                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                      MARCH 17, 2008
                                                    THOMAS K. KAHN
                              No. 06-14493
                                                         CLERK
                           Non-Argument Calendar
                         ________________________

                     D. C. Docket No. 06-20178-CR-PCH

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                    versus

ISAAC NOSOVSKY,

                                                     Defendant-Appellant.

                         ________________________

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

                               (March 17, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

     Isaac Nosovsky appeals his conviction for one count of conspiracy to
defraud the United States and to commit health care fraud, 18 U.S.C. § 371; and

six counts of health care fraud, 18 U.S.C. § 1347. Nosovsky makes three

arguments on appeal. First, he argues that the district court abused its discretion in

excluding evidence of a secretly recorded conversation because the contents of the

conversation qualified for the “state-of-mind” hearsay exception in Fed.R.Evid.

803(3). Second, he argues that the secretly recorded conversation qualified for the

Fed.R.Evid. 807 residual exception to the hearsay exclusion rule, and that error

was preserved because the trial court implicitly considered Rule 807. Finally, he

argues that the prosecutor commenting on an uncharged bad act during the opening

statement and on the existence of defense counsel in the closing argument was

prejudicial and warrants reversal.

I.    State-of-Mind Hearsay Exception under Rule 803(3)

      We review a district court’s evidentiary ruling for abuse of discretion.

United States v. Magluta, 418 F.3d 1166, 1177 (11th Cir. 2005). The Federal

Rules of Evidence define hearsay as “a statement, other than one made by the

declarant while testifying at trial or hearing, offered in evidence to prove the truth

of the matter asserted.” Fed.R.Evid. 801(c). Generally, hearsay is not admissible

at trial. Fed.R.Evid. 802. Under Fed.R.Evid. 803(3), the following is not excluded

by the hearsay rule:



                                           2
              A statement of the declarant’s then existing state of mind,
       emotion, sensation, or physical condition (such as intent, plan, motive,
       design, mental feeling, pain, and bodily health), but not including a
       statement of memory or belief to prove the fact remembered or
       believed unless it relates to the execution, revocation, identification,
       or terms of declarant’s will.

Fed.R.Evid 803(3). The exception is limited to statements about the declarant’s

present state of mind, and not why the declarant held that particular state of mind.

United States v. Samaniego, 345 F.3d 1280, 1282 (11th Cir. 2003) (noting the

example, “I’m scared,” as an admissible statement under Rule 803(3), but the

statement, “I’m scared because someone threatened me,” as inadmissible hearsay).

       The statements on the recording were inadmissible under the state-of-mind

exception to hearsay because they explained why Nosovsky held a particular state

of mind and not what the particular state of mind was; instead, they were

statements of memory to prove facts remembered. Therefore, the district court did

not abuse its discretion in excluding them. Id. at 1282. Accordingly, we affirm on

this issue.

II.    The Rule 807 Residual Exception

       We review a trial court’s implicit determination for plain error when the

ruling is not formally questioned before the trial court. See United States v.

Frazier, 387 F.3d 1244, 1268 (11th Cir. 2004) (holding that qualification for expert

testimony is only reviewed for plain error when a timely objection is not raised

                                          3
before the court). Because Nosovsky did not assert Rule 807 as a basis for the

admission of the evidence with the district court, this Court will review for plain

error. United States v. King, 73 F.3d 1564, 1571 (11th Cir. 1996). This Court has

discretion to correct an error under the plain error standard when (1) an error

occurred, (2) the error was plain, (3) the error affected substantial rights, and (4)

the error seriously affects the fairness, integrity or public reputation of judicial

proceedings. United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005).

       An error is not “plain” when the basis for admission of excluded evidence

was not raised at trial. King, 73 F.3d at 1572 (addressing Fed.R.Evid 806 and

explaining that to apply the plain error exception to the contemporaneous objection

rule when trial counsel had an opportunity to assert the basis for admission would

lead to “the exception swallowing the rule”).

       Because Rule 807 was not asserted as a basis for admission, any error was

not plain. Id. at 1572. Accordingly, we affirm on this issue.

III.   Prosecutorial Misconduct

       We review the district court’s denial of a mistrial for abuse of discretion.

United States v. Abraham, 386 F.3d 1033, 1036 (11th Cir. 2004). Reversal on the

basis of prosecutorial misconduct requires that (1) the remarks were improper, and

(2) the misconduct prejudiced the defendants substantive rights such that “a



                                            4
reasonable probability arises that, but for the prosecutor’s statements, the outcome

of trial would have been different.” United States v. O’Keefe, 461 F.3d 1338,

1350 (11th Cir. 2006), cert. denied, 127 S.Ct. 1308 (2007). “Reversal on the basis

of prosecutorial misconduct requires that the misconduct be so pronounced and

persistent that it permeates the entire atmosphere of the trial.” United States v.

Weinstein, 762 F.2d 1522, 1542 (11th Cir. 1985) (quotation omitted).

      We have addressed an allegation of prosecutorial misconduct to explain the

prohibition on reference to defense counsel. United States v. Frazier, 944 F.2d

820, 822 (11th Cir. 1991). “Comments that penalize a defendant for the exercise

of his right to counsel and that also strike at the core of his defense cannot be

considered harmless error.” United States v. McDonald, 620 F.2d 559, 564 (5th

Cir. 1980). It is improper to make a comment that implies that the use of defense

counsel hints at the defendant being guilty. United States v. Mack, 643 F.2d 1119,

1124 (5th Cir. Apr. 1981). We look at the full context of a remark to determine if

it is improper. United States v. Foley, 508 F.3d 627, 638 (11th Cir. 2007). In

Foley, we rejected a similar argument about a similar remark.

      “A prejudicial remark may be rendered harmless by curative instructions to

the jury.” Weinstein, 762 F.2d at 1542. We give considerable weight to the

district court’s assessment of the prejudicial effect of the remarks. Id. A defendant



                                           5
may not request a mistrial on appeal when he refused a curative instruction that

would have alleviated any need for a mistrial. See United States v. Granville, 716

F.2d 819, 821 (11th Cir. 1983).

      We have reviewed the comment from the opening statement and it was not

highly prejudicial, and because Nosovsky refused the curative instruction, the

district court did not abuse its discretion in denying his motion for a mistrial on

this basis. See Granville, 716 F.2d at 821. We have reviewed the remark from the

closing argument and it did not imply that defense counsel did anything improper

or that the presence of counsel meant that Nosovsky was guilty. Thus, the district

court did not abuse its discretion in denying a motion for mistrial on this basis.

IV.   Conclusion

      Based on a review of the record and the parties’ briefs, we affirm

Nosovsky’s conviction.

      AFFIRMED.1




      1
          Nosovsky’s request for oral argument is denied.

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