[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 13424
Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus PAUL BERKINS MOISE,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:19

- cr

- 00020

- MMH

- JRK

- 1

____________________ USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 1 of 82 Opinion of the Court 21

- 13424

Before W ILSON , R OSENBAUM , and B RANCH , Circuit Judges.
PER CURIAM: After a jury trial, Paul Moise was convicted of numerous counts of filing false tax returns. See 26 U.S.C. § 7206(1), (2). Onappeal, he challenges his convictions on the basis that the prosecutor made an improper remark durin g rebuttal closing. We agree that the prosecutor made an improper remark. But as we explainbelow, we cannot say that the prosecutor’s single improper remark, in the context of the eight

- day trial as a whole, caused Moise substantial prejudice. We there fore affirm Moise’s conviction.
I. Moise owned and operated two tax

- return

- preparation compa nies . The evidence at trial showed that he included false information on his clients’ tax returns without their knowledge , such as deductions for expenses not actu ally incurred, to minimize their tax liability. He also filed individual tax returns falsely reporting his

own income and expenses

. Near the end of the eight

- day trial, during closing arguments, Moise’s counsel pointed out that , before criminal charges were brought, the Department of Justice had told the investigating Internal Revenue Service agents to revise their calculations about Moise’s income and expenses us ing a more conservative methodology

. Defense c ounsel suggested that , because the agents’ initial USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 2 of 821

- 13424 Opinion of the Court 3

“work was so bad
, ” neither the revised calculations offered at trial nor the agents’ testimony could be trusted. In rebuttal, the prosecutor stated that the IRS’s initial calculations have “nothing to do with t his case.” To i llustrate the point, the prosecutor continued
, And I don’t want to seem flip, but some of you may have seen it. I think it’s a South Park episode. And there’s a character on there who is

-- plays kind of a shyster attorney. And there’s a scene where he’ s giving his closing, and he puts up a picture of a Wookie from Star Wars. And he said: That’s a Wookie. What does that have to do with this case? Nothing. That doesn’t make any sense. This case doesn’t make any

sense. Defense counsel objected and, at sidebar, argued that the prosecutor had implied he was a “shyster lawyer
, ” which the prosecutor disputed. The district court instructed the jury to disregard “those last couple of statements about the South Park episode
, ” and defense counsel did not reque st further relief. The prosecutor then continued with his argument that defense counsel was trying to distract the jury with irrelevant matters. The court also reminded the jury three times throughout the proceedings that statements made by attorneys a re not evidence. Ultimately, t he jury reached a guilty verdict on seventeen counts, but was unable to reach a verdict on the remaining six

. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 3 of 84 Opinion of the Court 21

- 13424 On appeal, Moise argues that the prosecutor’s “shyster attorney” comment denied him a fair trial because it poisoned the jury’s mind against him and discredited his attorney. He does not otherwise challenge his convictions or sentence.
II.
We ordinarily review a claim of prosecutorial misconduct de novo because it presents a m ixed question of law and fact. United States v. Eckhardt , 466 F.3d 938, 947 (11th Cir. 2006). Here, though
, while Moise objected to the challenged comment, he did

not seek further relief, such as a mistrial, after the court sustained the objection and in structed the jury to disregard the comment. See United States v. Mosquera , 886 F.3d 1032, 1046 (11th Cir. 2018) (where defense counsel “ did not seek any further relief ” after the court sustained a defense objection, “ any claimed failure by the trial court is reviewable only for plain error ”) ; see also United States v. Marquardt , 695 F.2d 1300, 1304

– 05 (11th Cir. 1983). Because Moise did not suggest that the curative instruction was insufficient to cure any prejudice stemming from the comment
, his current demand for a new trial was not fairly presented to the district court, so plain

- error review applies. 1

1 Moise seems to acknowledge as much in his reply brief. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 4 of 821

- 13424 Opinion of the Court 5

III.In any case, Moise is not entitled to relief under either standard of review because the isolated comment did not prejudice his substantial rights. “Prosecutorial misconduct requires a new trial only if we find the remarks (1) were improper and (2) prej udiced the defendant [’ s] substantive rights.” United States v. Frank , 599 F.3d 1221, 1237 (11th Cir. 2010) (quotation marks omitted). “ A defendant ’ ssubstantial rights are prejudicially affected when a reasonable probability arises that, but for the rema rks, the outcome of the trial would have been differen t.” Eckhardt , 466 F.3d at 947. In evaluating whether a defendant ’ s substantial rights have been affected, we consider the misconduct “in the context of the entire trial, along with any curative instr uction.” United States v. Lopez , 590 F.3d 1238, 1256 (11th Cir. 2009) ; see United States v. Young , 470 U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor ’ s comments standing alone, for the statements o r conduct must be viewed in context .”). “ Reversal on the basis of prosecutorial misconduct requiresthat the misconduct be so pronounced and persistent that it permeates the entire atmosphere of the trial.” United States v. Weinstein
, 762 F.2d 1522, 1542 (11th Cir. 1985) (quotation marks omitted). Moreover, “ [i] f the district court takes a curative measure, we will reverse only if the evidence is so prejudicial as to be incurable by that measure. ” Lopez , 590 F.3d at 1256 . That’s be cause “ [w] e USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 5 of 86 Opinion of the Court 21

- 13424 presume that the jury followed the district court ’ s curative instructions.” Id. The parties agree to that the prosecutor’s “shyster” remark could have been perceived as an attack on the credibility or integrity of Moise’s counsel. We also ag ree that the remark was improper on that basis. See Young , 570 U.S. at 9 (attorneys “ must not be permitted to make unfounded and inflammatory attacks on the opposing advocat e”); United States v. McLain , 823 F.2d 1457, 1462 (11th Cir. 1987) ( “[t] o discredi t defense counsel in front of the jury is improper ”)
, overruled on other grounds as stated in United States v. Watson , 866 F.2d 381, 385 n.3 (11th Cir. 1989). Nevertheless, we see nothing in the record to suggest that Moise was prejudiced by the “ shyster ” comment. It was a single, isolated remark in a n eight

- day trial, and we cannot say it permeated the entire trial. See Weinstein , 762 F.2d at 1542. It also came in rebuttal during otherwise proper ar gument that defense counsel ’s contentions about the IRS’s initial calculations were not directly relevant to Moise’ s guilt or innocence . So despite the pejorative nature of the word “shyster,” the jury would have understood the prosecutor’s remark as a na rrow response concerning the initial calculations
, not as a general attack on defense counsel’s character. 2 Cf. United States v. Stefan , 784 F.2d 1093, 1100 (11th

2 The jury also heard testimony directly from Moise, which minimizes the possibility it would use defense counsel as a proxy for Moise when assessing the evidence. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 6 of 821

- 13424 Opinion of the Court 7
Cir. 1986) ( “[T] he harm inflicted by the prosecutor ’ s improper remarks [in rebuttal] was lessened by the jury ’ s understanding that the prosecutor ’ s remarks were an invited response. ”).

Mor eover, the district court promptly gave a curative instruction for the jury to disregard th e “ statements about the South Park episode,” including the “ shys ter ” remark, and it gave severalinstructions that the jury must decide the case based on the evidence, not statements from the attorneys. We presume that the jury followed th e se instructions. See Lopez , 590 F.3d at 1256. And there i s nothing in the rec ord here to overcome th at “rock solid” presumption

. See In re Price , 964 F.3d 1045, 1049 (11th Cir. 2020) (“ The presumption that [juries follow their instructions] is rock solid law enshrined in a host of decisions of the Supreme Court and this Court. ”). Indeed, that the jury did not convict on multiple

counts indicates that it was able to follow the court’s instructions and make judgments based solely on the evidence. See United States v. Drum , 733 F.2d 1503, 1509 (11th Cir. 1984) (stating that a defend ant’s conviction on one of two counts charged was “telling proof that he was not prejudiced by the prosecutor’s remark”)
, abrogated on other grounds by Dowling v. United States , 473 U.S. 207 (1985)

. IV. For these reasons, we cannot say that the prosecutor’s single improper remark, in the context of the entire trial, had a prejudicial effect on Moise’s substantial rights

. We affirm Moise’s convictions. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 7 of 88 Opinion of the Court 21

- 13424

AFFIRMED. USCA11 Case: 21-13424 Date Filed: 11/01/2022 Page: 8 of 8