                                                                     [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                        -------------------------------------------U.S. COURT OF APPEALS
                                     No. 07-12940                    ELEVENTH CIRCUIT
                                                                         JUNE 4, 2008
                               Non-Argument Calendar
                       -------------------------------------------- THOMAS K. KAHN
                                                                           CLERK

                    D.C. Docket No. 02-00586-CR-BBM-4-1


UNITED STATES OFAMERICA,
                                                         Plaintiff-Appellee,

                                          versus

ADAN GIL MIRANDA,
                                                         Defendant-Appellant.

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

                                      (June 4, 2008)

Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

      Defendant-Appellant Adan Gil Miranda appeals his drug and firearm

convictions, 21 U.S.C. §§ 841(a)(1), 846, 18 U.S.C. § 924(c)(1)(A). No reversible

error has been shown; we affirm.
          The pertinent facts of this case are recited in a prior panel decision of this

Court, United States v. Miranda, 425 F.3d 953 (11th Cir. 2005) (“Miranda I”).

There, on the government’s appeal, the panel vacated the district court’s grant of

Miranda’s post-verdict motion for judgment of acquittal.1 The panel concluded

that the evidence sufficiently demonstrated Miranda’s membership in the

conspiracy and that he was guilty of the possession crimes that were committed in

furtherance of the conspiracy, and remanded for additional proceedings. Miranda

I, 425 F.3d at 963-64.

          On remand, the district court considered Miranda’s motion for a new trial.2

In his motion for a new trial, Miranda raised two claims of prosecutorial

misconduct about the use of two witnesses’ trial testimony in the government’s

closing argument. The district court granted the motion, and the government again

appealed. A panel of this Court vacated and remanded, determining that the

district court abused its discretion in granting the motion both because it was

untimely and because (1) the alleged comments were not improper, and (2)


      1
      A jury had convicted Miranda of drug conspiracy, two counts of possession with intent to
distribute cocaine and methamphetamine, and possession of a firearm in relation to a drug trafficking
crime.
  2
    When the district court granted Miranda’s motion for judgment of acquittal, it treated Miranda’s
alternative motion for a new trial as moot, in contravention of Fed.R.Crim.P. 29(d)(1), which
requires a conditional ruling on a motion for a new trial when a post trial motion for judgment of
acquittal is granted.

                                                 2
sufficient evidence supported Miranda’s convictions such that any error was

harmless. See United States v. Miranda, No. 06-11196 (11th Cir. March 23, 2007)

(unpub.) (“Miranda II”). On remand, the district court entered judgment against

Miranda and sentenced him to 180 months’ imprisonment.

       In the present appeal, Miranda argues that the cumulative effect of several

instances of prosecutorial misconduct rendered his trial unfair.3 In reviewing

claims of prosecutorial misconduct, “we must assess (1) whether the challenged

comments were improper, and (2) if so, whether they prejudicially affected the

substantial rights of the defendant.” United States v. Arias-Izquierdo, 449 F.3d

1168, 1177 (11th Cir. 2006). “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.” United States v. Eckhardt, 466

F.3d 938, 947 (11th Cir. 2006), cert. denied, 127 S.Ct. 1305 (2007). While we

  3
    In his 13 allegations, Miranda submits that the prosecution acted improper in the following ways:
(1) asking Sebastian Cuevas, a key government witness, a misleading question about a stash house
he used on Alcott Road when Miranda was arrested at a different location; (2) making three improper
speaking objections that disparaged defense counsel; (3) eliciting irrelevant testimony from Cuevas
about uncharged marijuana distribution and Cuevas’s fear that his family would be harmed if he
cooperated with the government; (4) eliciting unqualified opinion testimony from two law
enforcement officers about whether the occupants of the apartment would be armed and the
identification found in Miranda’s clothing; (5) eliciting misleading testimony about whether Cuevas
had been offered a sentence reduction for his testimony; (6) failing to correct false testimony by a
case agent about whether he noted in his DEA-6 that the apartment reeked of acetone; and (7) during
its closing argument, misrepresenting Miranda’s opening statement, making improper references to
Miranda as “the enforcer,” and referring to the “late, great cook” when nothing evidenced that the
cook was dead.

                                                 3
generally review claims of prosecutorial misconduct de novo, see id., because

Miranda did not object to the government’s statements during trial, we review

them only for plain error “that is so obvious that failure to correct [the error]

would jeopardize the fairness and integrity of the trial,” United States v. Bailey,

123 F.3d 1381, 1400 (11th Cir. 1997).4

        Of Miranda’s several allegations of prosecutorial misconduct, we conclude

that only two were even arguably improper. First, during an objection, the

prosecutor commented to the district court that Miranda’s lawyer asked an

improper question on cross-examination of a witness and suggested that Miranda’s

lawyer knew it was improper because defense counsel had formerly been a

prosecutor. A personal attack on an opposing lawyer may constitute prosecutorial

misconduct. See United States v. Young, 105 S.Ct. 1038, 1043 (1985). But

because the prosecutor’s comment about Miranda’s lawyer as a former prosecutor

arose in the context of an evidentiary objection addressed to the court, not the jury,

we conclude that the comment did not rise to the level of misconduct. See United

States v. Tampas, 493 F.3d 1291, 1302-03 (11th Cir. 2007) (considering that

prosecutor’s statement was addressed to the court during an evidentiary objection,


    4
     We reject the government’s argument that Miranda waived his right to raise his claims of
prosecutorial misconduct on direct appeal because he did not raise them in his motion for new trial.
We review claims of prosecutorial conduct not raised in the district court for plain error.

                                                 4
in concluding that statement did not rise to the level of prosecutorial misconduct).

The prosecutor’s comment also did not specifically accuse Miranda’s lawyer of

intentionally lying or misleading the jury. See United States v. Calderon, 127 F.3d

1314, 1335-36 (11th Cir. 1997) (declining to find misconduct even where

prosecutor’s comments directly accused defense counsel of misstating the

evidence, making factually baseless accusations, and making fictitious closing

arguments).

      The other arguable improper comment occurred in closing argument when

the prosecutor referred to the “late, great cook.” This comment stemmed from the

prosecution’s summary of conversations between Miranda’s co-defendant Jesus

Alvear Uribe and Cuevas about their theory that the person who “cooked”

methamphetamine for the drug organization stole drugs from a stash house. This

comment suggested that the government knew the cook was dead, even though no

such evidence had been presented. See Bailey, 123 F.3d at 1400 (a prosecutor

may not exceed the evidence in closing argument, but may state conclusions

drawn from the evidence). We conclude, however, that the comment did not bear

on Miranda’s substantial rights because it was an isolated remark in an otherwise

lengthy, multi-defendant trial and it did not implicate Miranda because the

conversations about the cook occurred between Cuevas and Uribe.

                                          5
           More important, as we already have concluded in both Miranda I and

Miranda II, the record contains sufficient competent evidence of Miranda’s guilt.

See Miranda I, 425 F.3d at 961-62; Miranda II, No. 06-11196, manuscript op. at

17-19. And the improper comments did not negate the evidence supporting

Miranda’s convictions. Because Miranda’s guilt sufficiently was established, any

error by the prosecution was harmless. See Eckhardt, 466 F.3d at 947 (“When the

record contains sufficient independent evidence of guilt, any error is harmless.”).5

           After review of the record, we conclude that none of Miranda’s allegations -

- either singly or cumulatively -- constitute reversible error. See United States v.

Waldon, 363 F.3d 1103, 1110 (where there is no error or only a single error, there

can be no cumulative error); Calderon, 127 F.3d at 1333 (“[i]n addressing a claim

of cumulative error, we must examine the trial as a whole to determine whether the

appellant was afforded a fundamentally fair trial”).6

           AFFIRMED.




       5
     Because we conclude that Miranda’s substantial rights were not prejudiced, we decline to
address the merits of each of his allegations other than to note that we do not believe they rose to the
level of prosecutorial misconduct.
   6
    On appeal, Miranda seeks to have this Court review, in its cumulative analysis, the claims of
prosecutorial misconduct he raised in his motion for a new trial. But we already rejected these
claims in Miranda II and need not address them now.

                                                   6
