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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-12389
Non-Argument Calendar
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D. C. Docket No. 2:06-cr-00017-WKW-SRW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD SHEPARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(August 8, 2012)
Before MARCUS, MARTIN and EDMONDSON, Circuit Judges.
PER CURIAM:
Richard Shepard appeals his convictions for possession with intent to distribute
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crack cocaine and powder cocaine, in violation of 21 U.S.C. § 841(a)(1), and for
carrying or possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A). No reversible error has been shown; we
affirm.
Briefly stated, Shepard argues that the district court abused its discretion by
denying his motion for mistrial following the prosecutor’s remark during closing
argument that Shepard had a thousand dollars but no job. He contends that the
prosecutor’s remark violated his rights to a fair trial because it destroyed the
assumption that Shepard legally obtained the money found with the drugs in this case.
In addition, Shepard asserts that the remark violated his rights against
self-incrimination because it was essentially a comment on his failure to testify at
trial.
Allegations of prosecutorial misconduct present mixed questions of fact and
law that are reviewed de novo. United States v. Noriega, 117 F.3d 1206, 1218 (11th
Cir. 1997). Because the district court “is in the best position to evaluate the
prejudicial effect of a statement,” we review the district court’s denial of a mistrial
for an abuse of discretion. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.
2007) (quotation omitted). For a claim of prosecutorial misconduct relating to the
closing argument to be successful, the argument must both be improper and prejudice
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a substantial right of the defendant. United States v. Bailey, 123 F.3d 1381, 1400
(11th Cir. 1997).
In this case, the district court did not abuse its discretion by denying Shepard’s
motion for a mistrial. During final closing argument, the prosecutor made this
statement:
We have 110 grams of crack cocaine in a bedroom with documents and
pictures of Mr. Shepard. We have 15.9 grams of cocaine powder, a gun.
We all know the evidence by now. You need to apply your common
sense and ask yourselves the questions why. Do we think that
somebody else actually went into his bedroom and planted $4,000 worth
of crack cocaine? Members of the jury, apply your common sense and
it will tell you no. He had a thousand dollars. I don’t -- to my
knowledge, there’s no job; but nevertheless he had a thousand dollars --
Although Shepard asserts that the connection between the money and the drugs
was tenuous, it was, at the very least, reasonable for the jury to conclude that the
money was related to the drugs. The district court denied Shepard’s motion for a
mistrial; Shepard failed to rebut the presumption that the jury followed the court’s
instruction to disregard the prosecutor’s comment regarding Shepard’s lack of
employment. See United States v. Tampas, 493 F.3d 1291, 1302 (11th Cir. 2007)
(holding that a curative instruction may render a prejudicial remark by the prosecutor
harmless).
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The prosecutor’s comment also did not violate Shepard’s right against self-
incrimination. Although the prosecutor conceded that her remark was planned, it was
not a deliberate attempt to call attention to the fact that Shepard did not testify. See
United States v. Thompson, 422 F.3d 1285, 1299 (11th Cir. 2005) (stating that a
prosecutor’s statement violates the defendant’s right to remain silent if it was
“manifestly intended to be a comment on the defendant’s failure to testify,” and if the
statement was of such a character that a jury would “naturally and necessarily”
interpret it as a comment on the failure of the accused to testify). Instead, the
prosecutor explained that, although she had intended to introduce evidence about
Shepard’s lack of employment at trial, she inadvertently had neglected to do so. The
pertinent remark also was not of such a character that the jury would have interpreted
it as a comment on Shepard’s failure to testify. The court specifically instructed the
jury on Shepard’s right not to testify, making it even less likely that the prosecutor’s
remarks would have been interpreted as a comment on his failure to testify.
Accordingly, the district court did not abuse its discretion in denying Shepard’s
motion for a mistrial: the prosecutor’s comment did not violate Shepard’s substantive
rights or constitute manifest injustice.
AFFIRMED.*
*
Shepard’s request for oral argument is DENIED.
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