Before Seitz, Chief Judge, and Gibbons and Higginbotham, Circuit Judges.
The appellant, Herman Waller, was charged with possessing stolen mail, forging a government check and uttering the forged check in violation of 18 U.S.C.
§§ 1708, 495 and 2. He was found guilty by a jury on all three counts. He argues that the trial judge's question in the presence of the jury on whether the appellant was going to testify constituted plain error. He also challenges the trial judge's charge on aiding and abetting. We disagree with the appellant's contentions and will affirm.
In the presence of the jury, the trial judge asked whether defense counsel was going to put the defendant on the stand:
Mr. Ober: Your Honor, we would like to recall Agent Legan for just a couple of questions, if we may.
The Court: All right. May I ask this question: Are you going to put your Defendant on the stand?
Mr. Ober: Pardon me, your Honor?
The Court: Are you going to put Mr. Waller on the stand?
Mr. Ober: I I really don't know, your Honor. Excuse me. I have to I thought that after today's session there is a legal matter I want to bring to your attention, and I was going to make that decision after we have had a chance to do that. But we do have two other witnesses: this Agent and another Government employee.
The Court: All right. Very good.
The appellant argues that this constituted plain error. No objection was made by defense counsel to the court's question. Rule 52(b) of the Federal Rules of Criminal Procedure provides that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. "This Court's power under Rule 52(b) is discretionary and may be exercised only to prevent a manifest miscarriage of justice." United States v. Grasso, 437 F.2d 317, 319 (3d Cir. 1970), Cert. denied, 403 U.S. 920, 91 S. Ct. 2236, 29 L. Ed. 2d 698 (1971).
The test for determining whether a remark constitutes an improper comment on an accused's failure to take the stand in his own behalf is "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Chaney, 446 F.2d 571, 576 (3d Cir.), Cert. denied, 404 U.S. 993, 92 S. Ct. 543, 30 L. Ed. 2d 546 (1971); United ...