HINCKS, Circuit Judge.
Ramos was charged, in three counts of an indictment, with the sale of narcotics in violation of 26 U.S.C.A. §§ 4704(a), 4705(a) and 21 U.S.C.A. § 174; and on a fourth count with participation in a conspiracy to sell narcotics in violation of 21
The appellant contends that a fair trial was prevented by inflammatory comments by the prosecutor in his summation. We do not agree. It is true that the prosecutor, in the course of his summation, referred to traffic in narcotics as "a dirty business," a "vicious business," a "sneaky business," and as "a vicious racket," and referred to the purchase price of three ounces of heroin as "representing $1,265 worth of human degradation." But the comments complained of comprised only six lines (in the typed transcript) interspersed throughout a 24 page summation the rest of which was devoted to a thorough review of the facts and fair argument thereon. Moreover, the context suggests that several of the comments were obviously made to mitigate prejudice against the Government for its use, in the prosecution of the case, of informers and undercover men whose credibility had been savagely attacked by the defense. Cf. United States v. De Vasto, 2 Cir., 52 F.2d 26, 30, 78 A.L.R. 336, certiorari denied 284 U.S. 678, 52 S.Ct. 138, 76 L.Ed. 573; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240, 242, 60 S.Ct. 811, 84 L.Ed. 1129; Lawn v. United States, 355 U.S. 339, 359, 360, 78 S.Ct. 311, 2 L.Ed.2d 321. And we think it not improper for Government counsel in the prosecution of such a case, at least within reasonable limitations, to emphasize the importance of the case by calling attention to the unsavory nature and the social consequences of illicit traffic in narcotics — consequences far more serious than those flowing, for instance, from illicit traffic in lottery tickets or in untaxed liquor. Indeed, counsel for a co-defendant in his summation sought the jury to base an inference on his assertion that a sale of narcotics was "one of the most heinous crimes that could be committed." And in his charge the judge well said:
The overwhelming predominance in the prosecutor's summation was stress on the details of the evidence and the reasoned inferences to be drawn therefrom. And it is not wholly without significance that of the comments now complained of several passed without objection at the time. United States v. Kyle, 2 Cir., 257 F.2d 559, 564. Appraised against the background of the trial, the whole summation and the judge's charge, the fleeting passages complained of, we feel sure, were not intended, or effective, as appeals to passion or prejudice and did not vitiate the fairness of the trial. Cf. Di Carlo v. United States, 2 Cir., 6 F.2d 364; Ballard v. United States, 9 Cir., 152 F.2d 941, 944, reversed on other grounds 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181; United States v. Markham, 7 Cir., 191 F.2d 936. The cases cited by the appellant to this point we think distinguishable on their facts, e.g., Viereck v. United States, 318 U.S. 236, 247, 248, 63 S.Ct. 561, 87 L.Ed. 734; Steele v. United States, 5 Cir., 222 F.2d 628.
The appellant also claims that it was erroneous to receive in evidence testimony of the Government agent, Hunt, who had overheard a conversation between the defendant Di Buono and the Government witness Pepitone. The conversation occurred on the eve of trial after Ramos had been arrested. Certain of the statements then made by Di Buono incriminated Ramos as well as Di Buono. But pursuant to request made by Ramos' counsel, the judge said: "Strike out the reference to the defendant Ramos * * and disregard that." The evidence was clearly admissible against the defendant-declarant Di Buono, McCormick, Evidence, § 250 (1954), and in view of the specific admonition to the jury to disregard the impact of the evidence on Ramos, its admission was not an error of which Ramos may complain. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278; United States v. De Fillo, 2 Cir., 257 F.2d 835.
In one instance, however, testimony inadmissible against Ramos was received, over objection, without a restrictive instruction. Pepitone, when called by the Government to give his account of his overheard conversation with Di Buono, testified that Di Buono, in an effort to suppress his testimony, told him Ramos wanted to send someone "to take a shot at me."
Moreover, we think the error was one so deeply prejudicial that it falls within the rule of such cases as Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; United States v. Sansone, 2 Cir., 206 F.2d 86; Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077; Sang Soon Sur v. United States, 9 Cir., 167 F.2d 431. Appraising the gravity of the error in the light of the trial record, it is plain to see that the testimony of the narcotics agents, if believed, would have amply supported Ramos' conviction. But the Government, apparently because unwilling to rest its case on these witnesses, called Pepitone, the manager of a bar and grill, who had put the agents in touch with Cronin and Di Buono. Pepitone, when called, failed to corroborate the testimony of the Government agent of a payment to Ramos made in Pepitone's bar: he insisted that he didn't know Ramos. It was not until he was examined about his conversation with Di Buono that he implicated Ramos and then only by his hearsay declaration which was inadmissible as against Ramos.
Against this setting, we are "left in grave doubt as to whether the error [permitting Pepitone to say, without a restrictive limitation, that he had been told by Di Buono that Ramos had threatened to shoot him] had substantial influence in bringing about a verdict."
Reversed and remanded.