SUR PETITION FOR REHEARING. Original Opinion reported at,
Present: GIBBONS, Chief Judge, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, and ALDISERT,*fn* Circuit Judges.
Carol Los Mansmann, Circuit Judge
The petition for rehearing filed by appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Judges Sloviter, Becker, Stapleton, Hutchinson and Greenberg would have granted rehearing.
SLOVITER, Circuit Judge, dissenting from the denial of the petition for rehearing, with whom Judge Becker, Judge Stapleton, and Judge Greenberg join.
Were the only issue before this court on the government's petition for rehearing whether, in the circumstances of this case, the defendant was entitled to a new trial based on the language used by the prosecutor, I would not vote for rehearing in banc. The opinion of the panel, however, goes further, reading this court's case law to establish a per se reversal right whenever the government makes remarks regarding not only the defendant's guilt but also a witness' credibility that are based on information not adduced at trial.
The panel bases this per se rule on dictum used in United States v. Swinehart, 617 F.2d 336 (3d Cir. 1980) (per curiam), a case in which the improper prosecutorial statements were limited to comments regarding evidence adduced at trial and which the court determined did not prejudice the defendant. I recognize that this court's case law on this issue has not always followed a straight line. Compare United States v. Schartner, 426 F.2d 470 (3d Cir. 1970) (reversible error for prosecutor to make statement implying a personal belief in defendant's guilt and inviting jury to rely on prosecutor's experience and sincerity) with United States v. Somers, 496 F.2d 723, 740 (3d Cir. 1974) (limiting Schartner to its facts and stating per se rule is generally inapplicable to prosecutorial misconduct); see also United States v. Beaty, 722 F.2d 1090, 1097 (3d Cir. 1983) (adhering to distinction between prosecutor's personal opinions based on evidence and those based on facts not in evidence but finding opinion was based on evidence and that judge's instruction dispelled any improper inference); United States v. Gallagher, 576 F.2d 1028, 1042-43 (3d Cir. 1978), cert. dismissed, 444 U.S. 1040 (1980) (applying same rule but finding no ground for reversal). The ambiguity of the appropriate rule to be gleaned from our earlier cases would itself warrant an in banc determination as to the rule this court should apply.
Beyond that, however, use of a per se reversal standard to any species of prosecutorial misconduct, such as improper vouching, deviates from the clear instruction of the Supreme Court that the courts must look in each such case to whether the defendant has been prejudiced before directing a reversal. In United States v. Young, 470 U.S. 1, 11-12 (1985), the Court stated:
Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding. Instead, as Lawn [v. United States, 355 U.S. 339 (1958)] teaches, the remarks must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error.
In United States v. Hasting, 461 U.S. 499 (1983), the Court held that a harmless error analysis must be applied even to the prosecutor's failure to heed the court's prior admonitions against comment on a defendant's failure to rebut the prosecution's case. The Court recognized the Court of Appeals' supervisory power over prosecutors within its jurisdiction, but held nonetheless that "the interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise what the court viewed as prosecutorial overreaching." Id. at 507.
I see no reason why the principle articulated by the Supreme Court in Young and Hasting does not override the earlier statement of this court in Swinehart. Nonetheless, because the panel apparently believes, notwithstanding what appears to me to be the clear message from the Supreme Court, that it was bound by prior decisions of this court to apply a per se rule to the concededly improper prosecutorial vouching made in this case, rehearing by the court in banc is appropriate for full consideration as to whether our earlier precedent ...