The opinion of the court was delivered by: HUYETT
Defendant, Gilbert Holland, was found guilty by a jury on a one-count indictment charging him with knowingly and intentionally possessing with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a). He now moves for a judgment of acquittal pursuant to Fed. R. Crim. P. 29, or, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33. Eight grounds are raised by defendant in support of the motion for a new trial. We raised sua sponte the additional issue concerning prosecutorial questioning of the defendant's failure to inform the arresting governmental agents of an alibi defense.
The evidence against the defendant consisted primarily of the testimony of an undercover agent who bought heroin from the defendant. The transaction was arranged by an informer who was unavailable as a witness at the trial. While there were other agents on surveillance outside the house where the heroin sale took place, none of these surveillance agents were able to identify the defendant as the person they saw enter and leave the building about the time the sale was consummated. This was because of the darkness prevailing at the time of the sale and the distance the agents were stationed from the house. The purchasing agent was, however, certain in his identification of defendant as the person from whom he bought the heroin. Some nineteen days after the sale took place the purchasing agent met by chance with the defendant, who had not yet been arrested. This meeting gave the agent an opportunity to observe the car driven by the defendant and to record the car's license plate number. With this information the governmental agents were able to identify the defendant's true name and to effect his arrest some three weeks later.
The defendant took the stand in his own defense. On direct examination the defendant denied that he had ever dealt with narcotics and stated that on the day in question he was working. During the specific time the sale took place the defendant testified that he was at a truck stop fixing a leased truck he uses to deliver steel and other products. Defendant further testified that he went to the truck stop after having made deliveries with his leased truck continuously from 4:00 P.M. the day before the sale of the narcotics took place until 6:00 P.M. of the day of the sale; and that working with him at the truck stop were mechanics whose full names he could not recall. He remembered only that the first name of one mechanic was "Mike". The defendant did, however, recall the name of at least one other person who was present at the truck stop when the defendant was there. None of these persons testified at the trial. The defendant also testified that when he was arrested he denied the charges against him.
On cross-examination the prosecutor asked the following questions:
"On April 19, 1972, at the time of your arrest did you tell the agents what you were doing on March 10, 1972 as you have testified here today?"
"And during that time [after arrest and during questioning by the agents] you are saying that you did not have an opportunity to tell your story to the agents?"
"Did you have an opportunity to speak to the agents to tell them what you were doing on March 10, 1972?"
"So you were told of the charges. Now, did you tell the agents what you are telling us today?"
"When Agent Henrich came to visit you in Dallas, did you tell him that you were working on March 10th and you were not near the vicinity of 25th and Wharton?"
Defendant contends that prosecutorial questioning concerning defendant's failure to tell the arresting agents of his alibi defense to the crime for which he was charged violates his Fifth Amendment right not to "be compelled in any criminal case to be a witness against himself." We agree.
Recently, in United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3 Cir. filed March 13, 1973) the Third Circuit Court of Appeals held that a defendant's Fifth Amendment right was not violated by prosecutorial questioning concerning the defendant's failure, up to and after the time the defendant was arrested for an unrelated crime, to inform anyone, including the police, that the defendant had accidentally shot a friend. The Court reasoned that the defendant's failure to seek aid for his friend or to tell anyone of the incident, including the police, was inconsistent with his trial testimony that the shooting was an accident. Relying on Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), which held that statements by an accused that were illegal because the police failed to give Miranda warnings prior to interrogation could be used to impeach the defendant when he took the stand in his own defense, the Burt court held in a per curiam opinion that the inconsistent conduct of failing to tell the police of the accidental shooting could be laid before the jury for the purpose of impeaching the defendant's trial testimony. The court reasoned that because the ...