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996 F2d 1228 United States v. Dante

996 F.2d 1228

UNITED STATES of America, Plaintiff-Appellee,
v.
Orville William DANTE, Defendant-Appellant.

No. 92-10660.

United States Court of Appeals, Ninth Circuit.

Submitted May 21, 1993.*
Decided July 2, 1993.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: KILKENNY, SNEED, and FERGUSON, Circuit Judges.

1

MEMORANDUM**

2

Orville Dante appeals from his conviction on two counts of willful failure to file a federal income tax return in violation of 26 U.S.C. § 7203, arguing that the district court erred by denying his motion for a mistrial as the result of alleged prosecutorial misconduct during closing argument. We review the district court's decision for an abuse of discretion, see United States v. Homick, 964 F.2d 899, 906 (9th Cir.1992) (denying motion for mistrial); United States v. Diaz, 961 F.2d 1417, 1418 (9th Cir.1992) (allowing jury to consider post-objection comments made during closing argument), and we affirm.

3

Dante complains that the prosecutor's closing argument improperly appealed to the jury's sense of patriotism and unfairly challenged the sincerity of Dante's belief that he didn't have to file a return or pay income taxes by implying that Dante might owe taxes in addition to those at issue in the instant case. While we agree that some of the prosecutor's comments could be deemed improper, they should not be viewed in isolation from the overwhelming evidence of Dante's guilt, and were effectively neutralized by the court's instruction to the jury that it was not to regard counsel's arguments as evidence. See United States v. Williams, 989 F.2d 1061, 1072 (9th Cir.1993) (prosecutor's conduct, including appeal to jury as community's conscience, was improper but did not constitute reversible error in light of overwhelming evidence of defendant's guilt and court's admonition that jury was not to consider counsels' arguments as evidence).

4

The request for oral argument is DENIED and the judgment of the district court is AFFIRMED.

*

The members of the panel unanimously agree that this case is appropriate for submission on the briefs and without oral argument per Fed.R.App.P. 34(a) and 9th Cir.R. 34-4

**

This disposition is not suitable for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir.R. 36-3