In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2744

United States of America,

Plaintiff-Appellee,

v.

Seng Xiong,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 99-CR-42--Lynn Adelman, Judge. 

Argued June 4, 2001--Decided August 24, 2001

 Before Ripple, Evans, and Williams, Circuit

Judges.

 Williams, Circuit Judge. Seng Xiong was

convicted of one count of conspiracy to

commit wire fraud and one count of

interstate transportation in furtherance

of a gambling scheme. He appeals the

district court’s denial of a new trial on

account of what he believes were improper

statements made by the prosecutor. We

agree with the district court that the

statements were not improper and did not

prejudice him at trial and, therefore,

affirm its judgment.

I. BACKGROUND

 Xiong was charged with (i) conspiracy to

commit wire fraud in violation of 18

U.S.C. sec.sec. 371 and 1343/1 and (ii)

interstate transportation in furtherance

of a gambling scheme in violation of 18

U.S.C. sec.sec. 2 and 1952. On the first

count, the indictment alleged that Xiong

and four other co-conspirators induced

and sought to induce victims to

participate in a rigged Blackjack card

game scheme by promising them that they

"could not lose." On the second count,

the indictment alleged that the

defendants traveled to Wisconsin in

furtherance of the gambling scheme. All

of Xiong’s co-defendants pled guilty to

both charges. Xiong went to trial.
 Xiong’s counsel remarked in his opening

statement: ". . . you won’t hear me talk

about the great Government conspiracy,

because I am not that kind of lawyer." At

trial, he did not accuse the government

outright of conspiring against Xiong but

argued that the government officials

working on the investigation were inept

and that the other witnesses were not

credible. In his closing argument, he

continued this strategy, arguing, for

example, that Xiong’s co-conspirator

Edward Clark, who was hoping to be

released from prison in return for his

testimony, had "scammed" the government

and that the "[g]overnment [was] on [his]

side."

 The prosecutor, in his rebuttal

argument, highlighted the inconsistency

between defense counsel’s opening and

closing statements. Defense counsel

objected to the prosecutor’s statements,

arguing that he did not make a government

conspiracy argument. The district court

allowed the prosecutor to continue.

 The prosecutor then commented on the

substance of the defense’s argument:

What [counsel] is telling you, ladies and

gentlemen, is that you should never

convict somebody in this type of

conspiracy. Because how can you trust a

co-conspirator? They’re in the game. You

should never be able to trust them. How

can you trust what the victim says?

They’re in the game . . . . No matter

what witnesses we call in, you can’t

trust them, ladies and gentlemen. This

man gets to walk free.

Defense counsel objected again for the

same reason. This time the court reminded

the jury members that their recollection

of the evidence controlled.

 After the prosecutor concluded his

rebuttal, the court further discussed

defense counsel’s objections outside of

the jury’s presence. Defense counsel

moved for a new trial at this point,

arguing that the prosecutor had

disparaged his character in front of the

jury and, therefore, prejudiced Xiong.

The district court denied his request,

noting that the prosecutor’s argument

"might have been a little hyperbolic, but

. . . certainly was not . . . beyond the
bounds of reasonable response." The court

also indicated that it would give the

jury an instruction not to treat the

lawyers’ closing arguments as

evidence./2 In addition, the court

offered defense counsel the opportunity

to submit another instruction. Defense

counsel declined the court’s invitation

to submit another instruction and asked

instead for an opportunity to rebut. His

request was denied.

 As promised, the court instructed the

jury that the lawyers’ closing arguments

were not to be treated as evidence. After

little deliberation, the jury convicted

Xiong of both charges. This appeal

followed.

II. ANALYSIS

 The issue presented to us on appeal is

whether the district court erred in

denying Xiong a new trial on account of

the prosecutor’s statements. We review

for abuse of discretion the district

court’s decision not to grant a mistrial

based on prosecutorial misconduct. United

States v. Andreas, 216 F.3d 645, 671 (7th

Cir. 2000). When reviewing a district

court’s ruling for abuse of discretion,

we reverse only if we have a strong

conviction of error. United States v.

Cheska, 202 F.3d 947, 950 (7th Cir. 2000)

(internal quotation omitted). As

discussed below, we find no error in the

district court’s denial of Xiong’s motion

for a new trial and, therefore, affirm.

 In prosecutorial misconduct challenges

such as this one (where the defendant has

not alleged that one or more of his

specific constitutional rights have been

violated), we ask first whether the

prosecutor’s statements were improper.

United States v. Cotnam, 88 F.3d 487,

497-98 (7th Cir. 1996). If we hold the

statements improper, we then determine

whether the remarks "so infected the

trial with unfairness as to make the

resulting conviction a denial of due

process." United States v. Emenogha, 1

F.3d 473, 481 (7th Cir. 1993). Only if we

find that the defendant was so prejudiced

will we grant him a new trial. Id.

 Xiong argues that the prosecutor’s

statements disparaged defense counsel’s

character by implying that he lied to the

jury. We agree with Xiong that
disparaging remarks directed at defense

counsel are reprehensible. Such remarks

can prejudice the defendant by directing

the jury’s attention away from the legal

issues in or by inducing the jury to give

greater weight to the government’s view

of the case. See Pierson v. O’Leary, 959

F.2d 1385, 1387 (7th Cir. 1992); United

States v. Rodrigues, 159 F.3d 439, 451

(9th Cir. 1998). Disparaging remarks that

suggest that defense counsel has lied to

or withheld information from the jury can

further prejudice the defendant by

causing the jury to believe that the

defense’s characterization of the

evidence should not be trusted and,

therefore, that a finding of not guilty

would be in conflict with the true facts

of the case. This kind of statement, if

inflammatory in nature, might also

detract from the dignity of judicial

proceedings.

 Reading the statements in context,

however, we conclude that the prosecutor

did not disparage defense counsel’s

character. In his closing argument,

defense counsel argued that the

government suffered from tunnel vision

and put on perjured testimony. The

prosecutor responded by stating that

counsel resorted to a government

conspiracy argument despite the earlier

promise. This response went to the

credibility of the defense not defense

counsel. A comment of this sort is not

improper because it does not "suggest

that the attorney[’s] ability to argue

[an inconsistent defense] is evidence . .

. against the defendant[ ]." United

States v. Sblendorio, 830 F.2d 1382, 1395

(7th Cir. 1987); see United States v.

Scott, 660 F.2d 1145, 1168 (7th Cir.

1981) (holding that it is proper to

comment on inconsistencies in the

defendant’s case).

 The prosecutor’s subsequent remarks,

including "What [counsel] is telling you

is that you should never be able to

convict somebody in this type of

conspiracy, because you can never have

enough evidence . . .", attempted to show

that the defense’s argument was

overbroad. These remarks were likewise

directed at the defendant’s case not

defense counsel. Moreover, it was proper

for the prosecutor to comment on the

lameness of the defendant’s case. See

United States v. Turk, 870 F.2d 1304,
1308-09 (7th Cir. 1989); Sblendorio, 830

F.2d at 1395. Thus, reading the

statements in context, we conclude that

the prosecutor’s statements did not

disparage defense counsel’s character.

 Even if we held that the prosecutor’s

statements were improper, we could not

say that Xiong was prejudiced by the

remarks. To determine whether the

defendant was prejudiced, this court

examines several factors, including: (i)

whether the district court sufficiently

instructed the jury to disregard such

statements; (ii) whether the defense

could counter the prosecutor’s statement

through rebuttal; and (iii) most

importantly, whether the weight of the

evidence was against the defendant. See

Rodriguez v. Peters, 63 F.3d 546, 558

(7th Cir. 1995).

 The district court properly addressed

Xiong’s objections. Although the district

court did not respond to Xiong’s first

objection, in response to his second

objection (which was tendered just a few

sentences further into the prosecutor’s

argument), the court reminded the jury

members that their recollection of the

evidence controlled. It also, in its

instructions to the jury, told the jury

that arguments of counsel were not

evidence. And, although it denied Xiong’s

counsel’s request for rebuttal, it

offered him the opportunity to submit an

additional jury instruction to the court

to redress any possible prejudicial

effect, an opportunity Xiong declined.

 More importantly, the government

presented overwhelming evidence of

Xiong’s guilt at trial. To sustain

Xiong’s 18 U.S.C. sec.sec. 371 and 1343

conspiracy to defraud conviction, the

government had to show that he (a)

knowingly agreed to participate in the

scheme to defraud and (b) engaged in the

overt act of inducing victims to play in

the rigged card game. See United States

v. Gee, 226 F.3d 885, 893 (7th Cir.

2000); United States v. Keller, 784 F.2d

1296, 1299 (5th Cir. 1986). Investigating

officer Agent Lynch testified that Xiong

admitted to the police that he knew

before he agreed to participate in the

scheme that it was designed to take money

from unwitting victims. The officers who

arrested Xiong found incriminating

physical evidence in the hotel room where
he was arrested, including card-rigging

paraphernalia and a suitcase containing

stacks of money made to appear as if

consisting solely of $100 bills. They

also found several of Xiong’s fake

driver’s licenses and social security

cards in a van he and his co-conspirators

drove from California to Wisconsin, where

they planned to play their next game.

Finally, one of the conspiracy’s victims,

A Lor Hang, testified that Xiong induced

her to participate in a game by promising

her that the game would be rigged in her

favor. Taken together, this evidence

clearly supports Xiong’s conspiracy

conviction./3 See Keller, 784 F.2d at

1299-1300.

 The government likewise presented

overwhelming evidence of Xiong’s guilt

with respect to the interstate

transportation charge. To support an

interstate transportation conviction, the

government must prove: (a) interstate

travel; (b) intent to promote unlawful

activity, (here, a gambling enterprise);

and (c) performance or attempted

performance of an unlawful act. United

States v. Scott, 245 F.3d 890, 909 (7th

Cir. 2001)./4 The evidence showed that

Xiong traveled from one state to another

(California to Wisconsin), he intended to

promote gambling, an illegal activity in

Wisconsin (Xiong discussed with Hang the

possibility of another card game designed

to win her money back in a telephone con

versation recorded without his

knowledge), and performed an unlawful act

(he induced Hang to play).

 In denying Xiong’s request for a new

trial, the district court noted that the

evidence was so overwhelming that it was

unlikely that the prosecutor’s remarks

affected the verdict. In this case we not

only give substantial weight to its

determination, United States v. Canino,

949 F.2d 928, 935 (7th Cir. 1991), but

agree. The district court did not abuse

its discretion in denying Xiong a new

trial.

III. CONCLUSION

 For these reasons, we Affirm the district

court’s denial of a new trial on account

of the prosecutor’s statements.

FOOTNOTES
/1 The indictment does not cite 18 U.S.C. sec. 1343

but it is clear from its language that a sec.

1343 violation is alleged.

/2 The court’s instruction mirrors Instruction 1.06

of the Pattern Criminal Federal Jury Instruction

for the Seventh Circuit.

/3 18 U.S.C. sec. 371, the conspiracy statute,

states that "[i]f two or more persons conspire

either to commit an offense against the United

States . . . and one or more of such persons do

any act to effect the object of the conspiracy,

each shall be fined . . . or imprisoned . . . or

both." 18 U.S.C. sec. 1343 provides that

"[w]hoever, having devised or intending to devise

any scheme . . . to defraud . . . shall be fined

under this title or imprisoned . . . or both."

/4 18 U.S.C. sec. 1952 states that "[w]hoever travels in interstate or foreign commerce or uses the

mail or any facility in interstate or foreign

commerce, with intent to . . . promote, manage,

establish, carry on, or facilitate the promotion,

management, establishment, or carrying on, of any

unlawful activity, and thereafter performs or

attempts to perform [that unlawful activity]

shall be fined under this title, imprisoned not

more than 5 years, or both . . . . As used in

this section . . . "unlawful activity" means (1)

any business enterprise involving gambling."