No. 20-1395 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Dean Allen McBaine

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________

Submitted: January 11, 2021 Filed: June 7, 2021 [Published] ____________ Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges. ____________ PER CURIAM.

In 2019, a jury in the Eastern District of Missouri convicted Dean McBaine of possessing an unregistered destructive device. See 26 U.S.C. §§ 5861(d), 5871; see also 26 U.S.C. § 5845(a) (defining “firearm,” as used in § 5861(d), to include “a destructive device”); id. § 5845(f) (defining “destructive device” to include “any explosive, incendiary, or poison gas . . . bomb”). The district court1 sentenced him to 60 months’ imprisonment. McBaine appeals, and we affirm.

I.

In the early hours of September 2, 2018, law enforcement and firefighters responded to a call about an explosion at the home of McBaine’s ex-wife, Kendra Miller,2 and their 13-year-old son. An improvised explosive device had exploded under Miller’s car, destroying it and damaging both her house and a neighbor’s house. Miller and her son were inside their home sleeping at the time of the explosion.

Security cameras in the area captured video of the explosion and some of the events that preceded it. Footage from one camera showed a red hatchback car approaching the house before the explosion and then turning around to park nearby. Law enforcement later identified the car as belonging to the girlfriend of McBaine’s half-brother, Michael Bushman, a co-defendant in this case. Another security camera captured video of a white man lighting an object, throwing it under Miller’s car, and then leaving the scene. Miller viewed the video and identified the man as McBaine. Bushman later told law enforcement that he drove McBaine to Miller’s house the night of the explosion, and that he and McBaine made the explosive device using sparklers, electrical tape, and lamp oil. Both McBaine and Bushman were subse- quently charged with unlawful possession of a destructive device. See 26 U.S.C. §§ 5861(d), 5871. Bushman pleaded guilty, but McBaine took his case to trial.

1 The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri. 2 To protect the identity of McBaine’s ex-wife, who is not a party to this case, we refer to her using the pseudonym Kendra Miller.

-2- At trial, McBaine maintained that he could not have placed the explosive device under Miller’s car because he was asleep on the couch of his friends, Josh and Whitney Distler, at the time of the explosion. Neither Josh nor Whitney Distler testified. During the government’s rebuttal closing argument, the prosecutor referenced McBaine’s alibi and said, in relevant part, “He’s on Josh Distler’s couch. Is Josh home? Is his wife, Whitney, home? He’s made up a story and he’s told his brother that.”

Defense counsel objected, arguing that this statement “shift[ed] the burden” of proof to McBaine to establish his innocence. The district court did not expressly rule on the objection but stated, “All right. Move on.” The jury returned a guilty verdict. McBaine then filed a motion for a new trial based in part on the prosecutor’s statements in closin