(dissenting):
I respectfully dissent from the majority’s reversal of this case based upon a brief remark made in the prosecutor’s closing argument to the jury. The comment was not challenged by defense counsel until after the trial. Concededly to merit relief any error must meet the test of “plain error.” F.R.Crim.P. 52(b).
The cases have consistently held that the impropriety of prosecutorial comment on a defendant’s failure to testify generally may be rendered harmless by a curative instruction to the jury. See, e. g., United States v. White, 444 F.2d 1274 (5th Cir.), cert. denied, 404 U.S. 949, 92 S.Ct. 300, 30 L.Ed.2d 266 (1971); United States v. Toler, 440 F.2d 1242 (5th Cir. 1971); United States v. Cerullo, 435 F.2d 142 (5th Cir. 1970); Habertstroh v. Montanye, 493 F.2d 483 (2nd Cir. 1974); Holden v. United States, 388 F.2d 240 (1st Cir.), cert. denied, 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed.2d 132 (1968).
In the exceptional case of contention that such comment cannot be cured by trial court instructions, the determination turns on whether the comment was extensive and stressed to the jury, and whether the evidence of guilt was great. Samuels v. United States, 398 F.2d 964, 969 n.5 (5th Cir. 1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969). In this ease, the comment was brief to the point of apparently going unnoticed by defense counsel or the court, was not stressed to the jury, and there is ample evidence of guilt.
The question then is not whether the prosecutor’s comment was wrong. It was. The issue is whether the court’s curative instructions were inadequate to the extent of plain error. Early in its general charge, but within a few minutes after the comment made near the close of the prosecutor’s argument, the court charged that the failure of the defendant to testify could not be used in any way in deciding the case. The court likewise gave the usual charge that comments of counsel were not evidence, and that the jury must follow the law as instructed by the court. The fact that these instructions were not given immediately after the prosecutor’s comment, or in such a way as to recall the remark specifically to the jury’s mind, would not seem to meet our usual requirements of plain error.
The decision today is at variance with the stress we have previously placed on the need for timely objection. See United States v. Ward, 481 F.2d 185 (5th Cir. 1973) and Samuels v. United States, supra. If the record in this case reveals plain error, it is hard to envisage any case where timely objection would have significance. This decision places the entire burden on the trial court, whether or not it notices the comment and regardless of the courtroom effect of the improper comment.
As a further observation, there is doubt that the kind of charge necessarily demanded by this decision would better correct the effect of the impropriety than a clear, emphatic instruction, undiluted by the suggestion that the prosecutor thought the defendant’s failure to testify had significance. A review of this record reveals nothing to indicate the jury’s decision was affected either by the comment or the failure of the court to address it directly.
The other points on appeal being without merit, I would affirm.