United States v. Myers ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4564
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL F. MYERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:06-cr-01275-HMH-1)
Argued: April 11, 2008 Decided: May 21, 2008
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Falkner Wilkes, Greenville, South Carolina, for
Appellant. David Calhoun Stephens, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF:
Reginald I. Lloyd, United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Myers, convicted of various drug offenses, appeals
asserting that alleged prosecutorial misconduct requires reversal
of his convictions. Finding no reversible error, we affirm.
The Government presented extensive evidence at trial that
Myers, a physician, committed three types of drug-related offenses.
First, he sold marijuana to ensure his own supply of the drug.
Second, he allowed his home to be used as a place for teenagers to
use marijuana. Third, he wrote prescriptions for non-medical
purposes in exchange for marijuana or some of the prescribed drugs.
After trial, at which numerous witnesses testified for the
Government, the jury convicted Myers on all eighteen counts.
On appeal, Myers contends that the prosecutor: (1) improperly
shifted the burden of proof to Myers in questioning Myers as to the
accuracy of his testimony regarding exculpatory medical records and
suggesting that Myers could, if he wished to, introduce records to
substantiate his testimony; and (2) made remarks in closing
argument amounting to a “golden rule” violation -- suggesting that
Myers’ conduct actually harmed the jury’s kin.
We analyze charges of prosecutorial misconduct under the same
framework regardless of whether they involve improper questioning
or argument. See, e.g., Greer v. Miller, 483 U.S. 756, 765-67
(1987). “In order to obtain a new trial on the basis of
prosecutorial misconduct, [Myers] must demonstrate (1) that the
2
government’s remarks were in fact improper and (2) that the remarks
‘prejudicially affected the defendant’s substantial rights so as to
deprive the defendant of a fair trial.’” United States v. Higgs,
353 F.3d 281, 330 (4th Cir. 2003) (quoting United States v.
Mitchell, 1 F.3d 235, 240 (4th Cir. 1993)). In evaluating
prejudice, we consider “(1) the degree to which the prosecutor’s
remarks had a tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or extensive; (3)
absent the remarks, the strength of competent proof introduced to
establish the guilt of the defendant; (4) whether the comments were
deliberately placed before the jury to divert attention to
extraneous matters; (5) whether the prosecutor’s remarks were
invited by improper conduct of defense counsel; and (6) whether
curative instructions were given to the jury.” United States v.
Scheetz, 293 F.3d 175, 186 (4th Cir. 2002). Moreover, because
Myers raised neither of his appellate contentions in the district
court, we can grant him relief only if we find plain error. See
United States v. Olano, 507 U.S. 725, 734 (1993).
We find no plain error here. Even if some of the prosecutor’s
remarks were improper (and those in closing argument do seem
improper), Myers cannot demonstrate prejudice. Given the
substantial evidence presented against Myers, we find the
government’s case very strong. It seems very unlikely that any of
the prosecutor’s remarks mislead the jury. Moreover, the remarks
3
were isolated and do not seem to have been placed before the jury
to divert attention to extraneous matters. Finally, although the
district court gave no curative instruction, Myers requested none
and so can hardly point to that absence as demonstrating prejudice.
For all of these reasons, the judgment of the district court
is
AFFIRMED.
4