dissenting:
With appreciation for the majority’s careful consideration of questions which did not surface until the hearing of the appeal, I nonetheless am unable to concur in the af-firmance of appellant’s conviction and therefore, with deference, dissent. In my view, prejudicial error occurred at trial which necessarily affected the jury’s verdict and a new trial is therefore required in the interests of justice.
This was a marginal conspiracy case at best — obviously brought as such not because the government had solid evidence of Lopez’s complicity, but because its agents had failed to obtain such evidence in their eagerness to effect an arrest. The credibility of the government’s principal witness, Romero, was seriously in question, so much so as to prompt the experienced trial judge to comment:
“I can say that there is an awful lot to be desired in his testimony He’s about the closest or the worst that I have had in 21 years. And I just hope that he is being truthful. It would be a terrible thing if a young man has to go to jail for a liar.” Tr. (7/21/78) at 152.
Even though the uncorroborated testimony of a coconspirator may be sufficient to support a conviction, United States v. Ty-minski, 418 F.2d 1060 (2 Cir. 1969), it is unlikely that this case would have gone to the jury on Romero’s inconsistent testimony alone. Indeed, the taped telephone conversation and Lopez’s subsequent meeting with Romero were recognized as crucial by the government to support its burden of proving by independent evidence that appellant was a participant in the alleged conspiracy, which concededly ended — if it ever existed- — when Romero was arrested while at*1181tempting to pass through Customs with a package of cocaine. Yet this is where I believe reversible error first occurred, because it is precisely the post-arrest declarations and acts of Romero — uttered and performed in the course of his cooperation with the government — that are not admissible as substantive evidence in a case such as this.
As pointed out in Fiswick v. United States, 329 U.S. 221, 246, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946),
“confession or admission by one cocon-spirator after he has been apprehended is not in any sense a furtherance of the criminal enterprise. It is rather a frustration of it. He thereupon cease[s] to act in the role of a conspirator. His admissions [are] therefore not admissible against his erstwhile fellow-conspirators.”
The Fiswick rule has been reaffirmed in Krulewitch v. United States, 336 U.S. 440, 442-43, 69 S.Ct. 716, 93 L.Ed. 790 (1949), and Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953), and is still recognized as good law on its precise holding.' See Anderson v. United States, 417 U.S. 211, 218-19, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1975); United States v. DeVaugn, 579 F.2d 225 (2 Cir. 1978); United States v. Bermudez, 526 F.2d 89, 95-96 (2 Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). In DeVaugn, supra, the author of the majority opinion noted the sound reason and policy of the rule as stated by Mr. Justice Jackson in his concurring opinion in Krulewitch, supra, 336 U.S. at 456, 69 S.Ct. at 724:
“Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court.”
Plainly, Romero’s post-conspiracy declarations uttered not only after he had been apprehended, but after he had agreed to assist the government, lie well beyond the outer limits of the ongoing-conspiracy exception to the hearsay rule, now embodied in Rule 801(d)(2)(E), F.R.Evid., and should have been excluded from the jury’s consideration as substantive evidence of the offense charged.
Post-conspiracy acts, of course, stand on a different footing, because the bar to the admission of hearsay is not applicable. Nonetheless, once a conspiracy has come to an end, whether by completion or frustration, agency principles have no bearing, and the acts of one conspirator are admissible against another only “if relevant to prove the existence of the conspiracy.” Anderson v. United States, supra, 417 U.S. at 219, 94 S.Ct. at 2260. See Lutwak v. United States, supra, 344 U.S. at 618, 73 S.Ct. 481; United States v. Bermudez, supra, 526 F.2d at 95-96; United States v. Tramunti, 513 F.2d 1087, 1116 (2 Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). Obviously, the post-conspiracy conduct (or, for that matter, declarations) of a self-proclaimed former conspirator acting in the capacity of government agent cannot be regarded as substantive evidence relevant to proving the prior existence of the conspiracy; if such evidence is to be introduced, it must be for a more limited purpose, and its introduction must be accompanied by appropriate limiting instructions to the jury.
At trial, unfortunately, this case was treated as one of a continuing conspiracy. Romero was permitted to testify to what he had said to the agents after his arrest, and his statements to Lopez in the telephone conversation were placed before the jury with no attempt to follow the procedure which Lutwak, supra, mandates. As the Court there pointed out, such “declarations must be carefully and clearly limited by the court at the time of their admission and the jury instructed as to such declarations and the limitations put upon them.” 344 U.S. at 619, 73 S.Ct. at 490. Moreover, the trial court went so far as to permit two of the arresting officers, Agents Cipriano and Giaimo, to testify that Romero told them he was to deliver the cocaine to Lopez. Finally, testimony concerning the meeting between Lopez and Romero in Manhattan was *1182admitted without any instruction to the jury that the meeting constituted no part of the conspiracy charged and was, therefore, to be considered only as evidence of the prior existence of the conspiracy.
In my view, Fiswick-Lutwak-Anderson principles prohibit the government’s attempt to substitute prosecutorial innuendo for the evidence its post-conspiracy investigative techniques had failed to produce. The post-conspiracy telephone conversation it relies on is wholly lacking any recognizable inculpatory admission by Lopez or revelation of any circumstantial facts which would rationally support a finding of his participation in the narcotics conspiracy charged. As it stands, it is without probative value,1 however much one may suspect that Lopez’s expressions of fear that Romero might get him into trouble had something to do with criminal activity — activity which could just as well have been Romero’s admitted fraudulent entry into the United States as the importation of narcotics.
A jury, of course, may not base its verdict upon suspicion or conjecture, nor find a defendant guilty of conspiracy simply because he is acquainted with a self-proclaimed conspirator or his plans to violate the law. See United States v. Burgos, 579 F.2d 747 at 749 (2 Cir. 1978); United States v. Steinberg, 525 F.2d 1126, 1134 (2 Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); United States v. Johnson, 513 F.2d 819, 823-24 (2 Cir. 1975); cf. United States v. Guillette, 547 F.2d 743, 750-51 (2 Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States v. Torres, 503 F.2d 1120, 1124 (2 Cir. 1974); United States v. Sisca, 503 F.2d 1337, 1343 (2 Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974); United States v. Ragland, 375 F.2d 471, 477-78 (2 Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860,19 L.Ed.2 987 (1968).
Lopez’s later act of meeting Romero is equally without probative value, however suspicious it may have seemed to the sur-veilling agents. There was no proof of any incriminatory conversation between Lopez and Romero, no handling of any suitcase, no transfer of any narcotics or money. The best the government could come up with were “false exculpatory statements” made by appellant immediately after his arrest; viz., that he did not know Romero, had never met him before, and had been called by Romero’s brother to pick him up. As this court has held in reversing a defendant’s conviction for narcotics conspiracy, “falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the Government’s theory of guilt.” United States v. Johnson, supra, 513 F.2d at 824.
Second, I cannot accept the majority’s view that Romero’s post-arrest statements to authorities, implicating Lopez, lie beyond the purview of the Fiswick-Lutwak-Ander-son rule and were therefore admissible without any limiting instruction. To the extent that the majority finds these statements to be non-hearsay simply because Romero testified at the trial, this court’s recent decision in United States v. Cheek, 582 F.2d 668 at 680-682 (2 Cir. 1978), is plainly to the contrary. Moreover, I find unpersuasive the suggestion that Rule 801(d)(1)(B), F.R.Evid., exempts these statements from the operation of the hearsay exclusion because consistent with Romero’s in-court testimony.
Were Rule 801(d)(1)(B) in fact applicable, the agents’ testimony as to what Romero *1183had told them would have served not only as rehabilitating evidence, but as substantive evidence as well. See Advisory Committee Note to F.R.Evid. 801(d)(1)(B), 56 F.R.D. 183, 296 (1972); cf. McCormick on Evidence § 251, at 604 (2d ed. 1972). Although Rule 801 has in this sense expanded the use to be made of such statements once properly admitted, nothing in the rule or in its history indicates that the traditional bases for the admission of prior consistent statements of a witness have been substantially relaxed or eliminated. The “usual rule,” as this court observed in United States v. Zito, 467 F.2d 1401, 1403-04 (2 Cir. 1972) (citing, inter alia, then Proposed F.R. Evid. 801(d)(1)(B)), is that “prior consistent statements can only be introduced after a charge that a witness's story is a recent fabrication and where the statements were made before any motive to fabricate developed.” Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56 (2 Cir. 1972), cited by the majority, endorses-this view, as does United States v. Check, supra, at 680-681. See also DiCarlo v. United States, 6 F.2d 364, 366 (2 Cir.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925); McCormick, supra, § 49, at 105. Yet here the motive for fabrication urged on cross-examination — that Romero hoped to benefit from his “cooperation” with government agents2 — clearly existed at the time the statements were made. In the absence of some alternative basis for admission — e. g., a suggestion of faulty memory on the part of Romero — I am persuaded that it was plain error to admit the agents’ testimony, since the inevitable effect was to bolster Romero’s doubtful credibility by evidence wholly inadmissible against appellant.
In view of the character of the evidence offered at trial, it is no wonder that the prosecution first called upon and then chided the defense for failing to explain the taped conversation. I cannot agree with the majority’s conclusion that these remarks were permissible “comments on the weakness of the defense case.” Indeed, as the majority notes, appellant did not put on a case and offered no explanation for the telephone conversation, electing instead to put the government to its proof. In my view, these remarks were constitutionally improper allusions to appellant’s failure to testify, and reflect an attempt to impose on a criminal defendant the burden of providing an innocent explanation for his conduct.
The Supreme Court has recently reminded us that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468 (1978). As Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), teaches, among those circumstances which may not be considered is the defendant’s decision to withhold his testimony and to “ ‘rely upon the presumption of innocence which the law gives to everyone.’ ” Id. at 613, 85 S.Ct. at 1232 (quoting Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 37 L.Ed. 650 (1893)). Although the Griffin rule — which “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt,” 380 U.S. at 615, 85 S.Ct. at 1233 may make the task of the prosecutor more difficult, it plays a fundamental role in our system of criminal justice:
“The presumption of innocence and the protections afforded by the Due Process Clause impose a significant cost on the prosecutor who must prove the defendant’s guilt beyond a reasonable doubt without the aid of his testimony. That cost is justified by the paramount importance of protecting a small minority of accused persons — those who are actually innocent — from wrongful conviction.”
Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978) (Stevens, J., dissenting)..
This is not to say that the prosecutor may not engage in normal advocacy regarding *1184the strength of the government’s case.3 But here the permissible latitude was far exceeded. The argument of defense counsel here was directed almost entirely to asserted inconsistencies and flaws in the testimony of the government’s principal witness, Romero. He dealt only briefly with the taped telephone conversation, and in a manner hardly calculated to provoke the prosecutor’s remarks. While the prosecutor may well have anticipated some effort by defense counsel to offer an alternative interpretation of the tape, I am hard pressed to believe that he was in any sense surprised by the argument actually made. Indeed, if the prosecutor believed that explication was in order, it was his obligation to provide it; plainly he could not compel appellant — directly or indirectly — to do so.
In my view, this case is controlled by the traditional formula, most recently stated by this Court in United States v. Bubar, 567 F.2d 192, 199 (2 Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977), that a prosecutor’s characterization of government evidence as “uncontradicted” or “unexplained” is constitutionally impermissible “only if either the defendant alone has the information to contradict the government evidence referred to or the jury ‘naturally and necessarily’ would interpret the summation as a comment on the failure of the accused to testify.” See United States v. Dioguardi, 492 F.2d 70, 82 (2 Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974); United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2 Cir. 1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); United States v. Lyon, 397 F.2d 505, 509 (7 Cir. 1968). I think it evident that only appellant could have provided the explanation called for, and that the prosecutor’s remarks were calculated to bring this fact to the jury’s attention — and undoubtedly did so.
It may well be that the test should be relaxed where references to “uncontradicted” evidence are fairly intended to clarify the case for the jury — as where the defense has offered evidence to meet some but not all of the government’s proof, see, e. g., United States ex rel. Leak v. Follette, supra; United States v. Dioguardi, supra, or where defense counsel has offered explanations or theories which might plausibly have been supported by the testimony of witnesses, other than the defendant, who were not called, see, e. g., United States v. Bubar, supra; United States v. Floyd, 555 F.2d 45 (2 Cir.) cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977). But where, as here, the government’s case is weak, the prosecutor’s remarks are made sua sponte rather than in reaction to the arguments of defense counsel, and no curative instruction or charge is provided by the court, I believe the prejudice to the defendant is plain.4 To *1185hold otherwise is to present an open invitation to prosecutors to cross a line that may not be bright, but nonetheless has been drawn by the fifth amendment.
For the foregoing reasons, I find it impossible to conclude “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error . . . [and] that substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).
Accordingly, I would reverse.
. I cannot agree with the majority’s suggestion that the post-conspiracy taped telephone conversation, initiated by Romero acting as an agent of the government, was offered only to prove that Romero and Lopez knew each other. That was not a real issue in the case, and in any event the defense ultimately stipulated to their previous acquaintance. Indeed, as the majority recognizes, the telephone conversation was emphasized and re-emphasized by the prosecutor in summation as proof of a cocaine transaction to which the defense had supplied no other explanation.
. SeeTr. (7/27/77), 139, 169-71; Tr. (7/28/77), 50-52, 60-62.
. This Court has repeatedly held that “[t]he prosecutor is entitled to comment on a defendant’s failure to call witnesses to contradict the factual character of the government’s case, as well as his failure to support his own factual theories with witnesses.” United States v. Bubar, 567 F.2d 192, 199 (2 Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977) (citations omitted). See, e. g., United States v. Floyd, 555 F.2d 45 (2 Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977); United States v. Rodriquez, 556 F.2d 638 (2 Cir. 1977), cert. denied, 434 U.S. 1061, 98 S.Ct. 1233, 55 L.Ed.2d 762 (1978); United States v. Dioguardi, 492 F.2d 70 (2 Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974); cf. United States v. Rubinson, 543 F.2d 951, 965-66 (2 Cir. 1976).
. Compare United States v. Bubar, supra, where this Court held nonprejudicial similar remarks of the prosecutor, only after finding that they had been directed at the argument of defense counsel and that
“[A]ny conceivable misunderstanding on the part of the jury was nipped in the bud by Judge Newman’s emphatic curative instructions — given first sua sponte at the end of the prosecutor’s rebuttal summation and again after a recess in a formulation submitted by [defense] counsel.” 567 F.2d at 200 (footnote omitted).
See also United States v. Burse, 531 F.2d 1151 (2 Cir. 1976). Also instructive is the Sixth Circuit’s decision in United States v. Smith, 500 F.2d 293 (1974), reversing a conviction where in summation the prosecutor had “asked” that the defendants explain a number of cryptic telephone conversations, even though a cautionary instruction was made at the close of the prosecutor’s summation, because the court failed immediately to warn the jury that no adverse inference could be drawn from the defendants’ silence. The First Circuit apparently *1185applies a similar rule when the prosecutor in summation characterizes government evidence as uncontradicted and only the defendant himself or a non-testifying co-defendant can be expended to provide contradictory evidence. See United States v. Flannery, 451 F.2d 880 (1 Cir. 1971); Desmond v. United States, 345 F.2d 225 (1 Cir. 1965).