United States v. Antwan Tyrone Cameron , 547 F. App'x 942 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10576
Non-Argument Calendar
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D.C. Docket No. 3:12-cr-00033-UAMH-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTWAN TYRONE CAMERON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 11, 2013)
Before HULL, JORDAN and FAY, Circuit Judges.
PER CURIAM:
After a jury trial, Antwan Tyrone Cameron appeals his conviction and 60-
month sentence for making a false or fictitious statement to a federally licensed
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firearm dealer, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). After a
thorough review of the record and briefs, we affirm.
I. BACKGROUND
A. Attempted Firearm Purchase
In November 2011, Defendant Cameron and Allison Gornail visited
Shooters of Jacksonville (“Shooters”), a store that sells firearms and ammunition.
Cameron and Gornail spoke with the store manager. Gornail expressed an interest
in purchasing an AK-47 assault rifle for herself.
The store manager suspected that Gornail was actually purchasing the
firearm for Cameron, and not for her own personal use, because Gornail did not
know why she was buying the firearm, whereas Cameron was very knowledgeable
about the firearm. After Cameron attempted to pay for the firearm, the store
manager asked Cameron to fill out a Bureau of Alcohol, Tobacco, Firearms, and
Explosives Form 4473 (“ATF form”), which has to be completed before an
individual can buy a firearm.
The ATF form requires a buyer of a firearm to provide his name and address
and state whether the buyer is the “actual transferee/buyer” of the firearm. The
ATF form also includes a warning, which provides that “[y]ou are not the actual
buyer if you are acquiring the firearm(s) on behalf of another person. If you are
not the actual buyer, the dealer cannot transfer the firearm(s) to you.”
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Question 11i of the ATF form asks whether the buyer, here Defendant
Cameron, has a conviction for a misdemeanor crime of domestic violence. The
instructions for question 11i of the ATF form set forth the statutory definition of a
“misdemeanor crime of domestic violence.” 1 If a buyer represents on the ATF
form that he has a conviction for a misdemeanor crime of domestic violence, the
buyer is disqualified from buying a firearm. 2
In filling out the ATF form, Defendant Cameron represented that he, and not
Gornail, was the actual transferee/buyer of the AK-47. Cameron also represented
that he had never been convicted in a court of a misdemeanor crime of domestic
violence. Finally, Cameron certified that his answers on the ATF form were true
and correct and that he read and understood the notices, instructions, and
definitions on the form.
After Defendant Cameron completed the form, Shooters conducted a
background check of Cameron through the Florida Department of Law
Enforcement (“FDLE”). The FDLE reported that Cameron was ineligible to buy
1
A “misdemeanor crime of domestic violence” is statutorily defined, inter alia, as any
offense under federal or state law that “has, as an element, the use or attempted use of physical
force” and is committed by either (1) a current or former spouse, parent, or guardian of the
victim, (2) by a person with whom the victim shares a child in common, (3) by a person who is
cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or (4) by a
person similarly situated to a spouse, parent, or guardian of the victim. 18 U.S.C.
§ 921(a)(33)(A).
2
A person who has committed a “misdemeanor crime of domestic violence” is prohibited
from possessing a firearm. 18 U.S.C. § 922(g)(9).
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the firearm. Thus, Shooters could not sell Cameron the firearm. Once Cameron
and Gornail left Shooters, the store manager notified law enforcement about
Cameron’s attempt to purchase the AK-47.
B. Indictment and Trial
A federal grand jury returned an indictment charging Cameron with making
a false or fictitious statement to a federally licensed firearm dealer. The indictment
alleged that, on the ATF form that Cameron completed at Shooters, Cameron
falsely represented that he had not been convicted in any court of a misdemeanor
crime of domestic violence.
At Cameron’s trial, a government witness testified that, in November 2004,
Cameron pled guilty to actually and intentionally touching or striking a family or
household member, against her will or intentionally causing bodily harm to that
person, in violation of Fla. Statutes §§ 784.03 and 741.28. There was no objection
to this testimony. The government introduced into evidence the information
charging Cameron with domestic battery and the judgment.
Later at trial, Cameron testified in his own defense that, in November 2011,
Gornail asked for his assistance in purchasing a firearm for her protection. He
went with Gornail to Shooters to assist her in purchasing a firearm. Cameron also
intended to pay for the firearm Gornail selected. At the store, once Cameron
indicated that he would pay for the firearm, a Shooters employee asked Cameron
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to fill out an ATF form. Cameron testified that, on the ATF form, he represented
that he was the actual transferee/buyer of the firearm because he believed that, if he
did not make that representation, Shooters would not complete the firearm sale.
Cameron further testified that, on the ATF form, he represented that he did
not have a prior conviction for a misdemeanor domestic violence conviction
because the documents in his possession showed that he only had a prior
conviction for battery, not domestic battery. 3 Furthermore, prior to pleading guilty
to what he now knew was domestic battery, he only “vaguely” remembered the
judge explaining to him the details about the charges against him.
On cross-examination, the government asked Cameron about the events of
October 6, 2004, the date of the domestic battery. At side bar, Cameron’s counsel
objected to the government eliciting the underlying details of the domestic battery
offense because Cameron had admitted he committed the battery. Cameron’s
counsel stated that it was “irrelevant and overly prejudicial to get into the details of
the battery.” The district court requested that the government first ask questions
that related to Frison’s relationship with Cameron and whether Cameron admitted
to having committed the battery. The court stated that, depending on Cameron’s
answers, the government might not need to address the underlying conduct that
3
Cameron introduced into evidence a criminal history report he obtained from the
Jacksonville Sheriff’s Office in 2009 and again in 2011. The exhibit provides that Cameron was
arrested for “battery” in October 2004.
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constituted the battery. Following the court’s resolution of his objection, Cameron
stated “[o]kay.”
The government thus asked Cameron whether he recalled committing a
battery on Mikeisha Frison on October 6, 2004, and he answered affirmatively.
Cameron clarified that he did not know at the time of the 2011 attempted firearm
purchase that he had committed a domestic battery, because he thought that he and
Frison had to be “official boyfriend and girlfriend” for his actions toward Frison to
constitute domestic battery.
Cameron affirmed that he now knew, “if you batter the mother of your child,
that . . . is domestic battery.” At the time of the battery, Cameron, however, was
uncertain as to whether he was the father of Frison’s child. Cameron claimed that,
although he had never contested paternity, he had doubts as to whether he was
actually the child’s father because Frison had cheated on him. Nevertheless, on the
date of the battery, Cameron knew that, “at least, according to the child’s mother,
the birth certificate and anybody else who had ever been told,” he was the father of
Frison’s child. The government then asked whether Frison was pregnant with
Cameron’s second child at the time of the battery, and Cameron responded
affirmatively.
Cameron also testified that he recalled being charged with two offenses in
connection with the October 2004 incident. Cameron conceded that his public
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defender offered Cameron a plea bargain with respect to one of the charges, which
was a felony charge, but he did not want to take that offer. The following
exchange then occurred between the government and Cameron, which led to this
discussion of the details of the battery:
Q. And why didn’t you want to take the offer?
A. At the time, I felt since I called the police, that I wasn’t wrong.
But apparently in those situations, I’m wrong, regardless of who
actually called the police.
Q. You’re not denying that you struck Mikeisha Frison on October
6th, 2004, are you?
A. I’m not denying it. She had a bruise. I can’t say when it
became apart, but she had a bruise and, subsequently, we were
struggling at a point.
Q. Okay. You were struggling and fighting with her?
A. Yes, sir.
Cameron, however, did not subsequently object to the government’s
questions or move to strike his responsive testimony. On appeal, Cameron
argues that the district court abused its discretion in admitting this discussion
of the details of the battery. 4
C. Jury Instructions and Excused Juror
4
The government argues that we should review this evidentiary issue only for plain error.
Because we later conclude that the district court did not abuse its discretion in allowing the
admission of the details of the domestic battery offense, we need not decide whether Cameron
adequately objected or whether plain error review applies.
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Following closing arguments, the district court instructed the jury.
The court cautioned that the jury could consider Cameron’s prior domestic
battery only to determine “whether the elements of the offense charged
against the Defendant in the indictment have been established. The fact that
the Defendant was previously found guilty of another crime does not mean
that he committed the crime for which he is on trial here.” The court further
cautioned, “[y]ou must not consider this prior conviction for any purpose
other than to establish the existence of the prior conviction.” The court also
cautioned the jury that Cameron was on trial “only for the specific crime
charged in the indictment” and that the jury was only to determine whether
Cameron was guilty or not guilty of the specific crime.
The district court sent the jury home for the evening with
deliberations set to begin the next day. When the district court reconvened
proceedings the next morning, it announced that a juror had received a
Facebook friend request from Cameron the night before. According to the
juror, she had not accepted the request or viewed Cameron’s Facebook
profile page. Nevertheless, the juror found the friend request unsettling.
Therefore, the district court excused the juror and replaced her with an
alternate juror.
D. Verdict and Sentencing
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The jury deliberated and found Cameron guilty of making a false or
fictitious statement to a federally licensed firearm dealer.
The probation officer prepared a Presentence Investigation Report
(“PSI”), stating that Cameron’s base offense level was 20, pursuant to
U.S.S.G. § 2K2.1. The probation officer applied a two-level increase for
obstruction of justice, pursuant to U.S.S.G. § 3C1.1, based on Cameron
using his personal Facebook account to contact one of the jurors hearing his
case. With no further adjustments, Cameron’s total offense level was 22,
and his criminal history category was III. His advisory guidelines range was
51 to 63 months’ imprisonment.
In his written objections and at sentencing, Cameron objected to the
two-level enhancement for obstruction of justice, arguing that he lacked the
“specific intent to obstruct justice,” necessary for application of the
enhancement.
The district court found that Cameron obstructed justice by willfully
sending a Facebook friend request to a juror who was preparing to deliberate
in his trial. The district court thus overruled Cameron’s objection and
applied the obstruction-of-justice enhancement.
The district court further stated that, even if Cameron had not sent the
Facebook friend request, his trial testimony was sufficient to support the
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obstruction-of-justice enhancement because he made at least two material
false statements during his testimony. First, Cameron testified that Gornail
was actually purchasing the firearm, and second, he testified that he did not
know that he had a prior domestic violence conviction. The district court
concluded that both statements were clearly false and were rejected by the
jury. Further, Cameron did not make the false statements as a result of
confusion or mistake, but rather with the intent to mislead the jury. The
court determined that these false statements independently warranted the
obstruction-of-justice enhancement.
The district court adopted the advisory guidelines range set forth in
the PSI and sentenced Cameron to 60 months’ imprisonment. Afterwards,
Cameron’s counsel stated that Cameron maintained his objection to the
obstruction-of-justice enhancement. However, Cameron’s counsel did not
specifically object to the court’s alternative basis for imposing the
enhancement. Cameron now appeals.
II. DISCUSSION
A. Admissibility of Evidence about Domestic Battery Conviction
On appeal, Cameron argues that the district court abused its discretion
by allowing the government to introduce the details of his 2004 domestic
battery conviction because those details were irrelevant and unduly
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prejudicial. According to Cameron, the only relevant issue at trial was
whether Cameron knew that the conviction was for a domestic battery, and
thus, the evidence should have been limited to discussion of the relationship
between himself and Frison.
We generally review a district court’s evidentiary rulings for an abuse of
discretion. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007).
Once a defendant voluntarily testifies on his own behalf, he may be cross-
examined as to (1) matters “reasonably related” to the subject matter of the direct
examination, and (2) matters affecting credibility. United States v. Pilcher, 672
F.2d 875, 877 (11th Cir. 1982) (internal quotation marks omitted).
Only relevant evidence is admissible, and Federal Rule of Evidence 401
defines “relevant evidence” as evidence having any tendency to make a fact of
consequence more or less probable than it would be without the evidence. Fed. R.
Evid. 401, 402. A party’s concession as to a matter sought to be proved in a case
may, at times, call for the exclusion of evidence offered to prove the point
conceded. Old Chief v. United States, 519 U.S. 172, 184, 117 S. Ct. 644, 652
(1997); see Fed. R. Evid. 401 advisory committee’s notes, 1972 Proposed Rules.
Such a ruling, or exclusion, however, should be made on the basis of such
considerations as waste of time and undue prejudice under Federal Rule of
Evidence 403, rather than under any general requirement that evidence is
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admissible only where it is in dispute. Old Chief, 519 U.S. at 184, 117 S. Ct. at
652; see Fed. R. Evid. 401 advisory committee’s notes, 1972 Proposed Rules.
Rule 403 permits a court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
“Rule 403 is an extraordinary remedy which should be used only sparingly
since it permits the trial court to exclude concededly probative evidence. In
criminal trials relevant evidence is inherently prejudicial. Thus, the rule permits
exclusion only when unfair prejudice substantially outweighs probative value.”
United States v. Merrill, 513 F.3d 1293, 1301 (11th Cir. 2008) (brackets and
internal quotation marks omitted). “In doubtful cases, ‘the balance under Rule 403
should be struck in favor of admissibility.’” United States v. Gibson, 708 F.3d
1256, 1282 (11th Cir.) (brackets omitted), cert. denied, (U.S. Oct. 7, 2013) (No.
13-5826). Limiting instructions minimize the prejudicial effect of evidence.
United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992).
Here, evidence of the details of the October 2004 domestic battery was
relevant under Rule 401, regardless of whether Cameron conceded that he
committed a battery against Frison. See Old Chief, 519 U.S. at 184, 117 S. Ct. at
652. Cameron testified that he struck Frison, that he struggled and fought with
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Frison, that Frison was pregnant at that time, and that Frison was bruised during
the battery. This evidence was relevant as to Cameron’s credibility and to
establish that Cameron knowingly and falsely represented on the ATF form that he
did not have a misdemeanor offense of domestic battery in relation to the October
2004 incident. Evidence showing that Cameron had actually committed the
elements of a domestic battery offense, that is, he had struck Frison, who was
pregnant with his child at that time, made it more probable that, at the time he
filled out the ATF form, he knew he had been convicted of domestic battery not
just battery, notwithstanding his direct testimony that he was unaware that he had a
conviction for domestic battery. See Fed. R. Evid. 401.
Moreover, the details of the 2004 domestic battery offense had a high
probative value that was not substantially outweighed by unfair prejudice, such
that the district court should have found the evidence inadmissible. See Merrill,
513 F.3d at 1301. On cross-examination, Cameron testified that he had doubts as
to whether Frison was the mother of one of his children, and thus, the government
elicited further details about his relationship with Frison, including that she was
pregnant with his second child at the time of the domestic battery, in order to show
the domestic nature of Cameron’s relationship with Frison. Further, Cameron
testified that he was unwilling to plead guilty to any crime in connection with the
battery incident because he believed that he had not committed any wrongful act
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against Frison, and this testimony placed in dispute whether Cameron had actually
committed a battery against Frison.
Any unfair prejudice resulting from Cameron’s testimony of the details of
the domestic battery offense was slight, as the jury had already heard the
unobjected-to testimony of a government witness providing that Cameron had pled
guilty to either intentionally touching or striking Frison against her will or causing
her bodily harm. In addition, Cameron volunteered that Frison had a bruise and
that he struggled with Frison before the government asked any specific questions
as to these details. Finally, the district court’s limiting instructions minimized any
prejudice arising from the jury hearing the details of the domestic battery
conviction. See Fortenberry, 971 F.2d at 721. We conclude that the district court
did not abuse its discretion in allowing the admission of the details of the domestic
battery offense.
B. Obstruction-of-Justice Enhancement
Cameron argues that the district court clearly erred in finding the
government’s evidence sufficient to support the two-level obstruction-of-justice
enhancement under § 3C1.1 based on his sending a Facebook friend request to a
juror. Cameron claims the evidence did not show that his conduct was willful and
thus was insufficient to show obstruction of justice.
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In reviewing the district court’s application of an obstruction-of-justice
sentencing enhancement, we review the district court’s factual findings for clear
error and its application of the sentencing guidelines de novo. United States v.
Doe, 661 F.3d 550, 565 (11th Cir. 2011), cert denied, 132 S. Ct. 1648 (2012). The
government bears the burden of proving the facts needed to support a sentencing
enhancement by a preponderance of the evidence. United States v. Turner, 626
F.3d 566, 572 (11th Cir. 2010).
Section 3C1.1 of the sentencing guidelines provides a two-level
enhancement for obstruction of justice where “the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the instant offense of
conviction.” U.S.S.G. § 3C1.1. The enhancement applies where the defendant,
inter alia, (1) directly or indirectly threatens, intimidates, or otherwise unlawfully
influences, a juror, or attempts to do so, or (2) commits perjury. Id., comment.
(n.4). Where the enhancement is based on a defendant’s commission of perjury, a
district court must find that the elements of perjury are satisfied. United States v.
Ellisor, 522 F.3d 1255, 1276 (11th Cir. 2008). A witness testifying under oath
commits perjury where he gives false testimony concerning a material matter with
the willful intent to provide false testimony, rather than as a result of confusion,
mistake, or faulty memory. Id. at 1277 n.34.
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Cameron challenges the district court’s imposition of a two-level
enhancement for obstruction of justice based on a finding that he willfully
attempted to obstruct the administration of justice by sending a juror a Facebook
friend request on the eve of deliberations. The district court based the
enhancement on this finding, but it also alternatively based the enhancement on the
finding that Cameron committed perjury at trial by making at least two materially
false statements when he testified that (1) the firearm was not actually being
purchased for him, and (2) he did not know his prior conviction was for domestic
battery. The district court found that these statements were not made as a result of
confusion or mistake, but rather were made with the intent to mislead the jury.
Although Cameron argues that the district court clearly erred in imposing the
enhancement on the basis of the Facebook friend request sent to a juror, he does
not challenge on appeal the district court’s independent alternative basis for the
enhancement that he committed perjury by making two materially false statements
during his trial. This finding was sufficient to support the application of the
enhancement, and by failing to address this finding in his initial brief Cameron has
abandoned it on appeal. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8
(11th Cir. 2003) (holding that issues not raised in an appellant’s initial brief are
deemed abandoned). Thus, we uphold the application of the obstruction-of-justice
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enhancement on the basis of the district court’s alternative finding that Cameron
committed perjury.
Alternatively, we also conclude there is no merit to Cameron’s claims that
there was insufficient evidence to support the obstruction-of-justice enhancement.
The record evidence adequately supported the district court’s findings both as to
the Facebook friend request and as to the perjury.
Upon review of the record and consideration of the parties’ briefs, we affirm
Cameron’s conviction and sentence.
AFFIRMED.
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