FRIENDLY, Circuit Judge:
Mario Herbert Gonzalez Caro (hereinafter Gonzalez) appeals from a judgment of the District Court for the Eastern District of New York, convicting him after a jury trial of bringing into the United States $10,010 in counterfeit Federal Reserve Notes with intent to defraud and possessing the same notes with intent to defraud, in violation of 18 U.S.C. § 472. He received concurrent sentences on each count of two years imprisonment, of which all but six months was suspended, and was placed on probation for 18 months. He appeals on the grounds that the search of his suitcase, during which the counterfeit was found and seized, violated the Fourth Amendment; that the Government improperly offered evidence of his silence during the search as part of its direct case; and that he was deprived of the effective assistance of counsel at trial.
The facts concerning the search were developed at a pre-trial suppression hearing. Inspector Kowal, who had nine years of experience with the Customs Service, testified that on December 8, 1979, he was assigned to John F. Kennedy International Airport, where he encountered Gonzalez after the latter had deplaned from a flight from South America. After asking a series
Kowal and Kane then took Gonzalez to a private room for a closer examination of the suitcase. After the inspectors confirmed that the baggage tag on Gonzalez' ticket corresponded to the tag on the suitcase, Kane used a knife to puncture a small hole in the lining. Kowal placed his nose within an inch of the hole and smelled fresh glue. The inspectors peeled off the lining at one corner of the suitcase and a layer of cardboard underneath the lining until they saw "white" (presumably the white edge around the counterfeit bills) and then the edge of one of the bills. The inspectors then removed the lining on each side of the suitcase and found four thin rows of what appeared to be Federal Reserve Notes wrapped in plastic and glued to each side of the suitcase. The inspectors determined that the serial numbers on many of the bills were the same. On this record the district judge, although rejecting the Government's argument that the initial puncturing of the lining of Gonzalez' suitcase was valid as a routine border search, denied the motion to suppress on the ground that the puncturing was reasonable in light of the suspicious circumstances.
With this much established and the counterfeit character of the notes being readily susceptible of proof, the only substantial issue left for trial was whether Gonzalez knew that his suitcase contained the counterfeit.
In his opening statement defense counsel, Mr. Nooter, predicted that the Government would not be able to prove that Gonzalez "knew that he was in possession of the counterfeit currency in the suitcase." Tr. 72. Mr. Nooter then stated that he would prove that his client did not know the counterfeit notes were in the suitcase and would explain how Gonzalez "could have a suitcase without knowing what was in the lining". Tr. 72-73. The Government called Inspector Kowal, who testified substantially as he had at the suppression hearing. His direct examination concluded as follows:
Tr. 87-88. Defense counsel made no objection at this time.
When the defendant took the stand near the end of the first day of the trial he denied that he had had any knowledge of the counterfeit notes in the lining of the suitcase. He testified that he had traveled from his home town of Pereira, Colombia, to Cali in order to obtain a visa so that he could return legally to the United States. While in Cali he had encountered Humberto Rios, whom he had known when he lived in Colombia but had not seen in four years. Gonzalez testified that he told Rios he needed a suitcase for his projected journey to the United States. Coincidentally, Rios told him that he had purchased a new Samsonite bag for a similar contemplated journey, for which, unhappily, a visa had been denied. Rios was thus willing to sell Gonzalez the bag, valued at $165 in Colombia, for $50. The difficulty was that the bag was in Medellin, 180 miles from Pereira. According to Gonzalez he traveled eight hours over the Andes from Pereira to Medellin and stayed four days at a hotel in order to buy what he supposed to be an empty Samsonite bag from Rios. After telling this tale the defendant, toward the end of his direct examination, testified as follows:
Tr. 173-75. The supposed interpreter was not called.
At the end of the first day of the trial, Judge Sifton asked defense counsel whether
At the close of the evidence, the prosecution and defense each gave a summation and the prosecution also made a rebuttal statement. The first reference to defendant's silence came in defense counsel's remarks:
Tr. 243. In rebuttal the prosecutor responded as follows:
Little need be said with respect to Gonzalez' objections to the search and seizure. While we do not understand why the district court did not accept the Government's argument that the search was valid as a routine border search under our recent decision in United States v. Nieves, 609 F.2d 642, 645-46 (2 Cir. 1979), cert. denied sub nom. Figueroa v. United States, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d 771 (1980), we need not say much about this since the search and seizure were valid even under a stricter test. Once the customs inspector felt unusual ridges along the sides of the suitcase and observed that the sides were unusually thick and heavy, he was entitled to find out what accounted for this. The inspectors had even more reason for suspicion than did the inspectors in Nieves, and puncturing a small hole in the lining was no more intrusive than requiring Nieves to remove his shoes and boring holes through their inner soles. As Judge Waterman wrote in Nieves, supra, 609 F.2d at 645:
Once the hole disclosed the presence of fresh glue, the inspectors were justified in making a thorough search even if this required the cutting of parts of the suitcase.
Even if the actions of the inspectors are to be judged by a more stringent standard, the result is the same. The opening of the suitcase and a cursory examination, surely permissible as a routine border search, revealed that it contained no goods associated with the business in which Gonzalez claimed to be engaged, that unusual ridges were present along the sides and that the latter were heavier and thicker than they should be. These circumstances created the basis for a reasonable suspicion and thus justified making the small hole. The smell of fresh glue in turn suggested the probability that something out of the ordinary had been placed within the linings; the inspectors were entitled to find out what it was. When the removal of the lining disclosed the presence of what appeared to be Federal Reserve Notes, the inspectors were entitled to pursue the inquiry to the end.
The testimony elicited by the prosecution concerning Gonzalez' failure to protest the violence done to his suitcase presents a more substantial issue. Since one thing the self-incrimination clause clearly prohibits is forcing a criminal defendant to take the stand, it was not a great advance to hold, as the Court did in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), although over sharp dissent, see also Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), that a prosecutor may not comment on a defendant's failure to testify in his own defense.
It is established that when a suspect remains silent after receiving Miranda warnings, his silence cannot be used against him at trial even to impeach his exculpatory testimony on the ground that he did not present the same explanation to the police upon his arrest, much less as evidence in the Government's case in chief. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (supervisory power); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (due process). Two slightly different considerations have been
It is equally clear, however, that evidence of silence following arrest and Miranda warnings can be used "to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1973)." Doyle v. Ohio, supra, 426 U.S. at 619 n.11, 96 S.Ct. at 2245 n.11. To the same effect is our own decision in United States v. Vega, 589 F.2d 1147, 1151-52 (2 Cir. 1978). As applied to this case, if the Government had awaited Gonzalez' testimony that he had called for an interpreter and expressed the desire that the presence of the Notes in the suitcase be carefully investigated, Kowal could have been recalled to give the testimony here at issue and also to testify, if such was the fact, that Gonzalez had done nothing of the sort claimed.
In its decision last Term in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Supreme Court held that, where no Miranda warnings have been given and it is clear that the circumstances did not require them, neither due process nor the privilege against self-incrimination forbids impeachment of a defendant's exculpatory testimony on the basis of his silence prior to arrest. Specifically, the Court ruled that the testimony of the defendant in that case that he had killed the deceased in self-defense was properly impeached by evidence that he did not report the killing to the police until two weeks after it occurred. In his opinion for the Court, Justice Powell found the due process principle of Doyle v. Ohio, supra, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 inapplicable because "no governmental action induced petitioner to remain silent", 100 S.Ct. at 2130. He concluded that Jenkins' privilege against self-incrimination had not been violated because Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), permits impeachment based on a prior assertion of the privilege and thus "clearly permits impeachment [based on prearrest silence] even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent". 100 S.Ct. at 2128 n.2. The Court implicitly rejected the notion of an unqualified pre-arrest "right of silence", see dissenting opinion of Justice Marshall, joined by Justice Brennan, 100 S.Ct. at 2133-2137, when it allowed prosecutorial comment on the exercise of that "right" if the defendant elects to testify. Mr. Justice Stevens, joined by Mr. Justice Stewart, went further and asserted that the privilege against self-incrimination "is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak." Id., 100 S.Ct. at 2130 (footnote omitted). He added that:
Id. 100 S.Ct. at 2132, 4697 (footnotes omitted).
Whatever the future impact of Jenkins may be, we have found no decision permitting the use of silence, even the silence of a suspect who has been given no Miranda warnings and is entitled to none, as part of the Government's direct case. While Jenkins may require a reexamination of lower court decisions extending United States v. Hale, supra, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 and Doyle v. Ohio, supra, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 to the silence of a suspect who has been taken into custody but has not received Miranda warnings, see United States v. Impson, 531 F.2d 274, 277 (5 Cir. 1976); Bradford v. Stone, 594 F.2d 1294, 1295 (9 Cir. 1979); United States v. Nunez-Rios, 622 F.2d 1093, 1101 (2 Cir. 1980); People v. Conyers, 49 N.Y.2d 174, 424 N.Y.S.2d 402, 406-07, 400 N.E.2d 342 (4-3) (1980),
However, even if we thus assume arguendo that it was error for the Government to introduce evidence of Gonzalez' silence when it did, the error was harmless beyond a reasonable doubt because the evidence could subsequently have been introduced to rebut Gonzalez' testimony that he was shocked to see the counterfeit notes found in his suitcase. See Doyle v. Ohio, supra, 426 U.S. at 619 n.11, 96 S.Ct. at 2245 n.11, United States v. Vega, supra, 589 F.2d at 1151-52. Defense counsel himself recognized that the admissibility of the evidence in question would be affected by the defendant's testimony, and having deliberately chosen to present Gonzalez' version of his reaction to the discovery of the counterfeit and to rely on Gonzalez' testimony in his summation, he could hardly expect to prevent the jury from considering the Government's evidence to the contrary. See Bradford v. Stone, supra, 594 F.2d at 1296. Mr. Nooter in any event withdrew his motion concerning Inspector Kowal's testimony, thus leaving nothing upon which the judge could rule. Although we may "notice errors to which no exception has been taken ... if they ... seriously affect the fairness, integrity or public reputation of judicial proceedings", United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936), we will not consider a claim of error where "`counsel consciously and intentionally failed to save the point and led the trial judge to understand that counsel was satisfied.'" Johnson v. United States, 318 U.S. 189, 200, 63 S.Ct. 549, 554, 87 L.Ed. 555 (1943) (quoting United States v. Manton, 107 F.2d 834, 848 (2 Cir. 1938)).
Gonzalez' final claim, that Mr. Nooter's handling of this issue was such as to deprive him of the effective assistance of counsel, is unpersuasive. As our discussion has shown, the question of how far pre-arrest silence may be used against a defendant is not set out in black letter law. Moreover, Mr. Nooter clearly was obliged to call Gonzalez as a matter of trial tactics if the latter was to have any chance to avoid conviction, and this would have made Inspector Kowal's testimony admissible. If