In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2744

United States of America,

Plaintiff-Appellee,

v.

Seng Xiong,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-CR-42--Lynn Adelman, Judge.

Argued June 4, 2001--Decided August 24, 2001



  Before Ripple, Evans, and Williams, Circuit
Judges.

  Williams, Circuit Judge. Seng Xiong was
convicted of one count of conspiracy to
commit wire fraud and one count of
interstate transportation in furtherance
of a gambling scheme. He appeals the
district court’s denial of a new trial on
account of what he believes were improper
statements made by the prosecutor. We
agree with the district court that the
statements were not improper and did not
prejudice him at trial and, therefore,
affirm its judgment.

I.   BACKGROUND

  Xiong was charged with (i) conspiracy to
commit wire fraud in violation of 18
U.S.C. sec.sec. 371 and 1343/1 and (ii)
interstate transportation in furtherance
of a gambling scheme in violation of 18
U.S.C. sec.sec. 2 and 1952. On the first
count, the indictment alleged that Xiong
and four other co-conspirators induced
and sought to induce victims to
participate in a rigged Blackjack card
game scheme by promising them that they
"could not lose." On the second count,
the indictment alleged that the
defendants traveled to Wisconsin in
furtherance of the gambling scheme. All
of Xiong’s co-defendants pled guilty to
both charges. Xiong went to trial.
  Xiong’s counsel remarked in his opening
statement: ". . . you won’t hear me talk
about the great Government conspiracy,
because I am not that kind of lawyer." At
trial, he did not accuse the government
outright of conspiring against Xiong but
argued that the government officials
working on the investigation were inept
and that the other witnesses were not
credible. In his closing argument, he
continued this strategy, arguing, for
example, that Xiong’s co-conspirator
Edward Clark, who was hoping to be
released from prison in return for his
testimony, had "scammed" the government
and that the "[g]overnment [was] on [his]
side."

  The prosecutor, in his rebuttal
argument, highlighted the inconsistency
between defense counsel’s opening and
closing statements. Defense counsel
objected to the prosecutor’s statements,
arguing that he did not make a government
conspiracy argument. The district court
allowed the prosecutor to continue.

  The prosecutor then commented on the
substance of the defense’s argument:

What [counsel] is telling you, ladies and
gentlemen, is that you should never
convict somebody in this type of
conspiracy. Because how can you trust a
co-conspirator? They’re in the game. You
should never be able to trust them. How
can you trust what the victim says?
They’re in the game . . . . No matter
what witnesses we call in, you can’t
trust them, ladies and gentlemen. This
man gets to walk free.

Defense counsel objected again for the
same reason. This time the court reminded
the jury members that their recollection
of the evidence controlled.

  After the prosecutor concluded his
rebuttal, the court further discussed
defense counsel’s objections outside of
the jury’s presence. Defense counsel
moved for a new trial at this point,
arguing that the prosecutor had
disparaged his character in front of the
jury and, therefore, prejudiced Xiong.
The district court denied his request,
noting that the prosecutor’s argument
"might have been a little hyperbolic, but
. . . certainly was not . . . beyond the
bounds of reasonable response." The court
also indicated that it would give the
jury an instruction not to treat the
lawyers’ closing arguments as
evidence./2 In addition, the court
offered defense counsel the opportunity
to submit another instruction. Defense
counsel declined the court’s invitation
to submit another instruction and asked
instead for an opportunity to rebut. His
request was denied.

  As promised, the court instructed the
jury that the lawyers’ closing arguments
were not to be treated as evidence. After
little deliberation, the jury convicted
Xiong of both charges. This appeal
followed.

II.   ANALYSIS

  The issue presented to us on appeal is
whether the district court erred in
denying Xiong a new trial on account of
the prosecutor’s statements. We review
for abuse of discretion the district
court’s decision not to grant a mistrial
based on prosecutorial misconduct. United
States v. Andreas, 216 F.3d 645, 671 (7th
Cir. 2000). When reviewing a district
court’s ruling for abuse of discretion,
we reverse only if we have a strong
conviction of error. United States v.
Cheska, 202 F.3d 947, 950 (7th Cir. 2000)
(internal quotation omitted). As
discussed below, we find no error in the
district court’s denial of Xiong’s motion
for a new trial and, therefore, affirm.

  In prosecutorial misconduct challenges
such as this one (where the defendant has
not alleged that one or more of his
specific constitutional rights have been
violated), we ask first whether the
prosecutor’s statements were improper.
United States v. Cotnam, 88 F.3d 487,
497-98 (7th Cir. 1996). If we hold the
statements improper, we then determine
whether the remarks "so infected the
trial with unfairness as to make the
resulting conviction a denial of due
process." United States v. Emenogha, 1
F.3d 473, 481 (7th Cir. 1993). Only if we
find that the defendant was so prejudiced
will we grant him a new trial. Id.

  Xiong argues that the prosecutor’s
statements disparaged defense counsel’s
character by implying that he lied to the
jury. We agree with Xiong that
disparaging remarks directed at defense
counsel are reprehensible. Such remarks
can prejudice the defendant by directing
the jury’s attention away from the legal
issues in or by inducing the jury to give
greater weight to the government’s view
of the case. See Pierson v. O’Leary, 959
F.2d 1385, 1387 (7th Cir. 1992); United
States v. Rodrigues, 159 F.3d 439, 451
(9th Cir. 1998). Disparaging remarks that
suggest that defense counsel has lied to
or withheld information from the jury can
further prejudice the defendant by
causing the jury to believe that the
defense’s characterization of the
evidence should not be trusted and,
therefore, that a finding of not guilty
would be in conflict with the true facts
of the case. This kind of statement, if
inflammatory in nature, might also
detract from the dignity of judicial
proceedings.

  Reading the statements in context,
however, we conclude that the prosecutor
did not disparage defense counsel’s
character. In his closing argument,
defense counsel argued that the
government suffered from tunnel vision
and put on perjured testimony. The
prosecutor responded by stating that
counsel resorted to a government
conspiracy argument despite the earlier
promise. This response went to the
credibility of the defense not defense
counsel. A comment of this sort is not
improper because it does not "suggest
that the attorney[’s] ability to argue
[an inconsistent defense] is evidence . .
. against the defendant[ ]." United
States v. Sblendorio, 830 F.2d 1382, 1395
(7th Cir. 1987); see United States v.
Scott, 660 F.2d 1145, 1168 (7th Cir.
1981) (holding that it is proper to
comment on inconsistencies in the
defendant’s case).

  The prosecutor’s subsequent remarks,
including "What [counsel] is telling you
is that you should never be able to
convict somebody in this type of
conspiracy, because you can never have
enough evidence . . .", attempted to show
that the defense’s argument was
overbroad. These remarks were likewise
directed at the defendant’s case not
defense counsel. Moreover, it was proper
for the prosecutor to comment on the
lameness of the defendant’s case. See
United States v. Turk, 870 F.2d 1304,
1308-09 (7th Cir. 1989); Sblendorio, 830
F.2d at 1395. Thus, reading the
statements in context, we conclude that
the prosecutor’s statements did not
disparage defense counsel’s character.

  Even if we held that the prosecutor’s
statements were improper, we could not
say that Xiong was prejudiced by the
remarks. To determine whether the
defendant was prejudiced, this court
examines several factors, including: (i)
whether the district court sufficiently
instructed the jury to disregard such
statements; (ii) whether the defense
could counter the prosecutor’s statement
through rebuttal; and (iii) most
importantly, whether the weight of the
evidence was against the defendant. See
Rodriguez v. Peters, 63 F.3d 546, 558
(7th Cir. 1995).

  The district court properly addressed
Xiong’s objections. Although the district
court did not respond to Xiong’s first
objection, in response to his second
objection (which was tendered just a few
sentences further into the prosecutor’s
argument), the court reminded the jury
members that their recollection of the
evidence controlled. It also, in its
instructions to the jury, told the jury
that arguments of counsel were not
evidence. And, although it denied Xiong’s
counsel’s request for rebuttal, it
offered him the opportunity to submit an
additional jury instruction to the court
to redress any possible prejudicial
effect, an opportunity Xiong declined.

  More importantly, the government
presented overwhelming evidence of
Xiong’s guilt at trial. To sustain
Xiong’s 18 U.S.C. sec.sec. 371 and 1343
conspiracy to defraud conviction, the
government had to show that he (a)
knowingly agreed to participate in the
scheme to defraud and (b) engaged in the
overt act of inducing victims to play in
the rigged card game. See United States
v. Gee, 226 F.3d 885, 893 (7th Cir.
2000); United States v. Keller, 784 F.2d
1296, 1299 (5th Cir. 1986). Investigating
officer Agent Lynch testified that Xiong
admitted to the police that he knew
before he agreed to participate in the
scheme that it was designed to take money
from unwitting victims. The officers who
arrested Xiong found incriminating
physical evidence in the hotel room where
he was arrested, including card-rigging
paraphernalia and a suitcase containing
stacks of money made to appear as if
consisting solely of $100 bills. They
also found several of Xiong’s fake
driver’s licenses and social security
cards in a van he and his co-conspirators
drove from California to Wisconsin, where
they planned to play their next game.
Finally, one of the conspiracy’s victims,
A Lor Hang, testified that Xiong induced
her to participate in a game by promising
her that the game would be rigged in her
favor. Taken together, this evidence
clearly supports Xiong’s conspiracy
conviction./3 See Keller, 784 F.2d at
1299-1300.

  The government likewise presented
overwhelming evidence of Xiong’s guilt
with respect to the interstate
transportation charge. To support an
interstate transportation conviction, the
government must prove: (a) interstate
travel; (b) intent to promote unlawful
activity, (here, a gambling enterprise);
and (c) performance or attempted
performance of an unlawful act. United
States v. Scott, 245 F.3d 890, 909 (7th
Cir. 2001)./4 The evidence showed that
Xiong traveled from one state to another
(California to Wisconsin), he intended to
promote gambling, an illegal activity in
Wisconsin (Xiong discussed with Hang the
possibility of another card game designed
to win her money back in a telephone con
versation recorded without his
knowledge), and performed an unlawful act
(he induced Hang to play).

  In denying Xiong’s request for a new
trial, the district court noted that the
evidence was so overwhelming that it was
unlikely that the prosecutor’s remarks
affected the verdict. In this case we not
only give substantial weight to its
determination, United States v. Canino,
949 F.2d 928, 935 (7th Cir. 1991), but
agree. The district court did not abuse
its discretion in denying Xiong a new
trial.

III.   CONCLUSION

  For these reasons, we Affirm the district
court’s denial of a new trial on account
of the prosecutor’s statements.

FOOTNOTES
/1 The indictment does not cite 18 U.S.C. sec. 1343
but it is clear from its language that a sec.
1343 violation is alleged.

/2 The court’s instruction mirrors Instruction 1.06
of the Pattern Criminal Federal Jury Instruction
for the Seventh Circuit.

/3 18 U.S.C. sec. 371, the conspiracy statute,
states that "[i]f two or more persons conspire
either to commit an offense against the United
States . . . and one or more of such persons do
any act to effect the object of the conspiracy,
each shall be fined . . . or imprisoned . . . or
both." 18 U.S.C. sec. 1343 provides that
"[w]hoever, having devised or intending to devise
any scheme . . . to defraud . . . shall be fined
under this title or imprisoned . . . or both."
/4 18 U.S.C. sec. 1952 states that "[w]hoever trav-
els in interstate or foreign commerce or uses the
mail or any facility in interstate or foreign
commerce, with intent to . . . promote, manage,
establish, carry on, or facilitate the promotion,
management, establishment, or carrying on, of any
unlawful activity, and thereafter performs or
attempts to perform [that unlawful activity]
shall be fined under this title, imprisoned not
more than 5 years, or both . . . . As used in
this section . . . "unlawful activity" means (1)
any business enterprise involving gambling."
