[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13102 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 12, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-00156-WBH-ECS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES J. GUINN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 12, 2012)
Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
James J. Guinn appeals his convictions for failing to file tax returns for the
years 2003 through 2006, in violation of 26 U.S.C. § 7203. He presents one
ground for the reversal of his convictions and a new trial: whether he was deprived
of a fair trial because the prosecutor made improper and prejudicial comments
during his opening statement and closing argument that appealed to the jurors’
pecuniary interests.
We review allegations of prosecutorial misconduct de novo because it is a
mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006). We view a prosecutor’s comments in opening statement and
closing argument in the context of the trial as a whole. See United States v.
Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997).
A defendant demonstrates prosecutorial misconduct by showing that (1) the
prosecutor’s comments were improper, and (2) the comments prejudicially
affected substantial rights. Eckhardt, 466 F.3d at 947. A prosecutor may not, in
his opening statement or closing argument, invoke the individual pecuniary
interests of the jury as taxpayers. United States v. Smyth, 556 F.2d 1179, 1185
(5th Cir. 1977). In determining whether a prosecutor’s conduct prejudicially
affected the defendant’s substantial rights by changing the trial’s outcome, we
consider: (1) whether the challenged comments had a tendency to mislead the jury
or prejudice the defendant, (2) whether the comments were isolated or extensive,
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(3) whether the comments were deliberately or accidentally placed before the jury,
and (4) the strength of the proof establishing the guilt of the defendant. United
States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009).
Here, the prosecutor made improper comments before the jury in his
opening statement and closing argument, comments that appealed to the jurors’
pecuniary interests as taxpayers. However, Guinn has not shown that the result of
his trial would have been different but for these improper` comments. The proof
of Guinn’s guilt was overwhelming and the improper comments were isolated to a
small portion of what the prosecutor had to say.
AFFIRMED.
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