to take the stand and testify." Id. at 239. (emphasis added) In Burt the cost was not so great as to compel a person to relinquish his Fifth Amendment privilege to remain silent because the defendant had not been questioned by the police concerning the shooting.
A different panel of the Third Circuit from that which decided Burt has, however, taken a more stringent view of Griffin. In United States ex rel. Macon v. Yeager, 476 F.2d 613 (3 Cir. filed March 30, 1973) the court states: " Griffin holds broadly that, at least in the criminal context, the relevant question is whether the particular defendant has been harmed by the state's use of the fact that he engaged in constitutionally protected conduct, not whether, for the particular defendant or for persons generally, the state's reference to such activity has or will burden the exercise of the constitutional right." United States ex rel. Macon v. Yeager, 476 F.2d at 616. (emphasis in original) In Macon the court held that a defendant's right to counsel was violated when the prosecution was permitted to comment on the defendant's consulting with a lawyer the day after an alleged accidental shooting. It should be noted that in Macon the defendant took the stand and testified that he had consulted with a lawyer the day after the accident.
Assuming that the concurrence in Burt is correct in its analysis of Griffin, it is clear that in the case before us the defendant's Fifth Amendment right was violated when the prosecution was allowed to question the defendant on the defendant's silence in the face of charges made against him. Unlike Burt the defendant in this case was exercising his privilege in the face of police interrogation concerning the charges lodged against him.
Harris does not hold differently. But see United States v. Ramirez, 441 F.2d 950 (5 Cir.) cert. denied, 404 U.S. 869, 92 S. Ct. 91, 30 L. Ed. 2d 113 (1971). Harris was concerned with "how broad a sanction is necessary to vindicate the Miranda procedural requirement that an arrested suspect must be advised of his right to counsel before he shall be interrogated." United States v. Hockenberry, 474 F.2d 247 at p. 250 (3 Cir., filed February 21, 1973). The Court concluded in Harris that "sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief." Id. at 225 of 401 U.S., at 645 of 91 S. Ct. Furthermore, the Court stated that "the benefits of this process [the impeachment process] should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby." Id. The Court then went on to determine that the impeachment use of illegally obtained statements does not cut down the criminal defendant's privilege "to testify in his own defense, or to refuse to do so . . . [because] that privilege cannot be construed to include the right to commit perjury." Id. (emphasis added)
In the case before us we are not concerned with whether the benefits of the impeachment process should or should not be lost in order to deter impermissible police conduct. Nor are we concerned only with the privilege to testify in one's own defense, or to refuse to do so. Rather, we are concerned with a more fundamental question whether the exercise by an accused of the right to remain silent in the face of criminal accusations by the police can be used to impeach. To conclude as we do that impeachment by silence in the face of criminal accusations deprives the defendant of his constitutional right against self-incrimination does not invoke an attempt either to regulate or to fail to regulate impermissible police conduct; it is merely an effort to give meaning to the Fifth Amendment right. And insofar as the Supreme Court has decided that the privilege to testify in one's own defense or not to so testify does not include the right to commit perjury, we do not believe that that decision implicates the right to remain silent in the face of criminal accusations. As to the latter right Griffin requires a finding that the prosecutorial comment in this case violated the defendant's Fifth Amendment right not to be compelled to be a witness against himself. See also Johnson v. Patterson, 475 F.2d 1066 (10 Cir. 1973). (Griffin violated when prosecution questioned rape defendant's failure to inform arresting officers that victim consented).
Having concluded that constitutional error existed as a result of the prosecutorial questioning and comment, we must consider whether the error was harmless. See Anderson v. Nelson, 390 U.S. 523, 88 S. Ct. 1133, 20 L. Ed. 2d 81 (1968) reh. denied, 391 U.S. 929, 88 S. Ct. 1812, 20 L. Ed. 2d 670 (1969); United States v. Tillman, 470 F.2d 142 (3 Cir. 1972). Anderson found comment on a defendant's silence to be prejudicial where the comment was extensive, where an inference of guilt from silence was stressed to the jury as a basis for conviction, and where there was evidence that could have supported acquittal. Although the comment in this case may arguably be considered extensive, compare United States v. Tillman, supra (comment consisting of three sentences) with Anderson v. Nelson, supra (comment covering two pages of the Supreme Court Reporter), the comment was not direct comment to the jury. Nor was the comment stressed to the jury as a basis for conviction. The prosecutor in his closing speech made only oblique references to defendant's conduct at arrest. These references are more fairly characterized as attempts to lessen the credibility of the defendant's story as related by the defendant on the stand. The prosecutor merely stressed that if the defendant had an alibi he should make efforts to support the alibi other than by his own self-serving statements from the stand. Finally, the only evidence supporting acquittal was the defendant's own testimony. The defendant was the only witness to testify in his defense. And his credibility was severely undermined by a government rebuttal witness who testified that the defendant had frequently sold the witness narcotics. For these reasons, we conclude that the prosecutorial questioning and comment was harmless error.
A number of some other points raised by the defendant in support of his motion for a new trial require discussion. The purchasing agent was permitted to testify that after he saw the defendant on the occasion after the sale, the agent attempted to identify through police photographs the correct identity of the person who had sold him the heroin. This was the only mention of police photographs made by the agent. United States v. Reed, 376 F.2d 226 (7 Cir. 1967) does not stand for the proposition, as defendant contends, that mere mention of police photographs constitutes error. In Reed the use of constant reference to defendant's "mug shots" was held to constitute placing the defendant's prison record before the jury. The mere mention on one occasion to police photographs did not result in converting the trial of a presumed innocent man into the trial of a known convict as was the case in Reed. The jury could not have seriously inferred by the reference to police photographs that defendant had a prison record.
Defendant contends that we erred in foreclosing a defense that defendant was an agent for the buyer (the government agent). This defense, recognized by some courts under prior legislation, see Lewis v. United States, 119 U.S. App. D.C. 145, 337 F.2d 541 (1964), has been legislatively abolished by the Comprehensive Drug Abuse Prevention and Control Act of 1970.
Finally, defendant was properly impeached by testimony of a rebuttal witness. The witness testified that the defendant had sold narcotics to the witness on various occasions. This testimony was in direct contradiction to defendant's testimony that he had never dealt in narcotics. Furthermore, our charge on impeachment was not excepted to by the defense and cannot now be raised as a grounds for new trial. Fed. R. Crim. P. 30.
Thus, for the reasons stated in this Memorandum, we denied the motions for a new trial or for judgment of acquittal by Order of March 23, 1973.