MURRAY M. SCHWARTZ, District Judge.
Clarence Brisco, the defendant in this criminal action, was charged in a six count indictment with possession (or attempted possession) of heroin with intent to distribute it, distribution of heroin, and conspiracy to distribute heroin, all in violation of 21 U.S.C. §§ 841(a)(1) and 846. Severance was granted prior to trial as to three counts of the indictment, which charged the defendant with possession and distribution of heroin on September 16, 1978, and with possession of heroin with intent to distribute it on September 20, 1978. The jury to which these three counts were tried was also instructed as to the lesser included offense of simple possession of heroin and asked to consider whether the defendant was guilty of that offense on either occasion, should it find him not guilty of the greater offenses charged in the indictment. After a three-day trial ending March 7, 1979, Mr. Brisco was convicted of possession and distribution of heroin on September 16, 1978 and of simple possession of heroin on September 20, 1978. Presently before the Court is defendant's motion for a new trial based on the charge that errors of constitutional dimension were made by the prosecuting attorney during his summation to the jury.
The decision of the United States Supreme Court in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), provides the analytical framework within which this Court must evaluate defendant's claims of prosecutorial misconduct. There the Court described the limits of a prosecutor's proper argument as follows:
295 U.S. at 88, 55 S.Ct. at 633.
Mr. Brisco contends that a variety of statements made by the prosecutor in his rebuttal to the defendant's closing statement constituted "foul blows." The troublesome comments will be considered presently, but at the outset it is necessary to address the government's contention that the Court need not even consider their propriety because the defendant failed to make a timely objection to the allegedly prejudicial remarks. The government argues that because the prosecutor was allowed to complete his entire rebuttal argument before objection (in the form of a motion for mistrial) was raised, it was afforded no opportunity to make "on the spot corrections" of any remarks found to be improper. To support this contention, the government relies principally on a footnote to the Third Circuit's opinion in United States v. Somers, 496 F.2d 723 (3d Cir. 1974), which states as follows:
496 F.2d at 738 n.28.
As is readily apparent from the quoted passage, the rule upon which the government relies was advanced by the Third Circuit in dicta and in the context of an opening, rather than a closing, statement. Assuming, however, that an immediate objection rule can be applied in closing statements to preclude inquiry into the propriety of comments made therein, there are "countervailing factors" that make such a requirement improper in this case. The remarks challenged by the defendant encompass some fifteen of sixteen separate statements in the course of a relatively brief rebuttal. To have required the defendant's counsel to object individually—even if such objections could have been argued at sidebar—would have forced him to risk giving the jury the impression that he was argumentative and contentious at a time when he would have no further opportunity to dispell that impression in another address to the jury. Furthermore, several of the comments at issue here are challenged on the grounds that they constitute argument based on facts not in evidence. Raising such objection in the presence of the jury might have had the effect of emphasizing damaging evidence, were an objection to the propriety of the argument to be overruled. Finally, the defendant's objection to some of the prosecutor's comments was made on the grounds that they were inflammatory and appealed to the prejudices of the jurors. These qualities are ones that can best be evaluated in light of the entire rebuttal argument, and therefore an objection raised at the close of the summation permitted the Court to base its ruling upon a review of the complete context in which the challenged comments were made.
Immediately following the government's rebuttal summation and outside the presence of the jury, Mr. Brisco's attorney made a motion for mistrial that raised with considerable specificity the claims now before the Court. A cautionary instruction was given to the jury prior to charging them on the law,
One category of comments that the defendant contends constitutes improper prosecutorial argument consists of several remarks calculated to portray the defendant as a part of a large and extended drug traffic network, and to suggest that he operated on the wholesale level. More particularly, the prosecutor suggested that Special Agent Dorsey, the undercover agent who participated in Mr. Brisco's arrest, posed as a drug dealer from New Jersey and sought to buy heroin from Mr. Brisco for resale purposes. Examples from this line of argument are as follows:
There was absolutely no evidence in the record to support these assertions: specifically, there was no testimony that Special Agent Dorsey had presented himself as a dealer, or that the transaction involved packages of drugs of a size ordinarily found in the wholesale trade.
It is well settled that prosecutorial comments based on facts outside the record are improper. United States v. Somers, supra; United States v. Benson, 487 F.2d 978 (3d Cir. 1973); United States v. LeFevre, 483 F.2d 477 (3d Cir. 1973). In LeFevre, the Third Circuit expressly approved Standard 5.9 of the American Bar Association Standards Relating to the Prosecution Function, which states:
The repetitive nature of the prosecutor's comments indicates that he clearly intended to characterize the defendant as a wholesaler selling to a dealer, and this intentional misstatement is rendered even more egregious because it raised the unwarranted specter of large scale drug trafficking.
In the course of deliberations, the jury posed a question to the Court noting the prosecutor's reference to Special Agent Dorsey as "a dealer from New Jersey," and inquiring whether this fact was in evidence. The jury was instructed as follows:
The Court is satisfied that these instructions were sufficient to neutralize any prejudice that might have flowed to the defendant from the prosecutor's improper arguments, and to offset any presumption the jury might have indulged in favor of the prosecutor's inherent credibility. Furthermore, that the jury was aware of evidentiary details and able to appreciate the impropriety of arguments based on facts not in evidence is graphically demonstrated by the question it raised concerning Special Agent Dorsey's characterization.
If the quoted paragraph can be characterized as a comment on Mr. Brisco's failure to take the stand, it deprived him of his Fifth Amendment privilege against self-incrimination and under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), his conviction may not stand. "In determining whether a prosecutor's remark constitutes an improper comment on an accused's failure to take the stand in his own behalf, the proper test is `whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" United States v. Dansker, 537 F.2d 40, 63 (3d Cir. 1976), citing United States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971). When the quoted comment is considered in context, the Court concludes that the prosecutor was merely noting the defendant's failure to challenge or contradict critical evidence presented by the government. Such evidence could have been attacked in a variety of ways and would not necessarily have required testimony from the defendant, and therefore the remarks cannot be viewed as embodying a comment on Mr. Brisco's failure to testify. Although the prosecutor might have been more persuasive had he cited specific pieces of evidence left unrebutted by the defense, he was well within the bounds of proper advocacy in urging that the government's evidence was more cohesive and factually supported than was the defendant's. See United States v. Craig, 573 F.2d 455, 494 (7th Cir. 1977). Retrial is not required on the ground of a Fifth Amendment violation.
Next the defendant contends that the prosecutor's summation improperly invaded the province of the Court, to the prejudice of the defendant, when he made the following remark:
Although such argument might be of questionable propriety if made in the opening portion of the government's summation,
Finally, the defendant has cited various other prosecutorial comments that he characterizes as inflammatory and appealing to the jury's prejudices. The Court has considered each comment challenged in the defendant's brief, and concludes that neither their isolated nor their cumulative affects warrant retrial of this defendant. Several of the comments involved references to drug traffic and Mr. Brisco's role in it, and these remarks fall within the category that the Court has already found
Because the Court has found no prosecutorial misconduct sufficiently prejudicial to warrant retrial in the case, defendant's motion for a new trial will be denied.
295 U.S. at 88, 55 S.Ct. at 633.