ORDER ON DENIAL OP REHEARING
Before WEICK and ENGEL, Circuit Judges.*In an opinion decided and filed February 25, 1976, this court reversed the conviction of appellant Wiley, primarily because the Assistant United States Attorney on two occasions prejudicially injected into the trial testimony that Wiley dealt with stolen jewelry. A number of other claims of prosecutorial misconduct were alleged and although we were “unable to say that any one of them was of sufficient import by itself to deprive either defendant of a fair trial”, we concluded that since we had to remand the case for retrial as to Wiley, some further comment upon the claims was necessary.
The United States in its petition for rehearing strongly challenges the court’s treatment of these other claims of prosecutorial misconduct and cites numerous references to the record which it claims justify the propriety of the several arguments to the jury which we in our original opinion concluded were either excessively zealous or without support in the record.
It is claimed that the Assistant United States Attorney’s closing argument to the jury which recalled his conversation with Dean rejecting the latter’s efforts to obtain favorable treatment was supported by the record and that we erred in stating that the closing argument improperly expanded Dean’s “simple denial of promises”.
From a reappraisal of the record and of those portions thereof which the government has now cited, it must be admitted that there is support at least for some of the argument which we found objectionable, especially that pertaining to Dean’s unsuccessful efforts to gain advantage from his cooperation. At the same time the purported verbatim quotations in the closing arguments do not appear in the record and where their substance does, it has been considerably embellished.
It is also claimed that our original opinion dealt unfairly with the government counsel in characterizing as unsupported innuendo certain arguments concerning Dean’s testimony in other trials. While references to the record show that Dean was questioned closely by both government and defense counsel about his participation in other trials, the closing argument quoted in our original opinion speaks for itself. After acknowledging that there was no proof in the record about other unspecified trials, the counsel for the government implied to the jury his personal knowledge about facts outside of the record supporting the credibility of Dean. In effect he asked the jury to trust his evaluation of the extra-judicial facts.
We agree with the government’s observation in its petition that this was indeed a difficult and hotly contested trial and no doubt the line between zealous advocacy and prosecutorial misconduct is at times hard to perceive upon a barren record and from the more remote perspective of appellate review. Nevertheless our careful examination of the entire record here and our re-examination of the citations contained in the petition for rehearing do not persuade us that a different result should be reached, and accordingly, the petition for rehearing is denied.