Carol Jean Axtman was convicted on four counts of violating 18 U.S.C. § 2314.1 We affirm.

According to the prosecution, Axtman opened savings accounts under aliases at several banks in Atlanta, Georgia, and deposited unauthorized checks in these accounts. These checks were not honored by the drawee bank, but prior to their return to Atlanta, Axtman had withdrawn funds from the accounts.

During investigation of this apparent violation of federal law, an FBI agent prepared and displayed to employees of the various Atlanta banks a photographic display containing a picture of Axtman. At trial Axtman's attorney sought to suppress the identification testimony of these employees as tainted by the impermissibly suggestive nature of the photo display. The trial judge held a hearing outside the presence of the jury, and ruled that the identification testimony was admissible.2 During trial the display was also admitted into evidence.3

Axtman raises two arguments for reversal. First, she asserts that the admission of identification testimony placed her upon the horns of a dilemma. She contends that she either had to attack the credibility of the identifications by presenting to the jury the suggestiveness of the photo and run the risk of the jury inferring prior criminal conduct from the very characteristic that made the photo suggestive, or had to forgo this line of cross-examination, diminishing her right of confrontation.4 She claims that putting her to this choice violates due process, and urges that this court should construct a Per se rule that if a photo suggestive of criminal conduct is employed during an investigation, identification testimony possibly affected by the photo must be excluded. We find this argument unavailing.

Little would be served by adopting the result urged by Axtman. Evidence determined by the trial judge to be reliable would be excluded from the jury solely in order to deter perceived police misconduct. The Axtman result would effectively vitiate the holding of Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), in an indeterminate number of cases,5 and would import into this area of the law a rigidity courts have eschewed. Also, a Per se rule would foreclose any evaluation of the actual prejudice suffered by defendant balanced against the government's need to use the photo during the investigation. This refusal to evaluate the relative detriments arising from a particular course of conduct is better reserved for activities of a more egregious sort than that illustrated by the present case.6 Perhaps the FBI should have obtained a photograph without any indicia of criminal conduct prior to presenting the photo display to the bank employees. We cannot expect to anticipate, however, the myriad exigencies under which such a display would be prepared nor should we impress upon the FBI a burden that may unnecessarily hinder effective law enforcement.

Although Axtman argues that the FBI could have procured or devised a photo that would not have carried any indication of criminal activity, we cannot say that the FBI did not act properly in pursuing an expeditious investigation of these occurrences.7 The photo display involved in this case was merely one step in the investigation, and the failure of the FBI to sanitize every aspect of its investigation in anticipation of a purely speculative effect upon a future defendant's conduct of her defense is not of a type to require reversal as a matter of constitutional law or as an exercise of our supervisory power.

More important, we cannot say that Axtman was placed in so intolerable a position between "the rock" of tainted identification and "the hard place" of suggested criminal activity8 that reversal on the facts of this case is necessary. In this case Axtman's counsel opted to cross-examine the witnesses concerning the display. The feature of the photo that incorporated the suggestive characteristic and the incidence of criminal activity was a height backdrop. Although such a backdrop could give rise to an inference of criminal activity, a finding of prejudice in the present case is not ineluctable. The jury, for example, could have assumed that the photo was taken during the investigative stages of the crimes encompassed in the present indictments. Also, during direct and cross-examination of the identification witnesses, the markings, although referred to, were not unduly stressed to the jury, and no intimations were given to the jury of anything detrimental about the photo.

Second, counsel for Axtman vigorously asserted at oral argument that admission of the photo display into evidence was improper. See United States v. Rixner, 548 F.2d 1224 (5 Cir. 1977).9 This case is somewhat singular in that counsel for Axtman expressed at trial his intention to introduce the photographs, and did not object when the prosecution did so. We accept counsel's argument that his acquiescence in admissibility was a necessary trial tactic in light of the trial judge's determination that the identification testimony was admissible. In light of the facts that he does not object on appeal to that determination and that we have rejected Axtman's proposed exclusionary rule, however, we fail to see how the trial judge erred in admitting the display when both sides indicated a desire and need to use the evidence.

The key to any error in this case was whether the trial judge should have resolved the "Axtman dilemma" by excluding the identification testimony. Since we hold that exclusion was not required, the admission of the photo display with the acquiescence of Axtman could not give rise to any independent error.10

AFFIRMED.