package or other container in which there is

any firearm or ammunition without written notice to the carrier that

such firearm or ammunition is being . . . shipped.

18 U.S.C. § 922(e). In addition, the applicable penalty statute states that any

person who “willfully violates” various firearms statutes, including § 922(e), shall

be fined, imprisoned for not more than five years, or both. 18 U.S.C. §

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924(a)(1)(D).

The Supreme Court has interpreted the term “willfully,” as used in §

924(a)(1)(D), to mean that the government must prove that the defendant knew that

his conduct was unlawful. Bryan v. United States, 524 U.S. 184, 196, 118 S. Ct.

1939, 1947, 141 L. Ed. 2d 197 (1998). However, the government need not prove

that the defendant was aware of the specific requirements of the particular statute.

Id. at 191-195, 118 S. Ct. at 1944-47. The Court based its holding on “the

traditional rule that ignorance of the law is no excuse.” Id. at 196, 118 S. Ct. at

1947. The Court distinguished earlier cases in which it had held that knowledge of

the law is required for willful violations of certain tax and monetary transaction

reporting statutes because those cases dealt with “highly technical statutes that

presented the danger of ensnaring individuals engaged in apparently innocent

conduct.” Id. at 194-195, 118 S. Ct. at 1946-47.

In United States v. Granda, 565 F.2d 922 (5th Cir. 1978), we overturned a

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defendant’s conviction for knowingly and willfully transporting monetary

instruments in an amount exceeding $5,000 into the United States without filing a

customs report because the government had failed to prove that the defendant was

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

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adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior

to October 1, 1981. 

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aware of the statute’s reporting requirement. Id. at 923-27. In so holding, we

observed that it was “impossible to prove beyond a reasonable doubt” that a

defendant willfully violated the statute without showing that the defendant was

aware of the reporting requirement, because the isolated act of bringing more than

$5,000 into the United States was “not illegal or even immoral.” Id. at 926.

In order to establish that Orellana knowingly and willfully violated 18

U.S.C. § 922(e), the government was required to prove that Orellana knew that his

conduct was unlawful, but it was not required to prove that he was aware of

§ 922(e)’s notice requirement. Viewing the evidence in the light most favorable to

the verdict, Orellana covered the rifles and ammunition with layers of packaging,

and then informed the shipping company, Transportes Zuleta, that the box did not

contain any rifles or ammunition. He listed “Luis Fernando Cordon” as the sender

of the package, rather than using his own name. Based on this evidence, we

conclude that a reasonable fact-finder could have concluded that Orellana knew

that his conduct was unlawful. Further, we conclude that the government also

introduced sufficient evidence to show that Orellana failed to give written notice to

Transportes Zuleta.

II.

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

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discretion. United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).

Under Rule 404(b),

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.

Fed.R.Evid. 404(b). For evidence of a prior bad act to be admissible under Rule

404(b), it must meet three requirements. First, “the evidence must be relevant to

an issue other than the defendant’s character; [2] the act must be established by

sufficient proof to permit a jury finding that the defendant committed the extrinsic

act; and [3] the probative value of the evidence must not be substantially

outweighed by its undue prejudice, and the evidence must meet the other

requirements of Rule 403.” Brannan, 562 F.3d at 1307 (internal quotation marks

omitted). With respect to the third requirement, we have stated that “Rule 403 is

an extraordinary remedy which should be used only sparingly.” United States v.

Betancourt, 734 F.2d 750, 757 (11th Cir. 1984). A trial court may reduce the

possibility of unfair prejudice through the use of a limiting instruction. United

States v. Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007).

In this case, the testimony by Orellana’s cousin, Trabanino, that Orellana

had asked him to purchase one of the rifles found in the package, and the forms

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that Trabanino and Orellana filled out when purchasing the rifles, indicated that

Orellana was the owner of both rifles. The fact that Orellana owned the rifles

made it more likely that he knew that they were in the box. Thus, this evidence

relating to the purchase of the rifles was relevant to the issue of knowledge. In

addition, the probative value of this evidence was not outweighed by any unfair

prejudice to Orellana. Therefore, we conclude that the district court did not abuse

its discretion by not excluding this evidence.

III.

Because Orellana did not raise a hearsay or a Confrontation Clause

challenge to Agent DeVito’s testimony during his trial, we review this claim for

plain error. Under the plain error standard, a defendant must show: (1) an error, (2)

that is plain or obvious, and (3) that affected his substantial rights. United States v.

Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009). If the first three conditions are

met, we have discretion to correct an error that “seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” Id. (internal quotation

marks omitted).

The Federal Rules of Evidence provide that a statement made by a party

against whom it is offered is not hearsay. Fed.R.Evid. 801(d)(2)(A). Statements

made by a party’s agent or servant are also excluded from the definition of hearsay.

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Fed.R.Evid. 801(d)(2)(C) and (D). We have held that translations of a defendant’s

statements do not constitute impermissible hearsay where the translator was acting

as the defendant’s agent, and where the translator had sufficient capacity and no

motive to mislead. United States v. Alvarez, 755 F.2d 830, 859-60 (11th Cir. 1985)

(adopting the reasoning of United States v. Da Silva, 725 F.2d 828 (2d Cir.1983)).

“Prior statements of witnesses are hearsay and are generally inadmissible as

affirmative proof.” United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir.

2007) (internal quotation marks omitted). However, a witness’s prior inconsistent

statements are admissible for the purpose of impeachment. Id.

“[T]he Confrontation Clause of the Sixth Amendment prohibits the

admission of out of court statements that are testimonial unless the declarant is

unavailable and the defendant had a previous opportunity to cross-examine the

declarant.” Jiminez, 564 F.3d at 1286. “[T]he Confrontation Clause prohibits only

statements that constitute impermissible hearsay.” Id. Admission of a defendant’s

own out-of-court statements does not violate the Confrontation Clause. United

States v. Brown, 441 F.3d 1330, 1358-59 (11th Cir. 2006).

During Orellana’s trial, Special Agent DeVito testified that, although she

could not speak Spanish fluently, she did understand Spanish, and could

understand “portions or the majority of” Orellana’s answers. In addition, the

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record does not indicate that Agent DeVito was unable to understand Anna

Orellana’s statements. Because it is not clear that Agent DeVito’s testimony was

based on Agent Cole’s translations, Orellana cannot show any plain error with

respect to those translations.

To the extent that Special Agent DeVito’s testimony was based on her own

recollection, her testimony regarding Orellana’s answers was not hearsay, because

Orellana’s responses were admissions by a party-opponent. In addition, admission

of Orellana’s own out-of-court statements did not violate the Confrontation Clause.

Agent DeVito’s testimony regarding Anna Orellana’s statements was not hearsay

because those statements were being used to impeach Anna Orellana’s direct

testimony, rather than being offered for the truth of the matter asserted. Because

Agent DeVito’s testimony about Anna Orellana’s statements was not

impermissible hearsay, it also did not violate the Confrontation Clause. Therefore,

we conclude that the district court did not commit plain error by not excluding

Agent DeVito’s testimony concerning the Orellanas’ statements.

IV.

Whether a prosecutor’s statements during trial violated a defendant’s

constitutional rights is a mixed question of law and fact that we review de novo.

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United States v. Baker, 432 F.3d 1189, 1252 (11th Cir. 2005). We will reverse a

conviction based on a prosecutor’s statements only where those statements: (1)

were improper, and (2) prejudiced the defendant. Id. “Improper statements

prejudice the defendant when there is ‘a reasonable probability that, but for the

prosecutor's offending remarks, the outcome of the . . . [proceeding] would have

been different.’” Id. (alteration in original) (quoting United States v. Eyster, 948

F.2d 1196, 1206 (11th Cir.1991)).

A. The Prosecutor’s Questions Concerning the Appraisal Form

A party’s questions on cross-examination must be supported by a good-faith

factual basis. See United States v. Foley, 508 F.3d 627, 637 (11th Cir. 2007)

(discussing standard for cross-examination of a character witness). Generally,

documents must be properly authenticated or identified before being admitted into

evidence. Fed.R.Evid. 901(a).

At trial, Orellana’s defense was that a former tenant had given him the

package for shipment, and that he did not know that there were rifles and firearms

inside of the package. Orellana’s wife, Anna Orellana, testified that this tenant

stayed in a third bedroom in the Orellanas’ home. On cross-examination, the

prosecutor asked Anna Orellana whether she knew that her home had been

appraised as a two-bedroom home.

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Because the prosecutor had a copy of a Miami-Dade County property

appraisal listing, he had a good-faith basis for asking this question. Because the

government did not introduce the appraisal into evidence, no authentication was

required. Also, it does not appear that the prosecutor’s question resulted in any

prejudice to Orellana, as it is unlikely that this question had a significant impact on

the jury’s verdict.

B. The Prosecutor’s Remarks During Closing Argument

Although “a prosecutor may not comment on the absence of witnesses or

otherwise attempt to shift the burden of proof, . . . a comment by the prosecutor on

the failure by defense counsel, as opposed to the defendant, to counter or explain

evidence” is permissible. United States v. Hernandez, 145 F.3d 1433, 1439 (11th

Cir. 1998). Any prejudice resulting from a burden-shifting is reduced if the

government or the trial court explains to the jury that the government has the

burden of proof. Id.

Generally, a prosecutor may not express his personal opinion concerning a

defendant’s guilt. See United States v. Tisdale, 817 F.2d 1552, 1556 (11th Cir.

1987); United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 1048, 84 L. Ed.

2d 1 (1985). However, a prosecutor may express a personal opinion provided that

it is based on evidence in the record. United States v. Adams, 799 F.2d 665, 670

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(11th Cir. 1986) (“I believe that the Government has proven . . . that the

Defendants are guilty” held to be a permissible comment on the weight of the

evidence); see also Tisdale, 817 F.2d at 1556 (no reversible error where prosecutor

stated “I believe the government has proven its case beyond a reasonable doubt”).

We conclude from the record that the prosecutor’s remark during closing

argument that he had not seen any pictures of the third bedroom was not an

improper burden-shifting argument, but rather, was a comment on defense

counsel’s failure to introduce photographs of the third bedroom. Even if this

remark were improper, it does not appear that it prejudiced Orellana, because the

government and the district court both stated to the jury that the government had

the burden of proving each element of Orellana’s offense beyond a reasonable

doubt. In addition, the prosecutor’s comment, “I know it,” when read in context,

was a comment on the weight of the evidence rather than a personal opinion of

Orellana’s guilt. Therefore, that remark was not improper.

V.

In a case where a defendant objects to the district court's jury instructions for

the first time on appeal, we review for plain error. United States v. Dean, 517 F.3d

1224, 1230 (11th Cir. 2008), cert. denied, 129 S. Ct. 2155 (2009). The Eleventh

Circuit Pattern Jury Instructions, used by the district court in this case, state that an

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act was done “knowingly" if it “was done voluntarily and intentionally and not

because of mistake or accident.” 11th Cir. Pattern Jury Instr. (Criminal Cases) §

9.1 (2003). The pattern jury instructions define the term “willfully” to mean that

“the act was committed voluntarily and purposely, with the specific intent to do

something that the law forbids; that is, with bad purpose either to disobey or

disregard the law.” Id.

In United States v. Mekjian, 505 F.2d 1320 (5th Cir. 1975), the defendant

was charged with filing false Medicare claims, in violation of 18 U.S.C. § 1001.

Id. at 1322. The relevant statutory language made it illegal to “knowingly” and

“willfully” file a false claim, but the indictment only charged Mekjian with

“knowingly” filing false claims. Id. at 1324. We held that the indictment was

invalid because it failed to include the mens rea element of “willfully.” Id. We

noted that “knowingly” and "willfully” were distinct mens rea elements because

“knowingly” only required proof that the defendant acted “with knowledge,”

whereas “willfully” required proof that the defendant acted “deliberately and with

knowledge.” Id. at 1324 (internal quotation marks omitted).

In this case, because the government was not statutorily required to show

that Orellana was specifically aware of § 922(e)’s notice requirement, the district

court did not err, much less plainly err, by not instructing the jury that the

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government needed to prove that Orellana “knowingly” and “willfully” failed to

provide written notice. In addition, although the court omitted the mens rea

element of “knowingly” from its jury instructions, this omission did not affect

Orellana’s substantial rights because the definition of “willfully” used by the

district court essentially includes the definition of “knowingly.” An act that is

performed “voluntarily and purposely” is also done “voluntarily and intentionally

and not because of mistake or accident.” See 11th Cir. Pattern Jury Instr. § 9.1.

Thus, we conclude that Orellana has failed to show any plain error with respect to

the district court’s jury instructions.

Because Orellana has not shown any error, he has also failed to show

cumulative error. Accordingly, we affirm Orellana’s conviction.

AFFIRMED.

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