Jаmes Ronald Moore appeals from a judgment of conviction, entered upon a jury verdict, for knowingly receiving a stolen motor vehicle. He contends that the admission of certain testimony violated his fifth amendment privilege against self-incrimination and that the distriсt court abused its discretion in sentencing him to a four year term of imprisonment. We affirm.
I.
FBI agents arrested Moore on June 20, 1972. After the agents advised him of his Miranda rights, Moore voluntarily agreed to answer their questions. At trial, Agent Nelson’s version of this interrogation was substantially as follows. Moorе told Nelson that he had owned the stolen automobile for four months, that he had driven it approximately twelve thousand miles, and that he obtained it from a man named Ronald Harris in exchange for a $4500 gambling debt. Moore also said that Harris occasionally lived at 3401 Wakefield Avenue in Baltimore, the same address, found on Moore’s driver’s license. He described Harris, whom he had met in New York City, as approximately thirty-two years old, and he explained that Harris was actually an alias used by a man named James Bryant. In response to other questions, Moore said that he had obtained the registration card for the auto from Harris, that he had personally checked the car’s registration with employees at the Maryland Division of Motor Vehicles, and that he expected to see Harris in Baltimore in abоut a week.
The agent testified that Moore failed to provide details of his story when the interrogation got more specific. Moore did not answer questions asking (1) why he felt it necessary to check the registration with the Division of Motor Vehicles, (2) whether he could give a more specific description of Harris, (3) why Harris would pay a $4500 debt with a car worth more than $4500, and (4) when he had last seen Harris. The district court, holding that Moore never invoked the fifth amendment, admitted the agent’s testimony that Moore failed to respond to these questions, but he would not permit the agent to interpret Moore’s lack of response. Moore contends that the admission of this testimony violated his fifth amendment privilege against self-incrimination because it allowed the government to introduce into evidence his refusal to mаke a statement to the FBI.
Federal courts have long excluded any prosecutorial comment on a defendant’s failure to testify in his own behalf. Wilson v. United States,
Moore, however, chose not to remain silent, and he never invoked his fifth amendment privilege to any question. Instead, he gave a voluntary statement to FBI agents. His statement, whether exculpatory or incriminating, was admissible as a verbal act explaining the reasons for his possession of recently stolen property.
Cf.
United States v. Sharpe,
We are not persuaded by Moore’s argument. Moore, waiving his fifth amendment privilege, agreed to answer the agent’s questions, but several times in a continuing interrogation, he did not respond when pressed for details of his story. He never gave any indication that he desired to invoke the fifth amendment with respect to the questions which he did not answer, and in no way did he link his silence to the Miranda warning. 1 His omission of details, in the face of questions that he had voluntarily аgreed to answer, was an indicia of the reliability of the information he was offering, and evidence of his silence was, therefore, relevant to that issue. Because the only reasonable explanation of Moore’s silence was inability to supply the requested details, the statements implicit in the agent’s questions and Moore’s silence were tacit admissions that Moore could not give a better description of Harris, or expand on his story of how he acquired the car. See 4 Wigmore, Evidence §§ 1071, 1072 (Chadbourn Rev. 1972). We hold, thereforе, that the district court did not err in admitting the agent’s testimony that Moore failed to respond to certain questions.
II.
Before sentencing Moore, the district judge made the following observation:
“The jury was out for less than an hour and a half yesterday, Mr. Moore, and found you guilty as charged. I would agree completely with the jury verdict. Were it only a case of your being convicted of this offense, I would impose some sort of a sentence but not a very long one. But we have more than that here. You took the stand in your own defense, as you havе every right to do, but you testified falsely under oath in an attempt to exculpate yourself from this crime. *1287 The Court should take that into account in deciding what is the proper sentence in a case of this sort.”
The judge also noted that Moore was 29 years old, that he hаd served honorably in the air force for five years, and that he had worked for a charitable agency in Baltimore. On the other hand, the court observed, Moore apparently was involved in the drug traffic and he moved with a “fast crowd.” He had no criminal record еxcept for a pending state charge which he expected would be dismissed. Considering all these factors, the district court decided that Moore should have a considerable prison sentence but less than the statutory maximum, and it sentenced him to a four year term of imprisonment.
Moore claims that the district court abused its discretion by increasing his sentence because of its belief that he had testified falsely in his own behalf. He argues that the court’s comments indicate that it was sentencing him for the crime of perjury as well as the оffense for which he had been convicted. His assignment of error requires us to reconsider Peterson v. United States,
A sentencing court has broad discretion so long as the sentence it imposes is within the statutory maximum. United States v. King,
The rule that a sentencing court may consider the defendant’s credibility as a witness has been rejected by the District of Columbia Circuit and has been criticized by some commentators.
See
Scott v. United States, 136 U.S. App.D.C. 377,
We caution, however, that sentencing judges should not indiscriminately treat as a perjurer every convicted defendant who has testified in his own defense. Witnesses induced by sordid motives or fear have been known to fabricate accusations with such guile that even conscientious triers of fact havе been misled. Moreover, some essential elements of proof of criminal conduct, such as knowledge, intent, malice, and premeditation are sometimes so subjec *1288 tive that testimony about them cannot be readily categorized as true or false. Judges must сonstantly bear in mind that neither they nor jurors are infallible. A verdict of guilty means only that guilt has been proved beyond a reasonable doubt, not that the defendant has lied in maintaining his innocence. It is better in the usual case for the trial judge who suspects perjury to request an invеstigation. Then, if the facts warrant it, the United States Attorney may institute prosecution for this separate and distinct crime.
Affirmed.
(concurring) :
I join Judge Haynsworth and Judge Butzner as to Part I without reservation. I would dissent from Part II but for Peterson v. United States,
I am very strongly of the opinion that a trial judge may not properly impose a harsher sentence upon a defendant because he thinks the defendant lied on the witness stand. Such a practice will inevitably chill and hamper, if not ultimately destroy, the right to testify in one’s own defense. It seems to me unconscionable that a defendant must run the risk of conviction of the offense charged and at the same time run the gauntlet of disbelief.
Two so-called justifications fоr imposing a lengthier sentence when the trial judge believes that the defendant lied on the witness stand' are urged: (1) as punishment for committing the substantive offense of perjury; (2) because the commission of perjury adversely reflects upon the defendant’s character аnd, therefore, dims his prospects for rehabilitation. See Note, The Influence of the Defendant’s Plea on Judicial Determination of Sentence, 66 Yale L.J. 204, 212 (1956). I find neither persuasive.
The first justification is, I believe, contrary to basic concepts of the administration of justicе. Since the offense of perjury is properly punishable in a separate criminal proceeding, to allow a summary adjudication of guilt by the court denies the defendant every constitutional and procedural safeguard to which he is entitled and which is inherent in indictment and trial. This is judgment by hunch — without accusation and without opportunity to defend. I fully agree with the District of Columbia Circuit’s conclusion that this argument “deserves emphatic rejection.” Scott v. United States,
As for the second justification, which is the one enunciated in
Peterson,
I find it unpersuasive. Imрlicit in the majority opinion, and in the conduct of the district judge, is the assumption that one who lies under stress has less capacity for rehabilitation than does one who pleads not guilty and fails to testify. I think that is a better question for psychiatrists than it is for judges and that a practiсe which rests upon such an assumption is a questionable one. To lawyers there is a vast difference between pleading not guilty and actually so testifying, but laymen have some difficulty making the distinction.
See generally,
Note,
supra,
Judge Bazelon thinks that a guilty man may sincerely repent his crime and yet protеst his innocence. He suggests that prosecutors very rarely institute perjury prosecutions because of their understanding of this paradox. See Scott, supra, at 269.
I suggest one more reason why a trial judge should never impose additional punishment because of his belief that a defendant lied in his оwn defense: he may be wrong. Even juries are sometimes wrong. Truth is, indéed, stranger than fiction, and every one of us knows of at least one cock-and-bull story, believed by no one, that turned out to be true.
*1289 “The Government argues that the appellant ‘has no constitutional right to lie.’ ... Of сourse a defendant has no constitutional right to lie, however much we may sympathize with his too human temptation. But the defendant does have a right to testify in his own defense. In doing so, he risks the jury’s disbelief. If he in fact fails to convince the jurors, conviction and punishment will follow. If the Government for whatever reason concludes that prosecution for perjury is appropriate, he risks punishment for that as well. To allow the trial judge to impose still further punishment because he too disbelieves the defendant would needlessly discourage the accused from testifying in his own behalf.” Scott, supra, at 269.
Notes
. Moore testified in his own defense, but he did not claim that he failed to respond to some of the questions because he was relying on the Miranda warning or the fifth amendment. Instead, he disputed the accuracy of the agent’s account. He testified that he had talked with the agent because he “had nothing to hide.”