dissenting:
George Agee, convicted of possession of heroin in violation of 21 U.S.C. § 841, on appeal urges a number of grounds for a new trial, all of which are rejected by the majority. Two of those grounds, however, are meritorious.
I. THE TRANSACTION
Agee and codefendant Andrew Smith were arrested by the Philadelphia police on February 12, 1976. They were indicted for violating 21 U.S.C. § 841, and tried jointly. In that trial Philadelphia police officers Michael Zagursky and Robert Wissman testified that on that morning they stopped an automobile for making two turns without signalling. Officer Wissman approached the driver’s side of the stopped automobile, where Agee was seated, and Zagursky approached the passenger’s side, where Smith was seated. Both officers testified that, while approaching the front of the car, they saw foil packages containing glassine packets of tannish-white powder. One package was on the floor of the car immediately in front of Smith. The other was in the hands of Agee, who, according to Wissman, was attempting to shove it under the car seat. Wissman testified that he then removed Agee from the car and arrested him for possession of what the officer believed to be heroin. After making the arrest, Officer Wissman retrieved the packages from the floor of the car at the edge of the seat and between the brake pedal and the seat The packets were later found to contain a mix*364ture of heroin, quinine, procaine, and reducing sugar.
Agee testified on his own behalf, while Smith did not. Agee stated that on the day of his arrest he was driving an unlicensed taxicab and that he had picked up Smith, whom he did not know, as a passenger. He testified that he drove Smith to one location, waited for him, and, at Smith’s request, started to drive him back to the spot where he had first picked him up. The unlicensed taxicab had a defective brake-light. According to Agee’s testimony, when the police stopped the car, Smith threw one tin foil packet at him and said “I have dope on me.” Agee claimed that he had no prior knowledge of Smith’s possession of narcotics. Agee tried unsuccessfully to conceal the packet in the console compartment of the car and finally thrust the packet under the seat. He then left the car and walked to its rear, where he said to one of the officers, “I know why you’re stopping me, because I don’t have any brakelights.” When the officer asked him if he had any weapons or narcotics, he answered negatively. The officer searched him, and then searched the car. In the latter search the officer found the packets referred to above.
II. TRIAL REFERENCES TO AGEE’S SILENCE
At the outset of the joint trial, obviously anticipating that his client would take the stand, Agee’s attorney called to the district court’s attention the decision of the Supreme Court in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). He asked for a preliminary ruling that the appellant’s silence at the time of arrest was inadmissible for any purpose and that such silence should not be the subject of any inquiries or comments during the course of the trial. When asked by the trial judge to explain why he was raising the issue early in the trial, counsel answered:
Well, your honor, I don’t want it to arise during the proceedings when the jury is in the box.
Appellant’s Appendix, at p. A-151. When the court declined to rule on the issue in advance, Agee’s counsel repeated his request:
[Wjhen they [the arresting officers] made the arrest, it’s my understanding that no statements were made by Mr. Agee.
I would respectfully request that the Court bar questioning either on direct or cross examination on that specific point by either counsel for the Government or my co-counsel, Mr. Gershenfeld. Once again, under Hale, your Honor, I believe it would be blatantly inadmissible.
Appellant’s Appendix, at p. A — 156. The court responded to counsel’s request as follows:
Well, the fact that no statement was made, the jury is certainly going to be appropriately instructed and you can have the appropriate instruction when it goes to the jury that the fact that no statement was made cannot in any way be taken as evidence of any admission, that he has an absolute right to be silent, so forth and so on.
Appellant’s Appendix, at pp. A-156-57. Agee’s counsel persisted in seeking to prevent questioning at trial on the subject of Agee’s silence at the time of arrest. However, the district judge ruled that only at such time as a specific question regarding Agee’s silence was asked would he rule on counsel’s objection.
Counsel for the government and for co-defendant Smith were present during this colloquy, in which the court in effect ruled that they could at least inquire, in the presence of the jury, about Agee’s silence at the time of arrest. During the course of the trial both lawyers took advantage of this ruling.
The majority makes much of counsel’s failure to object at every stage of the line of interrogation which the court, after repeated objection, actually invited. Opinion, post at 353 n. 5. To say, as the m.'jority does, that this failure reflects a tactical decision not to object during trial, is patently unfair to conscientious counsel who made every reasonable effort to prevent refer*365ence to his client’s silence, and who forewarned the court and counsel. To say that the district court was deprived “of the opportunity to take remedial action at an early stage” is, considering the colloquy quoted above, a misstatement of the record. For two reasons the majority’s argument about the need for a simultaneous objection should be rejected.
In the first place, the objection was made quite explicitly at the outset of the case. Agee’s counsel pointed out that it would be improper for the government or for codefendant’s counsel to inquire about or comment upon the subject matter in the presence of the jury. All of the participants in the trial were aware of Agee’s objection. Instead of ruling that no such inquiry should be made, the district court in effect permitted the attorneys for the government and for Smith to ask the question and to put Agee in the position of objecting before the jury. Under these circumstances the policy behind the simultaneous objection rule of affording the opportunity to avoid error is not implicated. Everyone involved in the case was forewarned and, consequently, the error could have been avoided. It requires extraordinary suspension of perception to treat the trial court’s ruling as anything but a plain invitation to trespass in a forbidden evidentiary area. Secondly, even in cases where no objection whatsoever was made, it has been held repeatedly that prosecutorial utilization of the defendant’s silence is plain error. E. g., United States v. Harp, 536 F.2d 601, 602 (5th Cir. 1976); United States v. Arnold, 425 F.2d 204, 206 (10th Cir. 1970); United States v. Nolan, 416 F.2d 588, 594 (10th Cir.), cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187 (1969); United States v. Brinson, 411 F.2d 1057, 1059 (6th Cir. 1969). Cf. United States v. Anderson, 162 U.S.App. D.C. 305, 498 F.2d 1038, 1040-44 (1974), aff’d sub nom. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (cross-examination of defendant with regard to silence at time of arrest not harmless error).
Smith’s counsel’s obvious strategy was to convince the jury that Agee, the car owner, rather than Smith, the passenger, possessed the heroin. Consequently, on cross-examination Smith’s counsel questioned Agee:
Q. Did you make any statement to the police at any time?
A. No, sir.
Appellant’s Appendix, at p. A-254. Later, in his closing argument to the jury, Smith’s counsel argued that Agee’s silence about the narcotics in his car impeached his credibility at trial.
He [Agee] testified that he did not advise the police as to what had 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.
Appellant’s Appendix, at p. A-279.
The Assistant United States Attorney’s cross-examination of Agee included the following dialogue:
Q. You had in mind that you could straighten it out with the police back in the rear of the car about your brakelights and then go on your way. Is that right?
A. No, had in mind straightening that out and not just going on my way, no.
Q. Well, what was in your mind?
A. What was in my mind? If I could get out of the policemen not giving me a ticket I was going to tell Smith to take his stuff and get out of my car. That’s what was in my mind.
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.
Appellant’s Appendix, at pp. A-255-56. In her closing argument, the Assistant United States Attorney went even further than Smith’s counsel had gone in arguing the importance of Agee’s silence at the t: Tie of his arrest. The government attorney contended that Agee’s silence was affirmative evidence of Agee’s commission of the charged offense.
*366Now, 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.
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 Mr. Smith.
Appellant’s Appendix, at pp. A-266-67 (emphasis supplied).
It has long been an assumption of the law of evidence that a “failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact.” IIIA Wigmore, Evidence § 1042 (Chadbourn rev. 1970). For a moment I pass the question whether that assumption, when applied to a traffic stop by a Philadelphia police officer of a driver of an unregistered and mechanically defective taxicab, realistically comports with the behavioral expectations of the parties. Applying the assumption to the present case, the government contends that Agee’s silence about the presence of the heroin amounted to an affirmative denial of such presence and thus to purposeful concealment of the drugs. Where silence is equivalent to an assertion, that silence becomes relevant to a witness’ testimony as a prior inconsistent statement if the assumed affirmation is inconsistent with the witness’ present testimony. If offered against a party to the action, that silence is relevant as an admission, regardless of that party’s testimony.
In a criminal prosecution, however, there is obvious tension between the rule of evidence treating silence as an affirmation arid the constitutional privilege against self-incrimination. For many years in state prosecutions, under the rule of Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), the Supreme Court resolved this tension by permitting the defendant’s assertion of the privilege against self-incrimination to be used as evidence that the defendant could not, if he testified, deny the charge against him. Such use of a constitutionally protected right to remain silent came to an end in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), where the Supreme Court held the privilege against self-incrimination applicable to state prosecutions. After Malloy v. Hogan, it was clear that since the defendant in a criminal case had a constitutional right to remain silent, his exercise of that right could not be used against him substantively as an affirmation by silence. The privilege against self-incrimination received further support from the Supreme Court’s decisions in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which dealt with the circumstances in which actual statements, rather than silence, would be excluded.
In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court held that although an actual statement obtained in violation of Miranda could not be used as substantive evidence against the defendant, it could be used for impeachment purposes as a prior inconsistent statement if the defendant testified in a manner inconsistent with that prior statement. After the decision in Harris v. New York, the courts of appeals divided on the question whether, despite the rule of Malloy v. Hogan, an affirmation by silence could be used for impeachment purposes when the defendant took the stand at his trial.1 The *367Supreme Court resolved this conflict in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 48 L.Ed.2d 91 (1976). In Hale the Court held that the defendant’s post-arrest silence could not be used even for impeachment purposes. The Court reasoned, first, that the defendant’s silence was not sufficiently probative of an inconsistency with his in-court testimony to warrant admission of the silence as impeachment evidence. 422 U.S. at 177, 95 S.Ct. 2133. In addition, the Court believed that admitting into evidence the defendant’s post-arrest silence would be highly prejudicial. Id. at 180, 95 S.Ct. 2133. The decision in Hale applied only to federal prosecutions. However, in Doyle the Court held that the rule excluding even the impeaching use of such silence was constitutionally required and therefore binding on the states. If, as Hale and Doyle hold, a defendant’s silence cannot be treated as a prior inconsistent statement for impeachment purposes, a fortiori it cannot be used substantively as an admission tending to prove the commission of the offense.
Agee testified that he did not report Smith’s possession of the heroin because he did not think that the police would believe him and because he wanted to speak to an attorney before making a statement. He acknowledged that he was aware that contraband was in his car. There is no inconsistency between Agee’s trial testimony and his silence as to Smith’s possession of narcotics. Indeed the government does not urge that Agee’s silence was admissible on impeachment grounds, even though counsel for codefendant Smith argued as much to the jury. Rather, the government argues, as it did to the jury, that Agee’s silence was admissible as substantive proof that Agee was an accessory to Smith’s offense of possessing heroin with intent to sell. This argument is based upon 18 U.S.C. § 2(a):
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures it commission, is punishable as a principal.
(Emphasis supplied). By failing to tell the police of Smith’s possession, the government argues, Agee aided and abetted Smith’s possession, even though Agee believed that disclosure would tend to incriminate himself because the police would not believe his version of the facts. In effect, the government takes the position that anyone having knowledge of any offense which is ongoing in nature, such as a possessory offense, becomes a principal in that offense if he does not immediately disclose the offense, even though such disclosure might tend to incriminate him. Appellee’s Brief, at p. 8. I have no difficulty with such a construction of 18 U.S.C. § 2(a) when a defendant takes active steps to conceal the crime. Thus I think that it was proper to argue to the jury that by moving to the rear of the car Agee may have intended to divert attention from the contraband. But here the government went further and argued the silence alone was criminal. So construed, 18 U.S.C. § 2(a) would run afoul of the fifth amendment guarantee against self-incrimination, for resort to silence would be penalized criminally. I do not so construe the statute.
The government also urges that the use to which Agee’s silence was put falls outside the Hale-Doyle prohibition because in those cases the silence referred to occurred after the defendant’s arrest and after he was given Miranda warnings, while in this case the silence occurred prior to arrest and prior to any Miranda warnings. It is true, as the government urges, that Hale and Doyle dealt only with post-arrest and post-Miranda warning silence.2 Nevertheless, I *368do not believe that the result should be any different here. For one thing, there is at least a serious ambiguity about Agee’s status at the time of his silence referred to in the government’s cross-examination and closing argument. On the government’s evidence, Agee was subjected to a full body search immediately after the traffic stop. Accordingly, at the time of his silence, Agee might have been subject to constraints imposed by the police officers, thereby triggering even the narrowest application of Hale and Doyle. If, at the time of his silence, Agee was in the custody of the policemen, the fact that Miranda warnings may not have been given does not preclude the application of the rule enunciated in Hale and Doyle.3 In addition, while the prosecutor’s comments were arguably restricted to the time frame prior to the appellant’s arrest, Smith’s counsel’s comments were certainly not so restricted. Thus, the conduct of Smith’s counsel might put this ease squarely within the proscription of Hale and Doyle. More importantly, the government is flatly wrong in contending that anything turns on the presence or absence of custody or of the presence or absence of Miranda warnings. Its attempt to rely on these factors misstates the issue and attempts to treat a proposed exception to the general applicability of the fifth amendment as if it were the rule. Hale and Doyle are not the rule. Rather the rule appears in fifth amendment cases like Malloy v. Hogan. Hale and Doyle simply refused to extend the Harris v. New York exception of impeaching use to silence. Neither Hale nor Doyle suggests that the possibility of substantive rather than impeaching use of such silence was ever contemplated by the Court. Allowing substantive use of silence not only would circumvent the holdings of Hale and Doyle, but also would amount to overruling Malloy v. Hogan and reviving Twining v. New Jersey.
As I read its opinion in this case, the majority apparently agrees that the government’s argument as to § 2(a) and as to the inapplicability of Hale and Doyle to pre-arrest, pre-Miranda silence is mistaken. It admits, albeit tacitly, that mere silence when having knowledge of another’s crime is not evidence of an offense. Similarly, it acknowledges, again implicitly, that the Hale-Doyle prohibition covers silence which precedes arrest and the administering of Miranda warnings. We part company, then, simply over an interpretation of the record, which the majority reads as disclosing no comment on silence, but only comment on speech or action.
I do not believe that, fairly read, the prosecutor’s argument at trial can be understood as anything but an assertion to the jury of the same point that the government advances on appeal — that silence by a person having knowledge of a possessory offense is itself a crime under § 2(a). It is one thing for the majority tacitly to reject that argument. It is quite another to refuse to take government counsel at her word about her intention in making the argument to the jury. The very argument made in this appeal belies the majority’s overgenerous treatment of the record.
Besides ignoring the government’s stated purpose in examining Agee’s failure to offer exculpatory remarks, the majority also concludes that the prosecutor’s statements referred only to Agee’s actions and words, and not to his silence. In so holding, the majority notes that Agee did not remain mute when the police encountered him. *369Rather, “he made statements to the police which he knew to be false and which he hoped would prevent them from discovering an ongoing crime.” Opinion, supra at 354. Yet, as the majority acknowledges, the Hale-Doyle rule does not apply only when a suspect remains mute. In Doyle, after all, the defendant was by no means totally “mute” when he was interrogated by the police. Indeed, he stated “What’s this all about,” as if to deny knowledge of the underlying events. 426 U.S. at 614 n.5, 96 S.Ct. 2240. Even so, the prosecutor’s comments on Doyle’s failure to protest his innocence were judged reversible error.4
The majority apparently recognizes that the Hale-Doyle rule does not require total silence. “If Agee . . . had asked ‘What’s this all about,’ ” the majority suggests, “perhaps this would be a different case.” Opinion, supra at 354. Why should it be a different case? In both instances the jury is asked to speculate on the substantive significance of a failure to speak.' Where, as here, the government’s remarks are, by its own admission, directed at the substantively incriminating character of a defendant’s silence, I do not see how the precise words spoken by the defendant, when first encountered by the police can be said to make a difference.
The majority also concludes that the remarks of Smith’s counsel did not transgress Agee’s rights under Hale and Doyle. It relies, in part, on the failure of Agee’s attorney to make a contemporaneous objection, as well as its belief that the challenged statements referred to actions and not true silence. I have explained above why these positions are without merit. The majority further contends that any violation which Smith’s attorney may have caused was harmless. From this record, however, it is clear that Agee’s failure to exculpate himself was significant to the government’s case. I cannot say, therefore, that there was not “a reasonable possibility that the improperly admitted [testimony] contributed to the conviction . . . .” Sehneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972).
Because of its myopic approach to the record and its niggardly reading of Doyle, the majority, insisting that there was no comment on silence, does not address the question whether, Hale and Doyle aside, the circumstances disclosed in this record present an appropriate case for the application of the evidentiary rule equating silence with affirmation. I do not believe they do. The rule is usually justified in terms of behavioral expectations. In other words, common human experience suggests that people generally will deny false accusations and will fully disclose facts when making formal disclosures, as in testimony or pleadings. See IIIA, Wigmore, Evidence § 1042 (Chadbourn rev. 1970). But common human experience does not suggest that a driver of an illegal taxicab stopped by a Philadelphia police officer for what the driver thought was a motor vehicle violation, and confronted, according to his testimony, with the unexpected knowledge that his vehicle contained contraband and with an inquiry about guns and drugs in his possession, would react by volunteering any more information than was volunteered here. It seems to me as likely as not that the reaction would be to say as little as possible. In addition, prior to arrest it is less likely that a defendant will be confronted with a formal accusation of guilt. Absent such an accusation, a defendant’s silence is highly ambiguous. For both of these reasons, the inference sought to be drawn from silence here was not sufficiently reliable to be properly admissible as substantive or impeachment evidence, even apart from any fifth amendment problems.
*370Since both the prosecutor and counsel for codefendant Smith made improper references to Agee’s silence in cross-examination and in oral argument to the jury, the judgment of conviction should not stand.
III. THE DISTRICT COURT’S ADMONITION ABOUT THE PRIVILEGE AGAINST SELF-INCRIMINATION
Immediately after Mr. Agee took the stand and was sworn, the following colloquy took place:
The Court: Mr. Agee, 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.
Agee urges that the likely inference a juror would draw from singling him out for such interrogation was that his testimony would either incriminate him or be perjurious. The government contends, on the other hand, that if the interrogation had any effect at all, “it is likely that [it] enhanced Agee’s credibility by emphasizing the voluntary nature of his testimony.” Appellee’s Brief, at p. 14. The majority is not so naive as to accept the contention that Agee’s credibility was enhanced. It finds, instead, a neutral effect. I think that Agee’s version of the probable effect on a juror is far more likely than either the government’s or the majority’s. The purpose of the trial court’s remarks, in my view, was far from neutral. It was intended, I believe, to discourage Agee from testifying. If the jury so understood it, the interrogation certainly was prejudicial. Since such questioning of the defendant may be prejudicial and since I can think of no reason why any defendant represented by able counsel should be subjected to it in the presence of the jury, I strongly disapprove of the practice. Even the majority finds it hard to justify. It is true that, a trial judge may, and sometimes even should, warn a witness of his fifth amendment rights and of the dangers of perjury. But he cannot, by such warnings to a witness, tilt the scales of justice *371against the defendant. See Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (trial judge’s extended warning to defense witness not to lie discouraged the witness from testifying and denied the defendant the opportunity to present witnesses in his defense). When the witness is a defendant who is represented by able counsel and who is about to testify on his own behalf, the need for any such warnings seems to me non-existent. Despite its acknowledgment that engaging in such interrogation is bad practice, the majority strains to distinguish the governing case law, thus giving trial judges a blueprint for the partial evasion of the holding in Webb v. Texas. I find particularly disingenuous the majority’s distinction of Webb on the basis of an ostensible absence in this case of a reference to possible perjury. To what else was the trial court referring when he warned Agee “Now, do you' understand . that your testimony is, of course, under oath. . . . ”? None of the government witnesses was given such a warning. I understand it, and the jurors undoubtedly understood it, as a particular admonition that the defendant should resist the temptation to commit perjury.
While the majority cannot quite bring itself to endorse the trial court’s practice of warning testifying defendants, in the presence of the jury, about the privilege against self-incrimination and the dangers of false swearing, it cannot, either, bring itself to order a new trial. Tongue clicking over bad practices has become a familiar routine in this court. E. g., United States v. LeFevre, 483 F.2d 477, 478 80 (3d Cir. 1973); United States v. Benson, 487 F.2d 978, 981 82 (3d Cir. 1973); United States v. Somers, 496 F.2d 723, 736-42 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678-80 (3d Cir. 1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977); United States v. DeRosa, 548 F.2d 464, 469-72 (3d Cir. 1977); United States v. Gallagher, 576 F.2d 1028, 1041-43 (3d Cir. 1978). Our tongue clicking over improper argument by government counsel has been notoriously ineffective in preventing it, as the persistent need to resort to gentle chastisement amply demonstrates. Bland expressions of disapproval of improprieties and tepid endorsements of “the better practice” are no substitute for the exercise of appellate judicial responsibility. I would grant a new trial.
. Compare United States v. Semensohn, 421 F.2d 1206, 1209 (2d Cir. 1970); United States v. Brinson, 411 F.2d 1057, 1060 (6th Cir. 1969); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); and Johnson v. Patterson, 475 F.2d 1066 (10th Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973), with United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3d Cir.), cert. denied, 414 U.S. 938, 94 S.Ct. 243, 38 L.Ed.2d 165 (1973); and United States v. Ra*367mirez, 441 F.2d 950, 954 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971). These cases are collected in Justice Marshall’s opinion for the Court in United States v. Hale, 422 U.S. 171, 173 n.2, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). It should be noted that among those cases referred to and tacitly overruled by Hale is United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3d Cir.), cert. denied, 414 U.S. 938, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973).
. See United States v. Hale, 422 U.S. 171, 177, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
. In his dissent in Doyle, Justice Stevens seemed to think that the majority’s rule was premised on the presence of Miranda warnings. See 426 U.S. at 620-21, 96 S.Ct. 2240 (Stevens, J., dissenting). We do not read Doyle in that way. In both Hale and Doyle the Miranda warnings were but one factor that convinced the Court that the defendant’s silence was not sufficiently probative. See Doyle, supra, at 617 n.8, 96 S.Ct. 2240, 2244, wherein the Court declared:
But in United States v. Hale, 422 U.S. 171, 177 [95 S.Ct. 2133, 45 L.Ed.2d 99] (1975), we noted that silence at the time of arrest may be inherently ambiguous even apart from the effect of Miranda warnings, for in a given case there may be several explanations for the silence that are consistent with the existence of an exculpatory explanation.
(Emphasis supplied).
. See also United States v. Edwards, 576 F.2d 1152 (5th Cir. 1978) (per curiam). In Edwards, the defendant was stopped by a border guard while allegedly driving a stolen car. Defendant initially provided a false identity to the border police; had that identity truly been his, the defendant would not have been in violation of the law, since the car was rented with a credit card belonging to the person whose name was used. In short, the defendant, by initially invoking a false identity, effectively denied having violated the law. Despite the defendant’s “speech,” in the majority’s sense of the word, the Fifth Circuit regarded the Doyle issue as squarely presented. Only the harmless error doctrine precluded a reversal in the case.