c284:No. 79-1231

TAMM, Circuit Judge,
dissenting:
Believing that any misleading testimony or prosecutorial misconduct in this case was harmless error beyond a reasonable doubt, I respectfully dissent.
Before addressing the question of harmless error, however, I must point out several problems with the majority’s application of past precedent to the case at hand. Underlying Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), is the central due process concern that no defendant be convicted through the knowing use of perjured testimony by the prosecution. At issue in Giglio was the prosecutor’s failure to correct the false testimony of a crucial Government witness that there had been no promises made to him in connection with his testimony. The witness’s perjury and the prosecutor’s failure to correct the testimony concealed from the jury a possible motive for falsification of said testimony. In this case Johnson had no such motive for falsification. Absent such a motive, usually resulting from promises made by the Government, and absent perjured testimony, Napue, Giglio, and cases in their wake impose no affirmative duty upon the prosecutor to clear up whatever confusion resulted from Johnson’s testimony. Cf. Mastrian v. McManus, 554 F.2d 813, 823 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977) (Giglio and Napue do not support the proposition “that a crucial witness’s expectation of leniency must be revealed absent evidence of an express or implied promise.”).
The majority holds, however, that Giglio applies to the case at hand. The standard of materiality therein relevant, whether the false testimony could in any reasonable likelihood have affected the judgment of the jury, is closely related to the standard for determining whether constitutional error can be held harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Barham, 595 F.2d 231, 242 (5th Cir. 1979). Under either standard any error here must be held harmless beyond a reasonable doubt.
The majority opinion fails to analyze in a coherent fashion the evidence presented in this case. Defendant Iverson made a full confession of her criminal activity. This confession, voluntarily given and adequately corroborated, serves to support her conviction. Instead of analyzing the totality of the evidence in this case, including this confession, the majority merely relies upon the general rule of law that only corroborated confessions may support a conviction. Certainly confessions must be adequately corroborated to support a conviction. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); United States v. Johnson, 589 F.2d 716 (D.C.Cir.1978). The independent evidence necessary to corroborate a confession, however, need not serve as substitute evidence on each point but need only “support[] the trustworthiness of the admissions.” United States v. Johnson, 589 F.2d at 718. Accord, United States v. Kampiles, 609 F.2d 1233, 1236 (7th Cir. 1979), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980); United States v. Seckler, 431 F.2d 642 (5th Cir. 1970); United States v. DeGeorgia, 420 F.2d 889 (9th Cir. 1969); United States v. White, 223 F.2d 674, 675 (2d Cir.), cert. denied, 350 U.S. 888, 76 S.Ct. 143, 100 L.Ed. 782 (1955). As the court stated in United States v. Abigando, 439 F.2d 827 (5th Cir. 1971).
[Requiring corroboration of a confession does not mean that the Government must introduce independent evidence on every element of the crime. Requiring independent proof of every element would go beyond the purpose of the rule which is intended to establish the reliability of confessions ... Some elements can be proved by the confession alone.
Id. at 832-33.
Even apart from the testimony of Susan Johnson, the independent evidence provided by the testimony of the bank teller adequately corroborated defendant’s confession. The teller testified that the defendant called her to inquire whether she would cash a check for her “cousin.” The defendant confessed to this conversation although stating that she called Johnson a “friend.” The bank teller then narrated the encounter in the bank and the cashing of the check in much more detail than defendant had done in her confession. This independent evidence adequately corroborated the defendant’s confession so as to render it valid evidence lawfully supporting her conviction. United States v. Micieli, 594 F.2d 102, 109 (5th Cir. 1979); United States v. Baty, 486 F.2d 240 (5th Cir. 1973) (“knowledge” element established by confession alone); Harrison v. United States, 281 A.2d 222 (D.C. 1971) (same); Sansone v. United States, 334 F.2d 287, 293 (8th Cir. 1964), aff’d, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) (same); United States v. Mellon, 165 F.2d 80 (2d Cir. 1947), cert. denied, 333 U.S. 873, 68 S.Ct. 902, 92 L.Ed. 1150 (1948) (forgery conviction).
Also supporting the defendant’s conviction was the testimony of Susan Johnson. The majority simply and summarily concludes that a reasonable likelihood exists that the misleading impression that Johnson had already been sentenced affected the judgment of the jury. Even focusing solely upon Johnson’s testimony, however, the majority refuses to recognize the insignificance of whatever misleading impression was left with the jury in view of the extensive impeachment of Johnson undertaken by defense counsel. Transcript 102-43, United States v. Iverson, Crim.No. 78-587 (D.D.C. Nov. 27, 1978). Although this impeachment cannot be set out here in full, the cross-examination that includes the testimony upon which the majority seizes to reverse these convictions must be examined in context, as must the capitalization in closing argument by defense counsel upon the testimony at issue.
Q. Now in regard to the — your pleading guilty in this case, you said that no promises had [ ] been made to you, is that correct?
A. Yes.
Q. You pled guilty, did you not, to one count of something, or other?
A. Yes.
Q. Just one single count. And do you know what the maximum penalty on that one particular count is?
A. Yes.
Q. And what is that?
A. Three years.
Q. And did you ever have occasion to ascertain as to whether any more serious offenses could be brought against you in regard to this particular check?
A. I don’t understand.
Q. Well, did anybody ever talk to you about that you could be charged with forgery, or uttering of the check?
A. I was charged with uttering, forgery, theft of the mail.
Q. But you were . . .
A. I believe I had three counts of uttering.
Q. But you pleaded guilty to only one count, is that correct?
A. Yes.
Q. What is your understanding as to what is going to happen to the other counts?
A. I don’t understand what you’re saying.
Q. You indicated that you had been charged with a number of different counts?
A. Yes.
Q. Forgery, uttering, possession of stolen mail matter?
A. Yes.
Q. But that you pleaded guilty to one count?
A. Yes.
Q. What is going to happen to — or what became of the other counts that could have, or were brought against you — could have been, or were brought against you?
A. They were dropped on the grounds that I would take a plea, understanding that I waived my rights to a trial by judge, or by jury, and because I already admitted to do, you know, to those counts, my attorney, you know, he — I don’t know he ...
Q. So do I then characterize ...
Mr. Krakoff: Your Honor, I’m sorry, I don’t believe the witness finished.
Mr. Wilhite: I’m sorry, please continue on.
The Witness: My attorney discussed the possibilities with me and told me that he could, that you know, that there were no promises, or that, you know, nothing like that, that they would be dropped completely. I mean, I understood exactly what I was doing, and .. .
Mr. Wilhite: You . . .
The Witness: ... and I pleaded guilty because I felt as though I was guilty.
Mr. Wilhite: Did some of the charges that were dropped . ..
The Court: Mr. Wilhite, she’s explained. I think the jury understand^] it. She copped the plea to one count of a multi-count indictment and they dismissed the other counts — (addressing the witness) Or you understand that they were not going to prosecute any more than that one count, isn’t that correct?
The Witness: Yes.
By Mr. Wilhite.
Q. You were — you haven’t been sentenced in that case, have you?
A. Yes, I have.
Q. When were you sentenced?
A. The 28th.
Q. Of October?
A. Yes.
Q. What sentence did you receive?
A. I received three months’ supervision. After three months, I have to go back in front of the Judge that sentenced me. It was Judge Gesell. If I went by the requirements of the court, that I could have my probation transferred to Michigan.
Q. And that occurred on October 28th, or thereabouts?
A. It was the day after — I don’t remember the exact date, no.
Q. Was there a time that your sentence was continued until January of next year?
A. Pardon?
Q. Was there a time when your sentence was continued until January of next year?
A. January 15th, that would be the three months.
Q. So that the entire sentence was deferred until January 15th of next year? You haven’t been sentenced yet, have you, or you’re just not certain?
A. I have a probation officer. I have a counselor and I have to abide by certain, you know, regulations to the court. So I mean, I had assumed that — I mean, the way that my attorney explained it to me because we had discussed the possibility of — if I got probation, if you know, I could go home and ...
Q. So it’s your assumption?
A. ... and he told me that after this period of time, I have to go back in front of him.
Q. Was there any discussion with either your attorney or the prosecutor that if you cooperated, or assisted the government, that that fact would be brought to the just’s [sic] attention?
A. Yes, as a matter of fact, there was and Michael Lehr [U.S. Attorney] refused.
* * * * * *
[Closing Argument]
You heard — well, she didn’t seem to be particularly certain whether she had been sentenced or not yet, but she has to go back to Court again and it just may happen in this particular circumstance that her own interests and the government’s interest coincide, that is, that it is in both of their interests that she slough off some of the responsibility of this to one or as many people as she can.
Consider that we are not just talking about whether a crime was committed, but how responsible a person was for the commission of a crime and how the Court would look upon the whole situation.
Transcript 124-28, United States v. Iverson, Crim.No. 78-587 (D.D.C. Nov. 27, 1978); id. at 23-24 (Nov. 29, 1978).
It would appear from an examination of the record as a whole, therefore, that defense counsel was aware that Johnson’s sentencing had been deferred until the January after the trial. He apparently made a tactical decision not to press the cross-examination of Johnson on this point, however, after discovering that the United States Attorney had refused to bring the fact of Johnson’s testimony to the attention of the sentencing judge. Furthermore, defense counsel made use of Johnson’s confusion over whether she had in fact been sentenced in his closing argument as set out above. Even had a perfectly clear impression of Johnson’s sentencing status been left with the jury, moreover, such an impression would have added minimal impeachment weight in light of the absence of any promise, express or implied, made by the Government, in light of the extensive impeachment undertaken by the defendant, and in light of the substantial weight of the evidence incriminating the defendant. See, e. g., Reddy v. Jones, 572 F.2d 979 (4th Cir. 1977), cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978).
This trial was not perfect. The Constitution does not, however, guarantee criminal defendants perfect trials, only fair trials. Defendant Iverson had a fair trial. The jury was presented with substantial, if not overwhelming, evidence of appellant’s guilt. Any error was harmless beyond a reasonable doubt. I would affirm these convictions.
. The majority opinion only rarely characterizes Johnson’s testimony as perjurious, asserting instead that no distinction is drawn between such testimony and that which is merely misleading. Majority Op. at 805 n.19. This rule of law announced by the majority is not supported by the cases cited and is strongly contradicted by the actions of other courts. See, e. g., United States v. Antone, 603 F.2d 566 (5th Cir. 1979); United States v. Brown, 562 F.2d 1144, 1150 n.4 (9th Cir. 1977); United States v. Lasky, 548 F.2d 835 (9th Cir.), cert. denied, 434 U.S. 821, 98 S.Ct. 63, 54 L.Ed.2d 77 (1977); cf. United States v. Anderson, 509 F.2d 312 (D.C.Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). Furthermore, the defendant makes no claim that Johnson perjured herself, pointing out only that she “was unsure of the status of her sentencing.” Brief for Appellant at 34.
. “She [Johnson] has received no further promises from the Government.” Statement of D. Krakoff, Asst. U.S. Attorney, Transcript 4, United States v. Iverson, Crim.No. 78-587 (D.D.C. Nov. 27, 1978). This fact is uncontested. Furthermore, nothing in the record of Johnson’s two sentencing proceedings even whispers of the existence of a deal with the prosecution or even of the knowledge of the sentencing judge that Johnson was testifying in a related case. Record, United States v. Johnson, Crim.No. 78-457 (D.D.C.). In fact, Johnson was to be sentenced on October 27, 1978, a month before the trial of Iverson. Johnson’s sentencing was deferred only at the suggestion of the sentencing judge who wished to give Johnson a chance to prove that she deserved probation — by finishing her training course, getting a job, and staying off drugs. Transcript of Sentencing Hearing at 7, United States v. Johnson, Crim.No. 78-457 (D.D.C. Oct. 27, 1978). From this record, moreover, it is clear that Johnson may reasonably have believed, on the basis of these comments by the sentencing judge, that if she followed his suggestions she would receive probation.
To place the burden upon prosecutors, as the majority would do in this case, to correct testimony which an appellate court, examining a cold record, might view as “misleading,” absent a motive for falsification by the witness, is an unwarranted extension of due process principles and a gross infringement upon the fundamental nature of our adversary system.
. United States v. Leonard, 494 F.2d 955 (D.C.Cir. 1974), relied upon by the majority, is not to the contrary. There the trial court had limited the scope of defendants’ cross-examination on the pertinent issue of the Government witness’s credibility. Here defendant was given complete freedom to impeach Johnson’s testimony and she took full advantage of it. Transcript 102-43, United States v. Iverson, Crim.No. 78-587 (D.D.C. Nov. 27, 1978).
. The majority opinion further fails to offer any guidance as to when the prosecutor’s “affirmative duty” crystallizes. In this case, for example, the best way for the prosecutor to comply with the majority’s suggestion would have been for him to correct Johnson’s misstatement of her sentencing status as soon as it was uttered, thereby eliminating immediately any false impression presented to the jury. Such an interruption of cross-examination would seem, however, to infringe upon a defendant’s right to conduct effective impeachment of Government witnesses.
The immunological safeguards proposed by the majority appear akin to a molecular overreaction to the relatively harmless infection in the case at hand. Cf. L. Thomas, Germs, in Lives of a Cell 88-94 (Bantam ed. 1974).
. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), cited by the majority, merely reiterates the standards set forth in Giglio.
. The only major discrepancy between the defendant’s confession and the teller’s narrative of the encounter is the latter’s insistent denial that she received any payment in return for her cashing the check. This court is not in the position, however, of judging credibility. Rather, we are to judge only the adequacy of the independent evidence corroborating the defendant’s confession. One such discrepancy does not dilute the force of the teller’s testimony as corroborating proof. See Scarbeck v. United States, 317 F.2d 546, 567 (D.C.Cir.1962), cert. denied, 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077 (1963).

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