author: JAMES HUNTER, III, Circuit Judge: SEITZ, Chief Judge WEIS, Circuit Judge

text:
    Attilio AGNELLINO, Appellant, v. STATE OF NEW JERSEY and Howard Yeager, Principal Keeper, New Jersey State Prison, Appellees.
    No. 73-1134.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 24, 1973.
    Decided Feb. 13, 1974.

      Robert I. Ansell, Anschelewitz, Barr, Ansell & Bonello, Asbury Park, N. J., for appellant.
    Edward A. MacDuffie, Asst. Pros., Monmouth County, Freehold, N. J., James M. Coleman, Jr., Asbury Park, N. J., and Frederick J. Kalma, Old Bridge, N. J., for appellees.
    Before SEITZ, Chief Judge, HUNTER and WEIS, Circuit Judges.
   JAMES HUNTER, III, Circuit Judge:

In May of 1970 in the Monmouth County Court of New Jersey, appellant was tried before a jury and convicted on two counts of receiving stolen property in violation of N.J.Stat. 2A:139-1. Appellant unsuccessfully appealed his conviction through the New Jersey courts and the Supreme Court of the United States denied certiorari. Appellant then petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq., alleging improper comments by the state prosecutor in his summation and lack of probable cause to support a search warrant. The district court denied the petition and this appeal followed. We affirm.

On November 30, 1967, a magistrate in the City of Long Branch, New Jersey, issued a warrant to a New Jersey State Police officer to search the Paddock Lounge and Restaurant, a business establishment alleged to be owned and operated by appellant. As a result of the search of the Paddock Lounge premises, two rolls of stolen carpeting and three stolen air conditioners, among other things, were seized from a shed behind the Lounge. During the course of the search, appellant was arrested and given his Miranda, warnings. The police shortly thereafter questioned appellant about the carpet and air conditioners. A police officer testified that appellant stated that he “had a good buy” on the carpeting and that “he had paid about $150,” for each of the air conditioners. There was also testimony that in reply to whether the air conditioners were “hot or stolen,” appellant stated, “[f]or that price I wouldn’t be surprised.” Appellant, however, flatly denied having said this. It does not appear that police followed this up by asking appellant from where or from whom he had purchased the air conditioners and he did not volunteer this information.

In discussing the credibility of the defendant, the prosecutor in his summation said:

“Now, you take Mr. Agnellino’s story. And you consider the logic of the story. Start right off the bat the night of the raid, the police come, Lieutenant King and I forget the number, you may recall it, a number of police officers are on the scene. They go into this shed.
“[S]ay this stuff was coming into your shed and you had three air conditioners and six rolls of rugs. And there’s an indication they are looking for stolen property. Logically what would a normal human being do in that situation? I know what you would do and you know what I would do. I’d say wait a minute, let’s find Bill Gordon, that’s where I got those air conditioners from, let’s find the interior decorator in Camden” (from whom appellant alleged he bought the carpeting).

Appellant’s attorney objected on the ground that no defendant should be penalized for taking shelter in his constitutional right to remain silent, especially where the police have given the defendant Miranda warnings. The trial court ruled the remarks to be “fair comment” and permitted the prosecutor to continue:

“So I was saying in assessing Mr. Agnellino, I think you have a right to say that to yourself. Well, what would a normal human being do when the police are there? There’s a raid going on and the property apparently has been stolen and it just doesn’t ring true, this man if he didn’t have some guilty knowledge wouldn’t have done that. And that’s what you’re looking for in this case.”

I

Appellant argues that the state trial court infringed his fifth amendment rights by permitting the prosecutor to comment during summation on appellant’s failure at the time of arrest to voluntaily inform the police from whom and from where he had obtained the goods.

The Supreme Court has held that it is impermissible for a prosecutor to introduce as evidence of guilt the fact that an accused failed to testify in his own behalf or that he remained silent at the time of arrest. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Recently, however, the Supreme Court emphasized that “ [i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes.” Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed. 2d 1 (1970). The Court in Harris then concluded that once a defendant freely testifies in his own behalf, the fifth amendment does not bar a prosecutor from introducing for impeachment purposes evidence of prior statements inconsistent with defendant’s testimony at trial. Harris refused to allow the “shield provided by Miranda” to be perverted into a “license to use perjury by way of a defense”, free from the truth-testing device of cross-examination. Harris, supra, at 226, 91 S.Ct. at 646

Both concurring judges would rely on Harris by viewing this case as involving prosecutorial comment on the defendant’s prior inconsistent statements. Chief Judge Seitz characterizes appellant’s trial testimony as conveying the picture of appellant having purchased these goods in a “course of business” transaction and concludes that this “differs markedly from the impression” conveyed by appellant’s statements to police “both in choice of words and in the details offered.” Judge Weis refers to the “variations between the tenor” of appellant’s statements at time of arrest and his testimony at trial. I do not agree with this analysis.

A police officer testified that at the time of arrest and after being given Miranda warnings appellant stated that he had received “a good buy” on the carpeting and had paid about $150 for each air conditioner. The prosecutor in summation suggested a “normal human being” in that situation would have said, “wait a minute, let’s find Bill Gordon, that’s where I got those air conditioners from, let’s find the interior decorator in Camden” (essentially appellant’s trial testimony).

There is nothing in the record to suggest that appellant’s statements were incomplete responses to the questions asked by the police and appellee has never disputed appellant’s position on this appeal that the police never inquired from whom or from where he had obtained the goods (information which the prosecutor suggested ■ appellant should have volunteered). Moreover, in view of the importance the Supreme Court has attached to the giving of Miranda warnings, it is significant that the police informed appellant that he could “stop and cease answering questions ... at any time.”

More than this, however, I do not believe that appellant’s statements were inconsistent. To tell the police that you paid $150 for each air conditioner and then to tell the jury that you bought them from a named individual who operated an air conditioning business at a specified location involves no inconsistent utterances. This is equally true of appellant’s statement to the police that he had a good buy on the carpet and his subsequent statement to the jury that he bought the carpet from an interior decorator in Camden. These statements might be considered inconsistent only in the sense that appellant’s statements at time of arrest were not as complete as those he made at trial. To characterize this inconsistency as “differences in statements” is of course not erroneous, but in my view does not go far enough; the “differences” derive not from what appellant said at time of arrest, but from what he did, not say. This failure to inform the police of the source of the goods was precisely what the prosecutor focused upon in his summation; thus, the prosecutor attempted to impeach appellant’s credibility by prior silence, not by prior inconsistent statements.

Although I believe such silence may be the subject of comment by a prosecutor once the appellant has freely chosen to testify, to permit such comment under the banner of “inconsistent statements” does not seem consonant with the pronouncement in Miranda that the fifth amendment privilege is not “waived” if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.”

To be consistent with Miranda and Harris, I believe we must recognize that appellant was validly exercising his fifth amendment privilege when he refrained from volunteering to the police the information suggested by the prosecutor in his summation. Viewed in this manner, the question confronting us is whether the “prior inconsistent statement” rationale of Harris should be extended to permit impeachment by comment on appellant’s silence at time of arrest. Perceiving no difference between the two, this Court held in United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3d Cir. 1973), that Harris extends to impeachment by prior inconsistent silence. While I believe that Burt controls the issue raised by appellant, in view of a contrary opinion by at least one concurring judge, a brief analysis of Burt seems necessary.

In that case, defendant Burt testified at trial that he had accidentally shot the decedent. It was uncontradicted, however, that Burt neither told anyone about the shooting nor sought aid for the person he had shot. Later that same evening of the shooting, Burt was arrested for unlawfully breaking and entering a store. It was not until after this arrest and later that same evening that the police connected Burt with the shooting. He was placed in jail and apparently at no time prior to trial did he tell police or anyone else of the allegedly accidental nature of the shooting. Burt was never interrogated about the shooting and its is not discernible whether he had been given any Miranda warnings. When cross-examined at trial, Burt gave no explanation as to why he never told anyone of the alleged accident or why he never sought aid for the decedent. The prosecutor then referred to this in his summation.

In a per curiam decision in which two judges concurred by separate opinion, this Court held that the rationale of Harris extended to the cross-examination of Burt concerning his prior silence. While the two opinions in Burt emphasize different considerations in arriving at this result, both opinions cited with approval the view expressed by the Fifth Circuit that Harris applies to impeachment by prior silence inconsistent with trial testimony. United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. den. 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971).

Notwithstanding this reference to Ramirez, there is language in Judge McLaughlin’s per curiam opinion which might suggest that the holding of Burt is limited only to impeachment by prior inconsistent silence which does not occur in the face of police accusation. This limitation apparently was thought to be required by the language in Miranda that “the prosecution may not use at trial the fact that someone stood mute or claimed his privilege in the face of accusation.”

However, the concurring opinion, which is the majority opinion and hence controlling, noted that even after Burt became suspected of the murder he never told the police or anyone else of the alleged accidental nature of the shooting. Thus, it framed the issue as “whether a defendant’s silence in the face of police suspicion can be used at trial to impeach him after he has voluntarily taken the stand and offered testimony which is contradictory with his earlier silence.” The clear import of the majority opinion is that in light of Harris, silence, even in the face of police suspicion, may be used for impeachment purposes once an accused has freely taken the stand in his own behalf. As aptly stated in the concurring opinion:

“Burt’s silence after he became a suspect may also be interpreted as an exercise of his right not to incriminate himself. The silence, however, was inconsistent with his testimony at trial that the shooting was accidental. Such inconsistency should be available to the prosecutor in his use of the traditional cross-examination process of the adversarial system. If inconsistencies cannot be demonstrated to a jury, the truth-seeking process is straightjacketed. The defendant, of course, is free to explain away seeming inconsistencies. The adversarial system requires that the jury, as triers of fact, make the final determination of which testimony and conduct to believe.”

Chief Judge Seitz, however, suggests in his concurrence that this Court in Burt was not concerned with “defendant’s failure to offer an exculpatory statement to rebut accusation but with his failure to act, to summon help.” I cannot agree with this distinction in view of the repeated references in the majority opinion in Burt to appellant’s failure to tell the police (silence) or to seek aid (conduct) both before and after he was in police custody and suspected of the murder. Indeed, comment upon an appellant’s silence at a time when he knew the victim was dead logically had no relevance to appellant’s failure to seek aid but was relevant only to appellant’s failure to exonerate himself in the face of police accusation.

I thus believe that on its facts Burt involved impeachment by silence in the face of police accusation as well as impeachment by conduct-, hence Burt controls the present situation. However, because this panel remains divided on the applicability of Burt, I shall set forth fully my views on this constitutional issue.

In Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), the Supreme Court held that a defendant’s testimony at a retrial could be impeached by cross-examination which disclosed that the defendant, in the face of similar prosecution testimony, had chosen not to testify at his first trial. “His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will . . . . ”

In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the Supreme Court held that the trial court erred in permitting the cross-examination of an individual concerning his refusal (in the form of a statement) to answer questions previously asked him by a grand jury. However, perceiving the problem as a question of the probative value of such evidence, the Court noted that the determination of “whether a prior statement is sufficiently inconsistent to be allowed to go to the jury on the question of credibility is usually within the discretion of the trial judge.”

The Court in Grünewald did not undermine the decision in Raff el. It did hold, however, that Raff el had not established as a matter of law that prior silence must always be deemed inconsistent with later assertions of innocence. The Court then analyzed the peculiar situation which the petitioner in Grünewald faced when confronted by the grand jury inquiry and concluded that his exercise of the privilege before the grand jury was entirely consistent with later assertions of innocence and thus inadmissible for impeachment purposes because void of any probative value:

“Had he answered the questions put to him before the grand jury in the same way he subsequently answered them at trial, this nevertheless would have provided the Government with incriminating evidence from his own mouth. For example, had he stated to the grand jury that he knew Grüne-wald, the admission would have constituted a link between him and a criminal conspiracy, and thus would be true even though he was entirely innocent and even though his friendship with Grünewald was above reproach. There was, therefore, as we see it, no inconsistency between [petitioner’s] statement to the grand jury that answering the question whether he knew Grünewald would tend to furnish incriminating evidence against him, and his subsequent testimony at trial that his acquaintance with Grüne-wald was free of criminal elements.”

Thus, the Court impliedly recognized that evidence of silence is subject to ambiguous inferences which may diminish its reliability, yet only where one’s prior silence is quite clearly consistent with innocence, and thus void of any probative value, did the Court believe this evidentiary question arises to constitutional dimensions. Cf. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (evidence of prior convictions admissible notwithstanding some prejudicial effect); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948) (impeachment of character witness by use of defendant’s prior convictions).

Moreover, appellant’s situation at time of arrest should be contrasted with that confronting the appellant in Grünewald:

“For many innocent men who know that they are about to be indicted will refuse to help create a case against themselves under circumstances where lack of counsel’s assistance and lack of opportunity for cross-examination will prevent them from bringing out the exculpatory circumstances in the context of which superficially incriminating acts occurred.”

Appellant was not denied assistance of counsel; indeed he chose not to seek counsel. Nor were appellant’s replies restricted by the scope of the questions asked; he was free to fully explain answers which initially might have appeared superficially incriminating. Lastly, I do not think that appellant’s statements at trial — if in fact made by appellant at time of arrest — could have been erroneously construed by the police as inculpating appellant. Thus, I do not believe we are faced with a Grunewald-type situation.

Nor do I believe that the mere passage of time has rendered Raffel and Grünewald inapplicable. I think that Harris and other recent decisions are consistent with and supportive of Raffel and Grünewald, Harris held that evidence inadmissible under Miranda in the prosecution’s case in chief is nonetheless admissible for impeachment purposes provided 1) the defendant freely chooses to take the stand, and 2) the “trustworthiness of the [impeachment evidence] satisfies legal standards.”

Particularly revealing are the dissenting arguments of Justice Brennan, with whom Justices Douglas and Marshall joined:

“Griffin held that comment by the prosecution upon the accused’s failure to take the stand or a court instruction that such silence is evidence of guilt is impermissible because it ‘fetters’ that choice — ‘[i]t cuts down on the privilege by making its assertion costly.’ . . . For precisely the same reason the constitutional guarantee forbids the prosecution from using a tainted statement to impeach the accused who takes the stand: The prosecution’s use of the tained statement ‘cuts down on the privilege by making its assertion costly.’ . Thus, the accused is denied an ‘unfettred’ choice when the decision whether to take the stand is burdened by the risk that an illegally obtained prior statement may be introduced to impeach his direct testimony denying complicity in the crime charged against him.”

Justice Brennan suggested that the Miranda Court had resolved this question when it had stated in dictum that impeachment evidence was just as incriminatory as direct evidence.

The majority of the Supreme Court in Harris did not accept these arguments. I therefore can only conclude that Harris has held that the policies of the fifth amendment prohibition against compelling a person to be a “witness against himself” are not impaired by subjecting a defendant who has freely taken the stand to impeachment by probative evidence otherwise inadmissible as evidence of guilt under Miranda and Griffin.

All that remains then is to apply these principles to the facts at hand. First, it is without question that appellant voluntarily chose to testify; appellant has never alleged nor argued that he was in any way compelled to take the stand. Second, the impeachment evidence permitted in this case satisfies the Harris requirement of trustworthiness when that requirement is given its most sensible interpretation. Whether one chooses to view this requirement in terms of trustworthiness, inconsistency, reliability or probative value, Raffel, Grünewald and Harris have consistently considered it an evidentiary question. I think that under this precedent the impeachment evidence becomes constitutionally inadmissible only when it is so lacking in probative value that to permit its use would violate due process. I do not consider the present situation such a case. See Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926); Griffin v. California, 380 U.S. 609, 617-623, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (Stewart, J., dissenting); Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908); cf. Loper v. Beto, 405 U.S. 473, 485-494, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) (Burger, C. J., dissenting); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Admittedly, evidence of prior statements may be more probative to show inconsistency than evidence of pri- or silence. This does not mean that prior silence is always without any probative value. Gruenwald, supra. As Justice Frankfurter noted in his concurring opinion in Adamson:

“Sensible and just-minded men, in important affairs of life, deem it significant that a man remains silent when confronted with serious and responsible evidence against himself which it is within his power to contradict. The notion that to allow jurors to do that which sensible and right minded men do every day violates the ‘immutable principles of justice’ as conceived by a civilized society is to trivialize the importance of ‘due process.’ ”

As a matter of due process these observations with regard to the weight, reliability, or probative value of silence as evidence have not been discredited by subsequent decisions of the Supreme Court. Even Griffin did not hold that evidence of silence was so lacking in probative value that its admission into evidence would have violated due process. It merely held that regardless of its probative value, it may not be used as evidence of guilt.

In summary then, once it is determined that the defendant has freely taken the stand, Harris permits impeachment by probative evidence since it lends “valuable aid to the jury in assessing [a defendant’s] credibility.” The scope of impeachment is not confined to collateral matters but embraces all matters reasonably related to the subject of his direct testimony. Thus, Harris has affirmed the rule in Raffel that a defendant cannot partially waive his rights under the fifth amendment. As Chief Justice Burger has recently said, “the defendant waives the Fifth Amendment privilege as to any and all relevant matters when he decides to take the stand.”

Appellant nonetheless argues that the adoption of such a rule might “fetter” the decision a defendant must make at time of arrest to such an extent that it would constitute an unconstitutional penalty. Specifically he suggests that a defendant “without legal counsel” and in the “pressure-packed atmosphere of an arrest” is forced to decide “whether or not he will want to testify in his own behalf at some vaguely defined trial that looms in the distant future.”

In considering such a contention, one has no better benchmark from which to proceed than the following observation of Justice Harlan:

“The criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of difficult judgments’ as to which course to follow. McMann v. Richardson, 397 U.S. [759] at 769 [90 S.Ct. 1441, 25 L.Ed.2d 763] (1970). Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.”

Although I believe Harris has answered that “threshold question” in favor of subjecting a defendant who has freely taken the stand to any impeachment evidence of probative value, I will nonetheless assume arguendo that this threshold question must be considered anew in this situation.

Initially, it is quite clear that the requirements' of Miranda were laid down precisely to counterbalance the “pressure-packed atmosphere” to which appellant refers. Since appellant was given his Miranda warnings but nonetheless chose not to seek counsel, his complaint in this respect is without merit. Appellant’s other concern cannot be as quickly dismissed. He suggests in effect that the policies behind the fifth amendment are impaired when a defendant at time of arrest must consider the possibility that he might testify at trial (with the consequence that he might have to explain to the jury his prior silence).

Supreme Court decisions subsequent to Griffin and Miranda have made it clear that not all “burdens” or “fetters” on a defendant’s choice arise to the level of an unconstitutional penalty. Although resolving this issue is inevitably a matter of judgment to which fair-minded persons may differ, we are not without a guide to decision. Since Griffin probably the most extensive analysis on this subject of unconstitutional penalties on the exercise of the privilege appears in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). There the Supreme Court held that the constitution did not require the State of Ohio to have a bifurcated trial where guilt and punishment would be determined separately. The Court concluded that “the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt.” Writing the majority opinion, Justice Harlan made these observations:

“It is not contended, nor could it be successfully, that the mere force of evidence is compulsion of the sort forbidden by the privilege. It does no violence to the privilege that a person’s choice to testify in his own behalf may open the door to otherwise inadmissible evidence which is damaging to his case.
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“It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. . . . It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. . . . Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.
“Further, a defendant whose motion for acquittal at the close of the Government’s case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will bolster the Government case enough for it to support a verdict of guilty. . . . Finally, only last Term in Williams v. Florida, 399 U.S. 78 [90 S.Ct. 1893, 26 L.Ed.2d 446] (1970), we had occasion to consider a Florida ‘notice-of-alibi’ rule which put the petitioner in that case to the choice of either abandoning his alibi defense or giving the State both an opportunity to prepare a rebuttal and leads from which to start. We rejected the contention that the rule unconstitutionally compelled the defendant to incriminate himself.”

Subsequent to McGautha the Supreme Court decided Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), wherein it was held impermissible for Tennessee to force a defendant, who desires to take the stand, to testify before any other testimony for the defense is heard. The majority in Brooks however, did not place sole reliance on the fact that a difficult choice had been imposed on the defendant. Crucial to the majority’s decision was the heavy penalty imposed by the statute for remaining silent — complete foreclosure from testifying later.

Brooks is inapposite to our case for at least two reasons. First, the “penalty” imposed on appellant was much less severe than that imposed by the Tennessee statute in Brooks. Instead of losing his right to testify at a future time, appellant was merely subjected to the “traditional truth-testing devices of the adversary process.” Second, unlike Brooks, this lesser “penalty” was not a consequence of appellant’s decision to remain silent; the penalty arose only because the defendant took the stand.

The choices and “burdens” confronting appellant were much more similar to those involved in Raff el wherein the Supreme Court rejected the argument that a defendant should be permitted to testify free of a requirement that he explain his silence at his first trial:

“The only suggested basis for such a qualifictaion is that the adoption of the rule contended for by the Government might operate to bring pressure on the accused to take the stand on the first trial, for fear of the consequences of his silence in the event of a second trial; and might influence the defendant to continue his silence on the second trial because his first silence may there be made to count against him. .
“But these refinements are without real substance. We need not close our eyes to the fact that every person accused of crime is under some pressure to testify, lest the jury, despite carefully framed instructions, draw an unfavorable inference from his silence. Even if, on his first trial, he were to weigh the consequences of his failure to testify then, in the light of what might occur on a second trial, it would require delicate balances to enable him to say that the rule of partial immunity would make his burden less onerous than the rule that he may remain silent, or, at his option, testify fully, explaining his previous silence. We are unable to see that the rule that if he testifies, he must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.
“The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf, and not for those who do. There is a sound policy in requiring the accused who'-offers himself as a witness to do so without reservation, as does any other witness.”

Finally, I note that this Court has already perceptively analyzed the “burden” imposed by the adoption of a complete waiver rule and rejected the contention that it amounts to an unconstitutional penalty under Griffin:

“Compulsion would have existed only if defendant realized that he might be asked at trial to explain his silence should his trial testimony prove inconsistent with silence while in incarceration. The coercive effect of such a realization, although perhaps real, is minimal. I do not find it substantial enough to raise the defendant’s right against self-incrimination over the society’s interest in using the methods of the adversarial process to discover truth. Griffin protected Burt from adverse comment if he refused to take the stand. Once he freely elected to testify, however, his testimony was uncoerced and society had a paramount stake in ascertaining the truth. In such a situation, the limitations of Griffin are inapplicable.”

I fully concur.

Thus, for each of the foregoing reasons I would uphold the constitutionality of the prosecutor’s remarks in this case.

II

Appellant also contends that the search warrant was constitutionally invalid. The state police officer who applied for and received the search warrant on November 30, 1967 for the Paddock Lounge and Restaurant submitted to the magistrate an affidavit, set forth in the margin, which contained the following pertinent facts: 1) between the 18th and 20th of November, 1967, certain television sets were stolen from a Pennsylvania Railroad freight car; 2) a person arrested for receiving stolen property (one of the television sets stolen from the freight car) had told the affiant that he had obtained the television from appellant and another individual at a named gas station in Long Branch, New Jersey (which was a few blocks away from where the business establishment of appellant was located); 3) appellant owned and operated the Paddock Lounge; and 4) the affiant therefore had good reason to believe and did believe that appellant was concealing the stolen property at the Paddock Lounge.

As to the information obtained from informant, appellant urges us to rule that it is unreliable under the Aguilar-Spinelli standard. The information, however, consisted of declarations by the informant against his penal interest. The declarations not only directly implicated appellant but we believe a disinterested and prudent observer would have credited these statements as reliable. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

The central remaining issue before us then is whether there was probable cause to support the issuance of the search warrant. The state trial court in a pretrial suppression hearing held there was probable cause, reasoning as follows:

“There were two links established between the defendant and the premises searched: the informer’s admission of his receipt of the television set from the defendant and the proximity of the [gas station] to the [business establishment]. It follows that defendant would have stolen property of the size and bulk of television sets in reasonably close proximity to a point of distribution of the stolen goods. Defendant’s ownership [of a building] of sufficient size to hide large objects would tend to strengthen the suspicion that similar sets might be found at the suspect premises. There is no requirement that the issuing judge must be satisfied to a moral certainty that contraband can be found at a specific location.”

While we are in substantial agreement with the state court’s analysis, we recognize that this ease brings into sharp focus the narrow and admittedly difficult line which this court must draw in determining whether probable cause exists.

As noted by Chief Justice Burger in United States v. Harris, supra, the “issue in warrant proceedings is . [whether there is] probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises.” While probable cause is an elusive concept, it clearly is something less than “certainty” or “evidence of guilt beyond a reasonable doubt,” yet more than mere “suspicion.” Stated differently, we think probable cause existed if the “facts and circumstances within [the affiant’s] knowledge, and of which [he] has reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution to believe” that appellant possessed stolen television sets and that they were concealed in the Paddock Lounge. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed.2d 543 (1925).

We stress, however, that we are not confronted with a faceless informant or with a police officer stating conclusions of probable cause without setting forth any underlying facts and circumstances from which those conclusions were drawn. We are thus not faced with the Aguilar-Spinelli problem. The question confronting us is whether accepting as reliable the underlying facts appearing in the affidavit, would a “man of reasonable caution” be warranted in believing that the appellant was concealing stolen television sets in the Paddock Lounge.

Since the television set the informant received from appellant was one of several which had been stolen from the freight car, we think a man of reasonable caution would believe that appellant was in possession of other stolen sets. And in view of the fact that one of the stolen sets had previously been transferred to the informant at a place within close proximity to a business establishment which was owned and operated by appellant and was of sufficient size and character to conveniently conceal the televisions, we are unable to say that a man of reasonable caution would not believe that the televisions would be found on the premises. See United States v. Scolnick, 392 F.2d 320 (3d Cir.), cert. den. 392 U.S. 931, 88 S.Ct. 2283, . 20 L.Ed.2d 1389 (1968); United States ex rel. Stoner v. Myers, 329 F.2d 280 (3d Cir. 1964); Weller v. Russell, 321 F.2d 848 (3d Cir. 1963); cf. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

In finding probable cause, we are mindful that the Supreme Court has repeatedly concluded that decisions of probable cause made by a neutral and detached magistrate are entitled to greater weight than decisions of probable cause made by hurried police officers who have not sought prior judicial approval. United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1959); United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 76 L.Ed. 877 (1932). Such a rule not only encourages police officers to seek advance judicial approval of searches but also recognizes that the fourth amendment’s commands are “practical and not abstract,” requiring the testing and interpretation of affidavits by magistrates and courts alike in a “commonsense and realistic fashion.” Ventresca, supra at 108 of 380 U.S., 85 S.Ct. 741.

The order of the district court of October 16, 1972, will be affirmed.

SEITZ, Chief Judge

(concurring).

I concur in Part II of Judge Hunter’s opinion and in the result reached by him in Part I. I disagree, however, with his analysis in Part I. Were we faced here with a prosecutorial request that the jury infer guilt from the defendant’s silence at the time of his arrest, after Miranda warnings were given, I could not agree with Judge Hunter that such comment was proper, even if only for impeachment purposes.

The Burt case, heavily relied on by Judge Hunter involved silence that was found to be essentially conduct, although, as with any evidence of conduct, its value as evidence lay in its implicit testimonial content. The defendant in Burt was charged with murder. He testified at trial that the shooting from which the charge arose had been accidental. This Court found proper the prosecutor’s comment that Burt’s trial testimony was inconsistent with his failure to notify anyone or to seek aid for the victim. The fact that among the people Burt failed to notify was a police officer, arresting Burt on another, unrelated charge, was held not to make the prosecutor’s remarks comment on Burt’s silence “in the face of accusation” — Burt was not implicated in the shooting at the time of his silence, and his “non-action” rather than “non-speech” was the subject of comment. United States ex rel. Burt v. New Jersey, 475 F.2d 234, 236-237 (3d Cir. 1973).

Under Judge Hunter’s view of the facts in this case, Agnellino's silence would be markedly different from Burt’s. Agnellino’s silence under Judge Hunter’s conception would not be “non-action”, id. at 236, that was inconsistent with trial testimony and that occurred at a time when the defendant did not stand accused of the crime with which we are concerned. Instead, Agnellino’s silence would toe the product of a conscious choice not to divulge information relevant to the crime with which we are concerned at the very time Agnellino was arrested and accused with commission of that crime. I do not believe that prosecutorial comment on such silence would be proper.

The Fifth and Fourteenth Amendments protect the individual from being compelled to bear witness against himself by a series of related prohibitions: if the defendant speaks as the result of actual coercion, his speech is excluded from evidence for all purposes; if he chooses not to speak, the prosecution cannot from that urge the jury to draw an inference of guilt; if he speaks without coercion but without knowledge of his rights, his speech is excluded from use as direct, but not impeachment, evidence. The last of these three protections, embodied in the Miranda rule, differs in type from the first two.

The Miranda requirement of warnings is a prophylactic measure. It prohibits direct evidence use of statements made voluntarily by the defendant who was not advised of his rights of silence and of counsel, recognizing that such statements may be as reliable as direct testimony. The broad sweep of the Miranda rule guards against the possibility that an innocent defendant, in the face of police accusation and unaware of his rights, might make an honest and voluntary statement that is, nonetheless, subject to inculpatory construction. Cognizant, however, that the Miranda rule brings within its exclusionary sweep voluntary statements by guilty defendants, who may even be fully aware of their legal rights though police have not given the required warnings, courts have permitted impeachment use of voluntary statements made without Miranda warnings as an essential deterrent to intentional dishonesty by defendants. Such is the holding in Harris.

The protection against use of silence to infer guilt, like the protection against use of coerced statements, has not given rise to any prophylactic rule such as Miranda lays down. To say that a defendant’s silence in the face of accusation can be used to impeach his testimony would have the same effect as allowing impeachment use of coerced confessions. The law has recognized that no testimonial statement may be drawn from silence in the face of police accusation, nor from a statement made under duress, that is sufficiently reliable to be admitted for any purpose in a criminal trial. There are, of course, peculiar circumstances such as found in Burt where we are concerned not with a defendant’s failure to offer an exculpatory statement to rebut accusation but with his failure to act, to summon help in that case. But, as this Court approvingly noted and quoted in United States ex rel. Smith v. Brierly, 384 F.2d 992, 994 (3d Cir. 1967), “[ljacking such circumstances, to draw a derogatory inference from mere silence is to compel respondent to testify; and the customary formula of warning should be changed, and the respondent should be told, ‘If you say anything, it will be used against you; if you do not say anything, that will be used against you.’ ” McCarthy v. United States, 25 F.2d 298, 299 (6th Cir. 1928). I believe the admonition is as true regarding impeachment as where direct use is involved.

I do not, however, believe that “silence” by this defendant was the subject of the prosecutor’s challenged remarks. The defendant, after being given the required warnings, answered all of the questions put to him by the police. According to the testimony of one police officer, defendant at the time of his arrest stated that he had gotten “a good buy” on the carpeting, that he paid about $150.00 for each air conditioner, and that in light of. the price paid he would not be surprised if the air conditioners were stolen. At trial, the defendant testified that he had picked up the air conditioners for his business from one Bill Gordon, who did business at a specified location under the name “Metropolitan Air Conditioning”, and that he paid $175.00 for each. His trial testimony essentially attempts to represent his purchase of these items as a “course of business” transaction. This picture differs markedly from the impression conveyed by the statements the police officer testified that defendant made the night of his arrest both in choice of words and in the details offered. The prosecutor’s not unambiguous remarks appear to me to comment upon the differences in the statements made by defendant at trial and those made at the time of the arrest. Comment upon those differences, rather than upon defendant’s silence, is permissible where credibility is in issue. For this reason, I concur in the result reached by Judge Hunter in Part I as well as in Part II of his opinion.

WEIS, Circuit Judge

(concurring).

I concur in Part II of the Court’s opinion and in the result reached in Part I.

I do not see this as a case where the prosecutor commented unfavorably upon the defendant’s “silence.” The district attorney’s remarks were focused upon the issue of the defendant’s credibility, and the comments on variations between the tenor of his statements at time of arrest and the testimony at trial were proper.

A defendant who chooses to answer questions with half truths cannot claim constitutional protection to remain silent as to the other half. A complete answer to a question may be as inconsistent with a partial reply as one completely different in detail. When Agnellino chose to respond to police interrogation, he effectively waived his right to remain silent, at the very least, to the topics covered by the questioning.

I think we need go no further in deciding this case.

      . Prior to the search, the police had obtained an arrest warrant for appellant for receiving stolen television sets.

      . Appellant concedes in his brief that the prosecutor made these statements in the context of the credibility of appellant. Brief for Appellant at 5. Moreover, the record shows that following these comments, the prosecutor then went on to discuss the concept of guilty knowledge and inferences which might be drawn from the facts. Transcript of Trial Proceedings at 214, et seq.

      . In Griffin the Supreme Court held that a prosecutor cannot comment on the accused’s silence nor can the court instruct the jury that such silence is evidence of guilt. The defendant in Griffin did not take the stand in his own behalf.

      . We are therefore not concerned with the situation confronting the Fourth Circuit in United States v. Moore, 484 F.2d 1284 (4th Cir. 1973).

      . Chief Judge Seitz is quite correct in noting that according to the testimony of a police officer, appellant stated at time of arrest that he had paid $150 for each air conditioner (although the police officer was not sure of the exact figure). At trial appellant testified he had paid $175 for each air conditioner. I agree that these are true inconsistent statements under the rationale of Harris. But since the prosecutor did not comment on this inconsistency, it is not relevant to our decision.

      . Chief Judge Seitz refers to testimony of a police officer that appellant stated that in light of the price paid, he would not be surprised if the air conditioners were “hot”. (Appellant denied he ever said this.) He then suggests that this statement might be inconsistent with appellant’s trial testimony which he labels as representations that the air conditioners were purchased in a “course of business” transaction.
      In my view this presents several problems. First, I seriously question whether we can characterize appellant’s trial testimony as a representation that he bought the air conditioners in a “course of business” transaction. Second, even if we were to accept this characterization of his trial testimony, I do not believe that it is necessarily inconsistent with the statement, “[f]or that price, I wouldn’t be surprised [if they were hot].” Third, even if the “hot” statement is truly inconsistent with appellant's trial testimony, the prosecutor did not comment on it; he only commented on what appellant did not say. Fourth, in any event, this argument has no relevance to the parallel issue of the prosecutor’s comments on appellant’s silence with respect to the source of the carpet.

        . 384 U.S. at 475-476, 86 S.Ct. at 1628. It is well settled that a witness before a grand jury may not in certain circumstances decide to answer only some questions, Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951), and a defendant who testifies at trial may not claim the fifth amendment privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See e. g., Brown v. Walker, 161 U.S. 591, 597-598, 16 S.Ct. 644, 40 L.Ed. 819 (1896) ; Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). Miranda held, however, that these principles do not apply to the interrogation situation because “[n]o legislative or judicial fact-finding authority is involved . . . nor is there a possibility that the individual might make self-serving statements of which he could make use at trial while refusing to answer incriminating statements.” 384 U.S. 476 n. 45, 86 S.Ct. 1629.

      . In Ramirez the defendant testified at trial that he had been coerced into selling heroin by strangers who had threateneed harm to him and his family. The defendant further testified that he consequently desired to be arrested so he would no longer be compelled to sell heroin. On cross-examination the prosecutor elicited from the defendant the testimony that he had never told the police this story prior to trial. From this the prosecutor argued on summation that the defendant was lying. On appeal the Fifth Circuit approved this form of impeachment, relying on Harris.

      . Burt, supra at 236, of 475 F.2d, citing Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Court’s emphasis).

      . Judge ftosenn wrote the concurring opinion in which Judge Van Dusen joined.

      . Burt, supra at 237 of 475 F.2d (emphasis added).

      . Burt, supra at 238 (emphasis added).

      . Since appellant had been confronted with police suspicion that he had committed the murder, it does not seem unwarranted to conclude that Burt knew his victim was dead and hence that aid would be unavailing.

      . Nor do I consider it significant that Burt, unlike appellant, might not have been given any Miranda warnings. It would indeed be an anomalous decision which twists the rationale of Miranda to hold that an accused who is given Miranda warnings and remains silent, has greater rights than one who, though not having been so informed, remains silent presumably in reliance to the same extent on his rights under the fifth amendment.

      . 271 U.S. at 497, 46 S.Ct. at 568.

      . Grunewald v. United States, 353 U.S. at 423, 77 S.Ct. at 983.

      . The Grünewald Court stated:
      “[W]e may assume that under Raff el [the defendant] was subject to cross-examination impeaching his credibility just like any other witness, and that his Fifth Amendment plea before the yrand jury could not carry over any form of immunity when he voluntarily took the stand at trial." 353 U.S. at 420, 77 S.Ct. at 982 (emphasis added).

      . The Court in Raff el approached the issue in a similar fashion. It noted:
      “If, therefore, the questions asked of defendant were logically relevant, and competent within the scope of the rules of cross-examination, they were proper questions, unless there is some reason of policy in the law of evidence which requires their exclusion.” 271 U.S. at 497, 46 S. Ct. at 568.
      The Court then suggested that had defendant not testified at retrial, evidence that he remained silent during the first trial would be inadmissible because probative of no fact in issue (other than issue of guilt).

      . 353 U.S. at 421-422, 77 S.Ct. at 982.

      . As the Grünewald Court noted, “[r]ecent re-examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men.” Grunewald v. United States, at 421 of 353 U.S., at 982 of 77 S.Ct. (Court’s emphasis).

      . 353 U.S. at 423, 77 S.Ct. at 983.

      . The Grünewald court reversed the trial court for abuse of discretion on the basis of its supervisory powers over the administration of criminal justice in the federal courts. Since the present case involves a ruling by,a state court, even if we were presented with a Grunewald-type situation, it would not be immediately clear whether the question raised is appropriate for this court to resolve. Cf. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648,17 L.Ed.2d 606 (1967).

      . 401 U.S. at 224, 91 S.Ct. at 645. Both Raffel and Grünewald impliedly recognized this distinction between allowing impeachment by prior silence while forbidding use of prior silence as evidence of guilt. Grunewald v. United States, 353 U.S. at 420-421, 420 n. 3, 77 S.Ct. 963; Raffel v. United States, 271 U.S. at 498, 46 S.Ct. 566.

      . Justice Black dissented separately without opinion.

      . 401 U.S. at 230, 91 S.Ct. at 648 (citations omitted).

      . Miranda stated that impeachment evidence is used “to demonstrate untruths in [defendant’s statement] and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word . . ..” 384 U.S. at 477, 86 S.Ct. at 1629.

      . Adamson v. California, 332 U.S. 46, 60, 67 S.Ct. 1672, 1680, 91 L.Ed. 1903 (1947).

      . See 380 U.S. at 619, 85 S.Ct. 1229 (Stewart, J., dissenting).

      . 401 U.S. at 225, 91 S.Ct. at 645.

      . See 401 U.S. at 227, 91 S.Ct. 643 (Brennan, J., dissenting) ; Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).

        . Brooks v. Tennessee, 406 U.S. 605, 616, 92 S.Ct. 1891, 1897, 32 L.Ed.2d 358 (1972) (Burger, C. J., dissenting). Chief Justice Burger referred to this rule for purposes of analogy only, . as the petitioner in Brooks never took the stand in his own behalf. Consequently, the statement referred to in the text was not contradicted by the majority in Brooks. Indeed, the Chief Justice noted that the Supr'eme Court has never questioned such a rule.

      . McGautha v. California, 402 U.S. at 213, 91 S.Ct. at 1470.

      . See Miranda v. Arizona, 384 U.S. at 445 et seq., 86 S.Ct. 1602.

      . This Court has recently held that a defendant’s sixth amendment rights are unconstitutionally penalized when a prosecutor comments during his summation to the jury that the defendant had consulted an attorney the day after the alleged crime was committed. United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973). Since we are not faced with the situation of prosecutorial comments on a defendant’s silence prior to obtaining counsel, I would therefore leave open the possibility that comment on such silence would be an unconstitutional penalty because of the important sixth amendment rights involved.

      . 402 U.S. at 217, 91 S.Ct. at 1472.

      . 402 U.S. at 213, 215-216, 91 S.Ct. at 1470 (citations omitted) (emphasis added).

      . Recognizing that making the choice to take the stand might in some cases be easier if made later, the dissent was unwilling to view this as a matter of constitutional dimentions. 406 U.S. at 613-617, 92 S.Ct. 1891 (Burger, O. J., dissenting, joined by Blackmun & Rehnquist, JJ.

      . Harris v. New York, 401 U.S. at 225, 91 S.Ct. at 645.

      . 271 U.S. at 498-499, 46 S.Ct. at 568.

      . Burt, supra, at 239 of 475 F.2d.

      . One might argue that in permitting impeachment by silence, this Court ought also to change the customary Miranda warnings. In a situation involving use of silence as evidence of guilt, this Court referred to a statement by the Sixth Circuit that the warning would have to be modified as follows : “If you say anything, that will be used against you; if you do not say anything, that will be used against you.” United States ex rel. Smith v. Brierly, 384 F.2d 992, 994 (3d Cir. 1967) (held that use of silence as evidence of guilt was a denial of dkie process, in view of the unusual facts of the case), quoting McCarthy v. United States, 25 F.2d 298, 299 (6th Cir. 1928).
      Not only do I believe such a warning is erroneous, but also I believe a modification of the Miranda warning would be unnecessary as well as undesirable. A defendant’s silence at time of arrest may never be used as evidence of guilt and may be used for impeachment only when he subsequently decides to take the stand. Thus, the customary warning that you have the right to remain silent and anything you say can be used against you does not misstate the law. A more complete statement of the law reflecting the contingent and collateral nature of the consequences of remaining silent undoubtedly could be formulated. Such a warning, however, defies simplicity and is likely to engender more ambiguity than clarity in the mind of a suspect. The possibility that a suspect’s statement to police might arise from an act of resignation or misunderstanding caused by a confusing police warning is of greater consequence in my view than the possibility that a suspect might erroneously equate the “right to remain” silent with a right not to have his silence used against him for purposes of impeachment.

      . The state magistrate who issued the search warrant for the Paddock Lounge issued a second search warrant. We agree with the district court that since no incriminating evidence was seized during the search of the second premises, the validity of that search warrant is not before us.

      . The affidavit in support of the search warrant stated inter alia:

      “3. The facts tending for establishing the grounds for this application and probable cause of the deponents [police officer] belief that such grounds exist are as follows:
      “A. Information was received by Detective Walter King of the New Jersey State Police, that the buildings known as the Paddock Lounge and Restaurant, 46 Chelsea Ave., Long Branch, N. J., are owned by Attilio Agnellino, of 48 Larchwood Ave., West Long Branch, N. J., and Lounge and Restaurant are operated by same.
      “B. Information was received from a person arrested for Receiving Stolen Property (one of the stolen Silvertone col- or television sets) that he did receive from Atillio Agnellino and a person called ‘Nunzio’, stolen Silvertone color television sets, at the Morris Ave. Esso Station, located at Morris and Chelsea Aves., Long Branch, N. J.
      “C. The stolen television sets were designated for shipment to various Sears Roebuck Stores in New Jersey and New York. The television sets are described as being Silvertone All Channel Color Television Sets, Model number 8181, console models, retail value $581.95 each, stolen during a breaking and entering and larceny of a Pennsylvania freight car SSW 47143 at Pennsylvania Sub Station 40, Newark, N. J., sometime between 9 :00 PM November 18, 1967 and 10:00 AM November 20, 1967.”

      . The record is not clear as to the exact distance, but appellant asserts in his brief that the gas station was at least five blocks away from appellant’s business establishment.

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . Opinion of Monmouth County Court, June 10, 1968. The court also referred to a second business establishment in close proximity to the gas station and for which a second search warrant was issued. The validity of this second warrant is not before this court. See note 42, supra.

      . 403 U.S. at 584, 91 S.Ct. at 2082 (emphasis added).

      . Although the distance between the Paddock Lounge and the gas station does not appear in the affidavit, the addresses of both were stated in the affidavit and it is reasonable to assume that a local magistrate would be familiar enough with the area to recognize the close proximity.

      . Given the validity of the search warrant for television sets, whether there was probable cause to seize the carpet and air conditioners was not raised on this appeal or in the district court. While the record is not clear concerning the air conditioners, it does reveal that warehouse tags, perforated through the middle but with both halves intact, were attached to the seized carpet. Thus, even if the police were not aware at the time of the search that carpet of a similar nature had previously been stolen, the carpet reasonably could have been suspected as contraband. See, e. g., Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) ; Harris v. United States, 151 F.2d 837 (10th Cir. 1945), aff’d, 331 U. S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) ; United States ex rel. DiRienzo v. Yeager, 443 F.2d 228, 231 (3d Cir. 1971). Moreover, since it does not appear that appellant raised this question in the state court proceedings, we would be without jurisdiction to entertain such a contention. 28 U.S.C. § 2254.


source: Caselaw Access Project

author: ROSENN, Circuit Judge. ADAMS, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America v. Claude Lamott WILFORD, Jr., Appellant.
    No. 73-1637.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 30, 1973.
    Decided March 11, 1974.

      Richard E. Poole, Potter, Anderson & Corroon, Wilmington, Del., for appellant.
    Bruce L. Thall, Asst. U. S. Atty., Wilmington, Del., for appellee.
    Before ADAMS and ROSENN, Circuit Judges, and SHERIDAN, District Judge.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal raises questions concerning the guidelines formulated by this court in United States v. Barber, 442 F. 2d 517 (3d Cir. 1971), for jury instructions on identification. Appellant, Claude Lamott Wilford, Jr., was tried to a jury and convicted of one count of unlawful distribution of heroin in violation of 21 U.S.C. § 841(a)(1). He was sentenced to a term of eight years plus a special parole term of three years. On appeal, he contends that the failure of the trial judge to specifically instruct the jury on eyewitness identification constitutes reversible error. We affirm.

On the afternoon of December 18, 1972, Agents Britt and Malloy of the Federal Bureau of Narcotics and Dangerous Drugs and James Vaughn, a paid Government informer, met and formulated plans to purchase narcotics from an individual known to Vaughn as “La-mott” living at 2606 Bowers Street, Wilmington, Delaware. About 5:15 that afternoon, after searching Vaughn to assure that he had no narcotics or money on his person, the agents provided Vaughn with $40 and drove him to a housing project located near the intersection of 24th and Bowers Streets. The two agents remained in the car and observed Vaughn as he walked to 2606 Bowers Street, knocked on the front door, and talked to a man at the doorway. The agents then observed Vaughn leave the residence and return to the car where he turned over four glassine packages containing white powder. Field testing and chemical analysis showed that the substance was heroin. Wilford was arrested on January 4, 1973, and tried on May 4.

On direct examination Vaughn testified that on two or three prior occasions he had purchased narcotics from Wilford. He- positively identified Wilford in court as the person from whom he purchased narcotics on December 18. Vaughn further testified that he purchased the narcotics as he and Wilford stood in the open doorway of the Bowers Street residence, after Wilford came downstairs in response to his knock.

During the transaction, Agents Britt and Malloy remained in the parked car, approximately 150-200 feet from the Bowers Street residence. Although both testified that they observed two men at the doorway and could identify one as Vaughn, neither was able to positively identify the individual with whom Vaughn was talking. Malloy, however, testified that just prior to his observations of the two men at the doorway he saw a Negro male leaning out of a second floor window of the residence. Mal-loy definitely identified the individual as Wilford and he adhered to this positive identification on cross-examination.

Wilford took the stand in defense. He admitted that he, together with his mother, two brothers and a sister, lived at 2606 Bowers Street. He denied, however, ever having met or seen James Vaughn prior to his arrest on January 4. In addition, he denied that he sold Vaughn anything on December 18 or at any time. Although he did not deny that he could have been at his residence on December 18, he testified that he could not recall where he was at that time. Concerning Malloy’s positive identification at the second story window, Wilford asserted that screens on the window prevented him from looking out and that even had he leaned out, poor lighting at the housing project would have made identification impossible.

Relying on our recent decision in United States v. Barber, Wilford’s sole assignment of error is the trial court’s failure to sua sponte instruct the jury that identification testimony should be “received with caution and scrutinized with care.” He maintains that the evidence introduced on that issue, the testimony of Vaughn and Malloy, failed to meet the four criteria outlined in Barber. . Under such circumstances, he contends that under Barber, the trial court was compelled, on its own motion and absent a request, to give an appropriate cautionary instruction.

In Barber we dealt with a special set of facts. Seven defendants were charged in four counts of an indictment with assaulting FBI agents, conspiring to commit such assaults, and assisting a federal prisoner to escape from custody. Fifteen men had approached the two FBI agents, Snyder and Grant, and three to four persons had assaulted each agent. Thus, the confusion surrounding the short-lived episode could easily result in misidentification. Many of the eyewitnesses were unclear as to what had occurred and were often self-contradictory. As Judge Aldisert noted:

An affray of such short duration, involving so many participants, affords but limited opportunities for witnesses to observe and to make positive identifications.

442 F.2d 525. Our concern in Barber was with the crucial problem of mistaken identification — a problem which is frequently presented when the prosecution relies on eyewitness testimony to establish the identity of the defendant. We noted the often “skeletal” instructions given on this question and sought to insure that where appropriate, cautionary instructions should focus the jury’s attention to the possibility of mistaken identification with sufficient particularity. To achieve this goal, we took occasion, under our supervisory power, to provide trial courts with guidelines that were “require [d]” to be satisfied when cautionary instructions were given.

We first address the contention that Barber requires a cautionary jury charge even absent a request from counsel. We do not read Barber to require this result. Barber involved a case where a specific charge was requested. In that context we stated that instructions with sufficient particularity were required. We did not direct, as Wilford here contends, that in every case, even absent a request, such instructions are required. Our inquiry, therefore, is limited to the question of whether the trial court’s failure to sua sponte instruct the jury that the testimony concerning identification should be “received with caution and scrutinized with <?are” constitutes plain error. F.R. Crim. P. 52(b).

In the case sub judice, the issue of good faith mistake in identification did not play such a central role that the failure to give cautionary instructions requires reversal. The identification of Wilford by the Government’s central witness Vaughn clearly met the four criteria outlined in Barber, and accordingly, required no’ cautionary instruction. The thrust of Wilford’s cross-examination of Vaughn, moreover, was directed not to Vaughn’s inability to observe the seller or remember the transaction but rather to Vaughn’s basic credibility. The cross-examination developed that at the time of the alleged transaction Vaughn was a paid informer compensated by Government agents for “useful information,” that he was a heroin addict, and that he was obtaining funds from his activities with the Government as a means of feeding his drug habit. The court accordingly cautioned the jury that the testimony of the informer must be examined and weighed with greater care than the testimony of an ordinary witness. The suggestion that Vaughn was not worthy of belief and had strong motivation to lie, reinforced by Wilford’s denial of the sale, was the central and crucial issue in the case.

The contrast to that of Vaughn, Malloy’s testimony concerning his identification of Wilford at the second story window and uncertain identification at the door did raise an issue of the possibility of mistaken identification. Both in his cross-examination of Malloy and in his testimony on direct examination, Wilford raised questions concerning Malloy’s opportunity to observe the figure at the second floor. Malloy’s testimony, however, was not persuasive standing alone. At best, it merely placed Wilford on the premises near the time of the sale and provided some slight support for the credibility of Vaughn on the crucial point of the identity of the man at the door. The issue of mistaken identification, therefore, was at most tangential to the central question in the case, i. e., Vaughn’s credibility. We do not believe that under such circumstances the failure of the trial judge on his own motion to give special cautionary instructions on the issue of mistaken identification was reversible error.

We share the concern expressed by Judge Adams in his dissent on the shortcomings of eyewitness identification testimony. We do not minimize “the vagaries of eyewitness identification” or the hazards such testimony often raises. United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). When convictions obviously turn on the testimony of eyewitnesses who are uncertain, unclear, or inconsistent, the difficulties raised by such evidence are manifest. In such circumstances, a cautionary instruction will help to obviate the danger of erroneous conviction.

The dissent apparently believes that an identification charge should have been given in the case sub judice because Malloy’s testimony may have strengthened the Government’s case in the minds of the jury. As we have indicated, we believe that when the Government’s case rests chiefly on the credibility of an actual party to the alleged transaction, and at best only minimally on the identification testimony of another witness, absent a request by counsel, the failure to give a cautionary identification instruction does not constitute plain error.

The facts of every case vary, and the spectrum of the identification issue may range from the obvious to the obscure. In view of the many variations of fact and circumstance which must be considered in determining whether a special cautionary instruction should be given, we are reluctant to impose the responsibility for making this determination upon the trial judge. This is and should remain the responsibility of defense counsel. Counsel knows his case, his witnesses, and his strategy. He should have the duty to alert the court to the identification issue, especially when the issue is less than obvious. To hold that it is plain error to fail to give a special charge in the circumstances of this or similar cases would only encourage lethargy on the part of counsel, and would permit counsel to sow the seeds of error by remaining mute until after the verdict is returned.

The judgment of the district court will be affirmed.

ADAMS, Circuit Judge

(dissenting):

Many of my own views coincide with those expressed in Judge Rosenn’s thoughtful opinion. However, in the circumstances of this case; I regard the failure to give an identification instruction, even though defense counsel did not request one, as prejudicial to the defendant’s ability to secure an adequately informed determination of his innocence or guilt. Further, such omission, in my estimation, requires reversal of the judgment of the district court. Accordingly, I respectfully dissent.

It seems settled that the potential for erroneous eyewitness identification at or prior to trial is substantial. The Supreme Court, when dealing with possibly suggestive pretrial identification practices, has emphasized the demonstrably significant likelihood of misidentification in some situations and has sought to provide a degree of protection from attribution of wrongdoing to innocent parties, in part, by augmenting the procedural safeguards available to suspected malefactors.

In United States v. Wade, **the Supreme Court, in extending the Sixth Amendment right to counsel to post-indictment lineups, made the following observations :

The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: ‘What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent— not due to the brutalities of ancient criminal procedure.’ The Case of Sacco and Vanzetti 30 (1927) A commentator has observed that ‘[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor- — - perhaps it is responsible for more such errors than all other factors combined.’ Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest. (Footnotes omitted)

The Supreme Court, however, has not yet squarely faced the difficulties presented when a jury, undoubtedly unaware of the possible shortcomings of eyewitness identification testimony, is asked to render a decision of innocence or guilt when such testimony constitutes an important part of the evidence against the defendant. The Court of Appeals for the District of Columbia however, has abandoned the general rule that a trial judge need not submit a particular charge to the jury absent a request for an instruction relating to eyewitness identification testimony. In Macklin v. United States, the Court of Appeals for the District of Columbia stated that:

After the Supreme Court has focused on identification problems in Wade-Gilbert-Stovall trilogy, it is even more imperative that trial courts include, as a matter of routine, an identification instruction. In cases where identification is a major issue the judge should not rely on defense counsel to request so important a charge.

It might be contended that the rule fashioned in Macklin by the Court of Appeals, pursuant to its supervisory power, required a new trial in every case where identification was a major issue and the trial court failed to give an identification instruction. However, United States v. Telfaire effectively eliminates any implication that Macklin leads automatically to such a result.

In Telfaire, the Court affirmed a conviction even though an identification instruction had not been given. It concluded, in effect, that the failure so to instruct the jury was harmless error because that case exhibited “none of the special difficulties often presented by identification testimony that would require additional information be given to the jury in order for us-to repose confidence in their ability to evaluate the reliability of the identification.” The Court added that the eyewitness had “an adequate opportunity to observe” and had made an earlier spontaneous identification. It did, however, set forth a model identification instruction and stated “[that] failure to use this model, with appropriate adaptations, would constitute a risk in future cases that should not be ignored unless there is strong reason in the particular case.”

Thus, it appears that the Court of Appeals for the District of Columbia has concluded that in any case where identification is a major issue, the failure to instruct the jury with respect to the possible unreliability of eyewitness identification testimony must “be noticed although . . . not brought to the attention of the [trial] court” by way of a request for a specific instruction. The question left open .for review by the Court of Appeals for the District of Columbia is whether the error in failing so to instruct “affect [ed] substantial rights.”

This Court treated extensively the problems associated with eyewitness identification testimony in United States v. Barber. Although holding that there was no error in the identification charge given by the trial court in that case, this Court, exercising its supervisory power, sought to provide guidance for the district courts in cases where the identification of the defendant is at issue. It stated that:

where the circumstances surrounding the criminal act gave limited opportunity for observation or utilization of other sensory perception, or where uncertainty is expressed by the witness himself, or exposed by a past history of the witness’ statements or demonstrated by cross-examination, the statement of identity should be considered as only an expression of opinion and should be accompanied by appropriate instructions as to its sufficiency and weight.

The Barber court required that instructions satisfy the guidelines followed by Pennsylvania state courts, which arguably establish reversible error if the trial court fails to instruct, even in the absence of a request, when any of the conditions of uncertainty just enumerated are present. However, the Barber panel stated that when none of those conditions are present the trial judge need not, at least absent a request, give an identification instruction.

A full appreciation of the uncertainties associated with eyewitness identification testimony and of the judiciary’s close attention to the impact of these uncertainties on the fact finding process should temper any decision to designate, or not to designate as plain error a failure to give identification instructions.

I agree with Judge Rosenn that Vaughn’s confusion as to the correct name of the defendant did not raise the type of doubts concerning the reliability of Vaughn’s eyewitness identification of the defendant that calls for a specific charge. I also agree that Barber, unlike Macklin, does not appear to preclude the applicability of the plain error rule in situations like this. I concede, however, that in light of the concerns expressed by the Supreme Court and this Court, it is difficult, in the absence of Telfaire-type instructions, to contemplate cases in which identification is a major issue where a serious question whether the correct identification has been made. In such situations, plain error would, in all probability, exist.

Although Judge Rosenn’s characterization that the “central and crucial issue in the case” is the credibility of Vaughn, the informer, may not be inaccurate, such characterization should not blind us to the important role identification testimony may have played in Wilford’s conviction. Vaughn’s testimony placing Wilford at the location where the narcotics were sold and implicating Wilford as the seller is corroborated by Agent Malloy’s identification of Wilford as the person leaning from a second floor window. If the jury did credit Malloy’s testimony- — and there is no way that we can ascertain this — the government’s case was substantially strengthened. If the jury discounted Malloy’s testimony, the government’s case was immeasurably weakened. This seems particularly so because the testimony of informants is frequently suspect since they may well believe that convictions will result in better treatment for themselves. Because of these considerations, I would be inclined to view this case as one in which identification is a major issue.

Evidence was introduced by Wilford, chiefly by way of his own testimony, which indicated that Agent Malloy’s opportunity to observe may have been impaired by the dim lighting at the housing project. It would appear, therefore, that one of the conditions is present that, under Barber, transforms identification testimony from statements of fact into opinions.

Since this Court in Barber has recently and thoroughly grappled with the difficulties posed by eyewitness identification testimony, and in my view, such testimony may well have been a compelling factor in the jury’s decision in this case, I would not hold that Wilford’s failure to request an identification instruction prevents this Court from recognizing the trial court’s error in not so charging the jury after Wilford had produced evidence suggesting that Agent Malloy’s observations occurred in dim light.

In practice, it seems that a conclusion that plain error exists invariably leads to a conclusion that the error is not harmless; for quite frequently the considerations that prompt the former conclusion preclude a decision contrary to the latter. Contrasting this case with Telfaire strongly suggests that it is not an aberration. Judge Rosenn apparently acknowledges that the general instructions given here were not as likely to focus the jury’s attention on the identification issue as those in Telfaire. Further, the witness in Telfaire did have an adequate opportunity to observe, and a spontaneous pretrial identification in Telfaire buttressed the confidence of the Court of Appeals for the District of Columbia in the reliability of the identification testimony.

The procedure followed in Telfaire, suggesting model identification instructions in this type of case, merits further attention. If the trial courts are constantly aware that certain instructions, varied to meet specific cases, are to be given whenever identification is an important issue, it is more likely that the defendant’s right to an informed consideration of his case will not be diluted and the number of appeals such as this may well be substantially reduced. On balance, it may be wiser to reverse the defendant’s conviction, based in large part on the informant’s possession, after allegedly meeting with the defendant, of four glassine packages of heroin, and, at the same time, take the opportunity to provide district courts with more definite guidance with respect to the necessity for and content of identification charges.

Accordingly, I would reverse the judgment of the district court and remand for a new trial.

      . Britt stated that he “couldn’t positively identify the individual on the steps.” Mal-loy’s testimony as to the episode on the steps was somewhat more equivocal. Malloy testified on direct examination :
      Q. . . . [w]hy don’t you state in your own words what you saw at the door of 2606 Bowers?
      A. Well, as I said, the next time we saw Mr. Vaughn or anybody else was maybe thirty seconds later at the door of 2606. It was Mr. Vaughn and a Negro man, who had the physical appearances of Mr. Wilford.
      I couldn’t see his face clearly so I cannot be absolutely sure if it was him. It appeared to be to me, but it was too dark at the doorway to get a clear look at his face.
      On cross-examination Malloy testified:
      A. . . . Down at the doorway I couldn’t see his face. All I saw was the physical shape, I guess you would say. There wasn’t enough light in the doorway to be able to see his face.
      Q. So that what you are saying is the figure that was in the door you cannot identify.
      A. Right. The figure in the door I cannot definitely say was Mr. Wilford.

      . Q. You stated that when Mr. Vaughn first rang the bell you saw a face, I believe, at the second—
      A. Yes. An individual leaned out of the second story window at the 2606 address. It was a Negro male that leaned out of the window.
      Q. Do you see in the courtroom today the individual who leaned out of the window?
      A. Yes sir. It is the defendant, Claude Lamott Wilford.
      Q. Is there any question in your mind about the identity of this individual?
      A. No. That is the individual that was at the window.

      . Q. [Defense Counsel] : Now, how much of a figure did you see?jn the window?
      A. Leaning out the window, from about the chest level up.
      Q. And you are absolutely sure that that person was Mr. Wilford.
      A. Yes sir. It was Mr. Wilford. I could see his face. There are street lights up and down both streets and there are, what I would call, lights in through this walkway. I don’t know exactly where they are, but it is lighted so that when the window was open and he was leaning out, there was light from both behind him and you could see the windows.

      . Wilford cites the following language from B wrier:

      In any case raising the question whether the defendant was in fact the criminal actor, the jury will be instructed to resolve any conflict or uncertainty on the issue of identification. The jury will be instructed that identification may be made through the perception of any of the witness’ senses, and that it is not essential that the witness himself be free from doubt as to the correctness of his opinion. The identification testimony may be treated by the jury as a statement of fact by the witness : (1) if the witness had the opportunity to observe the accused; (2) if the witness is positive in his identification; (3) if the witness’ identification testimony is not weakened by prior failure to identify or by prior inconsistent identification; and (4) if, after cross-examination, his testimony remains positive and unqualified. In the absence of any one of these four conditions, however, the jury will be admonished by the court that the witness’ testimony as to identity must be received with caution and scrutinized with care. The burden of proof on the prosecution extends to every element of the crime charged, including the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime for which he stands charged.
      442 F.2d at 528.

      . The appellant urged in United States v. Barber “that the entangled circumstances of this case compelled a more exacting charge to underscore the critical nature of the identification issue — the commingling of participants and passersby in the vortex of a sudden mob scene rendered arduous and crucial the task of determining who did what to whom.” 442 F.2d at 525.

      . An examination of the trial record does not reveal, nor does Wilford’s counsel on appeal argue, that a request for such a cautionary instruction was made. We note that at the conclusion of his charge the trial judge asked counsel whether there was any objection to the charge as given. Wilford’s counsel responded, “No, sir.”

      . Because the trial court in Barber had relied on prior decisions holding that the trial court is under no obligation to grant a defendant’s request for an instruction emphasizing the possibilities of mistake in identification, see United States v. Moss, 410 F.2d 386 (3d Cir. 1969), we held that the refusal to give the requested instruction did not require reversal in that case.

      . We did state in Barber, as Wilford points out,
      In any case raising the question whether the defendant was in fact the criminal actor, the jury will be instructed to resolve any conflict or uncertainty on the issue of identification.

        442 F.2d at 528. However, this sentence does not require the construction that Wilford urges upon us. Implicit is the notion that the jury “will be instructed” only where the question is appropriately “raised” both by the testimony in the case and by a request from counsel. See United States v. McCarthy, 301 F.2d 796, 803 (3d Cir. 1962). To the same effect is our reference to “mandatory jury instructions” in United States ex rel. Reed v. Anderson, 461 F.2d 739 (3d Cir. 1972).
      Similarly, in Barber we wrote:
      Where identity is placed in issue, the trial court is required to charge the jury on this high degree of proof. United States v. Levi, 405 F.2d 380 (4 Cir. 1968) ; Jones v. United States, 124 U.S.App.D.C. 83, 361 F.2d 537 (1966) ; Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185, 190-191 (1966).
      442 F.2d at 527 n. 16. However, neither that sentence nor the cases cited to support it appear to require an instruction absent a request. In both Levi and Jones the court indicated that if requested a special charge should he given. Gregory, which reversed on other grounds, did not decide this point.
      The case of Macklin v. United States, 133 U.S.App.D.C. 139, 409 F.2d 174 (1969), cited by Wilford, was decided by the Court of Appeals for the District of Columbia under its supervisory power and was not cited by this court in Barber.

      . Wilford argues that “identification” was the sole issue in the case, chiefly because the only contested issue was his participation in the transaction. “Identification” in the sense in which Wilford uses it here refers to the broad aspect of “identification,” that is, the identity of the criminal actor. This question is present in every case unless the defendant chooses to admit participation in the act and plead an affirmative defense. Although not as clearly as the charge given in United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972), the charge given here, read as a whole, sufficiently directed the jury’s attention to the Government’s burden of proving this broad aspect of “identification,” that the defendant was the criminal actor, beyond a reasonable doubt. The court stated, for example:

        The defendant here has been charged in a one-count indictment with a crime of distributing heroin ....

        % '.'i¡ % %

      In order to meet the burden of proof under the indictment, the Government must prove beyond a reasonable doubt each of the following three essential elements: One, that the defendant distributed the substance; two, that the substance, in this case, was heroin; and three, that the distribution was done knowingly and intentionally.
      * * * * *
      If the Government fails to prove all of the three essential elements of the charge, then you, must acquit the defendant of the charge. [Emphasis supplied.]
      Our reference in the text is to the somewhat narrower aspect of “identification,” the possibility of good faith mistake in identifying an individual due to faulty perception or recollection. It was this narrower aspect of “identification,” present in some, but not all cases where the Government must prove the identity of the defendant as the criminal actor, see United States v. Cary, 152 U.S.App.D.C. 321, 470 F.2d 469 (1972) ; Comm. v. Johnson, 433 Pa. 34, 248 A.2d 840, 842 (1969), which was the central concern of this court in Barber.

      . Both in his brief and at oral argument, Wilford’s counsel argued that because Vaughn initially referred to Wilford as “La-mott” or “Lamott Williams” rather than Claude Lamott Wilford, his courtroom identification was unreliable. While this may indicate lack of close familiarity with Wilford, it does not indicate an inability to recall the physical identity of the individual from whom Vaughn allegedly purchased drugs on this and three prior occasions.
      Wilford additionally argues that Vaughn’s in-court identification required a cautionary instruction because Vaughn was shown three photographs after the alleged purchase. Vaughn did not testify on direct examination to the photographic identification. It came out in the cross-examination of Agent Mal-loy. Trial counsel neither requested discovery of the photographs nor objected to the pre-trial or in-court identification. The photographs were not offered in evidence and are not in the record on appeal. Wilford’s contention is without merit absent substantiation in the record that the witness was unable to identify the defendant at the pretrial procedure, see United States v. Barber, supra, 442 F.2d at 528 (criterion 3), or that the identification procedure was “suggestive.”

      . The court charged :
      Now, a word about the testimony of Mr. Vaughn, who was an informer.
      The testimony of an informer who provides useful information against a defendant for pay must be examined and weighed by the jury with greater care than the testimony of an ordinary witness, because the jury must determine whether the informer’s testimony has been affected by his interest or by his prejudice against the defendant.

      . See note 1 supra.

      . Because there was no request we need not decide whether, had a request been made, a failure to grant a request in this case would constitute harmless error.

      . 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . Id. at 228-229, 87 S.Ct. at 1933.

      . See United States v. Rickey, 457 F.2d 1027, 1031 (3d Cir. 1972).

      . 133 U.S.App.D.C. 139, 409 F.2d 174 (1969).

      . Id. at 178.

      . 133 U.S.App.D.C. 139, 469 F.2d 552 (1972).

      . Id. at 556.

      . Id. at 557. The model instruction set forth in Telfaire was based, in part, on this Court’s suggestions in U. S. v. Barber, 442 F.2d 517 (3d Cir. 1971), discussed at greater length infra.

      . Fed.R.Cr.P. 52(b).

      . Fed.R.Cr.P. 52(a).

      . 442 F.2d 517 (3d Cir. 1971).

      . Id. at 527.

      . Id. at 528.

      . Cf. Hoffa v. United States, 385 U.S. 293, 311-312, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

      . See Wright, 3 Federal Practice and Procedure 349, 372-375 (1969).

      . Majority Opinion at 734 n. 9.

      . 469 F.2d at 556.

      . Judge Bazelon has expressed the view that available data indicating that “members of one race have greater difficulty in accurately identifying members of a different race” demands the inclusion of a reference to this difficulty in any set of model identification instructions. Id. at 559-561. But see id. at 561-563 (Leventhal, J., concurring) .