dissenting.
I dissent. The government has neither alleged nor proved that the defendant “acted” as a federal officer within the meaning of 18 U.S.C. § 912. The majority concedes that the first offense in that section “has as its two elements the impersonation of an officer and acting as such.” (Emphasis included.) The Court finds that the second element is satisfied because “[t]he carrying of a pistol, handcuffs, identification card and a badge go beyond ‘mere bravado.’ These actions are integral parts of the official routine of an FBI agent.”
I do not agree that donning the costume of a federal officer constitutes an “act” sufficient to satisfy the second element of the offense. Dressing as an FBI agent is a part of the false pretense, not a separate overt act as a federal officer. As the Court of Appeals for the District of Columbia said in United States v. Rosser, 528 F.2d 652, 657, 174 U.S.App.D.C. 79, 84 (D.C.Cir.1976), “If [the ‘act’] requirement could be satisfied by any overt act consistent with the impersonation, the two elements defined by the statute could always be found in the same action.” (Footnote omitted.)
In my view, Congress intended § 912 to proscribe more serious conduct than that involved in this case. The “acts as such” element of § 912 should be found to be satisfied only if there has been an attempt to “exercise pretended authority,” the real mischief Congress . intended to prohibit. See United States v. Rosser, supra 528 F.2d at 656, 174 U.S.App.D.C. at 83. To the extent that this conclusion is inconsistent with the view of the Seventh Circuit expressed in United States v. Hamilton, 276 F.2d 96 (7th Cir. 1960), I believe, as did the Rosser Court, that the Hamilton decision is incorrect. See United States v. Rosser, supra 528 F.2d at 657 n.20, 174 U.S.App.D.C. at 84 n.20.
The majority suggests that overt acts by the defendant may be inferred from the reactions of those around the defendant. “[W]e are convinced,” the court states, “that the evidence showed that the people who tolerated [the carrying of a pistol, handcuffs, identification card and a badge] *696and accorded some deference to Robbins, did so in reliance on the authority that an FBI agent possesses in order to carry out the duties of his profession.” The Court does not, however, identify the evidence it finds so persuasive, nor did my reading of the record uncover any evidence showing that others relied on an exercise of pretended authority.
In addition, a review of the record reveals a second ground requiring reversal of the defendant’s conviction. In his final argument, one of the prosecutors, James Gutensohn, made a number of remarks that could only have been intended to appeal to the prejudices of the jury. For example, Gutensohn stated:
[LJadies and gentlemen of the jury, the hour is growing late. You’ve been here for several hours today, all brought on by the action and conduct of this man here. * * * Now, if he had devoted as much time to getting a job, rather than acting [as] an F.B.I. agent and going around falsifying himself * * * you wouldn’t be here today. This expense in trying this case would not be heaped upon you and other people.
This attempt to place the blame for the trial on the defendant was highly improper. This Court has consistently held that “the arguments of counsel must be confined to the issues of the case, the applicable law, pertinent evidence, and such legitimate inferences as may properly be drawn.” United States v. Quinn, 467 F.2d 624, 627 (8th Cir. 1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1390, 35 L.Ed.2d 599 (1973) (quoting Wakaksan v. United States, 367 F.2d 639, 646 (8th Cir. 1966), cert. denied, 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967)). The expense of the trial and the jury’s inconvenience were obviously not issues in this case, and emphasizing them in argument served no legitimate purpose.
Similarly improper were Gutensohn’s repeated suggestions that the jury members were the victims of the defendant’s actions:
[The FBI was created for] your protection. For the protection of your bank. For the protection of your businessmen, and for the protection of you people. * * [The defendant accumulated] a gun [and] other implements that an officer is permitted to wear * * * for one purpose. And that was to create the image — hold himself out, represent himself to you people that he was an F.B.I. agent.
Again, these statements were irrelevant to the issues at trial. No legitimate purpose was served by such an appeal to the fears and biases of the jury.
Defense counsel made no objection to the prosecutor’s argument. Although failure to raise an issue at trial ordinarily precludes appellate review of that issue, a Court of Appeals may consider such issues in order to avoid a miscarriage of justice. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Andrews v. Olin Mathieson Chemical Corporation, 334 F.2d 422, 428 (8th Cir. 1964). The statements by the prosecutor in this case were so deliberately inflammatory and prejudicial that the defendant was denied a fair trial. Accordingly, I would reverse.