with whom ALDISERT and GIBBONS, Circuit Judges, join (dissenting):
A prosecutor has a special obligation to see that justice is done, and it is his duty to refrain from improper methods which could produce a wrongful conviction. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States ex rel. Darcy v. Handy, 203 F.2d 407 (3d Cir. 1955), cert. denied Maroney v. United States ex rel. Darcy, 346 U.S. 865, 74 S.Ct. 103, 98 L.Ed. 375 (1953); United States v. Nettl, 121 F.2d 927 (3d Cir. 1941). Because I believe that the prosecutor’s conduct in this case violated due process, I must dissent.
The prosecutor’s closing argument to the jury went beyond the scope of permissible advocacy, and this court should not tolerate it. He did not mention the omission on the time sheets until rebuttal argument', thus foreclosing any de*455fense comment on them.1 He then accused the defense’s witness of having committed perjury because his time sheet for the day in question was incomplete when the prosecutor knew for a fact that there were other company time records that would have verified the witness’s presence at work. The prosecutor did more than argue that the time records were unreliable, and he did more than argue that relator’s witness could have committed perjury. He connected the alleged unreliability with the alleged perjury and argued that the witness had committed perjury because there was a gap in the records that the defense had introduced. He did this when he knew that other company records indicated that the witness had been present at work that day. This was intentionally misleading the jury2 and especially harmful in this ease where credibility was such a key issue.3 With all deference to the majority I cannot agree with its conclusion that this conduct was not a violation of due process. See United States v. Universita, 298 F.2d 365 (2d Cir. 1962).
The majority further concludes that even if the comment by the district attorney was prejudicial, it is not reversible error. Its reasoning is that if the appellee’s counsel had acted with due diligence lie could have introduced the payroll records himself, and thereby prevented any possibility of prejudice. Since he failed to act with the requisite due diligence at trial, the appellee cannot now complain about the consequences of his own negligence.
In order to reach this conclusion, the majority must reject, not merely as incorrect, but as clearly erroneous, at least one of two key findings of the district court. I feel that the rejection of either under this narrow standard of review is unwarranted.
The first finding that is rejected is the district court’s view that appellee’s failure to introduce the additional records supporting the witness’s presence at work was not due to a lack of diligence. Far from finding this to be clearly erroneous, I would agree with the district court that appellee’s course of conduct was entirely reasonable and indeed was almost the only logical response to what the prosecutor had told him and when he had told it to him. To require defense counsel to introduce this testimony would be to require a defendant to anticipate and refute a rebuttal argument where he has been led to believe that the rebuttal argument would not be made.4
*456The second finding rejected by the majority is the district court’s conclusion that the trial judge would not have allowed the defense to reopen the case. The majority characterizes this finding as speculation. However, the Pennsylvania rule on whether to allow a ease to be reopened is that the matter is within the trial judge’s discretion. See Commonwealth v. Ghaul, 205 Pa.Super. 80, 86-27, 207 A.2d 917 (1965); Cf. Silver v. Miller, 204 Pa.Super. 16, 18, 201 A.2d 308 (1964). Since the trial judge felt that the prosecutor’s comment was proper (49a-60a, N.T. 1885-1896), it is reasonable to infer that the trial judge would not have allowed the case to be reopened. As a result, it seems to me that the district court’s finding on this question is not clearly erroneous either and must be accepted by this court. F.R.C. P. 52(a). If each of these findings must be accepted, the conclusion seems inescapable that the appellee claim likewise cannot be rejected on. the alternative basis that he was negligent in failing to introduce evidence to neutralize the effect of the prosecutor’s comment.
As a result, I would affirm the order of the district court.
. Although the opinion of the district court only mentions that the prosecutor’s remarks were made in his “closing argument,” the record from the state trial court demonstrates that they were made in rebuttal to the closing argument of appellant. Notes of Testimony, 1876, 1877.
. “It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations [to refrain from improper methods], which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions . . . are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
. The state argues that the issue involved here is peripheral to the major issues in this case. I disagree. The state’s case, while overwhelming against appellee’s co-defendants, was not so solid against him. The state had alleged identification testimony of three witnesses—a 13-year old boy, his father, and a witness who allegedly saw appellee from across the street. It also allegedly had one fingerprint of appellee. Appellee’s expert witness, the author of the FBI fingerprint manual, testified that the fingerprint was not relator’s. In addition, eight of appellee’s co-workers testified he was at work when the robbery was occurring. Credibility was thus a key issue, and I agree with the district court’s conclusion that this comment affected the credibility of all of appellee’s witnesses.
. The only person whose time records were testified to was Paxos; the prosecution did not introduce any evidence or elicit any testimony as to Tancini’s time records; and the prosecution did not offer any rebuttal testimony as to the records. When the prosecutor informed defense counsel of the missing time record of Tancini and of the testimony of Felman and further represented that Fel*456man would not be called, the district court was entirely correct in finding that defense counsel had been led to believe that the argument would not be made.