             Case: 11-12389     Date Filed: 08/08/2012   Page: 1 of 4

                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 11-12389
                           Non-Argument Calendar
                         ________________________

                D. C. Docket No. 2:06-cr-00017-WKW-SRW-2


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

RICHARD SHEPARD,

                                                              Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        ________________________

                                (August 8, 2012)

Before MARCUS, MARTIN and EDMONDSON, Circuit Judges.


PER CURIAM:

     Richard Shepard appeals his convictions for possession with intent to distribute
                 Case: 11-12389    Date Filed: 08/08/2012   Page: 2 of 4

crack cocaine and powder cocaine, in violation of 21 U.S.C. § 841(a)(1), and for

carrying or possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A). No reversible error has been shown; we

affirm.

         Briefly stated, Shepard argues that the district court abused its discretion by

denying his motion for mistrial following the prosecutor’s remark during closing

argument that Shepard had a thousand dollars but no job. He contends that the

prosecutor’s remark violated his rights to a fair trial because it destroyed the

assumption that Shepard legally obtained the money found with the drugs in this case.

In addition, Shepard asserts that the remark violated his rights against

self-incrimination because it was essentially a comment on his failure to testify at

trial.

         Allegations of prosecutorial misconduct present mixed questions of fact and

law that are reviewed de novo. United States v. Noriega, 117 F.3d 1206, 1218 (11th

Cir. 1997). Because the district court “is in the best position to evaluate the

prejudicial effect of a statement,” we review the district court’s denial of a mistrial

for an abuse of discretion. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.

2007) (quotation omitted). For a claim of prosecutorial misconduct relating to the

closing argument to be successful, the argument must both be improper and prejudice

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a substantial right of the defendant. United States v. Bailey, 123 F.3d 1381, 1400

(11th Cir. 1997).

      In this case, the district court did not abuse its discretion by denying Shepard’s

motion for a mistrial. During final closing argument, the prosecutor made this

statement:



      We have 110 grams of crack cocaine in a bedroom with documents and
      pictures of Mr. Shepard. We have 15.9 grams of cocaine powder, a gun.
      We all know the evidence by now. You need to apply your common
      sense and ask yourselves the questions why. Do we think that
      somebody else actually went into his bedroom and planted $4,000 worth
      of crack cocaine? Members of the jury, apply your common sense and
      it will tell you no. He had a thousand dollars. I don’t -- to my
      knowledge, there’s no job; but nevertheless he had a thousand dollars --


      Although Shepard asserts that the connection between the money and the drugs

was tenuous, it was, at the very least, reasonable for the jury to conclude that the

money was related to the drugs. The district court denied Shepard’s motion for a

mistrial; Shepard failed to rebut the presumption that the jury followed the court’s

instruction to disregard the prosecutor’s comment regarding Shepard’s lack of

employment. See United States v. Tampas, 493 F.3d 1291, 1302 (11th Cir. 2007)

(holding that a curative instruction may render a prejudicial remark by the prosecutor

harmless).

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        The prosecutor’s comment also did not violate Shepard’s right against self-

incrimination. Although the prosecutor conceded that her remark was planned, it was

not a deliberate attempt to call attention to the fact that Shepard did not testify. See

United States v. Thompson, 422 F.3d 1285, 1299 (11th Cir. 2005) (stating that a

prosecutor’s statement violates the defendant’s right to remain silent if it was

“manifestly intended to be a comment on the defendant’s failure to testify,” and if the

statement was of such a character that a jury would “naturally and necessarily”

interpret it as a comment on the failure of the accused to testify). Instead, the

prosecutor explained that, although she had intended to introduce evidence about

Shepard’s lack of employment at trial, she inadvertently had neglected to do so. The

pertinent remark also was not of such a character that the jury would have interpreted

it as a comment on Shepard’s failure to testify. The court specifically instructed the

jury on Shepard’s right not to testify, making it even less likely that the prosecutor’s

remarks would have been interpreted as a comment on his failure to testify.

        Accordingly, the district court did not abuse its discretion in denying Shepard’s

motion for a mistrial: the prosecutor’s comment did not violate Shepard’s substantive

rights or constitute manifest injustice.

        AFFIRMED.*

  *
      Shepard’s request for oral argument is DENIED.
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