Before LUMBARD, Chief Judge, SMITH and MARSHALL, Circuit Judges.
We reverse the conviction of the appellant for violation of the narcotic laws and conspiracy so to do, 21 U.S.C.A. § 173 and § 174, on which he was sentenced to five years' imprisonment, because of the prosecutor's needless and deliberate repetition of improper and highly prejudicial arguments during his summation.
The government's evidence showed that on May 1, 1961 the appellant in his apartment at 140 Bergen Street, Brooklyn, took a package containing cocaine from a closet and gave it to one Morales, who was accompanied by an undercover federal agent. Bugros was then arrested by other federal agents, who found another package containing cocaine under some toys in the drawer of a child's chest of drawers.
Bugros' defense was that he had agreed to hold two packages of "presents" for Morales and that he did not know that they contained cocaine. Morales, who was tried with Bugros, changed his plea to guilty at the end of the second day of trial.
On the government's cross-examination of Bugros the prosecutor developed at some length that there were numerous places in the apartment where the packages could be kept other than in the child's dresser. In summation the prosecutor said "* * * one of the packages came from a child's bedroom, a child's dresser, and if I recall the agent's testimony, there were children's toys in that dresser." He then added: "To me, ladies and gentlemen, this is not only concealment, this is a total reckless disregard of the welfare of children considering their propensity and curiosity and considering the habits of children."
Counsel thereupon moved for a mistrial, which the judge denied with the admonition that the jury should disregard the remarks of the Assistant United States Attorney. As the judge pointed out, "the place where he claims the cocaine was found and the implication as to the place where they found it" had nothing to do with the case.
But a few minutes later the prosecutor again mentioned the child's room as the minutes show:
"He would have you believe that he didn't see anything, he didn't do anything, he didn't know anything, he didn't smell anything.
"Yet, in a four-room apartment he hides one of the exhibits, not in the kitchen, not in his bedroom, not in the living room, but in a child's room. [Emphasis added.]
"Mr. Brill: I made my objection before on this, your Honor.
"Mr. Bond: This is a fact.
"Mr. Brill: Once again I move for the withdrawal of a juror ...