Stevens and Sprecher, Circuit Judges, and Campbell,*fn* Senior District Court. William J. Campbell, Senior District Judge (dissenting).
Following a jury trial in the district court for the Northern District of Indiana, the defendant Jerry Allan Wasko was convicted on an indictment charging him with the sale of 100 tablets of lysergic acid diethylamide (LSD) in violation of 21 U.S.C. § 331(q)(2).*fn1 We reverse on two grounds.
On April 5, 1971, Randall Green, an Indiana State Police Officer, while working as an undercover agent for the Bureau of Narcotics and Dangerous Drugs, made arrangements to purchase a large quantity of LSD tablets from Randy Ball. Green went to Ball's home in Gary, Indiana, but Ball did not have the quantity of tablets which Green had agreed to purchase. The two of them went to Hammond, Indiana, where they parked in a Dairy Queen parking lot. There Green gave Ball $120 and received 108 LSD tablets. Ball then left the vehicle and Green for approximately twenty to twenty-five minutes. Green arrested Ball when he returned and found 110 LSD tablets in his possession. The police then went to the door of the house where Ball said he had met with a lone male, were met by a woman who said she was the defendant's grandmother, and told to go to the basement apartment. They arrested the defendant in his apartment after conducting a search, the fruits of which were subsequently suppressed.
At the trial of the defendant in this case, Ball testified that when he left Green in the parking lot, he went to the apartment of the defendant and purchased $100 worth of LSD from Wasco. Joseph Rogowski, a deputy United States marshal, testified that he followed Ball from the Dairy Queen parking lot to the defendant's apartment house. He did not see which apartment Ball entered.
On cross-examination, Ball testified that he had originally been charged in three counts with selling narcotics, that he had pled guilty to the first count and had not yet been sentenced. He stated that he had not been promised immunity or a lesser sentence in return for testifying but that he believed his cooperation might benefit him.
During the government's closing argument to the jury, the prosecutor, according to the transcript*fn2 stated:
"Mr. Wilks: * * * I don't think that is really important. The important thing is whether he sold those drugs to Randy Ball, and he did, I know he did.
"Now, as to separate containers --
"Mr. Breclaw: Your Honor, I want to make an objection to that last phrase of Counsel, that he knows he did. I don't think there is any evidence, he didn't testify --
"THE COURT: Objection overruled."
The government argues, in effect, that the statement was harmless in view of the "overwhelming" evidence against the defendant. We disagree. The evidence consisted of the testimony of Ball, who pled guilty to a charge of selling LSD on an earlier date, and the testimony of Green and Rogowski, neither of whom witnessed the alleged sale by the defendant to Ball, plus the testimony of an expert who identified the tablets allegedly sold to Green by Ball as LSD. The only evidence directly connecting the defendant with any sale of LSD was therefore Ball's testimony.
In view of the entirely circumstantial nature of the evidence, the prosecutor's remarks that he knew that the defendant had sold the LSD to Ball may well have influenced the jurors and suggested to them that, as well may have been the fact in view of his participation in the hearing on the motion to suppress, he was basing his opinion on evidence not before the jury. In so arguing, the prosecutor ignored ...