                                                                    [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________                     FILED
                                                                  U.S. COURT OF APPEALS
                                         No. 06-11196               ELEVENTH CIRCUIT
                                                                       MARCH 23, 2007
                                   ________________________
                                                                     THOMAS K. KAHN
                                                                          CLERK
                             D.C. Docket No. 02-00586-CR-4-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellant,

                                            versus

ADAN GIL MIRANDA,

                                                                Defendant-Appellee.
                                   ________________________

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

                                       (March 23, 2007)

Before DUBINA and WILSON, Circuit Judges, and HODGES,* District Judge.

HODGES, District Judge:




       *Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
       Adan Gil Miranda was convicted by a jury of conspiracy to distribute

methamphetamine and cocaine (21 U.S.C. § 846); possession with intent to distribute

both drugs (21 U.S.C. § 841); and possession of two firearms in relation to a drug

trafficking crime (18 U.S.C. § 924(c)). The district court, post verdict, granted

Miranda’s motion for a judgment of acquittal and treated his alternative motion for

a new trial as moot.1

       On a prior appeal, another panel of this Court disagreed with the district court’s

evaluation of the evidence, found it to be sufficient to sustain the jury’s verdict, and

reversed the entry of judgment of acquittal United States v. Miranda, 425 F.3d 953

(11th Cir. 2005) (“Miranda I”).2 The case was then remanded to the district court for

a decision on the motion for a new trial predicated on alleged prosecutorial

misconduct. In ordering a remand, this Court expressly disclaimed any opinion on

the merits of that motion. Id. at 963.

       After the remand the district court entered an order granting Miranda’s motion

for a new trial, and the United States has appealed that order. Two questions are




           1
            The district court overlooked Federal Rule of Criminal Procedure 29(d) requiring a
    conditional ruling on a motion for a new trial when a post trial motion for judgment of acquittal is
    granted. This mistake was not brought to the district court’s attention by counsel for either side.

            2
              The facts are recited in detail in Miranda I and need not be repeated here except as necessary
    to a decision of the specific issues on this appeal.

                                                 2
presented: (1) Was the motion timely? (2) Was the prosecutor guilty of prejudicial

misconduct?

                                Standard of Review

      We review a district court’s grant of a motion for new trial for abuse of

discretion. Butcher v. United States, 368 F.3d 1290, 1297 (11th Cir. 2004); United

States v. Pedrick, 181 F.3d 1264, 1266 (11th Cir. 1999); and when attorney

misbehavior is involved, “[t]his [C]ourt gives 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) ( internal

quotation marks and citation omitted).

               A.The Timeliness of Miranda’s Motion for New Trial

      After the verdict had been received at the conclusion of the trial, Miranda

orally moved for a judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29 and requested an extension of time to file a brief in support of his

motion. The district court granted the requested extension. Miranda did not move

at that time for a new trial pursuant to Federal Rule of Criminal Procedure 33, nor did

he request an extension of time within which to make a Rule 33 motion.

      Two months after the jury’s verdict, Miranda filed a written “Motion for

Judgment of Acquittal and Brief in Support” in which he moved “pursuant to Federal

                                          3
Rule of Criminal Procedure 29, to acquit him of his convictions by a jury . . . .”The

bulk of the motion and brief focused on his request for judgment of acquittal;

however, Miranda also stated that “in the alternative, [he] should be granted a new

trial.” His prayer for relief exhorted: “WHEREFORE, for all of the reasons stated

above Defendant Miranda prays that this Motion be granted and that he be acquitted

on Counts One, Six, Seven and Eight, or, in the alternative, that he be granted a new

trial.”

          The Government responded to Miranda’s August 4, 2002 motion, focusing in

large part on his arguments concerning the sufficiency of the evidence. The

Government’s response acknowledged that Miranda’s August 4, 2002 motion

requested a new trial on the grounds of prosecutorial misconduct, but simply noted

that “the defendant’s motion for new trial should be denied” because his contentions

“are without merit.” The Government also incorporated by reference a prior motion

it had made seeking to “correct the record” concerning the merits of Miranda’s

prosecutorial misconduct claim. The Government did not raise any other defenses to,

or otherwise address, the motion for a new trial.

          Rule 33 of the Federal Rules of Criminal Procedure provides that “[a]ny

motion for a new trial grounded on any reason other than newly discovered evidence

must be filed within 7 days after the verdict or finding of guilty.” Fed. R. Civ. P.

                                          4
33(b)(2).3 Until late 2005, it was the law of this Circuit that the seven-day time limit

of Rule 33 was jurisdictional. United States v. Renick, 273 F.3d 1009, 1019 (11th

Cir. 2001) (per curiam). On October 31, 2005, however, the Supreme Court issued

its decision in Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 163 L. Ed. 2d

14 (2005) (per curiam), which clarified the prior confusion concerning the meaning

of Rule 33 that “was generated by the ‘less than meticulous’ uses of the term

‘jurisdictional’ in our earlier cases.” 126 S.Ct. at 405 (quoting Kontrick v. Ryan, 540

U.S. 443, 454, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004)). According to Eberhart, the

time-limit of Rule 33 has always been “an inflexible claim-processing rule,” rather

than a rule “governing subject-matter jurisdiction.” 126 S. Ct. at 403. The timeliness

requirement of Rule 33 is therefore a defense to be raised by the party opposing the

motion for new trial, and it is a defense that can be waived. 126 S. Ct. at 407. In

particular, “where the Government failed to raise a defense of untimeliness until after

the District Court had reached the merits, it forfeited that defense.” Id.

       Miranda concedes that he did not file his motion for a new trial within Rule

33's seven-day time period, or request an extension, but waited more than two months

after the conclusion of his trial and included it with his motion for judgment of


           3
            Rule 33(b)(2) was amended effective December 1, 2005 to remove a court’s authority to
    extend the time for filing a motion for new trial. This deleted provision is not relevant in this case
    because Miranda never requested an extension of time to file a motion for a new trial.

                                                5
acquittal. Yet the Government never challenged in the district court the timeliness

of Miranda’s original motion. Instead, the Government focused on the substance of

the motion, stating that Miranda’s “contentions are without merit,” and incorporating

by reference its previously filed motion to correct the record concerning the

allegations of prosecutorial misconduct.

      Under these circumstances, it would appear that the Government might have

waived its right to challenge Miranda’s motion as untimely. Unfortunately, the

answer is not that simple because the district court did not comply with the mandates

of Rule 29(d) to conditionally decide Miranda’s motion for a new trial at the same

time it granted the motion for judgment of acquittal. Instead, the district court did

not address the merits of the new trial motion until after remand, and after the

Government had been afforded an opportunity to file a response which included a

defense based on Rule 33.

      There can be no doubt that had the district court ruled on Miranda’s original

motion for a new trial at the same time it ruled on the motion for judgment of

acquittal, the motion for a new trial would have been conditionally granted, and the

Government would have forfeited its defense under Rule 33 for failure to assert it.

The district court placed controlling weight on that circumstance, and upon its own




                                           6
noncompliance with Rule 29(d), in deciding that Miranda should have this motion

heard.

         We sympathize with the district court’s distress concerning the manner in

which these unfortunate events unfolded, but we nonetheless conclude that the

motion for a new trial was untimely and that granting it was an abuse of discretion.

It was, after all, Miranda’s tardiness in making the motion - not that of the

Government - that produces the result we reach. Indeed, prior to Eberhart, the

untimeliness of Miranda’s motion would have been jurisdictional under the law of

this Circuit, and nothing that the district court or the Government might have done,

or failed to do, could have altered that conclusion of the matter. Eberhart, to be sure,

removed the jurisdictional bar of a late filed motion under Rule 33, but the time

period allowed is still “an inflexible claim processing rule,” and the time bar is

available - under the holding of Eberhart - until the district court has reached the

merits of the motion. To hold otherwise, as the district court did here, is contrary to

Eberhart and an abuse of discretion. We repeat, for emphasis, that it was Miranda’s

initial failure to comply with the rule that precludes consideration of his motion.

                             B. Prosecutorial Misconduct

         Even if we determined that the motion for a new trial was timely and not time

barred, we would still find it necessary to reverse the district court’s decision on the

                                           7
merits of the motion. We will therefore address the merits as an alternative basis for

our ultimate holding.

      There were several events during trial that factored into the district court’s

ultimate finding of prosecutorial misconduct.

                              1. Agent Cromer’s Trial Testimony

      Prior to trial, Miranda and his co-defendants filed a motion in limine to

exclude the anticipated expert opinions of DEA Agent Cromer concerning, inter alia,

the structure and organization of Mexican drug trafficking conspiracies and, in

particular, that Mexican drug trafficking organizations generally do not allow persons

to be present during drug transactions, including at stash houses,4 unless those

persons are part of the organization. During the briefing process, counsel for Miranda

and counsel for co-defendant Hector Ubaldo Jacubo made clear their intention to rely

on a “mere presence” defense - that they were simply in the subject apartment at the

wrong time and were not aware of and did not participate in the drug trafficking

organization.

      The district court conducted a hearing on the motion and found that Agent

Cromer was qualified to render an expert opinion on the organization, structure, and



            4
                Miranda was arrested in an apartment which served as a drug stash house. See Miranda I,
   supra.

                                                 8
practices of Mexican drug trafficking organizations, but refused to allow the Agent

to testify “that they won’t let people be present if they are not part of the [Mexican

drug trafficking] organization.” The district court said:

      Things may change at trial, but as a part of the Government’s case in
      chief I’m going to rule his testimony out. . . . Agent Cromer’s testimony
      . . . that they won’t let people be present if they are not part of the
      organization, would tend to permit the jury to leap over what I
      understand to be the law in this Circuit, and that is that mere presence
      is not sufficient for a conviction, and that’s my ruling. . . . [A]s part of
      the case in chief, I find that his testimony would not be of assistance to
      the finder of fact. So the motions to exclude the expert testimony . . . are
      hereby granted.

      At trial, the Government did not elicit testimony during its direct examination

of Agent Cromer that violated the pretrial ruling in any way. At the conclusion of the

direct examination, the prosecutor repeated his request to the district court to present

the disputed expert testimony, primarily to counter statements Miranda’s counsel

made during his opening statement that Miranda “happened to be in the wrong place

at the wrong time.” The district court denied the Government’s request.

      During Agent Cromer’s cross-examination, however, the following exchange

took place between counsel for co-defendant Jacubo and Agent Cromer:

      Q:     Now Agent Cromer, prior to the moment that you approached the
             closet where Jacubo was - -

      A:     Yes, sir.


                                           9
      Q:    - - you had no idea that Mr. Jacubo even existed, did you?

      A:    No, sir.

      Q:    And you had no way of knowing how long he had been in the apartment;
            true?

      A:    That’s correct.

      Q:    You have no way of knowing whether he had any involvement in
            the drug conspiracy you were trying to investigate?

      A:    I didn’t know who Mr. Jacubo was.

      Q:    Right. So your view of him as a guilty person was premised
            entirely on the fact that you saw him in that closet when you were
            in that drug processing center? (Emphasis supplied).

      A:    Just clearly because he was in the closet, no, sir. The person in
            the closet is irrelevant. But you look at the totality of everything
            that was going on, we knew the drugs came out of that apartment,
            and knowing from my experience that stash houses people only
            – only people closely associated with stash houses are going to be
            allowed to be in there, especially a processing center with a large
            quantity of drugs. We didn’t know at the time, but we believed
            drugs were in there. And so Mr. Jacubo, he’s in the apartment,
            he’s in the apartment where there’s clearly – the only furniture in
            the apartment is the couch and the T.V. and the chair in the front
            room. There’s no – there’s no furniture or anything in there.
            He’s back where all the drugs, the drugs cooking out in the
            microwave that’s in the back bedroom and not in the kitchen –

      Counsel for Jacubo then objected, stating that: “Your honor, I have to object.

He’s giving a closing argument now. I have asked him a question and this isn’t the

answer to any questions that I asked.” Significantly, neither Miranda or any other

                                         10
defendant objected on the basis that the question and answer contravened the district

court’s pre-trial ruling in limine.

      Following some discussion about the exact phrasing of counsel’s question, the

district court stated: “The question was, your suspicion of him being guilty was

based on the fact that you saw him in the closet when you were in the drug processing

center.” Government counsel then noted that Agent Cromer’s answer was responsive

to that question, and asked that Agent Cromer be allowed to finish his answer. The

district court agreed, but the topic was abandoned after Agent Cromer offered no

elaboration.

                      2. The Testimony of Co-Defendant Cuevas

      Co-defendant Cuevas, the alleged ringleader of the drug trafficking conspiracy,

previously pled guilty but refused to cooperate with the Government. He was then

granted use immunity and compelled to testify at trial pursuant to 18 U.S.C. § 6003.

During his direct examination, Cuevas testified, without objection, as follows:

      Q:       Mr. Cuevas, did you ever discuss your drug business in front of
               people you did not trust?

      A:       Not as far as I can remember and being sane.

      Q:       Did you ever discuss your drug business in front of people who
               weren’t involved in your drug business?

      A:       Supposedly I wasn’t very careful.

                                          11
      Q:     I guess you’re here. That’s true. (Emphasis supplied).


      Cuevas also testified that he did not store drugs in large amounts, and that “if

I had money or something, I tried to put it away so no one would see it.” No one

objected to this testimony.

                               3. Closing Arguments

      In his closing argument, Government counsel referred to both the testimony of

Agent Cromer and Cuevas:

      Now, the question, I think, was raised in opening, you know, Mr.
      Miranda just happened to be there, he was just watching t.v., and clearly
      that implication was raised in cross-examination. There’s a couple of
      other things. He was there for the two other deals when Mojica Ramon,
      the taxi driver, delivered and picked up the cocaine. And as Sebastian
      Cuevas told you, he does not allow people to be around unless he trusts
      them and they’re involved. And as Mr. Norton, [counsel for Jacubo]
      asked – or brought out from Special Agent Cromer, in Special Agent
      Cromer’s experience as a DEA Agent they don’t allow people in a stash
      house unless they are involved, particularly in this situation. They’ve
      already been ripped off once and they don’t know who did it, and, as
      [defense counsel] Ms. Kelly touched on, this was the largest stash house
      in the organization. Over 15 kilograms. . . .

      At this point, counsel for co-defendant Jesus Alvear Uribe objected to the

characterization of the apartment as the largest stash house in the organization. The

district court overruled the objection, stating: “The jury heard it. I’m going to let

them sort it out. This is argument.” None of the defendants objected to this portion

                                         12
of the closing argument on the grounds that it either improperly summarized Agent

Cromer’s testimony or violated the district court’s pre-trial ruling.

      Later in summation, the Government again referred to the testimony of both

Agent Cromer and Cuevas:

      He’s [Jacubo] back there with the drugs. Think back to what Sebastian
      Cuevas told you. They don’t allow people in the stash house unless
      they’re involved. And what that part of the house looked like, the stuff
      wasn’t hidden. It was out in the middle of the room, the microwaves,
      the blenders, the kilo presses, there were drugs on the floor, the scales
      were there, the guns were there. If you’re conducting some kind of
      illegal activity and there are innocent bystanders around, just send them
      all the way to the back bathroom where the drugs are? Do you tell them
      to go past one toilet to get to the back toilet so they’re as close as
      possible to the guns, the drugs? You don’t know who stole your last
      batch of drugs. You don’t know whether or not that person is going to
      tell the police. You just don’t do that. Sebastian Cuevas told you and
      Keith Cromer told you in his experience they don’t allow people into
      that stash house.

      Again, none of the defendants objected to this summation, the district court did

not sua sponte question the argument, and no defendant addressed it on rebuttal.

Instead, counsel for Jacubo and counsel for Miranda each relied on their defense that

their respective clients were “merely present” at the apartment and had nothing to do

with the drug trafficking organization.

                                    4. Discussion




                                          13
       “In reviewing a claim of prosecutorial misconduct, we must assess (1) whether

the challenged comments were improper,5 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); see also United States v. Gonzalez, 122 F.3d

1383, 1389 (11th Cir.1997); United States v. Thomas, 62 F.3d 1332, 1343 (11th

Cir.1995). “A defendant's substantial rights are prejudicially affected when a

reasonable probability arises that, but for the remarks, the outcome of the trial would

be different.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006), petition

for cert. filed, (U.S. Dec. 19, 2006) (internal quotations and citations omitted). In

other words, the misconduct must be “so pronounced and persistent as to ‘permeate

the entire atmosphere of the trial.’” United States v. Elkins, 885 F.2d 775, 787 (11th

Cir. 1989).


             5
               It is important to note that we, like the district court, must determine the issue of prosecutorial
    misconduct in the light of the district court’s ruling in limine, as the law of the case. Whether the
    court was right or wrong it its evidentiary ruling in limine is not before us and is not decided. After
    the ruling was made it was binding on the prosecutor during the ensuing trial. We do note for future
    guidance, however, that the proffered opinion of Agent Cromer and the testimony of Cuevas may well
    have been relevant, in conjunction with all of the other evidence, for the jury’s evaluation of whether
    Miranda was “merely” present (as he claimed) or “willfully” present (as he was charged). See
    Miranda I, 425 F.3d at 959 (“where large quantities of drugs are present a prudent smuggler is not
    likely to suffer the presence of unaffiliated bystanders.”); United States v. Lynch, 934 F.2d 1226, 1231
    (11th Cir. 1991) (“We think that a jury may conclude that it would be unreasonable for conspirators
    openly to conduct a drug deal in the home of a someone not part of their conspiracy.”). See also
    United States v. Alvarez, 837 F.2d 1024 (11th Cir. 1988) (admission of expert testimony of drug
    enforcement administration agent in response to hypothetical question that it would be more risky to
    drug-smuggling operation to use crew members who did not have knowledge of vessel’s drug cargo
    than to use members with knowledge).

                                                   14
      The district court found that the prosecutor’s reference during closing argument

to Agent Cromer’s response on cross-examination that Mexican drug traffickers

“don’t allow people in a stash house unless they are involved, particularly in this

situation,” was improper because it violated the district court’s pre-trial ruling

prohibiting the Government from introducing such testimony. The district court also

found that the prosecutor misstated the substance of Cuevas’ testimony concerning

the same subject, and that such misstatement was material and improper. The district

court then concluded that these improper statements had a reasonable probability of

changing the outcome of Miranda’s trial.



      After careful review, we have an abiding conviction that the prosecutor’s

comments were not improper. The district court’s pre-trial ruling excluding Agent

Cromer’s expert testimony was clear: the Government could not introduce the

evidence. The district court’s ruling also made clear that if circumstances changed

during the trial, she would reconsider her ruling and perhaps allow the testimony. At

trial, the disputed testimony was not introduced by the Government; rather, co-

defendant Jacubo’s counsel asked the key question on cross-examination and opened

the door through which Cromer passed, without objection by Miranda, and gave an

entirely responsive answer which remained on the record and was available to all

                                         15
counsel during closing arguments. The district court gave no indication that

Cromer’s testimony was either non-responsive or inappropriate, and did not raise the

issue of the pre-trial ruling at any time prior to or during closing arguments. Nor did

counsel for any defendant, including Miranda. Thus it is entirely reasonable for the

prosecutor to have believed not only that he did not violate the district court’s pre-

trial ruling, but that the evidence had at last been admitted and was fair game - i.e.

circumstances had changed. Moreover, no one, including the district court, raised any

concerns when the prosecutor summarized this admitted evidence during closing.

And, as the district court recognized, there is no evidence to suggest that Agent

Cromer was coached, or that the prosecutor failed to inform him of the district court’s

pre-trial ruling. Moreover, we cannot find anything in the record to support the

district court’s finding that the prosecutor’s comments misled the jury. Rather, the

prosecutor was simply summarizing Agent Cromer’s unchallenged and admitted

testimonial evidence that the jury had already heard without objection.

      Also, the verdicts in this case make clear that the jury did follow the district

court’s instructions, applied the correct standard for the “mere presence” defense and,




                                          16
in fact, found co-defendant Jacubo not guilty on all charges based on the same “mere

presence” defense as that asserted by Miranda.6

      It is also noteworthy that the prosecutor’s comments concerning Agent Cromer

and Cuevas were limited to three isolated statements during a lengthy trial and

closing argument. They were not extensive discussions repeated throughout the trial

and closing, and two of the remarks were directed specifically at co-defendant

Jacubo, not Miranda. We also find that there is no indication in the record that the

prosecutor committed an intentional violation of the district court’s pre-trial ruling

or an intentional misrepresentation of Cuevas’ testimony.7

      Finally, as we discussed at length in Miranda I, there was ample admissible

evidence to support Miranda’s conspiracy convictions. Miranda knew several of his


          6
            See, e.g., United States v. Gonazalez, 122 F.3d 1383 (11th Cir. 1997) (any error based on the
   prosecutor’s misstatements during closing was cured by the district court which, as in this case,
   instructed the jury that the prosecutor’s arguments were not evidence and the jury was to decide guilt
   based solely on the evidence.); United States v. Wilson, 149 F.3d 1298 (11th Cir. 1998) (finding no
   substantial prejudice based on prosecutor’s closing argument in part because district court informed
   jury multiple times that lawyer argument is not evidence).

          7
            With respect to Cuevas’ testimony, the admitted misstatements by the prosecutor were both
   minor and unremarkable. Cuevas testified that “Not as far as I can remember and being sane,” he did
   not discuss his drug business in front of people he did not trust. He also implicitly acknowledged that
   he did not discuss his drug business in front of people who were not involved in the business. During
   closing, the prosecutor described Cuevas’ testimony by stating: (1) “Mr. Cuevas does not allow
   people to be around unless he trusts them and they’re involved,” and (2) “they [the conspirators] don’t
   allow people in the stash house unless they’re involved.” The first statement is a fairly accurate
   recitation of Cuevas’ testimony and cannot be held to be an intentional misrepresentation. The second
   statement reaches a bit further, but is also an appropriate inference to be drawn from Cuevas’
   testimony with respect to his own cautious habits.

                                               17
co-conspirators and had a pre-existing relationship with co-defendant Cambras; he

had been present in the apartment stash house and was believed to have lived there;

on at least two prior occasions Miranda was in the apartment when drug transactions

were discussed in front of him; a large quantity of methamphetamine and cocaine was

found in the apartment, as well as equipment used to make, package, and disguise the

narcotics; the one room Miranda ran into was the room which contained all of the

narcotics, equipment, and firearms; and there was a pervasive smell of acetone in the

apartment.8 See Miranda I, 425 F.3d at 961 (“In combination with the evidence of



          8
            The district court discounted the pervasive smell of acetone. According to the district court,
   acetone is commonly used as nail polish remover and therefore is not persuasive evidence that
   Miranda was aware of drug activities in the apartment. This could possibly be true if there had been
   any evidence, or even a suggestion, that any sort of nail polishing activities took place at the
   apartment, or if any bottl
   es of nail polish remover (full or empty), had been recovered from the apartment. Instead, the only
   evidence submitted at trial was that the cans of acetone were used for drug trafficking activities.

           The district court was also influenced by the fact that the evidence supporting Miranda’s
   conviction was circumstantial, but, of course, it is the law of this Circuit that circumstantial evidence
   may have the same weight as direct evidence and is sufficient to prove a conspiracy offense. “To
   prove participation in a conspiracy, the government must have proven beyond a reasonable doubt,
   even if only by circumstantial evidence, that a conspiracy existed and that the defendant knowingly
   and voluntarily joined the conspiracy.” Miranda I,, 425 F.3d at 959 (quoting United States v. Garcia,
   405 F.3d 1260, 1269 (11th Cir. 2005)) (emphasis added). “Whether [the defendant] knowingly
   volunteered to join the conspiracy may be proven by direct or circumstantial evidence, including
   inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.”
   Id. Circumstantial evidence is also sufficient to support a conviction for possession of a firearm in
   furtherance of a drug trafficking crime. Id. at 962; see also United States v. Timmons, 283 F.3d 1246,
   1252 (11th Cir. 2002) (“the nexus between the gun and the drug operation can be established by the
   type of the drug activity that is being conducted, accessibility of the firearm, the type of weapon . . .
   proximity of the gun to the drugs or drug profits, and the time and circumstances under which the gun
   is found.”).

                                                18
Mr. Miranda’s knowledge of the drug dealing at the apartment, his presence during

drug transactions, his relationship with Mr. Cambray [a co-defendant and primary

player in the conspiracy], and his conduct in attempting to prevent the officers from

entering the room where the drugs were processed and stored, a rational jury could

find from this conduct that Mr. Miranda knowingly and voluntarily joined the

Cuevas conspiracy.”). While the standard of review for a judgment of acquittal is

more favorable to the Government than the abuse of discretion standard, see e.g.,

United States v. Hernandez, 433 F.3d 1328, 1335 (11th Cir. 2005), the fact that we

previously found sufficient evidence to support Miranda’s conviction must be given

at least some consideration at this stage, particularly when we reached our decision

without considering or even mentioning Agent Cromer’s or Cuevas’ testimony. For,

“[w]hen the record contains sufficient evidence of guilt, any error is harmless.”

Eckhardt, 466 F.3d at 947.           We disagree, therefore, with the district court’s

conclusion that the prosecutor’s closing arguments influenced the outcome of

Miranda’s trial even if such arguments were improper.9

                                         Conclusion




         9
           Rather than granting a new trial, there are other remedies available to deal with prosecutorial
   misconduct that does not affect the outcome of the trial.

                                               19
      The order of the district court granting Miranda’s motion for a new trial is

VACATED. The case is REMANDED to the district court for adjudication of guilt

upon the jury’s verdict with imposition of sentence and entry of judgment to follow.




                                        20
