(concurring in part and dissenting in part):
I concur in the foregoing opinion insofar as it affirms the convictions of Robinson, Lewis and Walls, and also in its conclusion that D.C.Code § 14 — 305 is constitutional. With respect to Belt, I con*15cur in Part III of the opinion which holds that federal evidentiary rules govern in the case of a defendant tried in District Court under an indictment charging both federal and local offenses.1 However, I must conclude that the remand of the judgment of conviction in Belt is a meaningless exercise, and therefore I would also affirm that conviction,
On remand of Belt, the District Court will be required to rule on the admissibility of impeachment evidence with respect to the U.S.Code offense. This is in itself an absurdity because there was an acquittal on that count and it is no longer pending. Even if one views the trial court as ruling on the admissibility, under federal evidentiary rules, of the prior narcotics conviction as of the time when both federal and D.C. charges were still pending before the court, the most relief the court can afford appellant is a reversal of the conviction on the D.C. offense. However, on retrial appellant will be charged solely with a D.C.Code offense. In this situation, Part II of the foregoing opinion holds that if appellant testifies, section 14 — 305 applies and the prior conviction will be admissible for purposes of impeachment exactly as it was admitted at the first trial. Thus a retrial will likely involve exactly the same evidence as the original trial. While the exercise of her right “to the court’s reexamination of the admissibility of the prior convietion in the first trial” (Majority Op. at 169 U.S.App.D.C. at page 14, 514 F.2d at page 850) may be of some academic interest, that re-examination will in the end have no practical effect on Belt s substantive rights. It is most inappropriate for this court to compel the District Court to squander its time by engaging m pointless academic excercises.
Nor is there any reason to infer that the presence of the U.S.Code charge, and the evidence offered in support thereof, contributed to the jury’s finding of guilt on the D.C.Code charge, and that appellant was prejudiced thereby. The jury was expressly instructed to consider each offense separately (Tr. 221), and the finding of guilt on the D.C.Code offense was amply supported by substantial evidence.
The Belt case presents the clearest example of a “[defect] which do[es] not affect the substantial rights of the parties.” 2 Under such circumstances, 28 U.S.C § 2111 and Fed.R.Crim.P. 52(a) mandate that this court “shall give judgment . . . without regard to [such] errors or defects . . . .”3 In my view these authorities should control the disposition of Belt.
I would affirm the conviction of Belt on the D.C.Code offense and thus respectfully dissent to its remand. Otherwise, I concur in the result expressed in the majority opinion.4
. I would not at present go so far as to hold where an indictment charged both federal and D.C.Code offenses, but the federal offense was dismissed during trial, that thereafter the rules of evidence of the District of Columbia courts would not be applicable.
. 28 U.S.C § 2111 provides:
On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.
(Emphasis added.)
Fed.R.Crim.P. 52(a) provides:
Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
. 28 U.S.C § 2111.
. I cannot join in the observations contained in notes 13 and 16 of the Majority Opinion. They are completely unnecessary to the decision in these cases and thus are merely dicta. Moreover, I consider the underlying logic of the treatises cited in note 16 to be faulty in that it would take from the jurisprudence of states and foreign nations procedures that are most favorable to defendants and engraft them into our jurisprudence without adopting any of the offsetting procedures those fora apply to insure that iustice is done for the public as well as the accused. The result of such changes would be a criminal procedure overbalanced in favor of the accused and against the interests of society, and it was partially to avoid precisely such procedures, with the detrimental result they cause, that Congress enacted D.C.Code § 14-305 and Rule 609 of the Federal Rules of Evidence.