United States of America, Plaintiff-appellee, v. Orville William Dante, Defendant-appellant, 996 F.2d 1228 (9th Cir. 1993)

MEMORANDUM^** 

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.

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).

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