c33:No. 3, Docket 24870

HINCKS, Circuit Judge
(dissenting).
As I read Judge HAND’S opinion the reversal of the judgments below is based expressly and solely “upon the fact that the accredited ritual was not followed,” i. e., the ritual of “a cautionary admonition by the judge to the jury that they must not use the [witnesses’] refusal [to answer] as evidence of what the answer would have been.”
I agree with my brothers that the defendants were entitled to the cautionary admonition if they wished it; and that if it had been given it would have cured the defect on which the reversal is predicated. My dissent is restricted to the holding that whether requested or not, or whether wanted by the defendants or not, it was reversible error to omit the admonition. It seems to me clear that-in this case a judicial instruction not to consider or rely upon what the answers of the three witnesses might have been might well have stimulated the jurors to conjectures which otherwise would not have occurred to them. This my brothers seem to recognize: as Judge Hand points out, “it is doubtful whether such admonitions are not as likely to prejudice the interest of the accused as to help them * * * ” I agree. If the admonition had been given without request, quite possibly on appeal the complaint would have been either that the judge was in cahoots with the prosecutor to bring about an unjust conviction or that he was a blundering fellow who inadvertently compounded prejudice by his good intentions. Cf. Becher v. United States, 2 Cir., 5 F.2d 45.
The effect of the admonition being doubtful, I would hold that it was for the defendants to decide for themselves whether the admonition would be helpful and, if so, to make request for it. Such a rule seems to me more consonant with rules of trial procedure which under federal criminal administration, and indeed generally under Anglo-Saxon jurisprudence, leave to the parties a wide choice of trial strategy. When incompetent evidence is offered it is not for the judge, like a paternalistic guardian, to decide whether it is better for a defendant to object or not to object. And the ensuing judgment will not be upset if the adverse party decides not to object and the judge of his own motion fails to exclude. Cf. Fed.Rules Cr.Proc., Rule 51; United States v. Rosenberg, 2 Cir., 195 F.2d 583, 596, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687. Under Rule 44, the defendant is allowed to decide for himself whether he shall or shall not be represented by counsel. And under Rule 23 it is for the defendant to decide, except in capital cases, whether he will waive his constitutional right to trial by jury. These elections and doubtless many others may have momentous impact on the outcome. Yet the law does not require the judge to make the decision for the defendant or to caution him in connection with the formulation of his choice.
Even closer to the present problem is that which arises when a defendant elects not to testify in his own defense relying on the statutory assurance, 18 U.S.C.A. § 3481, that his failure to take the stand “shall not create any presumption against him.” In such cases it is often doubtful whether he will be helped or hurt by a judicial admonition that his failure to take the stand is not to be taken as evidence of guilt. Yet there is solid support for the view that an unrequested admonition, although not cause for reversal, is better omitted. United States v. Becher, supra; Pereira v. United States, 5 Cir., 202 F.2d 830, affirmed 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; and Kahn v. United States, 6 Cir., 20 F.2d 782. As to this Professor Wigmore goes even further and says: “Nor is it proper to go so far as to instruct the jury (even when no comment has been made) to disregard the inference * * ”. Such comment, he says, “is merely futile, and tends toward confusion and disrespect for the law’s reasonableness,” 8 Wigmore on Evidence, page 416, quoting in footnote 7 from the opinion in Becher v. United States, supra. In Bruno v. United States, 308 U.S. 287, at page 294, 60 S.Ct. 198, at page 200, 84 L.Ed. 257, it was said (p. 294): “To the suggestion that it benefits a defendant who fails to take the stand not to have the attention of the jury directed to that fact, it suffices to say that, however difficult it may be to exercise enlightened self-interest, the accused should be allowed to make his own choice when an Act of Congress authorizes him to choose.”
Believing that reason and authority unite in holding that the choice was one for the defendants, I turn to a view of the courtroom scene as reconstructed by the trial minutes to see which choice the defendants made. As to this, there was a complete absence of a request by any defendant for a cautionary admonition on each successive occasion when the privilege was claimed; this absence continued thereafter throughout the trial and in the requests to charge; and there was no exception to the omission of the admonition in the charge. To me it seems clear that the defendants chose to waive their right to the admonition. It is plausible to believe that they thought an admonition would hurt them with the jury and an absence of admonition might help them on appeal. Under the circumstances, I think it would have been presumptuous for the trial judge to think that he knew better than the defendants where their interests lay, and that it was right for him not to admonish the jury at the risk of prejudice to the defense.
Even if the failure to give the unrequested admonition were error, I could not agree with my brothers that it was one falling within Fed.Rules Cr.Proc., Rule 52(b). For surely, if the defendants had thought an admonition would have been helpful, they would have requested it at some stage of the trial. Their failure to make such a request is eloquent evidence that they themselves thought the absence of an admonition was harmless. Moreover, the minutes of the trial show that each of the three witnesses were giving material testimony under oath in support of the Government’s case until trial counsel for the defendant Merrick, wholly without right, 8 Wigmore on Evidence, § 2270, interrupted the prosecutor’s examination to request the judge to instruct the witness of his (or her) constitutional rights. Under this prod, in which all defendants seemingly acquiesced, the privilege was claimed by each witness in turn. Thus the loss of opportunity to hear the answers under oath and to cross-examine thereon was brought about by a successful tactic of the defense. The error, if there was one, I would classify as harmless under Rule 52(a) and as foreclosed for lack of a request under Rule 30.
The defendants have advanced several other claims of error all of which, in my opinion, are without merit. I would affirm the convictions.

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