                                                             [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 11-13102         ELEVENTH CIRCUIT
                           Non-Argument Calendar       MARCH 12, 2012
                         ________________________        JOHN LEY
                                                          CLERK
                 D.C. Docket No. 1:10-cr-00156-WBH-ECS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                      versus

JAMES J. GUINN,

                                                              Defendant-Appellant.

                        __________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                (March 12, 2012)

Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

     James J. Guinn appeals his convictions for failing to file tax returns for the
years 2003 through 2006, in violation of 26 U.S.C. § 7203. He presents one

ground for the reversal of his convictions and a new trial: whether he was deprived

of a fair trial because the prosecutor made improper and prejudicial comments

during his opening statement and closing argument that appealed to the jurors’

pecuniary interests.

      We review allegations of prosecutorial misconduct de novo because it is a

mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006). We view a prosecutor’s comments in opening statement and

closing argument in the context of the trial as a whole. See United States v.

Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997).

      A defendant demonstrates prosecutorial misconduct by showing that (1) the

prosecutor’s comments were improper, and (2) the comments prejudicially

affected substantial rights. Eckhardt, 466 F.3d at 947. A prosecutor may not, in

his opening statement or closing argument, invoke the individual pecuniary

interests of the jury as taxpayers. United States v. Smyth, 556 F.2d 1179, 1185

(5th Cir. 1977). In determining whether a prosecutor’s conduct prejudicially

affected the defendant’s substantial rights by changing the trial’s outcome, we

consider: (1) whether the challenged comments had a tendency to mislead the jury

or prejudice the defendant, (2) whether the comments were isolated or extensive,

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(3) whether the comments were deliberately or accidentally placed before the jury,

and (4) the strength of the proof establishing the guilt of the defendant. United

States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009).

      Here, the prosecutor made improper comments before the jury in his

opening statement and closing argument, comments that appealed to the jurors’

pecuniary interests as taxpayers. However, Guinn has not shown that the result of

his trial would have been different but for these improper` comments. The proof

of Guinn’s guilt was overwhelming and the improper comments were isolated to a

small portion of what the prosecutor had to say.

      AFFIRMED.




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