United States v. Nathaniel Simpkins , 240 F. App'x 334 ( 2007 )


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  •                                                              [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    JULY 18, 2007
    No. 05-17167                  THOMAS K. KAHN
    Non-Argument Calendar                  CLERK
    ________________________
    D. C. Docket No. 05-20318-CR-JAL
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    NATHANIEL SIMPKINS,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (July 18, 2007)
    Before TJOFLAT, HULL and MARCUS, Circuit Judges.
    PER CURIAM:
    Nathaniel Simpkins appeals his convictions, imposed pursuant to a jury
    verdict, for conspiracy to commit armed bank robbery, in violation of 
    18 U.S.C. § 2113
    (a); armed bank robbery, in violation of 
    18 U.S.C. § 2113
    (a), (d); and use of
    a firearm in furtherance of a crime of violence, in violation of 
    18 U.S.C. § 924
    (c)(1)(A)(ii). On appeal, Simpkins argues that the district court erred by
    (1) admitting testimony, as inextricably intertwined with the instant charges, that
    Simpkins had previously participated in a bank robbery other than the one charged
    in the indictment; (2) denying his motion for judgment of acquittal, in which he
    argued the evidence, including the testimony of two co-conspirators whom
    Simpkins says were not credible, was insufficient to convict him; (3) denying his
    request to call certain witnesses in order to impeach his co-defendant’s testimony;
    and (4) overruling his objections to the government’s closing arguments. After
    careful review, we affirm.
    I.
    We review the district court’s rulings on the admissibility of evidence for
    abuse of discretion.    United States v. Jiminez, 
    224 F.3d 1243
    , 1249 (11th Cir.
    2000). “An evidentiary ruling will stand unless the complaining party has shown a
    substantial prejudicial effect.” United States v. Breitweiser, 
    357 F.3d 1249
    , 1254
    (11th Cir. 2004) (quotation marks omitted). “An error on an evidentiary ruling will
    result in reversal only if a party establishes a substantial prejudicial effect or a
    manifest injustice.” U.S. Steel, LLC v. Tieco, Inc., 
    261 F.3d 1275
    , 1286 (11th Cir.
    2001).
    2
    As for Simpkins’s challenge to the sufficiency of the evidence, our review is
    de novo. United States v. Dodds, 
    347 F.3d 893
    , 900 (11th Cir. 2003). In reviewing
    the sufficiency of the evidence, we resolve all reasonable inferences and credibility
    evaluations in favor of the jury’s verdict and will uphold the jury’s verdict if a
    reasonable factfinder could conclude that the evidence establishes the defendant’s
    guilt beyond a reasonable doubt. United States v. Starke, 
    62 F.3d 1374
    , 1380 (11th
    Cir. 1995).
    Finally, we review claims of prosecutorial misconduct de novo.          United
    States v. Eckhardt, 
    466 F.3d 938
    , 947 (11th Cir.), cert. denied, 
    127 S. Ct. 1305
    (2006).
    II.
    The relevant facts are straightforward. On April 15, 2005, Simpkins and
    co-defendants Curtis Brown, Tinnell Prentice Irving, and Anthony Donnell Rose
    were indicted for conspiracy to commit armed bank robbery (Count 1), in violation
    of 
    18 U.S.C. § 2113
    (a), and armed bank robbery (Count 2), in violation of 
    18 U.S.C. § 2113
    (a), (d). Simpkins, Brown and Irving were also charged with use of
    a firearm in furtherance of a crime (Count 3), in violation of 
    18 U.S.C. § 924
    (c)(1)(A)(ii). Brown and Rose entered guilty pleas, and Brown subsequently
    3
    testified for the government, as did co-conspirator Jeffrey Jenkins, at Simpkins’s
    jury trial.1
    Prior to trial, the government noticed Simpkins that it intended to introduce,
    pursuant to Rule 404(b) of the Federal Rules of Evidence, evidence that prior to the
    charged bank robbery, which occurred on March 23, 2004, Simpkins had
    participated in another bank robbery on March 3, 2004. Simpkins filed a motion to
    exclude the evidence, arguing that the government failed to identify its reasons for
    introducing the evidence or the relevancy of the evidence of the prior robbery. In
    response, the government asserted that the instant armed robbery occurred on
    March 23, 2004, and that Simpkins’s involvement as the gunman in another armed
    robbery on March 4, 2004, less than three weeks before the instant one, was
    probative of identity, knowledge and absence of mistake. The district court denied
    without prejudice Simpkins’s motion to suppress, finding that the relevancy of the
    proposed 404(b) evidence would depend on the theory of defense presented at trial.
    At trial, Simpkins renewed his objection to the introduction of testimony
    regarding the prior bank robbery. The government responded that it intended to
    introduce co-defendant Brown’s testimony that Simpkins was the driver in the
    charged robbery because he had been a gunman in the prior robbery but did not
    1
    Co-defendant Irving was arrested and pled guilty after Simpkins was convicted.
    4
    feel that he had been paid enough to justify the danger associated with being a
    gunman in the charged robbery.         The government argued that the evidence
    explained the relationships of the parties and, therefore, was not extrinsic evidence
    subject exclusion under Rule 404(b). The district court found that the evidence
    was inextricably intertwined with the charged offense and overruled the objection.
    In the alternative, the district court also found that the probative value of the
    evidence outweighed any prejudicial value.
    As part of its case-in-chief, the government presented the following
    testimony. Rolando Riera, Jr. had previously been employed as a teller at Union
    Planters Bank, which later became a Region’s Bank (the “Bank”). Riera testified
    that on March 23, 2004, while he was working at the drive-through window of the
    Bank, he observed four black males in a mint-colored Saturn pass through one of
    the lanes. Riera described the driver -- later identified as Simpkins -- as a heavyset
    black male with dreadlocks. Before seeing the car, Riera had heard customers
    talking about a suspicious vehicle with four black males in the parking lot.
    Another employee had started to send an e-mail to the Bank’s security when two
    men -- later identified as co-defendant Irving and co-conspirator Jeffrey Jenkins --
    came into the Bank and began yelling that there was a robbery.
    5
    Riera testified that Jenkins approached him, put a gun to his head, and began
    taking money from the teller drawer. Jenkins then told Riera to help put the money
    in a bag. Riera also put a dye pack -- a pack of twenty-dollar bills filled with paint
    that explodes upon removal from the bank -- in the bag. Jenkins directed Riera to
    empty two other teller drawers into the bag. Thereafter, Jenkins told Riera to get
    on the ground, at which time Riera was able to press the silent alarm. The robbers
    took a total of $30,245 from the teller drawers.
    Jenkins, who had been convicted of three bank robberies and was then
    residing in a “holdover” facility for federal inmates, testified that Simpkins drove
    the car to the Bank on the day of the robbery and, at that time, wore his hair in
    dreadlocks.   Jenkins said that before going to the Bank, he gave a gun to co-
    defendant Irving, and that Simpkins was in the car at that time. Upon entering the
    Bank, Jenkins initially went to the drive-through teller because Simpkins had told
    him that the drive-through teller had seen them and Jenkins was worried that the
    teller might already be calling the police. As they were leaving the Bank, the dye
    pack exploded and began burning them. Jenkins and Irving got in the car, and
    Jenkins told Simpkins to roll down the windows, but to keep driving. The men
    then went to Brown’s mother’s house, where they unsuccessfully attempted to
    6
    clean the dye off of the money in the washing machine. Jenkins paid Simpkins
    around $5000 for his participation in the robbery.
    Judy Russell, Brown’s mother, testified that, on March 23, 2004, she saw
    Simpkins at her house along with Brown, Jenkins, and Rose. One of them was
    carrying a bag and there was something red running from the washing machine.
    When she returned home from church later that day, she saw a bag with something
    red in it in the garbage can. When she asked what it was, Simpkins said it was his
    bag and took it from the garbage can.
    Brown, who had been convicted of bank robbery and use of a firearm during
    a crime of violence, in connection with the March 23, 2004 robbery, testified that
    in putting together a group to rob the Bank, he called Simpkins first.      Brown
    wanted Simpkins to be one of the gunmen, but he refused, stating that after a prior
    robbery, for which he was a gunman, he had received only $500 and felt like he
    had been cheated.       For the instant robbery, Simpkins agreed to be the driver
    instead. Brown testified that while the Bank was being robbed, he, his cousin
    Jimmy, and Rose watched from a second vehicle, which served as the “look-out”
    car and was parked across the street from the Bank.        After the robbery, the
    conspirators went to Brown’s mother’s house and unsuccessfully tried to wash the
    dye off of the money.
    7
    On cross-examination, Brown testified that pursuant to the plea agreement,
    he was pleading guilty to two counts of the indictment and the government had
    agreed to dismiss the other count. Brown stated that when he first spoke to the
    police, he did not tell them he was involved in the robbery, but he maintained that
    he had not lied to the police. When asked on cross-examination, Brown claimed
    that he did not remember telling law enforcement that he and his cousin were
    across the street but unaware that a robbery was occurring. In response, defense
    counsel presented Brown with a report from his interview with Federal Bureau of
    Investigation agents, but Brown claimed that the report consisted of the agents’
    impressions of what he said, rather than the statements themselves.
    At the close of the government’s case, Simpkins stated that, in order to
    impeach Brown’s testimony, he intended to call one of the agents who had
    interviewed Brown and who he expected would testify that Brown had made false
    statements. The government responded that the report, referenced by Simpkins
    during Brown’s cross-examination, said that Brown had admitted to involvement
    with the bank robbery. According to the government, the agent’s testimony would
    be improper impeachment because Simpkins had failed to show that Brown’s
    statements were inconsistent.
    8
    The government requested clarification as to which statements Simpkins
    intended to impeach. Simpkins replied that Rose, who was with Brown in the car
    across the street during the robbery, had told police in a recorded interview that he
    and Brown had not been involved with the robbery. Defense counsel then read the
    following portions of the report into the record:
    Rose came by Brown’s house in an old two-toned Dodge truck,
    possibly a Prospect, driven by someone unknown to Brown.
    Brown rode in the back of the truck and Rose was seated in the front
    passenger seat. The three individuals were following Jeff Jenkins,
    who is a passenger, in Judy Russell’s car driven by Nathaniel
    Simpkins.
    Brown advised that Jenkins had lived in Hialeah at one time and was
    familiar with the area. Brown recalled seeing a pawnshop and a Latin
    American Cafeteria in the same area as the Union Planters Bank.
    Brown recalled seeing the Saturn exiting the bank parking lot with a
    red cloud billowing out of the Saturn.
    Jenkins called Brown on the cellphone and told Brown that they
    needed a washing machine.
    Brown asked Jenkins why, at which point Jenkins suggested that they
    go to Brown’s mother’s house.
    Simpkins argued that the report, when read in conjunction with Rose’s statement
    that he and Brown were not involved in the robbery, indicated that Brown had
    initially denied involvement with the bank robbery. Simpkins argued that such a
    reading conflicted with Brown’s testimony that he had not lied to law enforcement.
    9
    The district court found that the report did not contain any indication that
    Brown had denied involvement with the robbery:
    I don’t see anywhere in the statement where Brown initially stated to
    the officers that he was not involved in the robbery and he was seated
    at a mall.
    In the second paragraph, he says, “Jeff Jenkins woke Brown up
    by banging on his front door in his bedroom window. Jenkins told
    Brown that he wanted to, quote ‘do dirty’ which Brown took to mean
    that Jenkins wanted to do a robbery and that Brown had to get
    somebody to drive” which is what Brown testified to. That’s what he
    told the detectives, that they had agreed to rob a bank.
    The only area that he seems to have contradicted what was in
    the statement is that “Brown recalled seeing the Saturn exiting the
    bank parking lot with a red cloud billowing out of the Saturn,” and he
    testified that he actually saw the red cloud in the sky and not coming
    out of the car. Is that the area you wanted to ask him about?
    Defense counsel responded “no” and said he was “reading the report differently
    than the Court is and the government is.” The district court then found that there
    was no basis for the defense to call the FBI agent for impeachment purposes. The
    government then rested its case.
    Simpkins moved for a judgment of acquittal, arguing that the government
    had failed to prove all of the elements of the charges against him. After the district
    court denied the motion, Simpkins rested and closing arguments were presented.
    During closing arguments, the government stated that the experience of coming to
    court had been humiliating for Brown’s mother, Russell, because she had to admit
    10
    that she had been taking money from her son even though she knew he had not
    earned it honestly. The prosecutor then argued: “Now, if anyone here wants to
    insinuate that she’s lying regarding Nate Simpkins for whatever reason, to me, that
    is really compounding the humiliation that that lady went through in coming here
    and sharing these things with us.” Defense counsel objected to this as an improper
    attack on him in his role as an advocate. The district court overruled the objection.
    Defense counsel, during his closing argument, highlighted Jenkins’s plea
    agreement with the government and stated: “And he got up in front of a federal
    judge, and so did the Assistant United States Attorney; and they lied. And they
    lied.”     Counsel then listed the numbers of Brown’s and Jenkins’s felony
    convictions and the terms of their plea agreements. Counsel also suggested that
    Russell’s testimony was an act.
    During rebuttal argument, the prosecutor said: “Think for a moment about
    the reasons these witnesses had to lie, because that was the theme of the defense: a
    reason to lie. Everyone had a reason to lie in this case, according to the defense,
    including the prosecution and the court.” Defense counsel objected that he had not
    talked about lying by the court. The government responded that it was referring to
    the sentencing court and the district court overruled the objection. The government
    went on to say that in order to accept Simpkins’s theory, the jury would have to
    11
    believe that the government would move the court to sentence Brown and Jenkins
    without regard to their actions, and that the court would accept such a motion.
    The government later stated that Jenkins had identified Simpkins and “every
    other player in every other bank robbery.” Simpkins objected that there had not
    been evidence to support the government’s statement.                     The district court again
    overruled the objection.
    As part of her charge to the jury, the district judge court instructed the jury
    that they must only consider the evidence presented and that “anything the lawyers
    say is not evidence in this case.” The court also cautioned the jury that Simpkins
    was only being tried for the offenses that were charged in the indictment.
    The jury found Simpkins guilty on all three counts. The district court later
    sentenced him to a 114-month term of imprisonment. This appeal followed.
    III.
    First, Simpkins argues the district court erred by admitting Brown’s
    testimony about the prior robbery, which occurred on March 3rd and for which
    Simpkins acted as one of the gunmen.                     The district court found the evidence
    admissible as it was “inextricably intertwined” with the instant charge.2
    2
    Because we find no abuse of discretion in the district court’s “inextricably intertwined”
    ruling, we do not reach its alternative ground for admitting the evidence -- that it was relevant 404(b)
    evidence.
    12
    Rule 402 of the Federal Rules of Evidence provides: “All relevant evidence
    is admissible, except as otherwise provided by law.” Fed. R. Evid. 402. Intrinsic
    evidence of another crime is admissible if it is “(1) an uncharged offense which
    arose out of the same transaction or series of transactions as the charged offense,
    (2) necessary to complete the story of the crime, or (3) inextricably intertwined
    with the evidence regarding the charged offense.” United States v. McLean, 
    138 F.3d 1398
    , 1403 (11th Cir. 1998).      Even relevant intrinsic evidence may be
    excluded, however, if, among other things, its probative value is substantially
    outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. In determining
    whether to exclude evidence under Rule 403, the district court must “weigh the
    probative value of the evidence against the danger of unfair prejudice, confusion,
    misleading the jury, or undue delay or waste of time.” United States v. Williford,
    
    764 F.2d 1493
    , 1497 (11th Cir. 1985). The balance should be struck in favor of
    admissibility.   United States v. Fallen, 
    256 F.3d 1082
    , 1091 (11th Cir. 2001).
    Moreover, a district court may limit the prejudicial value of evidence by giving a
    limiting instruction to the jury. United States v. Hernandez, 
    896 F.2d 513
    , 523
    (11th Cir. 1990).
    Here, Brown’s testimony about the prior robbery explained why Simpkins
    was asked to participate in the charged robbery and why he was the driver of the
    13
    getaway car. Moreover, the two crimes were linked in time and circumstances
    because they were both bank robberies and occurred only 20 days apart from each
    other. Finally, any prejudice was limited by the district court’s limiting instruction
    to the jury. On this record, we discern no abuse of discretion in the district court’s
    ruling that the testimony was admissible as inextricably intertwined with the
    instant offenses.
    IV.
    Simpkins challenges the sufficiency of the government’s evidence on all
    three charges.      He asserts that the evidence does not sustain the jury’s verdict
    because the government presented the testimony of other co-conspirators, who
    were not credible.      Simpkins suggests that in addition to the co-conspirators’
    testimony, the government was required to present what he terms “independent,
    non-biased evidence.” We disagree.
    Credibility determinations are the sole province of the jury. United States v.
    Chastain, 
    198 F.3d 1338
    , 1351 (11th Cir. 1999). Reversal is not appropriate unless
    “no trier of fact could have found guilt beyond a reasonable doubt.” United States
    v. Garcia-Jaimes, 
    484 F.3d 1311
    , 1321 (11th Cir. 2007).         “For testimony of a
    government witness to be incredible as a matter of law, it must be unbelievable on
    its face.”   United States v. Calderon, 
    127 F.3d 1314
    , 1325 (11th Cir. 1997)
    14
    (internal quotations and citation omitted). “It must be testimony as to facts that the
    witness physically could not have possibly observed or events that could not have
    occurred under the laws of nature.”           
    Id.
     (quotations and citation omitted).
    Moreover, judgment of acquittal is not required “because the government’s case
    includes testimony by ‘an array of scoundrels, liars, and brigands.’” United States
    v. Hewitt, 
    663 F.2d 1381
    , 1385 (11th Cir. 1981) (citation omitted).
    Counts One and Two charged Simpkins with bank robbery and conspiracy to
    commit bank robbery. Under 
    18 U.S.C. § 2113
    (a), bank robbery involves taking
    or attempting to take property, money, or any thing of value from a bank, credit
    union, or savings and loan association by force and violence or by intimidation.
    
    18 U.S.C. § 2113
    (a). In order to prove a conspiracy, the government must “prove
    beyond a reasonable doubt (1) that a conspiracy existed; (2) that the defendant
    knew of it; and (3) that the defendant, with knowledge, voluntarily joined it.”
    United States v. Thompson, 
    422 F.3d 1285
    , 1290 (11th Cir. 2005) cert. denied, 
    127 S. Ct. 748
     (2006). Count Three charged Simpkins with the use of a firearm in the
    commission of a crime under 
    18 U.S.C. § 924
    (c), which prohibits using or carrying
    a firearm in furtherance of a crime of violence. A crime of violence includes a
    felony that “has as an element the use, attempted use, or threatened use of physical
    force against the person or property of another.” 
    18 U.S.C. § 924
    (c)(3).
    15
    A person who aids or abets a federal crime “is punishable as a principal.”
    
    18 U.S.C. § 2
    . “Under an aiding and abetting theory, the government must prove
    that the defendant in some way associated himself with the criminal venture, that
    he wished to bring it about, and that he sought by his actions to make it succeed.
    The aiding and abetting statute allows the jury to find a person guilty of a
    substantive crime even though that person did not commit all acts constituting
    elements of the crime.” United States v. Broadwell, 
    870 F.2d 594
    , 608 (11th Cir.
    1989) (citations omitted).
    In the instant case, the government presented ample evidence to establish
    Simpkins’s guilt beyond a reasonable doubt, including Brown’s and Jenkins’s
    testimony that Simpkins had agreed to help rob the bank by driving the getaway
    car, and that Simpkins waited in the get-away car while Jenkins and Irving robbed
    the bank.   Moreover, Jenkins testified that Simpkins was in the car when he
    (Jenkins) gave a gun to Irving for use during the robbery.     After the robbery,
    Simpkins drove the get-away car that transported Irving, Jenkins, and a bag in
    which a dye pack had exploded, and was emanating red dye, to Brown’s mother’s
    house, where he and the others tried to wash the dye off of over $30,000 in
    currency. Brown and Jenkins did not testify to “facts that [they] physically could
    not have possibly observed or events that could not have occurred under the laws
    16
    of nature.” Calderon, 
    127 F.3d at 1325
    . In short, Simpkins has not shown that his
    co-conspirators’ testimony was “incredible as a matter of law [or] unbelievable on
    its face.” 
    Id.
    Moreover, in addition to Brown’s and Jenkins’s testimony, Brown’s mother
    testified that after she noticed a bag with red stuff all over it in the trashcan and
    asked about the bag, Simpkins removed the bag from the trashcan and indicated it
    was his. And the government presented the testimony of Riera, the bank teller,
    who had seen the driver of the get-away card and whose description of the driver
    matched Simpkins’s appearance at the time of the robbery. In short, taking the
    evidence in the light most favorable to the jury’s verdict, and resolving all
    credibility evaluations in favor of the verdict, the district court did not err in
    denying Simpkins’s motion for judgment of acquittal.
    V.
    We likewise find no abuse of discretion in the district court’s ruling on
    Simpkins’s request to call one of the agents who took Brown’s post-arrest
    statement concerning the robbery.             Simpkins says that the officer’s testimony
    would have impeached Brown because, according to Simpkins, Brown’s testimony
    contradicted his statement to law enforcement.3
    3
    Simpkins argues for the first time on appeal that the denial of his request to call certain
    witnesses violated his right to present witnesses and a defense under the Confrontation Clause of
    17
    “The credibility of a witness may be attacked by any party . . . .” Fed. R.
    Evid. 607. But extrinsic evidence of a prior inconsistent statement by a witness is
    not admissible unless “the witness is afforded an opportunity to explain or deny the
    same and the opposite party is afforded an opportunity to interrogate the witness
    thereon, or the interests of justice otherwise require.” Fed. R. Evid. 613(b). In
    order to introduce a prior inconsistent statement, “the court must be persuaded that
    the statements are indeed inconsistent.” United States v. Hale, 
    422 U.S. 171
    , 176,
    (1975).
    Here, after hearing Brown’s testimony and reviewing the report, the district
    court found that the statements were not inconsistent. This finding was not an
    abuse of discretion. Our own review of the testimony and the report reveals, as the
    district court found, that (1) the report did not state that co-conspirator Brown
    denied involvement in the robbery and (2) the report provided details surrounding
    the robbery, which were wholly consistent with Brown’s testimony. Put simply,
    the district court did not abuse its discretion by determining that the report was
    the Sixth Amendment. However, “[t]he Confrontation Clause guarantees criminal defendants an
    opportunity to impeach through cross-examination the testimony of witnesses for the prosecution.”
    United States v. Baptista-Rodriguez, 
    17 F.3d 1354
    , 1370 (11th Cir. 1994). Because Simpkins had
    the opportunity to cross-examine codefendant Brown in order to impeach his testimony, the
    Confrontation Clause is not implicated here.
    18
    consistent with Brown’s testimony that he did not lie about his involvement with
    the robbery to the agents who took the report.4
    VI.
    Finally, Simpkins argues that the district court erred by overruling his
    objections, which he have already detailed above, during the government’s closing
    arguments.
    To establish prosecutorial misconduct, (1) the remarks must be
    improper, and (2) the remarks must prejudicially affect the substantial
    rights of the defendant. A defendant’s substantial rights are
    prejudicially affected when a reasonable probability arises that, but for
    the remarks, the outcome of the trial would have been different.
    When the record contains sufficient independent evidence of guilt,
    any error is harmless.
    United States v. Eckhardt, 
    466 F.3d 938
    , 947 (11th Cir.) cert. denied, 
    127 S. Ct. 1305
     (2006) (quotation marks and citations omitted).                   We have identified the
    following four factors to consider in determining whether or not conduct had a
    reasonable probability to change the outcome of a trial:
    (1) the degree to which the challenged remarks have a tendency to
    mislead the jury and to prejudice the accused; (2) whether they are
    4
    In any event, Simpkins presented evidence that Brown lacked credibility because of (1)
    his prior felony convictions and (2) his interest in having his sentence reduced based on his
    cooperation. Thus, Simpkins cannot show that the verdict would have been different -- that is,
    substantial prejudice -- if he had been permitted to use the report as impeachment, which is the
    standard he must satisfy to warrant reversal for an erroneous evidentiary ruling. See U.S. Steel, LLC
    v. Tieco, Inc., 
    261 F.3d 1275
    , 1286 (11th Cir. 2001) (“An error on an evidentiary ruling will result
    in reversal only if a party establishes a substantial prejudicial effect or a manifest injustice.”).
    19
    isolated or extensive; (3) whether they were deliberately or
    accidentally placed before the jury; and (4) the strength of the
    competent proof to establish the guilt of the accused.
    Davis v. Zant, 
    36 F.3d 1538
    , 1546 (11th Cir. 1994) (citations omitted) (habeas
    context). “A curative instruction, however, may render a prejudicial remark by the
    prosecutor harmless.” United States v. Bailey, 
    123 F.3d 1381
    , 1400 (11th Cir.
    1997) (quotation marks and citations omitted).       Accordingly, the prosecutorial
    misconduct must be considered in the context of the entire trial, along with any
    curative instruction. 
    Id.
    From our review of the entire trial, there is no reasonable probability that the
    government’s remarks, even if improper, affected the outcome of the case. The
    remarks were directed at Simpkins’s attempt to undermine the credibility of the
    government’s witnesses -- one of his primary theories of defense. Because the jury
    had the ability to evaluate the credibility of the witnesses, we cannot conclude that
    the comments had a sufficient tendency to mislead the jury.           Moreover, the
    evidence of Simpkins’s guilt was overwhelming. And the district court limited the
    effect of any comments by instructing the jury that the statements of the attorneys
    were not evidence. On this record, there is not a reasonable probability that the
    comments affected the outcome of the trial.
    AFFIRMED.
    20