concurring in part and dissenting in part.
I concur in that portion of the majority’s opinion relating to alleged improper use of peremptory challenges, sufficiency of evidence on Counts I and II, and the language of the jury instructions. Like the majority, I would not reverse the District Court for its failure to repeat the instruction regarding the government’s burden of proof when answering a question of the deliberating jury. However, I cannot join in the remainder of the majority’s opinion because I find that the defendant’s failure to object to references to his unwillingness to answer four of many questions asked him by Agent Rohde constituted a waiver of any objections.
The standard for reviewing the court’s denial of a motion for mistrial is one of abuse of discretion. United States v. Perez, 22 U.S. 578 (9 Wheat.), 6 L.Ed. 165 (1824). I do not find that standard met here. At trial, Agent Rohde testified that he had prepared a contemporaneous statement of what occurred during the course of the May 13, 1974 interview. He testified that he had no independent memory of what was said during that meeting. Several minutes were spent describing the manner in which the memorandum was prepared and what it purported to describe. The only purpose that testimony could have would be to permit the use of the statement while he testified. The testimony which the majority holds requires reversal occurred when Agent Rohde read from this memorandum. Defendant admits that a copy of that memorandum was provided to his counsel prior to trial. The majority characterizes Agent Rohde as commencing to read the memorandum “without warning.” The relevant portions of the transcript do not indicate that the agent’s recitation was without warning. As stated, the agent expressly referred to the memorandum, its authenticity had been established to permit its use to refresh his recollection or as past recollection recorded, and the agent clearly stated that he had no independent recollection of what occurred at the meeting and would have to use the memorandum to refresh his recollection.
The majority states that after fifteen direct questions had “elicited much of what was said at that first meeting” and that “[ajfter ten more direct questions and answers, the prosecutor stated: ‘Q. Pine.’ ” However, all of the questions regarding the interview itself were in the form of “what occurred after that” or “and then what occurred.” The balance of the questions sought explanation of some portion of the agent’s previous answer or related to exhibits. The Assistant United States Attorney’s remark “Fine” came in the following series of questions:
Q. After you made the inquiry on the ’72, ’73 returns, what occurred?
A. With respect to Mr. Lewis’s interview?
Q. Yes.
A. I specifically asked Mr. Lewis if he had filed 1972 and 1973 federal income tax returns. He replied that he had filed for 1973.
Q. What was the date of this interview again?
A. The date of this interview is May 13, 1974.
Q. Fine.
“Fine” was merely encouragement to have Agent Rohde continue his recital from the memorandum of what occurred at the interview.
I find unpersuasive defense counsel’s explanation that he did not know that Agent Rohde was reading from the memorandum because he could not see what the agent had in front of him. Review of that portion of the trial transcript relating to the memorandum makes abundantly clear that the agent was about to read, and then did, in fact, read the statement at issue.1
*1171Only after Agent Rohde had read the entire memorandum did defendant object and move for a mistrial. Even had counsel not been provided with a copy of the memorandum, he should have objected after the first oblique reference to defendant’s refusal to answer a specific question. Here counsel had the memorandum and could'not-help but know what was coming. This purposeful courting of error should in this case be attributed to defense counsel’s trial tactics.
Upon objection, the District Court immediately suspended Agent Rohde’s testimony to hear argument, consider, and rule on defendant’s motion for mistrial. After hearing arguments the District Court decided to strike all references to the defendant’s comments that he would not answer certain questions and to his desire to meet with counsel. The court found that although there were some offending comments, they were read by the agent in a “perfunctory manner,” and not emphasized by him.
Although defendant refused to answer certain questions he continued to answer others. Thus, he did answer that he had filed his returns for 1972 and 1973, and in response to the questions of who prepared the returns he testified that he had. The only question he refused to answer was whether the returns were late-filed. Defendant, who is an attorney, stated during the interview that he was going to talk to his attorney. Agent Rohde concluded his testimony with the statement:
Lewis then told of an appointment with Bruce Donaldson, an attorney in Detroit, on May 24, and promised that the taxpayer or his attorney would call Rohde on May 28th. The interview was then concluded.
The prosecutor made no comments on the defendant’s invoking the Fifth Amendment privilege. None of defendant’s refusals to answer questions were characterized, either in the report or by the prosecutor, as the exercise of his constitutional right against self-incrimination. The prosecutor did not persist in eliciting testimony on this subject nor was there evidence of deliberate prose-cutorial misconduct.
The objected-to agent’s testimony was only a minute portion of a lengthy and complicated trial that focused on large amounts of documentary exhibits and the conflict in testimony between the government’s and the defendant’s expert witnesses. The court struck the testimony and as requested by defendant the jury was properly instructed at the end of the trial that “[no] presumption of guilt may be raised and no inference of any kind may be drawn from any failure of the defendant to respond to requests for information by the Government.” In view of the above circumstances, the District Court did not abuse its discretion in finding defendant so prejudiced as to justify granting his motion for mistrial.
Nor do I find highly prejudicial and warranting a new trial the prosecutor’s isolated remark in closing argument “. .. just in case, have a good attorney, just in case.” Defendant’s interpretation that this remark improperly “alluded” to the earlier remarks of Agent Rohde concerning defendant’s refusal to give information at the first interview is unreasonable. That remark was not explained or amplified by the prosecutor and does not immediately suggest an attempt to comment on the defendant’s failure to testify or provide the agents with information. The defendant did not object to the comment or request a curative instruction. In fact, defendant’s counsel replied to the prosecutor’s comment in his own closing argument. The defendant’s obscure interpretation of the prosecutor’s un-amplified and, at worst, ambiguous statement in closing argument is simply too speculative to warrant reversal of his conviction on that ground.
I would, therefore, affirm the judgment of the District Court.
. The District Court compared the memorandum and the agent’s testimony and found that they were identical; this finding and the finding that the agent was reading from the memorandum are not alleged to be erroneous.