concurring and dissenting:
I fully agree with the majority’s conclusion that: “After Whitson had denied possessing a bomb for the purpose of destroying his van, searching cross-examination on Whitson’s general knowledge of explosives was no abuse of discretion.” On the other hand, I strongly disagree with the majority’s conclusion that appellant’s sworn denials on cross-examination did not open the door to the alleged Miranda -barred statements to the police officer. It is wholly illogical to hold that a defendant may not hide beyond the shield of the Miranda rule if he perjures himself on direct examination, but may invoke the protection of Miranda if he perjures himself on the same subject matter on cross-examination.
DISCUSSION
On cross-examination appellant swore that he didn’t know anything about a bomb or explosives and had never read anything about explosives or bombs or the handling of such. Moreover, he swore that he did not have in his possession in April, 1973, a book which dealt with ordnance and explosives. The government then called a police officer who testified that in April, 1973, he entered the appellant’s office with a search warrant and there observed and discussed with appellant an Army Ordnance Manual which dealt with the construction and the *954disarming of explosive devices. The officer testified that appellant told him that he had been connected with ordnance while in the service. Additionally the officer had asked appellant if he had been connected with ordnance and the appellant answered yes while holding the manual in his hand.
The majority’s reliance upon United States v. Trejo, 501 F.2d 138 (CA9 1974) is misplaced. First of all, the Trejo analysis of the leading case of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), is dicta and is not controlling as a precedent. After a detailed discussion of the problem, the Trejo court concluded that the error, if any, was harmless and affirmed the judgment of conviction. In my special concurring opinion in Trejo, I criticized the limitations suggested by the majority on the breadth of the Harris decision on the record which we then had before us. I am aware of no authority which would require us to accept dicta as the law of this circuit. The Trejo court’s conclusion that defendant’s failure to object waived any claim of error to the cross-examination brands its discussion and limitation of Harris as pure dicta.
That the Trejo court had no logical ground on which to proceed to a discussion of the principles enunciated in Harris is made clear by the concluding language of its opinion:
“The record, when considered in its entirety, discloses that the appellant received a full and fair trial, and that the verdict is amply supported by the evidence. No objection was raised as to admission of the gun or briefcase, and the jury evidently rejected it when it declined to convict appellant of the crime of armed robbery, choosing instead to convict him of the lesser included offense of robbery without a dangerous weapon. Appellant was permitted to explain the presence of the gun and briefcase in his home, and the jury evidently accepted that explanation.” 501 F.2d at 145-46. [Emphasis supplied].
If, as stated by the court, the jury rejected the issue raised by the admission of the gun and briefcase in evidence, there was no reason for the court to pass on the admissibility of such items in evidence or to say that the admissions were erroneous. Trejo, if it means anything, stands for the proposition that a judgment of conviction must be affirmed when a defendant has had a fair and impartial trial. Certainly, its analysis of the meaning of Harris should not be considered as authoritative.
Inasmuch as appellant concedes that the cross-examination was proper and within the scope of the direct, he cannot claim that the government by its cross merely “set him up” for the purpose of impeachment.
I believe Harris, supra, and its progeny control. Harris makes it crystal clear that the Miranda doctrine prohibiting the use of certain evidence against an accused in the prosecution’s case in chief is not barred for all purposes, providing that the trustworthiness of the evidence satisfies legal standards. Here, there is no challenge to the trustworthiness of the impeaching evidence. Harris also reaffirms that the exclusionary rule proscribing police conduct in Miranda type cases was invoked for the purpose of deterring future conduct of the same type. That sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief is made clear in Harris.
Of particular application to the facts before us is the following statement from Harris.
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.2 Had inconsistent statements been made by the accused to some third person, it could *955hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.
“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." 401 U.S. at 225-26, 91 S.Ct. at 645-46.
Footnote 2 which is part and parcel of the above quotation casts additional light on the breadth of the Court’s holding. It is there said:
“2. If, for example, an accused confessed fully to a homicide and led the police to the body of the victim under circumstances making his confession inadmissible, the petitioner would have us allow that accused to take the stand and blandly deny every fact disclosed to the police or discovered as a ‘fruit’ of his confession, free from confrontation with his prior statements and acts. The voluntariness of the confession would, on this thesis, be totally irrelevant. We reject such an extravagant extension of the Constitution.” 401 U.S. at 225, 91 S.Ct. at 646. [Emphasis supplied].
Here, as in Harris, the appellant makes no claim that the Miranda statements were in any way coerced or involuntary. For that matter, the contrary is made clear by the record. The statements were made in appellant’s own home, in casual conversation. About 8:00 P.M. on the evening in question, five police officers arrived at appellant’s house where he was questioned by the officers. He was instructed as to his rights and then refused to discuss the case. About two hours later Officer Gandsey conducted his search of Whitson’s residence pursuant to a search warrant. It was while making this search that the officer found the ordnance manual on explosives and asked the questions of appellant with reference to his experience with bombs. It is to be noted that the appellant was in his own home and was not in custody. In these circumstances, the trustworthiness of the evidence satisfies all legal standards. Moreover, although the issue is not before us, I would seriously question the lower court’s suppressing the statements in the first instance.
The later Supreme Court case of Oregon v. Hass, 420 U.S. 714, 722-723, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), fully supports Harris by holding that one central factor to be considered in admitting the Miranda-barred statement is whether coercive tactics were used. There, the Court said:
“As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that ‘the trustworthiness of the evidence satisfies legal standards.’ 401 U.S., at 224, 91 S.Ct. at 645. Again, the impeaching material would provide valuable aid to the jury in assessing the defendant’s credibility; again, ‘the benefits of this process should not be lost,’ id., at 225, 91 S.Ct. at 645; and, agam, making the deterrent-effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass’ case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances." 420 U.S. at 722, 95 S.Ct. at 1221. [Emphasis supplied].
In Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958), the Supreme Court aptly outlines a defendant’s position after he has exercised his choice to take the witness stand, in the following language:
“He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell. ‘[T]here is hardly justification for letting the defendant affirma*956tively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.’ Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503.” 356 U.S. at 155-56, 78 S.Ct. at 627.
I am in complete disagreement with what is said in footnote 6, page 525, of the majority’s opinion. This language places an unconscionable burden on the shoulders of a trial judge. The uniform rule is that if a defendant takes the witness stand and testifies on a particular subject, he turns the searchlight of a wide cross-examination on the truthfulness of his testimony, the subject matter of his direct examination.
CONCLUSION
Inasmuch as appellant, under Harris, waived his rights against self-incrimination, he should not be permitted to perjure himself on cross-examination on the subject matter of his direct testimony and circumvent the truth by hiding behind the Miranda rule. I would affirm the judgment of conviction.