United States v. George Agee

OPINION OF THE COURT

GARTH, Circuit Judge:

This is an appeal by the defendant, George Agee, from his conviction in the district court of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (1976). Agee asserts four grounds for reversing his conviction: (1) The United States Attorney should not have introduced evidence which had been suppressed in a prior state prosecution arising out of the same incident; (2) the trial court did not include in its instructions to the jury a charge which Agee’s counsel had requested; (3) it was disclosed to the jury that in a conversation with the police prior to his arrest, Agee did not inform them that there were narcotics in his car; (4) the trial judge questioned Agee in the presence of the jury regarding his decision to waive his Fifth Amendment right not to testify.

• While all of the issues raised by Agee on this appeal have had our attention, it is the third issue — concerning Agee’s conversation with the police prior to his arrest — that resulted in our ordering rehearing of this appeal en banc.¹ Agee claims in connection with this issue that the Supreme Court’s decisions in United States v. Hale² and Doyle v. Ohio³ require the reversal of his conviction. This is so, he argues, because his exercise of the right to remain silent was disclosed to the jury. Contrary to Agee’s argument, we hold that his rights under Haie and under the Fifth Amendment were not violated. Finding no merit in Agee’s other arguments, we affirm.

I

Agee was arrested on February 12, 1976 by Philadelphia Police Officers Michael Zagursky and Robert Wissman. The arresting officers testified that they observed Agee driving an automobile which made two turns without signalling. They followed Agee’s vehicle and waived it over to the side of the road. They then left their vehicle and walked up to the car which they had stopped. Officer Wissman testified that he observed that the driver, Agee, was attempting to conceal under the seat a foil package containing glassine packets of tan powder. As he approached the car on the passenger’s side, Officer Zagursky saw a similar package on the floor in front of the passenger, Andrew Smith. Believing the powder in the packages to be heroin, they placed Agee and Smith under arrest and seized the foil packages. Subsequent analysis revealed that the packages contained a mixture of heroin, quinine, procaine and reducing sugar.

A federal grand jury returned an indictment charging Agee and Smith with possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (1976). After a trial at which Agee testified but Smith did not, the jury found both defendants guilty of the charge. After sentencing,⁴ Agee appealed from his conviction; he also appealed from the trial court’s order denying his motion for entry of a judgment of acquittal or, in the alternative, for a new trial.

II

A

Agee testified at his trial, giving an account of the events leading to his arrest on February 12, 1976. On direct examination, he testified that, on that date, Smith was a passenger in Agee’s unlicensed taxicab, and that he may have been a passenger in his taxicab on prior occasions. While Agee was driving with Smith as his passenger, a policeman in a patrol car signalled to him to pull over to the side of the road. He did so and then informed his passenger that they had been stopped by the police:

A. “I pulled over on the side and so my passenger, Smith, asked me — he said, ‘Why are you stopping.’ I said, ‘The policeman is in back of me. They’re pulling me over.’ Smith said to me, T have dope on me.’ He throwed a bag of silver foil bag over across over to me and I picked it up. I was going to throw it back on him. I didn’t know whether to throw it back on him or throw it out the window or what.

A. I started to throw it over to him. I didn’t know whether to throw it to him or throw it out the window. Then I got a little thing in the center of my car called a — got a little thing I could lift up. Q. Is that the console?

A. Console, yes. So I tried to lift up this console to put it in there. I couldn’t get it up because I used, always would use a pencil to stick it in one of those holes to push it up if I want to put something in there. So I couldn’t hide it under there. So I put it under my seat and I got out of my car right away.

Q. What happened next?

A. I got out of my car. I walked back toward the policeman.”

His testimony regarding the events immediately preceding his arrest was as follows:

“Now, I thought that they felt like they were stopping me because I didn’t have no brakelights. This is why I thought they were stopping me.

So anyway I come to the back. So I told the policeman, I said, T know why you’re stopping me, because I don’t have any brakelights.’

So I showed him my owner’s card and my driver’s license. So he looked at my owner’s card and my driver’s license. So he asked me, you know, so he said, ‘Do you have any weapons on you?’ So I said, ‘No, I don’t have any weapons.’

He said, ‘Do you have any dope?’ So I said, ‘No, I don’t have no dope on me.’

So he searched me. So then I went to open up the trunk of my car The police officer didn’t bother about looking into the trunk. He went straight to the front of my car. He looked underneath the seat. He found this package that I had stuck underneath the seat.”

After the completion of Agee’s direct testimony, he was cross-examined first by Smith’s attorney and then by the government. During his cross-examination of Agee, Smith’s counsel asked Agree whether he had “made any statement to the police at any time?” Agee replied that he had not. The government then asked a series of questions which retraced Agee’s testimony on direct examination. Agee admitted that, at the time he left his car to speak with the police, he knew that there were drugs in Smith’s possession. Agee also admitted that he had concealed some of those drugs under his seat. He was then asked whether his purpose in approaching the policemen was “to keep the police from coming up to your car.” Agee replied that “[t]hat’s what I had in mind.” He further testified that “what was in [his] mind” was to “tell Smith to take his stuff and get out of my car”. The prosecutor then asked Agee:

Q. But it wasn’t in your mind to say to the police, “That man in my car has dope. Arrest him.”?

A. No, ma’am.

On redirect examination, Agee testified that he had not told the police that Smith had drugs because he wanted to consult with a lawyer and did not believe that the policemen would tell the truth.

During their summations, the attorneys for both Smith and the government returned to the subject of Agee’s conversation with the police prior to his arrest. Smith’s counsel argued that the jury should consider Agee’s “testi[mony] that he did not advise the police as to what happened in the car.” The prosecutor reviewed Agee’s account of what he did and did not tell the police prior to his arrest:

Did he not, when he, intentionally knowing that these were narcotics, hide the narcotics from the police, went back to the police car and attempted to diver [sic] the police from finding the narcotics instead of saying to the police, “Hey, that guy has dope. Arrest him,” when he conceals the narcotics from the police with the intention of giving them back to Smith, knowing that in all probability Smith is going to sell them?

Agee contends that these were “references to and comments on [his] exercise of his right to remain silent [and] were improper and require a new trial.” Br. for Appellant at 12-13.

The government has urged that this court may not consider Agee’s Fifth Amendment claim, because Agee did not object at trial to the questions and to the parts of the summation which purportedly referred to Agee’s “silence” prior to his arrest. The record reveals that prior to the trial, Agee’s attorney had made a motion to exclude questions regarding the “defendant’s silence at the time of arrest.” The district court declined to rule on the motion at that time. However, the court stated that during the trial, it would, out of the hearing of the jury, entertain a request for a ruling and that it would give an appropriate instruction regarding the defendant’s right to remain silent. During the trial, Agee’s counsel failed in each instance to object to the questions and arguments which he now asserts were references to his client’s silence at arrest. Because we hold that no error occurred which would have been reversible even if timely objections had been made, we need not consider whether the “plain error” doctrine would have any application to these circumstances.⁵

B

In two recent decisions, United States v. Hale⁶ and Doyle v. Ohio,⁷ the Supreme Court has considered whether a prosecutor may ask questions or make comments which reveal to the jury that the defendant exercised his right to remain silent after his arrest. In Hale, a defendant who had been charged with robbery in the district court for the District of Columbia testified that the money which the police had found on his person had been given to him by his wife. The prosecution impeached his testimony by causing him to admit during cross-examination that he had not informed the police of the source of the money at the time of his arrest. The Supreme Court, exercising its supervisory authority over the federal courts, ordered a new trial. It found that in the circumstances of the case, Hale’s silence lacked significant probative value and that any reference to it carried with it an “intolerably prejudicial impact.” ⁸

In the subsequent case of Doyle v. Ohio, the defendants testified that they had been “framed” by a government informant.⁹ On cross-examination, the prosecutor asked each defendant whether he had told this to the policeman after he arrested them; each replied that he had not. The Supreme Court held that, “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” ¹⁰

Here Agee argues, like the defendants in Hale and Doyle, that because he was questioned at trial about his “silence” at the time of his arrest, he should be granted a new trial either under the rule of evidence announced in Hale or under the Fifth Amendment.¹¹ However, the record reveals that Agee, unlike the defendants in the cases considered by the Supreme Court, had not remained silent regarding the facts of the crime with which he was charged. Instead, according to Agee’s own testimony, he made statements to the police which he knew to be false and which he hoped would prevent them from discovering an ongoing crime. This circumstance distinguishes the present case from Hale and Doyle.

If Agee had stood mute (as the defendant in Hale did)¹² or had asked “what’s this all about,” and then remained silent (as the defendants in Doyle did),¹³ perhaps this would be a different case. However, the prosecution in its cross-examination of Agee did not open new avenues of inquiry; it merely caused Agee to repeat what he had already admitted in response to his counsel’s questions: that he had attempted to deceive the police. In this context, it is clear that the question to which Agee now objects — whether it was “in [his] mind” to inform the police that Smith had dope — was not a reference to Agee’s purported silence. Rather, it referred to his admission that what he had in mind when he approached the police and engaged them in conversation was to keep the police from coming up to his car. Moreover, it was this attempted deception, not Agee’s “silence,” that was emphasized by the prosecutor in her summation, the relevant parts of which are reproduced at the margin.¹⁴

“Silence” at the time of arrest is the critical element of the Fifth Amendment right on which Agee relies in this appeal. The Supreme Court has described that right as “the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ ”¹⁵ The rationale which the Supreme Court adopted for its decision in Doyle was that it is fundamentally unfair for the prosecution to impose a penalty at trial on a defendant who has exercised that right by choosing to remain silent.¹⁶ The very statement of that rationale demonstrates that Doyle can have no application to a case in which the defendant did not exercise his right to remain silent.¹⁷ Courts in other circuits have so held.¹⁸

One difficulty which we have encountered in responding to the dissenting opinion is that it fails to confront either the record in this case or the thrust of the majority opinion. The dissent persists in discussing this case as though it involved comment on Agee’s “silence,” when, as we have pointed out, even a casual reading of the record reveals that Agee simply did not remain silent regarding the facts of the crime with which he was charged.¹⁹ Therefore — contrary to the characterization given to the majority opinion by the dissent (at pp. 368-369) — we do not find it necessary to decide whether Doyle has any application to a case in which the defendant’s alleged “silence” occurred prior to his arrest and the giving of Miranda warnings. It is abundantly clear from this record that Agee did not remain silent.

Here, as we have indicated, the record reveals unequivocally that Agee did not exercise his right to remain silent regarding the facts of the incident. Nor did the prosecutor suggest that he did. Instead, the thrust of her questions and her argument was that Agee made a deliberate choice to lie to the police in order to conceal from them an ongoing crime. If we were to hold that a prosecutor may not question or refer to a defendant’s statements and conduct which were designed to deceive the police regarding the commission of a crime, we would be extending the holding of Doyle far beyond its rationale. This we decline to do.

C

A new trial might nonetheless be required here if we were to conclude that the prejudicial effect of the prosecutor’s questions and comments greatly outweighed their probative value. In Hale, the Supreme Court concluded that “silence during police interrogation lacked significant probative value . . . ” 422 U.S. at 180, 95 S.Ct. at 2138. Evidence that a suspect remained silent after he received Miranda warnings is insolubly ambiguous, because it cannot be determined whether he remained silent because he was exercising his Fifth Amendment right or because he fabricated his exculpatory testimony at a time subsequent to his arrest.²⁰ No such ambiguity is present here, because as Agee’s own testimony has shown, Agee did not stand mute nor did he assert his right to do so. Instead, Agee testified that he approached the police and spoke with them, answering when he was asked whether he had any dope. His testimony regarding what he chose to do and say when he approached the police officers provided a context which emphasized the probative value of what he chose not to say to the police. Although evidence concerning Agee’s actions, statements and omissions prior to his arrest may have required careful evaluation by the jury in light of his exculpatory testimony at trial, it is clear that this evidence did not suffer from the “insoluble ambiguity” which concerned the Supreme Court in Hale.

Another factor which leads us to conclude that the prosecutor’s questions and Agee’s answers were admissible is that their probative value was not confined to the issue of Agee’s credibility. Not only were the prosecutor’s questions designed to show that Agee’s direct testimony was suspect, but they also bore upon the substantive crime with which he was charged. In Hale, the sole purpose of the prosecutor’s questions regarding the defendant’s post-arrest silence was to suggest that his exculpatory testimony was a recent fabrication.²¹ By contrast, here it was certainly relevant to the crime charged to prove that Agee had made a conscious choice between informing the police of an ongoing crime and deceiving them so that they would leave without discovering the heroin.²²

Whatever prejudice Agee may have suffered from the revelation that he had chosen to conceal an ongoing crime from the police occurred first during his own testimony on direct examination.²³ In view of these circumstances, Agee’s reliance on Hale is without foundation: the prosecutor’s question and argument had probative value and did not violate the holding of Hale²⁴

D

Having concluded that Agee’s Hale/Doyle arguments fail insofar as they pertain to the government, we turn next to an examination of two isolated references made by Smith’s counsel to Agee’s “silence.” Because the issue is barely presented, if at all, by this record, we need not discuss whether Hale and Doyle are applicable when the reference to a defendant’s silence is made by his co-defendant rather than by the prosecutor²⁵ Here the record reveals but one ambiguous question and one reference in argument by Smith’s counsel which might arguably be said to implicate Agee’s “silence.”

During his long cross-examination of Agee, Smith’s counsel asked him: “Did you make any statement to the police at any time?” Agee replied, “No, sir.” Later, in his summation, Smith’s counsel again touched briefly on the question ■ of what Agee did and did not tell the police: ²⁶

He [Agee] testified that he did not advise the police as to what happened in the car. All of these are things that have to be taken into consideration in determining the weight of the evidence, the credibility and the truth and the reasonableness of Mr. Agee’s story — I’m sorry — testimony.

During the trial, Agee never voiced any objection to either of these remarks which he now construes as comments on his “silence.” It was only in his post-trial motion that for the first time he suggested that they might be precluded by Hale and Doyle. Even if we were to conclude that these were references to Agee’s silence at arrest, we would have reservations about holding that, in the absence of contemporaneous objection, this was plain error.²⁷

The only arguable distinction between the questioning and argument by the government, which we have held to be proper, and that by counsel for Smith is that the question which Smith’s attorney asked was more broadly framed and did not refer explicitly to Agee’s encounter with the police prior to his arrest.²⁸ However, our review of the record has satisfied us that, in the context of this four-day trial, the jury would have understood and recollected this question and Smith’s statement during argument as references to Agee’s initial feneounter with the police. The direct examination of Agee, all subsequent cross-examination and all references in argument to what Agee stated and failed to state to the police concerned his pre-arrest encounter with the police.

Therefore, we conclude that Agee’s argument concerning his co-defendant’s comment and question must be rejected under the same analysis which we have previously set forth with respect to the government’s comments. Agee did not exercise his right to remain silent, and therefore the Fifth Amendment may not be invoked to preclude comment on what he said and failed to say.

Even assuming, however, that the question asked of Agee by counsel for Smith fell within the Hale/Doyie proscription, it is clear to us that it was harmless.²⁹ This is not a ease in which repetitive questioning focused the jury’s attention on the defendant’s silence. See United States v. Davis, 546 F.2d 583, 594-95 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). Only a single question was involved here, and it was not followed up by counsel for Smith.³⁰ Moreover, the question was ambiguous, and we do not believe that it was understood and recollected by the jurors as anything more than a reference to Agee’s initial encounter with the police. Furthermore, this question did not directly link Agee’s purported silence with his exculpatory testimony. Nor do we believe that this single question could have added to whatever adverse inferences the jurors may have drawn from Agee’s own direct testimony that he had concealed heroin from the police and lied to them when he was questioned.

A single question, which may or may not have referred to pre-arrest silence and which was not highlighted or followed up in cross-examination or in summation by the prosecutor or Smith’s attorney, could not have added to the prejudice which Agee may have suffered as a result of his previous testimony regarding his conduct and his conversation with the police prior to his arrest.³¹ In the context of this record and in view of the circumstances to which we have adverted, we hold that there is no reasonable possibility that the lone question asked by Smith’s counsel and the statement in his summation contributed in any way to Agee’s conviction.

Ill

A

Agee contends that the district court erred when it denied his motion to suppress the heroin which had been seized at the time of his arrest.

Following their arrest, Agee and Smith were charged with possession of heroin with intent to “deliver” in violation of Pa.Stat. Ann. tit. 35 § 780-113 (1977). They moved in the Philadelphia Court of Common Pleas to suppress the heroin. After a hearing, that court found on May 13, 1976 that the testimony of the Philadelphia police officers regarding the circumstances of the arrest was not credible. It therefore ruled that the police did not have probable cause to arrest Agee and Smith and that the narcotics seized incident to that arrest must be suppressed. Thereafter their state indictments were nolle prossed.

Subsequently on July 20, 1976, a grand jury in the Eastern District of Pennsylvania returned the present indictment which charged Agee and Smith with possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (1976). Once again, the defendants moved to suppress the heroin seized in Agee’s car.³² The district court denied the motion, finding that the police had probable cause to arrest both Agee and Smith and that the narcotics were seized while they were in “plain view” of the officers.

Agee contends that the district court erred when it refused his motion to suppress the heroin. He asserts that the doctrine of collateral estoppel barred the government from relitigating the ruling by the Philadelphia Court of Common Pleas. Agee’s suggestion that Ashe v. Swenson³³ precluded the district court from finding, as it did, that the police had probable cause to arrest Agee is without merit. The United States was not a party to the suppression hearing held in the state court nor were the actions of its officers under consideration in that forum. To hold that a state court determination respecting the conduct of state officials is binding on the United States would extend the Ashe doctrine beyond its logical boundaries. See United States v. Sifuentes, 504 F.2d 845, 849 (4th Cir. 1974); United States v. Smith, 446 F.2d 200, 202 (4th Cir. 1971).³⁴ Because the district court was not bound by the state court’s action, it did not err when at trial it permitted the introduction into evidence of the heroin.

B

Agee sought to have the district court include in its instructions to the jury the following charge:

The length of time which a person holds an object is relevant to the issue of knowing and intentional control and thus to legal possession. If you find that a person holds an object only flectingly [sic] and monentarily [sic] and thereby does not form an intent to exercise dominion and control over that object, then you are instructed that you must find that the defendant did not knowingly and intentionally possess that object and you must find the defendant not guilty.

His request was denied. Agee argues that this denial was error which warrants a new trial.

However, we do not agree that the district court erred in refusing Agee’s request for charge. The district court correctly instructed the jury regarding the meaning of “possession”.³⁵ The court was not required to illustrate the application of that legal concept by suggesting the particular inference which the defense hoped that the jury would make in this case, nor was it required to use the particular language or form of the charge suggested by Agee.

C

Agee also contends that the district court judge made statements in the presence of the jury which implied that Agee would incriminate or perjure himself if he testified in his own behalf. Agee claims that he was deprived of a fair trial because his testimony was singled out for cautionary comment by the court.

After Agee had taken the oath as a witness, the district court judge questioned him regarding his awareness of his right not to testify:

The Court: Mr. A gee, I know that Mr. Turner, of course, has informed you that as a defendant in this case you have absolutely no duty or compulsion to testify and you have your absolute right under the Fifth Amendment to remain silent and I would instruct the jury that they could not hold that against you.

Now, do you understand that by testifying, however, you are subjecting yourself, obviously, to the same scrutiny as any other witness has and that your testimony is, of course, under oath and my question: Are you voluntarily giving up your privilege, fully understanding your privilege to not testify under the Fifth Amendment?

The Witness: Your Honor, I would like to talk to my lawyer and let him to explain this to me more better so I can clearly understand this.

The Court: Very good. I think you should talk to your client, Mr. Turner.

Mr. Turner: Your Honor, I would object to the remarks of the Court in the presence of the jury. I would request a side bar conference.

The Court: Well, let me just say this on the record. It is my absolute standard procedure whenever any defendant takes the stand that the defendant understands the rights that he is giving up so that there could be no question about that and I don’t see any need for a side bar conference.

If you wish to have one, we can have one. However, I think Mr. Agee has requested that he would like to discuss— Mr. Turner: In that case, I will request a recess, your Honor.

The Court: All right, How long a period will that be?

Mr. Turner: About one minute will be sufficient.

The Court: We can stay here while you discuss matters with Mr. Agee.

Mr. Turner: Mr. Agee, will you step back here, please?

(A discussion takes place which is held off the record.)

The Court: Mr. Agee, you have had an opportunity to discuss the matter I have just set forth with Mr. Turner and will you tell me what your decision is?

The Witness: I intend to take the witness stand, your Honor.

The Court: All right.

We have no doubt that a trial judge may question a defendant who chooses to testify in his own behalf in order to ascertain whether he is doing so with a full awareness of his rights under the Fifth Amendment. A procedure such as the one utilized by the district court here can be valuable in exposing beforehand, problems that such a witness may experience if he testifies. However, even though we recognize the value of such a practice, we are also cognizant of the inherent dangers that such an inquiry presents where the court’s questioning takes place before the jury.

Here the record reveals that the judge did not excuse the jury nor did he take any other steps to prevent the jurors from hearing his examination of Agee and his colloquy with Agee’s counsel. While we approve of the careful consideration which the district court judge gave to Agee’s rights under the Fifth Amendment and the concern which he exhibited, we are severely troubled by the manner in which the court implemented this procedure.

Although we indicate in our later discussion that the district court judge’s comments could not have affected Agee adversely inasmuch as Agee in fact did testify, we are nevertheless convinced that better practice requires that any such inquiry, no matter how solicitous of a defendant’s rights, must be conducted with the jury not present. Excusing the jury, while time consuming and in some instances burdensome, will nevertheless guard against any unjust or improper inference being drawn by the jury especially if the defendant elects not to testify — an inference which may not be fully dispelled by a cautionary instruction. Thus, we will require that henceforth all such questioning and discussion be held outside the jury’s presence or in such a fashion that the jurors cannot hear the colloquy.

Despite our disapproval of the district court’s practice in this case, we nonetheless conclude that there is no reasonable possibility that the trial court’s questions contributed to Agee’s conviction. See Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). Here, nothing in the district court judge’s remarks could lead a reasonable juror to conclude that the judge believed that Agee’s testimony would be incriminating or perjurious. Indeed, the only reasonable inference which the jury could draw from the court’s remarks was that Agee had made a free and voluntary decision to testify, as indeed he had. Such a decision to testify could well have impressed the jury favorably.

We observe that this case presents circumstances far different from those presented in Webb v. Texas³⁶ and United States v. Morrison.³⁷ In Webb, the trial judge admonished a prisoner who had been called as a witness for the defense regarding the dangers of perjury, assuring him that if he were convicted of that crime he would not be eligible for parole. The witness thereupon refused to testify. The Supreme Court held that the defendant had been deprived of his right to put on a defense. In this case, however, no reference was made by the court to the possibility that Agee would perjure himself,³⁸ nor did the court’s comments prevent Agee from taking the stand.

In Morrison, the prosecution informed a defense witness prior to the trial that, if she testified, she might implicate herself in the crime. When she was called as a witness by the defendant, she refused to answer many of the questions put to her by defense counsel on the ground that they might incriminate her. We held there that the prosecutor had interfered with the defendant’s right to have his witness give evidence in his favor. By contrast, here Agee was not deterred from giving evidence in his own behalf and no threats of further prosecution were made by the government.

The circumstances which led to the reversal of the convictions in Webb and Morrison —in Webb, a statement by a trial judge that he would make certain that a defense witness was prosecuted if he perjured himself; and in Morrison, a statement by a prosecutor that it would not be in a witness’s interests to testify for the defense, leading in both cases to a refusal by a key defense witness to give testimony — are just not present here.³⁹ Indeed, as we have previously indicated the only inference which the jury could reasonably have drawn from the court’s questioning and statements was that Agee, having been informed of his rights by the court’s neutral questioning, was testifying of his own free will, voluntarily and without any government compulsion. In such a situation, we perceive no reasonable possibility that the court’s action contributed to Agee’s conviction.

The dissenting opinion agrees that the questioning of a witness regarding his knowledge of his Fifth Amendment rights must be done outside the jury’s presence. To that extent, we are unanimous. What disagreement the dissent does register is with our conclusion, based on our review of the record, that this error was harmless. The dissent apparently disagrees, because it would grant a new trial. The short answer to that suggestion is that a majority of this court has reviewed the record and has concluded that there is no reasonable possibility that the trial court’s questions contributed to Agee’s conviction. See Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

IV

The judgment of sentence will be affirmed. We will also affirm the order which denied Agee’s motion for judgment of acquittal or a new trial.

1 . Agee’s appeal, initially heard by a panel of this court, was ordered to be reheard by the court en banc on April 17, 1978. The original panel opinion was ordered vacated on the same date.

2 . 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) .

3 . 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ec.2d 91 (1976) .

4 . Agee was sentenced to ten years in prison. The execution of this sentence was suspended, and Agee was ordered to be confined for six months with a five-year probation to follow. Agee was also ordered to serve a three-year special parole if he violated the terms of his probation.

5 . We note, however, that the error asserted on this appeal is predicated on the cumulative effect of a number of questions asked of Agee and statements made in summation. Had Agee’s counsel objected at side bar to any of these questions, the district court — if it found that objection to be meritorious under Hale and Doyle — could have precluded further questioning or argumentation on this point, perhaps avoiding the cumulative prejudicial effect of which Agee now complains. The failure of Agee’s counsel to make contemporaneous objections not only deprived the district cv art of the opportunity to take remedial action at an early stage, but it also leads to the conclusion that, having originally recognized this issue, counsel made a tactical decision not to object during trial.

6 . 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) .

7 . 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) .

8 . 422 U.S. at 180-81, 96 S.Ct. 2240.

9 . Doyle and Wood were arrested together but were tried separately. Their appeals were consolidated.

10 . 426 U.S. at 619, 96 S.Ct. at 2245 (footnote omitted).

11 . Doyle involved a state prosecution and was decided under the Fourteenth Amendment. In light of Hale and the analysis found in Doyle, there is no doubt that the right recognized in Doyle applies to federal prosecutions under the Fifth Amendment.

12 . United States v. Anderson, 168 U.S.App. D.C. 305, 498 F.2d 1038, 1041 (1974), aff’d on other grounds, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); see also id. at 1047 n.5 (Wilkey, J., dissenting op.).

13 . 426 U.S. at 614-15 n.5, 96 S.Ct. 2240.

14 . “Finally, you heard the testimony of George Agee, the defendant, who testified that he picked up the defendant Smith and that when they were stopped by the police, the defendant Smith said, T have dope on me,’ threw him a package and he, Agee, attempted to hide the package first in the console and, when he couldn’t get that open, he hid it under the seat and then he went back to talk to the police officers.

Now, whether or not you believe the defendant Agee’s testimony, I suggest to you that even if you accept it, he makes himself guilty of the crime charged. What does he say, even if you believe George Agee, was his intention? To hide those narcotics in his car, to divert the police to conceal that fact from the police so that he could give them back to Mr. Smith and put Mr. Smith out of his car and say, T don’t want to be involved in this. Go on your way and peddle the dope.’

Did he not, when he, intentionally knowing that these were narcotics, hide the narcotics from the police, went back to the police car and attempted to divert the police from finding the narcotics instead of saying to the police, ‘Hey, that guy has dope. Arrest him,’ when he conceals the narcotics from the police with the intention of giving them back to Smith, knowing that in all probability Smith is going to sell them? Is he not putting himself in the position of being an aider and abetter of Smith? Is he not making it possible, under Mr. Agee’s own testimony, for a narcotics pusher to go out on the street and sell heroin? For if Mr. Agee had not hidden the narcotics, if Mr. Agee’s plan had worked, which of course it did not, Mr. Smith would, indeed, have been able to go out and go on his way.

Finally, as I have suggested to you earlier, even if you do believe him, even if you do believe everything the defendant Agee said from that witness stand, didn’t he tell you that he took that, that he knew from what Smith said to him that it was dope, that he intended to conceal it? It was not just a split second. He tried to get the console thing open and that wouldn’t go and then he got it under the car and then on top of that he went out in the back and tried to divert the police. Wasn’t he then helping Smith to keep that narcotics and go back out on the street with it? Didn’t he himself by those actions put himself into this scheme, even if you believe Agee’s testimony that he didn’t see it before, that for some reason Smith took it out of concealment when the police showed up?”

15 . Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966), quoting Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

16 . 426 U.S. at 618-19 & n.10, 96 S.Ct. 2240. See generally Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Grunewald v. United States, 353 U.S. 391, 425-26, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (Black, J, concurring op.).

17 . The fundamental unfairness which the Supreme Court identified in Doyle stemmed from the assurance implicit in Miranda warnings that the arrestee would not be penalized if he exercised his right to remain silent: “After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right.” 426 U.S. at 618-19 & n.10, 96 S.Ct. at 2245.

18 . In United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc), the Fifth Circuit held that the prosecution may elicit testimony that at the time of his arrest, the defendant stated that he represented his companions and that he admonished them to say nothing. The Court recognized that Warren had not exercised his right to remain silent and stated:

“We think it manifest that the admission of this testimony did not constitute a comment on the exercise of the Warrens’ right to remain silent. It is only where the accused is amerced for having exercised his constitutional rights that error is committed. This premise is implicit in the fundamental prohibition set out by the Supreme Court,

it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the f'-ce of accusation. *

Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966).”

Id. at 1073.

In United States v. Muscarella, 585 F.2d 242 (7th Cir. 1978), a prosecution witness testified that the defendant had originally declined to waive his Miranda rights. The court observed that the defendant had subsequently spoken to the police, and therefore it affirmed the conviction: “in [Hale and Doyle ] the defendants did in fact exercise their right to remain silent once they had invoked the right, which is not the situation in the instant case.” In United States v. Turner, 551 F.2d 780 (8th Cir.), cert. denied, 431 U.S. 942, 97 S.Ct. 2660, 53 L.Ed.2d 262 (1977), the court declined to order a new trial in a case in which the government had caused the defendant to admit that when he was asked about the crime he had denied any knowledge of it. The court observed that “[a]ppellant’s statement to Inspector Robertson amounted to an affirmative denial of any knowledge of the incident, not an exercise of his right to remain silent.” Id. at 782. See also United States v. Berdick, 555 F.2d 1329, 1330-31 (5th Cir. 1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 721, 54 L.Ed.2d 753 (1978); United States v. Venditti, 533 F.2d 217, 220 (5th Cir. 1976); United States v. Joyner, 539 F.2d 1162, 1165 (8th Cir.), cert. denied, 429 U.S. 983, 97 S.Ct. 499, 50 L.Ed.2d 593 (1976); United States v. Riggs, 537 F.2d 1219, 1221 (4th Cir. 1976). In United States v. Anderson, 162 U.S.App.D.C. 305, 498 F.2d 1038, 1043 (1974), aff'd. on other grounds, United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the court distinguished Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1974) on this ground:

“Even if it could be said that appellant’s silence at the police station was inconsistent with his testimony at trial Harris would nevertheless be inapplicable in the present circumstances. In Harris the accused did not exercise his constitutional right to remain silent, but rather spoke, albeit without first being advised of his rights. In the instant case, on the other hand, the accused explicitly availed himself of his right to remain silent. The Supreme Court has proscribed comment by a court or prosecutor on the fact that a defendant did not testify at trial on the ground that such comment ‘cuts down on the privilege by making its assertion costly.’

Nothing in Harris undercuts this fundamental constitutional principle since Harris did not involve assertion of the constitutional right.”

19 . The dissent suggests that Doyle requires that Agee be granted a new trial, despite his admission that he did not remain “silent” at the time of his arrest. The dissent reaches this conclusion on the ground that one of the defendants in Doyle did not remain completely silent but asked, “what’s this all about,” when he was apprehended by the police. However, Doyle prohibited questioning and comment regarding a suspect’s failure to “speak about the facts of the case." 426 U.S. at 619, 96 S.Ct. at 2245, quoting, United States v. Hale, 422 U.S. 171, 182-83, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (White, J., concurring op.) (emphasis supplied). Whereas the defendant in Doyle did not make any statement about “the facts of the case,” there can be no doubt that Agee’s statement— particularly his statement that he didn’t have any dope — pertained to the facts of h. j case. Hence, comment by the government on Agee’s testimony regarding his conduct and statements to the police prior to his arrest was not proscribe'd by Doyle.

20 . 422 U.S. at 177, 92 S.Ct. 2133.

21 . Other courts have distinguished Hale and Doyle from situations in which a defendant’s failure to give information to the government is probative not only of his credibility as a witness but is probative on other issues as well. See, e. g., United States v. Hiett, 581 F.2d 1199, 1203 (5th Cir. 1978); United States v. Joyner, 539 F.2d 1162, 1164 (8th Cir.), cert. denied, 429 U.S. 983, 97 S.Ct. 499, 50 L.Ed.2d 593 (1976).

22 . Cf. United States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971) (“Defendant Chaney concedes that exculpatory statements made upon interrogation with intent to divert suspicion or mislead the police, when shown to be false, are circumstantial evidence of guilty consciousness and have independent probative force. United States v. Smolin, 182 F.2d 782, 786 (2d Cir. 1950).”).

23 . Seep. 352, supra.

24 . United States v. Hale, 422 U.S. at 180, 95 S.Ct. 2133.' Ordinarily it is the district court’s role to determine whether the prejudicial impact of evidence outweighs its probative value. United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978). In Hale, the Supreme Court did not defer to the district court’s ruling on the admissibility of the prosecutor’s cross-examination because it involved “evidentiary matter [which] has grave constitutional overtones . . .” 422 U.S. at 180, 95 S.Ct. at 2138. However, here we have determined that the prosecutor’s questioning of Agee did not violate his Fifth Amendment rights and we have been shown no other basis which would warrant our overturning the district court’s admission of this evidence.

25 . In Hale and Doyle, it was the prosecutor in each case who questioned the defendants regarding their exercise of their right to remain silent. The Supreme Court did not consider whether similar questioning by counsel for another defendant would have required a new trial.

26 . Earlier in his summation, counsel for Smith had stated:

Mr. Agee’s testimony was rather interesting and novel and I must say that I have been in this case since February of 1976 and this was the first time I heard that story.

Agee’s counsel made an objection to this statement at sidebar on the grounds that: (1) the date on which Smith’s attorney entered the case was not in the record, and (2) it characterized Agee’s testimony as a “story”. No objection was made on any Hale/Doyle ground. The court then instructed the jury to disregard the statement because it was irrelevant and was not supported by evidence in the record. Subsequently when ruling on Agee’s post-trial motion, the court observed that Agee did not object to the adequacy of this instruction, nor did Agee argue that Smith’s counsel had com-merited on Agee’s “silence” prior to trial. In this situation, it is evident that no Fifth Amendment right of Agee’s was implicated.

27 . We have previously discussed our reservations about applying the plain error doctrine to this case, in which Agee!s counsel may have made a tactical decision not to object at sidebar during the trial, and where objection at an early stage of the trial might have permitted the district court to avoid the cumulative prejudice from a number of questions and comments of which Agee now complains. See note 5 supra.

28 . The statement by Smith’s counsel during summation that Agee testified that he did not advise the police about what had happened in the car is not so broadly framed as his question during cross-examination. The statement during argument seems likely to have been understood as a reference to cross-examination by the government v/hen Agee testified that he had attempted to conceal Smith’s possession of heroin from the police. We have held that comment on this testimony was proper.

29 . In Doyle the Supreme Court observed that the government had not argued that the use of the defendant’s silence “might have been harmless error”; it “accordingly” reversed the conviction without considering whether the error might have affected the result of the trial. 426 U.S. at 619-20, 96 S.Ct. 2240. Similarly, in Hale, the Supreme Court stated that the government had not contended that the error was harmless. 422 U.S. at 175 n.3, 95 S.Ct. 2133. We are persuaded and we so hold that violation of the rule announced in Doyle will not warrant a new trial if there is no “reasonable possibility that the improperly admitted evidence contributed to the conviction,” as there was not here. Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972).

30 . In determining whether comment on a defendant’s silence was harmless, courts have considered whether the reference was brief and isolated. See, e. g., United States v. Bridwell, 583 F.2d 1135, 1139 (10th Cir. 1978); United States v. Davis, 546 F.2d 583, 594-95 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). Here, counsel for Smith asked a single question. We have already concluded that the subsequent cross-examination and summation by the government was proper and that Smith’s summation did not mention or dwell upon the subject of the one question which Smith had asked concerning Agee’s statements. (See note 28 supra).

31 . In United States y. King, 485 F.2d 353 (10th Cir. 1973), the court held that it was error for the prosecution to elicit testimony that the defendant, after being informed of his Miranda rights, had asked to see a lawyer. However, the court held that this error was harmless, because the question was not followed .p and the jury had already heard damaging testimony that King had, prior to the giving of Miranda warnings, stated to the police “Yes, you made a good catch this time.” Id. at 360.

32 . The defendants also moved to dismiss the indictment, contending that it was invalid under the Department of Justice’s Petite policy (see Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (I960)) and the double jeopardy clause of the Fifth Amendment. The district court denied the motion. This ruling, not challenged on this appeal, was correct in the circumstances of this case. Successive prosecutions by different sovereigns would not violate the protection against double jeopardy. See Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Furthermore, the policy of self-restraint described in Petite does not extend to a federal prosecution which began after a state prosecution had been nolle prossed.

33 . 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

34 . In Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960), the Supreme Court held that “[i]n determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.”

35 . In the pertinent portion of its charge, the trial court instructed the jury regard’ ,g the legal concept of “possession”:

Knowingly means to do an act voluntarily and intentionally and not because of mistake, accident or other innocent reason. The purpose of having the word “knowingly” is to insure that no one would be convicted for an act done because of mistake or accident or other innocent reason.

Intentionally means that the defendant knowingly did an act which the law forbids.

As I have instructed you, one of the essential elements which the Government must prove beyond a reasonable doubt is that a defendant knowingly and intentionally possessed the heroin.

In order to find that the defendant possessed heroin, the Government must prove that he knowingly had direct physical control over heroin at the time in question or else that he knowingly had the heroin unjer his control or dominion at the time in question, meaning that he knowingly had the power and intention to exercise dominion or control over the heroin.

36 . 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).

37 . 535 F.2d 223 (3d Cir. 1976).

38 . The Supreme Court observed in Webb that the trial court “did not stop at warning the witness of his right to refuse to testify,” 409 U.S. at 97, 93 S.Ct. at 353, but instead added the following admonition:

“If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you’re up for parole and the Court wants you to thoroughly understand the chances you’re taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You don’t owe anybody anything to testify and it trust be done freely and voluntarily and with the thorough understanding that you know the hazard you are taking.”

Id. at 96, 93 S.Ct. at 352.

39 . In both Webb and Morrison, the admonitions to witnesses occurred out of the presence of the jury. In Webb, the jury was excused; in Morrison, the discussions with the witness took place in the prosecutor’s office.