Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. IP 74-226-CR S. HUGH DILLIN, Judge.
Cummings, Adams*fn* and Sprecher, Circuit Judges.
The primary issue presented by this appeal is whether statements made by the prosecuting attorney during closing argument to the jury were prejudicial. For the reasons set out below, we reverse the judgment of the district court and remand for a new trial.
The defendant-appellant, Jimmie E. Phillips, after a trial by jury, was convicted of distribution and attempted distribution of certain controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. He was sentenced, pursuant to the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026, to the custody of the Attorney General until discharged by the Youth Corrections Division of the United States Parole Board.
The evidence adduced at trial sharply conflicted and the credibility of the witnesses became the most critical issue for the jury to resolve. Agent McGivney, the government's only witness to the transaction, testified that at approximately 9:00 p.m. on March 12, 1974, he and an informant, Ronnie Wheeler, were travelling to meet with other agents when they passed Phillips' pick-up truck parked at 247 Ball Street, Muncie, Indiana. They stopped at that address and were admitted to the residence by Phillips, who introduced them to Walter Ferguson. Phillips asked them if they wanted to purchase some marijuana. Wheeler and McGivney stated they did not want marijuana but were interested in purchasing phencyclidine. At Phillips' request, Ferguson produced a sample of phencyclidine which McGivney and Wheeler inspected. Phillips stated that an ounce of the drug would cost $1600. After McGivney indicated that the price was too high, Phillips took Wheeler to a corner of the room where he gave him a clear plastic bag containing the drug and told him the price would be $1300 per ounce. The following day, March 13, 1974, per their agreement, McGivney and Wheeler paid Phillips $1300 for the drug.
Defense witness Robin Lurson testified that she was present when McGivney and Wheeler visited the Ball Street residence on March 12, 1974, between approximately 5:30 and 6:30 p.m. They remained about 15 to 45 minutes, during which time she stated that there was not any conversation concerning transactions involving marijuana or phencyclidine. Lurson further testified that she was with Phillips on March 13, 1974 when he met McGivney and Wheeler, but that she did not see either of them hand anything to the defendant nor observe him with $1300 immediately after that meeting.
Two other defense witnesses testified that they visited Ferguson and Phillips at 247 Ball Street on March 12, 1974, from approximately 8:00 or 8:30 p.m. to 11:00 p.m., and that neither McGivney nor Wheeler were present during that time period.
The defendant contends that the prosecutor's incorrect statement of law in his closing argument to the jury amounted to prejudicial error. In final argument, the prosecutor stated:
[PROSECUTING ATTORNEY]: If you try to reason any other way, [that this case has not been proven beyond a reasonable doubt] it would seem to me that what you're going to have to find is that the Government somehow or another trumped up a charge. In other words, you are going to have to find, I guess, that we really didn't get this stuff from anybody; that they tried to make a case on these guys and just went there with this stuff and came back and said, "Well, we got it from these people." If you make that kind of finding on the basis of the evidence you have before you, I can't help you, because in effect what you're saying is that. . . [the government agent] has violated the civil rights of those two people. In other words, he has committed a crime and that --
[DEFENSE COUNSEL]: I will object to that argument, Your Honor. The jury is not being asked to find that the Government's ...