concurring.
I concur in the judgment, but write separately because I believe the prosecutor’s argument commented indirectly on Her-rin’s decision not to testify and therefore violated Herrin’s Fifth Amendment privilege against compulsory self-incrimination. I further object to the misleading nature of two of the challenged remarks, which mis-characterized the actions (and inaction) of Terry Herrin, the defendant’s brother and the prosecution’s chief witness.
The majority correctly states that a reviewing court must evaluate the challenged prosecutorial remarks in the context of the entire argument and the evidence adduced at trial. United States v. Emmert, 9 F.3d 699, 702 (8th Cir.1993); United States v. Durant, 730 F.2d 1180, 1184 (8th Cir.1984). However, in concluding the challenged remarks do not reflect an intention to call attention to Herrin’s failure to testify, the majority evaluated the challenged remarks in the context of a small segment of the prosecutor’s closing argument.
The prosecutor framed his closing argument in the form of a disjunctive syllogism,3 beginning with a statement of alternatives: “[I]t boils down to whether the defendant committed the robbery or whether Terry Herrin committed the robbery.” The prosecutor next eliminated Terry Herrin as an alternative, arguing “[I]f Terry Herrin did not commit this robbery, there is only one logical possibility under common sense, the evidence, and the law; and that’s that the defendant committed the robbery.”
The prosecutor then proceeded to contrast the personal characteristics of Terry Herrin with those of Richard Herrin. The prosecutor argued the robber wore a glove on his left hand, and had duct tape across the mouth hole of his mask, saying:
Terry Herrin does not have a tattoo on his left hand. Terry Herrin doesn’t have any tattoos at all. The defendant *548Richard Herrin has a tattoo on his left hand.
Terry Herrin showed you his teeth. There is nothing unusual about his teeth_The defendant’s dental situation is very obvious[ ] and unique, he has very few teeth left in his head.
After directly contrasting the two brothers by name, the prosecutor then proceeded to contrast indirectly the actions and testimony of Terry Herrin with the actions and lack of testimony by Richard Herrin, substituting “a guilty man” in place of Richard Herrin’s name. The prosecutor declared,
Now, I want you to consider the actions and the testimony of Terry Herrin, and ask yourself if these are the actions of a guilty man.
A guilty man doesn’t say a thing, he just says I am not going to tell you anything. But instead Terry Herrin cooperates fully-
You are going to keep your mouth shut, that’s what a guilty person does, but Terry Herrin didn’t do that.
(Emphasis added.)
No leap of logic was required for the jury to deduce the prosecutor’s intended argument: A guilty person keeps his mouth shut; Richard Herrin kept his mouth shut; Richard Herrin is a guilty man. The remarks manifested a clear intention by the prosecutor to highlight, by means of contrast to his brother, Richard Herrin’s failure to testify at trial. A jury hearing the entire argument would understand the last remark (“You are going to keep your mouth shut, that’s what a guilty person does, but Terry Herrin didn’t do that..as an indirect but powerful comment on Richard Herrin’s failure to testify at trial. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
Furthermore, two of the prosecutor’s remarks are arguably misleading to the jury. Contrary to the prosecutor’s argument (“But Terry Herrin didn’t do that”), Terry Herrin, in fact, remained silent for nearly five weeks. Terry Herrin “didn’t say a thing” and “kept his mouth shut” from March 2, the date on which he learned of the robbery, until April 7, when the FBI first contacted him. Not only did Terry Herrin keep his mouth shut, he intentionally destroyed fingerprint evidence, and concealed evidence of the robbery-the gun, a shirt, handcuffs, a shoulder holster, and ammunition. Terry Herrin even accepted $1000 in hush money for his silence. Also contrary to the prosecutor’s characterization, Terry Herrin did not “cooperate[] fully” with the authorities, at least not initially. When FBI agents first contacted Terry Herrin on April 7, 1999, he withheld information and lied in his written statement, representing he did not learn about the robbery until a week or two after the robbery.
The prosecutor’s major premise is even misleading. All guilty suspects do not remain silent. Often, they lie, giving false alibis and blaming others. On occasion, they even confess. On the other hand, innocent suspects may choose to exercise their constitutional right to remain silent, which may be a wise decision.
Despite the impropriety of some of the challenged remarks, the cumulative effect of any constitutional error committed in this case was minimal. See United States v. Triplett, 195 F.3d 990, 997 (8th Cir.1999). I conclude with fair assurance that the improper remarks were harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. *549824, 17 L.Ed.2d 705 (1967), and did not so infect the trial with unfairness that the resulting conviction was a denial of due process, see Donnelly v. DeChristoforo, 416 U.S. 687, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In light of the government’s substantial evidence, the prosecutor’s improper remarks did not deny Herrin a fair trial. See United States v. Johnson, 968 F.2d 768, 772 (8th Cir.1992) (declaring “[i]f the evidence of guilt is overwhelming, an improper argument is less likely to affect the jury verdict.”) (quoting United States v. Splain, 545 F.2d 1131, 1135 (8th Cir.1976)). Thus, I concur.
. A disjunctive syllogism has as its first premise a statement of alternatives: Either p or q; it continues: not q, therefore p.