J. BLAINE ANDERSON, Circuit Judge:
Wycoff appeals his conviction by a jury for having violated 18 U.S.C. § 113(c), an assault with a dangerous weapon within the Special Maritime and Territorial Jurisdiction of the United States. We affirm.
FACTS
A summary of the joint statement of facts filed for purposes of this appeal discloses that on August 7, 1975, Albert Ellis was sitting at a coffee table in the patio area of the Wadsworth Veterans Administration Hospital. Seated at the table with Ellis were two other individuals, Benny Reed and Louis Thomas. While seated, Ellis was struck on the back of the head by a blow variously described as a popping sound or a thud. No one saw this blow as it was struck'. When the three men looked in the direction of the sound, they observed the appellant Wycoff standing some distance behind Ellis with an object in his hand. This object was described by Ellis as a iron pipe. Reed and Thomas described the object as a wooden stick. Upon observing Wycoff, Ellis said something to the effect “What the hell is that for?” Ellis testified that Wycoff responded “You know what that is for.” Thomas corroborated this response and Reed testified that words were spoken, but he could not recall what the words were.
At trial, Andrew Evans, an investigator from the VA Hospital, was called to testify as to the arrest of Wycoff. Evans testified that he advised Wycoff of his rights and stated that Wycoff refused to sign a Waiver of Rights and that he would rather talk .to an attorney. Upon conclusion of Evans’ direct testimony, the trial court admonished the jury to completely disregard the testimony. A full transcript of the proceedings is set out in the margin.
During discussions with counsel, the trial court indicated that he would instruct on three essential elements of the crime
charged. Defense counsel requested that the trial court instruct the jury as to a fourth element, i. e., that the assault was without just cause or excuse. The trial court ruled that just cause or excuse was not an essential element that must be proved affirmatively by the government. After closing arguments and during the court’s instruction to the jury, the court,
sua sponte,
reversed itself and added the aforementioned fourth essential element to the essential elements instruction. No notice of this addition was given to counsel prior to the actual instructions being read to the jury.
Appellant urges three errors in this appeal: (1) the failure of the trial court to grant his mistrial motion following Agent Evans’ testimony regarding appellant’s post-arrest assertion of his right to remain silent and his right to counsel; (2) the trial court’s changing of instructions without pri- or notice; and (3) the sufficiency of the evidence.
POST-ARREST SILENCE
The alleged error occurred in the government’s case-in-chief during the direct examination of Agent Evans. After testifying that he had advised appellant of his rights and had explained the waiver of rights form to the appellant, Agent Evans stated, “Mr. Wycoff refused to sign. He said he would rather talk to an attorney.” (R.T. 77. After receiving this response, Agent Evans did not ask any questions of appellant. The purpose for putting on such testimony, as acknowledged by government counsel, was “Just to show, your Honor, that his rights were read to him.” (R.T. 77. Upon realizing that there were no statements taken after the warnings that were going to be introduced into evidence, the trial judge admonished the jury to disregard the testimony; (R.T. 78).
The only relevant purpose for showing that appellant was advised of his rights is to lay a proper foundation for the admission of any statements given thereafter by an accused. In the present case there were absolutely no statements given to Agent Evans by Wycoff. By eliciting such testimony, the government put before the jury the fact that appellant remained silent and requested an attorney. The natural tendency of the use of the testimony in this manner is to prejudice the defendant by attempting to create an inference of guilt in the jury’s mind.
It has long been held that an accused shall not be penalized by the assertion of a constitutional right. In
Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966), the court stated:
“In accord with our decision today, 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 face of accusation.” 384 U.S. at 468, n. 37, 86 S.Ct. at 1625.
See also, Grunewald v. United States,
353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), (concurring opinion of Justice Black, 353 U.S. 425);
Griffin v. California,
380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
In
Harris v. New York,
401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and
Oregon
v.
Hass,
420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), the court allowed post-arrest statements that were inadmissible because of failure to adhere to
Miranda
to be used for impeachment purposes when the statements taken were inconsistent with testimony at trial. The Supreme Court was concerned that an accused would use the
Miranda
protections as a shield against contradiction of his own inconsistent statements.
More recently, 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, 49 L.Ed.2d 91 (1976), the court held that an accused’s failure to give an exculpatory story to the arresting officer may not be used to impeach an explanation offered at trial. The court focused on the insoluble ambiguity of silence.
In the present case, there were no statements given by appellant to Agent Evans and the testimony elicited could in no way be used for impeachment purposes. This line of questioning stressing the appellant’s assertion of his constitutional rights only “cuts down on the privilege by making its assertion costly.”
Griffin, supra,
380 U.S. at 614, 85 S.Ct. at 1233.
However, we view the error here as harmless beyond a reasonable doubt.
Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The evidence against the appellant was overwhelming.
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J. BLAINE ANDERSON, Circuit Judge:
Wycoff appeals his conviction by a jury for having violated 18 U.S.C. § 113(c), an assault with a dangerous weapon within the Special Maritime and Territorial Jurisdiction of the United States. We affirm.
FACTS
A summary of the joint statement of facts filed for purposes of this appeal discloses that on August 7, 1975, Albert Ellis was sitting at a coffee table in the patio area of the Wadsworth Veterans Administration Hospital. Seated at the table with Ellis were two other individuals, Benny Reed and Louis Thomas. While seated, Ellis was struck on the back of the head by a blow variously described as a popping sound or a thud. No one saw this blow as it was struck'. When the three men looked in the direction of the sound, they observed the appellant Wycoff standing some distance behind Ellis with an object in his hand. This object was described by Ellis as a iron pipe. Reed and Thomas described the object as a wooden stick. Upon observing Wycoff, Ellis said something to the effect “What the hell is that for?” Ellis testified that Wycoff responded “You know what that is for.” Thomas corroborated this response and Reed testified that words were spoken, but he could not recall what the words were.
At trial, Andrew Evans, an investigator from the VA Hospital, was called to testify as to the arrest of Wycoff. Evans testified that he advised Wycoff of his rights and stated that Wycoff refused to sign a Waiver of Rights and that he would rather talk .to an attorney. Upon conclusion of Evans’ direct testimony, the trial court admonished the jury to completely disregard the testimony. A full transcript of the proceedings is set out in the margin.
During discussions with counsel, the trial court indicated that he would instruct on three essential elements of the crime
charged. Defense counsel requested that the trial court instruct the jury as to a fourth element, i. e., that the assault was without just cause or excuse. The trial court ruled that just cause or excuse was not an essential element that must be proved affirmatively by the government. After closing arguments and during the court’s instruction to the jury, the court,
sua sponte,
reversed itself and added the aforementioned fourth essential element to the essential elements instruction. No notice of this addition was given to counsel prior to the actual instructions being read to the jury.
Appellant urges three errors in this appeal: (1) the failure of the trial court to grant his mistrial motion following Agent Evans’ testimony regarding appellant’s post-arrest assertion of his right to remain silent and his right to counsel; (2) the trial court’s changing of instructions without pri- or notice; and (3) the sufficiency of the evidence.
POST-ARREST SILENCE
The alleged error occurred in the government’s case-in-chief during the direct examination of Agent Evans. After testifying that he had advised appellant of his rights and had explained the waiver of rights form to the appellant, Agent Evans stated, “Mr. Wycoff refused to sign. He said he would rather talk to an attorney.” (R.T. 77. After receiving this response, Agent Evans did not ask any questions of appellant. The purpose for putting on such testimony, as acknowledged by government counsel, was “Just to show, your Honor, that his rights were read to him.” (R.T. 77. Upon realizing that there were no statements taken after the warnings that were going to be introduced into evidence, the trial judge admonished the jury to disregard the testimony; (R.T. 78).
The only relevant purpose for showing that appellant was advised of his rights is to lay a proper foundation for the admission of any statements given thereafter by an accused. In the present case there were absolutely no statements given to Agent Evans by Wycoff. By eliciting such testimony, the government put before the jury the fact that appellant remained silent and requested an attorney. The natural tendency of the use of the testimony in this manner is to prejudice the defendant by attempting to create an inference of guilt in the jury’s mind.
It has long been held that an accused shall not be penalized by the assertion of a constitutional right. In
Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966), the court stated:
“In accord with our decision today, 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 face of accusation.” 384 U.S. at 468, n. 37, 86 S.Ct. at 1625.
See also, Grunewald v. United States,
353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), (concurring opinion of Justice Black, 353 U.S. 425);
Griffin v. California,
380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
In
Harris v. New York,
401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and
Oregon
v.
Hass,
420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), the court allowed post-arrest statements that were inadmissible because of failure to adhere to
Miranda
to be used for impeachment purposes when the statements taken were inconsistent with testimony at trial. The Supreme Court was concerned that an accused would use the
Miranda
protections as a shield against contradiction of his own inconsistent statements.
More recently, 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, 49 L.Ed.2d 91 (1976), the court held that an accused’s failure to give an exculpatory story to the arresting officer may not be used to impeach an explanation offered at trial. The court focused on the insoluble ambiguity of silence.
In the present case, there were no statements given by appellant to Agent Evans and the testimony elicited could in no way be used for impeachment purposes. This line of questioning stressing the appellant’s assertion of his constitutional rights only “cuts down on the privilege by making its assertion costly.”
Griffin, supra,
380 U.S. at 614, 85 S.Ct. at 1233.
However, we view the error here as harmless beyond a reasonable doubt.
Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The evidence against the appellant was overwhelming. Additionally, immediately after the occurrence in question (R.T. 78) and in its final charge (R.T. 246-247), the trial judge admonished the jury to completely disregard the testimony received from Agent Evans. The instructions to disregard were prompt and forceful.
United States v. Altavilla,
419 F.2d 815 (9th Cir. 1969).
This panel is concerned and alarmed about the increasing attempts by government counsel in this Circuit to make reference to or elicit testimony regarding an accused’s silence at the time of arrest. Government counsel are on the verge of the precipice and jeopardizing solid cases by such practice. The often-repeated words of Mr. Justice Sutherland, in
Berger v. United States,
295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), again bear repeating:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” 295 U.S. at 88, 55 S.Ct. at 633.
In future cases government counsel must scrupulously avoid all reference to or use of an accused’s assertion of his right to remain silent or his right to counsel to except where permitted by established rules of law. The conduct here, though we cannot know that it was maliciously deliberate, was reprehensible nevertheless.
&
CHANGE IN JURY INSTRUCTIONS
Rule 30 of the Federal Rules of Criminal Procedure states in pertinent part:
“The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury . . . ”
In the instant case, the trial judge indicated to counsel that he would only instruct as to three essential elements. After closing arguments and during the actual instructing of the jury, the trial judge instructed as to four essential elements of the crime charged. Thus, appellant was not informed prior to closing argument that the trial judge would instruct as to four essential elements as requested by appellant.
The proper focus of our inquiry is on the effect which the court’s misleading indications regarding the requested instructions had on the closing argument of counsel.
United States v. Harvill,
501 F.2d 295 (9th Cir. 1974). The trial judge changed his initial ruling on the basis that since the allegations of the indictment stated that the assault was without justification or excuse, then the burden was on the government to prove those allegations. Mr. Ellis testified that he had no discussions with nor did he make any gestures toward the appellant on the day in question. This testimony sufficiently established a prima facie case that the assault was without justification or excuse. The appellant came forth with no evidence nor made an offer of proof of any such evidence that would show justification or excuse. Therefore, at the time of closing argument appellant had no evidence from which to argue that the assault was justified or excusable. We conclude that the misleading indication of the trial court had no prejudicial effect on the content of appellant’s closing argument and the error, if any, was harmless beyond a reasonable doubt. 28 U.S.C. § 2111, Fed.R.Crim.Proc. 52(a).
SUFFICIENCY OF THE EVIDENCE
The proper focus of our inquiry is whether the evidence, considered in the light most favorable to the government, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt.
United States v. Nelson,
419 F.2d 1237, 1242 (9th Cir. 1969). Our review of the record indicates that the evidence was sufficient, if not overwhelming, to permit the jury to reasonably conclude that the appellant was the perpetrator of the assault upon Mr. Ellis.
AFFIRMED.