                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          September 2, 2005
                             No. 05-10709
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                   D. C. Docket No. 04-20322-CR-ASG

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

PEDRO MARTINEZ,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (September 2, 2005)


Before CARNES, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Pedro Martinez appeals his conviction for using the mail to communicate a

bomb threat in violation of 18 U.S.C. § 844(e). He argues that his right to due

process and a fair trial were violated as the result of prosecutorial misconduct

during the government’s closing statement. For the reasons stated more fully

below, we affirm Martinez’s conviction.

      A federal grand jury returned an indictment charging Martinez with using

the mail to maliciously convey false information concerning an attempt to

unlawfully destroy a building, a courthouse in Miami, Florida, by means of fire

and explosives on or about March 24, 2003. He pled not guilty and proceeded to

trial, where a jury found him guilty. Martinez was subsequently sentenced to 120

months’ imprisonment.

      At trial, the government presented the testimony of Christina Pharo, a United

States Marshal for the Southern District of Florida, who, on March 26, 2003, was

the supervisor in charge of court security for the district. That day, Pharo, whose

last name at the time was Fernandez, received and read a letter addressed to

“Katherine Fernandez,” written in Spanish, and containing a bomb threat. The

contents of the letter, translated into English, were as follows:

      Terrorism in Miami, urgent, okay. You be kill in 24 hour, okay.
      March 13, 2003, to the States Attorney, Katherine Fernandez: Hi. I
      am notifying you that the Court in Miami has 24 hour to give an order
      to the president to stop everything, this war with Iraq. If he does not

                                           2
      stop all this in 24 hour, I will explode the bombs that I have placed in
      the court and at the police. I am military soldier from Iraq and I only
      wait the order from the chief. And I also want a million to this
      address with this name: Lisankiy Noda, 2653 Southwest 28 Avenue,
      Miami, Florida, 33133. She waits for that money. Urgent. Please
      okay. Send to Lisankiy. If I do not receive the money, I will explode
      the bombs. Okay. I am terrorist. Only 24 hour for all this and
      nobody can know anything about this. This is secret and urgent and I
      also have people in Court in Tampa who are from Gomez Street,
      Angelina L. Martin, 3603 North Gomez Avenue, Tampa, Florida,
      33607. We only wait for you. This is urgent. Lisankiy and Angelina,
      please send it to me urgent. I explode the courts. Okay.

Notably, the envelope of the letter was postmarked in Lakeland, Florida, and did

not contain a return address or marking indicating that it had been mailed from a

correctional institute. The letter was subsequently forwarded to the Federal Bureau

of Investigation (FBI).

      Next, FBI Agent Angel Martinez, who works for the Joint Terrorism Task

force, testified that he was involved in the investigation of the letter and, as part of

the investigation, attempted to locate Lisankiy Noda and Angelina Martin for

interviews regarding the letter. Within 24 hours of receiving the letter, Martinez

located Noda, who mentioned that the address on the letter was an old address and

that her husband previously had corresponded with the defendant. Agent Martinez

interviewed Noda’s husband, Javier Gonzalez, who turned over some letters

written by the defendant. Agent Martinez, upon viewing the letters written to the

Gonzalezes, believed that the handwriting from the March 26, 2003, letter matched

                                            3
the handwriting in the Gonzalez’ letters, but sent the samples to the FBI laboratory

in Quantico to get confirmation. The March 26, 2003, letter was also sent to the

FBI laboratory to extract any latent fingerprints. Noda and Gonzalez were also in

possession of a photograph of the defendant.

      Agent Martinez also spoke with Angelina Martin, who he learned was the

defendant’s daughter. Based on the interviews, Agent Martinez conducted an

interview of the defendant at the Hardee Correctional State Institution, and before

any questions had been asked, the defendant issued the following statement:

      Are you here because of something with the Gonzalez family? Is it
      about a letter that was sent to the courts in Miami? If it is, then it was
      my daughter who did it. She is working with a girl named Lisankiy
      Noda, and she told me she was going to send a letter. I don’t know
      anything about a letter. I am sorry. I know you came a long way
      from Miami, but I can’t help you. I have not seen my daughter in a
      long time and the only person who visits me is an older, religious lady
      who lives 20 minutes away near Lakeland.

Later, Agent Martinez returned to visit the defendant in order to take “major case

file” fingerprints at the request of the FBI fingerprinting expert at Quantico. At

that time, the defendant was read his Miranda warnings, and when told that the FBI

was there to investigate a threat letter sent to the courts in Miami, the defendant

responded: “Oh, that’s what you’re talking about. Yes, I sent the letter as a

warning.”

      However, Agent Martinez also reviewed the mail prison logs and they

                                           4
contained no record of the March 26, 2003, letter being sent and, moreover,

learned that the standard operating procedure at the prison housing the defendant

was not to mail any letter without a return address, which the March 26 letter did

not have. He also learned that the defendant had not, according to visitor logs, had

any visitors in approximately four years. Agent Martinez did not check the prison

commissary to determine what type of envelopes, paper, or pens are sold there, nor

did he attempt to extract DNA evidence from the envelope used in the March 26

letter, despite knowing that such evidence may have been available. Martinez

explained that he felt the evidence the FBI had acquired was sufficient enough and

DNA testing would not have been worth the cost.

      The defendant’s daughter, Angelina Martin, testified that she never

discussed with her father any of the things discussed in the March 26 letter, nor

had she spoken with her father for several years. She did not know, nor had ever

met, Lisankiy Noda. As for the “Gomez Street” listed in the letter, Martin testified

that her grandparents used to reside on Gomez Street, and that’s where her father

used to send her letters. The government also called the defendant’s ex-wife, who

was married to the defendant for 10 years. She testified from personal observation

and past experience that the defendant’s handwriting appeared on the threat letter

and several other handwriting examples in the government’s possession.



                                          5
      The government also called an FBI document expert, who testified that, after

comparing the threat letter with the government’s handwriting samples, she was

able to determine that the writer of the threat letter and the writer of the samples

was the same author. An FBI latent fingerprint expert then testified that, after

comparing the latent prints on the envelope of the letter at issue with the known

latent print of the defendant, she concluded that the fingerprints on the envelope

matched those of Martinez, although she could not determine when the print was

made. Finally, the government proffered, pursuant to Fed.R.Evid. 404(b), a

Florida state judgment and conviction indicating that Martinez had previously pled

nolo contendere to a charge of composing a letter containing a false bomb threat.

      Martinez chose not to testify on his own behalf and called as his only

witness Jim Tridico, a regional assistant warden for operations in the Florida

Department of Corrections. Tridico testified regarding the rules governing inmate

mail procedures, indicating that, when an inmate mails something from the prison,

the mail must be stamped as coming from a state correctional facility, must have an

inmate’s return address, and must include an inmate’s name and inmate number.

All mail leaving the prison is checked and read to ensure that it does not include

such things as threats of physical harm, blackmail, or extortion. For that reason, all

outgoing mail must be presented, unsealed, to corrections staff to ensure that the



                                           6
mail does not include a threat or other prohibited content. However, on cross

examination, Tridico indicated that the rules were not always followed and that it

was possible for an inmate to send things out of the prison through visitors,

attorneys, or even staff.

      During its closing argument, the government summarized the evidence and

indicated to the jury that it would be permitted to find Martinez guilty under an

“aiding and abetting” instruction. In response, Martinez argued that the

government had failed to prove how the letter in question had been mailed because

the envelope failed to include Martinez’s return address or inmate identification

number as required by prison regulations, in contrast to earlier letters he had

mailed to Lisankiy Noda. He admitted that his palm print appeared on the

envelope, but argued that it didn’t prove that he wrote on the envelope nor did it

explain how every pertinent mail procedure for inmates had been violated.

Martinez also attacked the handwriting analysis and comparisons, arguing that the

government’s evidence was flawed and subject to large fluctuations in accuracy.

Next, Martinez argued that there were “plenty of other things out there . . . which

could have been presented to you by the parties with the burden of proof, by the

parties that have the responsibility handed to them by the Government of the

United States to present a case to you, to investigate a case, to present you with



                                           7
evidence.” Specifically, he argued that the government could have, but did not,

procure, investigate, or present at trial, evidence including mail logs showing

where and when Martinez had mailed letters, the phone records showing who he

had called, the identity of the “mystery Lakeland friend,” or a DNA sample to

determine who licked the envelope. In sum, Martinez argued that the

government’s case was based on speculation and that it could not prove how the

letter at issue had left the prison or Martinez’s motive for committing the crime.

      The government offered a rebuttal, and commented on the defense’s

argument that the government could have ascertained the identity of the “Lakeland

friend”:

      And this thing about, “Well, who’s the friend? Who’s the friend in
      Lakeland?” We don’t know who the friend is. Angel Martinez
      doesn’t know who the friend is. There’s only one person who knows
      who the friend is. And, remember, they chose to present a case. They
      presented a case. They presented a witness. That was their answer to
      the evidence presented was to present a case right over there from the
      witness stand. And then they come up here . . . and say[], “Well,
      where are the logs? Where are the phone logs from the prison? Where
      are the visitor logs from the prison?” They presented a guy from the
      Department of Corrections with records from the prison.

      At this point, Martinez objected on burden shifting grounds, which the

district court overruled, stating only “[f]air comment.” The government continued:

      They have no obligation to present evidence, but they chose to present
      a defense and they could have done so. We don’t have a monopoly on
      all of the evidence in the world. And that goes for other issues, too.

                                          8
      When they bring up things like, “Well, there’s another fingerprint on
      there. They could have tested it.” Of course, we’ve already got his
      palm print on the envelope and there’s a fingerprint on the envelope as
      well. But that’s [the defense attorney’s] job. It’s never enough. . . .
      We got a palm print. We got positive handwriting. We got a
      confession. We got him doing the same thing in ‘93. . . . But, no,
      that’s not enough. They did a lousy investigation. They didn’t do it
      properly. They don’t care. . . . You know, if we brought in the DNA
      evidence in a case . . . it’s not enough. Bring in the other fingerprint.
      Not enough. You bring in the handwriting. No, handwriting, it’s
      voodoo. It’s a bunch of nonsense. It’s not a science. It’s not an art.
      It’s nothing. It’s not enough. If we brought you a videotape of this
      guy doing it, he’d be up here, standing here saying, “Where’s the live
      action?”

      Martinez’s counsel again objected, this time arguing that the government

was “denigrating.” The court sustained the objection, stating: “I think it’s a little

far afield. I’m going to ask the jury to ignore that last argument.” The jury was

then instructed regarding the burden of proof, the equal weight to be given to direct

and circumstantial evidence, and told that anything said by the lawyers during the

case was not evidence. It was instructed that the defendant was presumed innocent

and was not required to prove his innocence or produce evidence and that the

defendant’s decision not to testify should not be considered during deliberations.

Finally, the jury was instructed that it could find the defendant guilty if he willfully

aided and abetted the criminal conduct of an associate. The jury found Martinez

guilty. He was subsequently sentenced to 120 months’ imprisonment.

      On appeal, Martinez argues that the cumulative effect of the prosecutor’s

                                            9
comments deprived him of his right to due process and a fair trial. Specifically,

Martinez argues that the prosecutor’s rebuttal comments impermissibly amounted

to a burden shifting argument that the district court expressly permitted over his

objection, resulting in prejudice. Martinez further argues that it was permissible

for him to challenge the inconsistencies between the evidence and the

government’s theory of the case and the failure of the government to offer proof of

an accomplice. Thus, he argues that he did not “open the door” to the

government’s burden shifting comment. Lastly, he argues that the prosecutor

made an implied comment regarding Martinez’s failure to testify when it stated

that only one person knows who the “Lakeland friend” is, and later, denigrated

defense counsel when stating that no amount of evidence would be enough for

defense counsel. Based on the foregoing, Martinez argues that the prosecutor’s

improper remarks, taken together, violated his Fifth and Sixth Amendment rights

requiring a new trial.

      Generally, claims of prosecutorial misconduct involve mixed questions of

law and fact and, therefore, are reviewed de novo. United States v. Noriega, 117

F.3d 1206, 1218 (11th Cir. 1997). “Prosecutorial misconduct requires a new trial

only if we find the remarks (1) were improper and (2) prejudiced the defendant's

substantive rights.” United States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir.



                                          10
1998). Prosecutorial misconduct is a basis for reversing an appellant’s conviction

only if, in the context of the entire trial and in light of any curative instruction, the

misconduct may have prejudiced the substantial rights of the accused. United

States v. Cordoba-Mosquera, 212 F.3d 1194, 1198 (11th Cir. 2000). “This court

gives ‘considerable weight to the district court's assessment of the prejudicial effect

of the prosecutor’s remarks and conduct.’” Id. (internal citation omitted).

                                  I. Burden Shifting

       Turning first to the first comment that Martinez’s attorney found

objectionable, regarding the shifting of the burden, this Court has held that “while

a prosecutor may not comment about the absence of witnesses or otherwise attempt

to shift the burden of proof, it is not improper for a prosecutor to note that the

defendant has the same subpoena powers as the government, ‘particularly when

done in response to a defendant’s argument about the prosecutor’s failure to call a

specific witness.’” Hernandez, 145 F.3d at 1439; see also United States v. Smith,

918 F.2d 1551, 1562 (11th Cir. 1990) (“[w]hen the prosecutor goes no further than

to take defense counsel up on his invitation [to protest to the contrary], his conduct

will not be regarded as impermissibly calculated to incite the passions of the

jury.”). Moreover, a comment by the prosecutor on the failure by defense counsel,

as opposed to the defendant, to counter or explain evidence does not violate a



                                            11
defendant’s Fifth Amendment right not to testify. Hernandez, 145 F.3d at 1439.

      Here, the defense argued that there were “plenty of other things out there . . .

which could have been presented to you by the parties with the burden of proof, by

the parties that have the responsibility handed to them by the Government of the

United States to present a case to you, to investigate a case, to present you with

evidence.” Among the things that Martinez’s defense believed were not presented

by the government were mail logs and phone records showing Martinez’s mailings

and outside contacts, as well as the identity of the “mystery Lakeland friend.”

      In rebuttal, the government’s response was:

      And, remember, they chose to present a case. They presented a case.
      They presented a witness. That was their answer to the evidence
      presented was to present a case right over there from the witness
      stand. And then they come up here, and [defense counsel] comes up
      here and says, “Well, where are the logs? Where are the phone logs
      from the prison? Where are the visitor logs from the prison?” They
      presented a guy from the Department of Corrections with records
      from the prison. They could have done so, folks. They have no
      obligation to present evidence, but they chose to present a defense and
      they could have done so. We don’t have a monopoly on all of the
      evidence in the world.

      Here, the defense argued that the government had failed to produce certain

evidence available to it, and the prosecutor’s rebuttal, while arguably inartful, was

that the defense could have presented the same evidence if it thought that it would

be compelling and refuted the government’s theory of the case. We conclude that



                                          12
this was not an improper statement as the defense, while entitled to make its

argument, invited the prosecutor’s response. See, e.g., Hernandez, 145 F.3d at

1439 (“it is not improper for a prosecutor to note that the defendant has the same

subpoena powers as the government, ‘particularly when done in response to a

defendant's argument about the prosecutor's failure to call a specific witness.’”).

Furthermore, any possible prejudice was removed by the government’s statement

that the defense did not have an obligation to present evidence and the district

court’s instruction to the jury regarding the government’s burden of proof, the

presumption of innocence, and the court’s statement that “the law does not require

a defendant to prove innocence or to produce any evidence at all.” See United

States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) (“[a] curative instruction

purges the taint of a prejudicial remark because the jury is presumed to follow jury

instructions. . . . [T]he prejudice from the comments of a prosecutor which may

result in a shifting of the burden of proof can be cured by a court’s instruction

regarding the burden of proof.”) (internal citations omitted).

                         II. Martinez’s Failure to Testify

      With regard to Martinez’s argument regarding his failure to testify,

ordinarily “[a] reviewing court will review the trial judge's determination of

whether manifest intent was present under the abuse of discretion standard.



                                          13
Moreover, the remark must be examined in the context in which it was made.”

United States v. Calderon, 127 F.3d 1314, 1338 (11th Cir. 1997). However,

where, as here, no timely objection was made to the prosecutor’s allegedly

impermissible comment on a defendant’s right not to testify, we will review for

plain error only. United States v. Abraham, 386 F.3d 1033, 1036 (11th Cir. 2004).

We will only correct plain error if an appellant demonstrates (1) an error, (2) that is

plain, (3) that affects the substantial rights of the defendant, and (4) that, if left

uncorrected, would seriously affect the fairness, integrity, or public reputation of a

judicial proceeding. Id. n.1.

       “The test for determining whether a prosecutor’s remark constitutes an

impermissible comment on a defendant's failure to testify is whether ‘the statement

was manifestly intended or was of such character that a jury would naturally and

necessarily take it to be a comment on the failure of the accused to testify.’” United

States v. Carter, 760 F.2d 1568, 1578 (11th Cir. 1985) (quotation omitted). “To

prevail on this claim, appellant bears the burden of establishing one of the two

criteria set forth in this test.” Id. “The second part of the test requires a

determination of whether the jury would naturally and necessarily take the

statement to be a comment on [the defendant’s] failure to testify. ‘[T]he question

is not whether the jury possibly or even probably would view the remark in this



                                            14
manner, but whether the jury necessarily would have done so.’” Id. Moreover,

where no objection was lodged, we can find error only where the comment is so

“grossly prejudicial that the harm could not be removed by objections or

instructions.” United States v. Griggs, 735 F.2d 1318, 1324 (11th Cir. 1984).

      The comment challenged on appeal is as follows:

      And this thing about, “Well, who’s the friend? Who’s the friend in
      Lakeland?” We don’t know who the friend is. Angel Martinez
      doesn’t know who the friend is. There’s only one person who knows
      who the friend is.

As the government concedes, this comment “would have better been left unsaid.

However, the comment was an isolated one, made in the context of rebutting the

defense’s argument that the government had access to and failed to produce certain

evidence, in this comment, the failure to discover the identity of the “Lakeland

friend.” Under the plain error standard, and taken in the context of the entire trial,

we cannot say that this statement violated Martinez’s substantial rights, nor can it

be said that this comment could not have been remedied by an objection or an

instruction. In fact, the jury was explicitly instructed that it was not to consider, in

any way, the fact that the defendant failed to testify, and was further instructed that

the comments of the attorneys were not evidence and that the jury was to make its

decision based only on the testimony of the witnesses and exhibits admitted in the

record. Accordingly, we conclude that Martinez was not substantially prejudiced

                                           15
by the comment. See Smith, 918 F.2d at 1562 (“[b]ecause statements and

arguments of counsel are not evidence, improper statements can be rectified by the

district court's instruction to the jury that only the evidence in the case be

considered.”).

      Furthermore, it cannot be said that the jury necessarily would have construed

the prosecutor’s statement to be a comment on Martinez’s failure to testify.

Compare Griggs, 735 F.2d at 1324 (holding that the prosecutor’s statement, “the

defendant has not testified about it,” was an improper comment on the defendant’s

failure to testify); but see United States v. LeQuire, 943 F.2d 1554, 1565-66 (11th

Cir. 1991) (discussing Griggs and the failure of Griggs to apply binding Supreme

Court precedent requiring the Court to conduct a harmless error analysis). In any

event, the context of the comment was in rebuttal of the defense’s questioning of

the government’s failure to obtain certain evidence and, notably, the comment was

not so alarming as to draw an objection from defense counsel. See United States v.

Dorsey, 819 F.2d 1055, 1061-62 (11th Cir. 1987) (“The defense counsel’s failure

to object highlights the innocuous nature of the remark.”). Thus, under plain error

review, we conclude that the prosecutor’s comment, though inartful, does not

warrant a reversal.

                 III. Denigrating Counsel and Cumulative Effect



                                           16
      Finally, to the extent that Martinez argues that the prosecutor denigrated

defense counsel by discrediting him in front of the jury, we have held that, to

“discredit defense counsel in front of the jury is improper, and even subsequent

jury instructions aimed at rectifying this error may not ensure that these

disparaging remarks have not already deprived the defendant of a fair trial.”

United States v. De La Vega, 913 F.2d 861, 867 (11th Cir. 1990) citing United

States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987) overruling on other

grounds recognized by United States v. Watson, 866 F.2d 381, 385 n.3 (11th Cir.

1989). In McLain, we further noted that “[r]eversal on the basis of prosecutorial

misconduct requires that the misconduct be ‘so pronounced and persistent that it

permeates the entire atmosphere of the trial.’” McLain, 823 F.2d at 1462. There,

we found that the prosecutor’s misconduct did not warrant a reversal, but rather the

cumulative effect of errors committed by the judge and the prosecutor denied the

defendant of his right to a fair trial. Id. (emphasis in original). Here, the

prosecutor’s comment that the evidence would never be enough for defense

counsel, assuming it was improper, was an isolated comment, defense counsel

objected to it, and the district court sustained the objection and told the jury to

disregard it prior to, as noted above, instructing the jury not to consider as evidence

anything said by the attorneys. Thus, the prosecutor’s misconduct did not



                                           17
“permeate” the trial and, in any event, was immediately addressed by the district

court.

         Furthermore, in Hernandez, we found that a prosecutor’s comment regarding

defense counsel’s role as an advocate was probably improper, but found that it did

not violate the defendant’s substantial rights. The Court stated:

         We note that defense counsel immediately objected to the improper
         comment and that the trial court sustained the objection. We note that
         the trial court instructed the jury both before closing arguments and
         after the closing arguments that the arguments were not evidence and
         that the jury was to decide Hernandez’s guilt based solely on the
         evidence. Under such circumstances, the statement by the prosecutor
         is not sufficiently egregious so as to mandate a reversal of
         Hernandez’s conviction.

Hernandez, 145 F.3d at 1439. Like in Hernandez, defense counsel here

immediately objected and the district court sustained the objection. The court also

instructed the jury to disregard the prosecutor’s statement and further instructed the

jury that it was not to consider the attorneys’ statements as evidence. Accordingly,

we conclude that any impropriety by the prosecutor here is not insufficient to

mandate reversal.

         In sum, we conclude that the prosecutor’s statements made in rebuttal to

defense counsel’s closing argument did not, when taken together, amount to

misconduct that “permeated” the entire trial. Compare McLain, 823 F.2d at 1462.

Furthermore, taken separately, we cannot say that the district court plainly erred by

                                           18
refusing to sua sponte declare a mistrial on the basis of the prosecutor’s comment

that only one person knew who the “Lakeland friend” was, and did not err by

finding that the prosecutor’s comments, rebutting the defense’s argument that the

government didn’t proffer certain evidence, was not an improper attempt to shift

the burden of proof to the defendant. For the foregoing reasons, we affirm.

      AFFIRMED.




                                         19
