FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 21, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15173

Non-Argument Calendar

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D. C. Docket No. 06-00039-CR-T-30MSS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRANDON ERWIN,

a.k.a. Brandon Irwin,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(September 21, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
Brandon Erwin appeals his conviction for distribution of cocaine and

methadone, the use of which caused the death of Andrew Culver, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C). During the government’s rebuttal argument,

the government responded to issues Erwin’s counsel raised in his closing argument

on three separate occasions as “smoke screens.” On the third occasion, the

government stated “[i]t’s another smoke screen. It’s an attempt to cover things

up.” The government then played a tape of Erwin talking with a confidential

informant about his then attorney, who was not his trial attorney, in which Erwin

said “[s]he’s there to protect me. She needs to know what I’m doing to know how

to cover it up.” The government then stated “[t]hat’s how Mr. Erwin construes his

legal strategy.”

On appeal, Erwin argues that but for this prosecutorial misconduct, he would

not have been convicted of distributing drugs that resulted in Andrew Culver’s

death. Specifically, Erwin argues the government’s “smoke screen” arguments and

use of the tape of Erwin speaking of his attorney prejudicially affected his

substantial rights by depriving him of a fair trial because the prosecutor’s

comments distracted the jury from the evidentiary holes in the government’s case.

Erwin argues that because he presented evidence raising a reasonable doubt of his

guilt, this prosecutorial distraction tipped the balance to the prosecutor’s side.

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We review a district court’s refusal to grant a mistrial for an abuse of

discretion. See United States v. Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995).

We review a prosecutorial misconduct claim de novo. United States v. Eckhardt,

466 F.3d 938, 947 (11th Cir. 2006). We give considerable weight to the district

court’s assessment of the prejudicial effect of the prosecutor’s remarks and

conduct. United States v. Cordoba-Mosquera, 212 F.3d 1194, 1198 (11th Cir.

2000).

A new trial is required for prosecutorial misconduct if we find that (1) a

prosecutor’s remarks during closing argument were improper, and (2) they

prejudiced the defendant’s substantial rights. United States v. Hernandez, 145 F.3d

1433, 1438 (11th Cir. 1998). “Reversal on the basis of prosecutorial misconduct

requires that the misconduct be so pronounced and persistent that it permeates the

entire atmosphere of the trial.” United States v. McLain, 823 F.2d 1457, 1462

(11th Cir. 1987) (holding that prosecutor’s misconduct in disparaging defense

counsel was not a sufficient basis for reversing, though concluding that reversal

was warranted in light of the cumulative effect of all errors by the prosecution and

judge in the case), overruled on other grounds as recognized by United States v.

Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989).

To assess the prejudicial effect of the prosecutor’s comments, we “evaluate

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them in the context of the trial as a whole and assess their probable impact on the

jury.” Hernandez, 145 F.3d at 1438. “A defendant’s substantial rights are

prejudicially affected when a reasonable probability arises that, but for the

remarks, the outcome of the trial would have been different.” Eckhardt, 466 F.3d

at 947. “When the record contains sufficient independent evidence of guilt, any

error is harmless.” Id.

Here, Erwin has challenged the government’s statement that the defense

counsel was using “smoke screens” to “cover things up,” and Erwin has challenged

the government’s use of the tape recording of Erwin stating that his then attorney,

who was not his attorney at trial, would cover things up. The statement by the

government that Erwin’s counsel was using “smoke screens” may have been a

valid response to Erwin’s closing argument. See United States v. Strmel, 744 F.2d

1086, 1090 (5th Cir. 1984) (holding prosecutor’s statement that defense’s tactic at

trial was to “blow enough smoke” to “cloud the issues enough” was a proper

response to the defense’s closing arguments). However, we assume arguendo that

there was improper argument – i.e., the statement that Erwin was attempting to

“cover things up” by pointing out the absence of fingerprint evidence, in

conjunction with playing the tape of Erwin wherein Erwin had said that his

previous counsel “needs to know what I’m doing to know how to cover it up” and

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the government’s statement that “[t]hat’s how Mr. Erwin construes his legal

strategy.” While a prosecutor “may strike hard blows, he is not at liberty to strike

foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).

However, a prosecutor’s misconduct must be both improper and prejudicial,

and Erwin has not shown that the “smoke screen” comments or the use of the tape

recording prejudiced his substantial rights. Hernandez, 145 F.3d at 1438. First,

while the district court did not instruct the jury to disregard the incident, it did give

the general instruction that the jury should not consider as evidence anything said

by the attorneys and should only consider Erwin’s guilt on the evidence presented.

We have previously held that such an instruction may rectify improper

prosecutorial statements. United States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir.

1992); see also United States v. Barshov, 733 F.2d 842, 847 (11th Cir. 1984).

Second, the district judge (who was present in person and who saw and heard the

entire argument) disagreed with Erwin’s interpretation of the argument. The

district court perceived the prosecutor as arguing that Erwin was attempting to

cover up his crime, not as accusing Erwin’s counsel of unethical conduct. Third,

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the use of the tape was an isolated incident in the government’s rebuttal argument,

Indeed, although the tape itself appears to have Erwin telling the confidential 1

informant that Erwin’s then counsel (not his trial counsel) was engaging in cover-up, the

transcript of the prosecutor’s closing – in particular the transcript’s report of the tape that was

played to the jury during that closing was garbled. Thus, its prejudicial impact was lessened.

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Erwin objected to it, and the district court sustained the objection. Giving

considerable weight to the district court’s assessment of the government’s remarks

and use of the Erwin tape, Cordoba-Mosquera, 212 F.3d at 1198, the government’s

misconduct did not “permeate” the entire trial so as to deprive Erwin of a fair trial.

McLain, 823 F.2d at 1462.

Finally, the government presented clear and very strong evidence that Erwin

provided cocaine and methadone to Culver on the night he died, and that cocaine

and methadone caused Culver’s death. Erwin cannot show a reasonable

probability that, but for the government’s improper comments during closing

argument, the outcome of the trial would have been different. Eckhardt, 466 F.3d

at 947. Therefore, any error would be harmless. Id. Accordingly, we affirm

Erwin’s conviction.

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AFFIRMED.

Appellant’s request for oral argument is DENIED. 2

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