(dissenting):
After reveiwing appellant’s Petition for Rehearing, the parties filed supplemental briefs at the court’s request. My study of these briefs, together with my reexamination of the record, convinces me that I was mistaken in my original concurrence in the result reached in the challenged opinion.
The only defense presented by the accused was that he had been entrapped into the commission of his offenses by a government agent who had disappeared during the long interval between the time when the alleged entrapment occurred and the times when Walton was eventually arrested and his trial conducted. When the defense of entrapment is asserted, a showing that the offense was attended by the intervention of a government agent casts the burden upon the Government to prove, beyond a reasonable doubt, that entrapment did not occur. Notaro v. United States, 363 F.2d 169 (9th Cir. 1966).
Walton undertook to testify in his own defense, but in the beginning, the Court prohibited him from relating the conversations, claimed to have been entrapping, which he had with the government agent. In its supplemental brief, the Government, citing Silva v. United States, 212 F.2d 422 (9th Cir. 1954), and Trice v. United States, 211 F.2d 513 (9th Cir.), cert. denied, 348 U.S. 900, 75 S.Ct. 222, 99 L.Ed. 707 (1954), in effect concedes that the original evidentiary ruling of the trial judge was mistaken. The trial judge ultimately recognized the error of his ruling. This recognition developed near the end of the trial, during a discussion concerning appropriate jury instructions. Reopening of the evidentiary proceedings was allowed for the expressed purpose of permitting Walton to present testimony as to the content of the allegedly entrapping conversations. The Court remarked:
“Members of the Jury, the Court has granted the defendant the opportunity to reopen for the purpose of examining the defendant and permitting him to testify with respect to conversations he had with the informant, Bishop.”
The Court, however, erroneously failed to allow fulfillment of the stated purpose. For some reason which I cannot perceive, the Court immediately thereafter, and without objection having been interposed by the prosecution, again prohibited Walton from relating the conversations which the jury had been led to believe would be forthcoming. The Court, again reversing itself, remarked to Walton’s counsel:
“What I am going to permit you to do is to have him tell what the seaman [not the' government agent] said to him.” (Emphasis added).
Obviously, one who claims to have been entrapped should be permitted to testify *295about his conversations with the Government’s alleged entrapping agent, otherwise, an entrapped defendant could never establish his defense if only he and the entrapping agent were involved in the entrapping conversations and the entrapping agent had disappeared, as here, before the time of the trial.
The irregularities which I have outlined were of such significance, I think, that a new trial should be required. The full record of the reopened proceedings is set forth in the margin.1 To me, it reveals the imposition of such restrictions upon the introduction of Walton’s *296permissible defensive testimony as to impair, prejudicially, his right to a fair and orderly trial.
I would grant the Petition for Rehearing and reverse the judgment of conviction.2
. “THE COURT: Good morning, Members of the Jury, Counsel. Let the record show that the defendant and his Counsel are present in court and the jury present in the jury box.
“Members of the Jury, the Court has granted the defendant the opportunity to reopen for the purpose of examining the defendant and permitting him to testify with respect to conversations he had loith the informant, Bishop. I am permitting him to do that, and I will allow the testimony, not for the purpose of proving the truth of anything that Bishop said as related by the defendant, but for the purpose of enabling you to consider what the defendant said that Bishop said to him in order to enable you to determine his state of mind and the question of intent as I will hereinafter instruct you with respect to that term.
“MR. PRINCE: Thank you, your Honor, Mr. Walton, will you take the stand ?
“LLOYD STANLEY WALTON, the defendant, re-called as a witness in his own behalf, was examined and testified further in surrebuttal as follows:
“THE CLERK: You are still under oath, Mr. Walton.
“DIRECT EXAMINATION
“BY MR. PRINCE:
Q Mr. Walton, would you please set forth to the Court the conversation that transpired between yourself and Mr. Bishop at—
“THE COURT: No, I am not going to permit that, Mr. Prince. I am going to let you ask him specific questions dealing with that. You are going to get into trouble the minute you start to do it that way.
Q (By Mr. Prince) Mr. Walton, did Mr. Bishop tell you what the—
“THE COURT: Now, wait a minute. Why don’t you direct his attention to a specific subject matter which you want him to talk about, and then ask him to relate the conversation? What you started to do is to suggest to him the answer you want, and that I won’t permit.
Q (By Mr. Prince) Mr. Walton, you stated in your testimony before the jury that following the conversation with Mr. Bishop you were later approached by a seaman. You then state that you went back and sat down and had some drinks with Mr. Bishop.
“THE COURT: No, I shall not permit you to make a speech at this time, Mr. Prince, before this jury. If you want to ash him what Mr. Bishop said to him concerning a seaman, I will permit you to ask that. In your argument you can say what you want about the testimony, but I am not going to let you make a speech of that kind here now.
“MR. PRINCE: Yes, Your Honor. Q (By Mr. Prince) What did Mr. Bishop state to you once you informed him that the seaman had this stuff?
A Well, Mr. Bishop approached me about some stuff that morning.
Q Just answer the question. You have testified as to this. What did Mr. Bishop say to you once you told him that the seaman had some stuff?
A That he would take a piece, he wanted a piece, he had some people that wanted quite a bit.
Q Did he ask you to get this piece from the seaman?
A Yes, and the seaman refused to go along with it.
“THE COURT: Well now, you see you are not doing what I am giving you permission to do, Mr. Prince. You asked if he did do that, and he says yes or no. What I am going to permit you to do is to have him tell what the seaman said to him.
Q (By Mr. Prince) What did the seaman say to you?
A The seaman said he wouldn’t go with Bishop, and that if I would go with Bishop that he would give me $25 and Bishop was to make the transaction.
Q This is what the seaman said?
A Yes.
“MR. PRINCE: All right, I have no further questions, your Honor.
“MR. SWOFFORD: Nothing, your Honor.
“THE COURT: Thank you, You may step down, Mr. Walton.” (Emphasis added).
. My opinion tliat our original decision was wrong has now been strengthened by the fact that my dissenting views are believed to have such force as to require that additional reasons be offered in attempted refutation.
I shall not extend the dialogue unduly. The disagreement between my distinguished Brothers and myself arises from honest differences as to the correct interpretation of the proceedings set forth in footnote 1 of my above opinion.
Judge Hamley mentions but apparently attaches no controlling significance to the fact that appellant’s counsel did not, in the beginning, specifically direct our attention to the irregularities in question. Neither do I. We see them, and they are so grievous that we should not, in my opinion, now seek refuge behind Rule 52. It does not obscure the mistaken result of our original opinion, and I choose to acknowledge the mistake and accept my full share of the responsibility for it.
The plain fact, the “plain error,” is that Walton was erroneously prevented from the presentation of testimony which might have established a valid defense, the only defense which he offered. Judge Hamley’s observation that the jury “obviously believed” one of the Government’s agents is immaterial, for Walton’s possibly contradictory testimony was consistently excluded.
The most significant question was the very first which Walton’s appointed counsel presented in the reopened proceeding: “Q Mr. Walton, would you please set forth to the Court the conversation that transpired between yourself and Mr. Bishop at —”, whereupon the Court, for some inexplicable reason which I cannot perceive, interrupted with, “No, I am not going to permit that,
Mr. Prince.” The question was so obviously “designed to elicit Bishop’s * * * statements” that there was no need for an offer of proof to apprise the District Court of the purpose. See, e. g., United States v. Lowrie, 246 F.2d 472 (4th Cir. 1957); Hawkins v. Missouri Pac. R.R., 188 F.2d 348 (8th Cir. 1951); Hoffman v. Palmer, 129 F.2d 976 (2d Cir. 1942), aff’d, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (19421. Cf. Marrone v. United States, 355 F.2d 238 (2d Cir. 1966); Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963).
It is true, as Judge Hamley writes, that “For all we know, Walton’s testimony concerning Bishop’s conversation, would have been wholly innocuous.” But it is also true, since the defense was entrapment, that, “for all we know,” the erroneously excluded testimony would have saved Walton. It is conceded that the interruption of the first question put during the reopened proceedings was erroneous. When a defender’s question precisely calls for admissible defending testimony and the testimony is erroneously rejected, I am aware of no rule which requires that conviction be affirmed upon the basis of speculation that admissible but rejected and unknown testimony might “have been wholly innocuous.”
As to the proposition that the error was cured, we must not forget that the error was first committed during and throughout Walton’s first attempt to testify. The reopened proceedings might have been so conducted as to correct the error, but the error was recommitted when the very first question was propounded, and its effect upon Walton’s appointed counsel must have been “chilling” indeed. I therefore cannot conscientiously agree that the frustrated and severely restricted efforts of Walton’s lawyer, understandably feeble and confused, “cured” the gravely prejudicial error which adversely affected the defense from the beginning. As I see the record, particularly the aborted proceedings set forth in my footnote 1, supra, the supposed “cure” was, in fact, a coup de grace!
Finally, it should not be overlooked that it was Bishop’s conversation, the first relevant conversation, that Walton claims to have set in motion the alleged entrapping scheme which produced the commission of both the charged offenses. Thus, reliance upon the “concurrent sentence” rule is misplaced, even should we assume that the Supreme Court will not soon abandon it. See Benton v. Maryland, 1 Md.App. 647, 232 A.2d 541 (Md. Ct.Spec.App.1967), cert. granted, 392 U.S. 925, 88 S.Ct. 2297, 20 L.Ed.2d 1384 (1967 Term), reargument ordered, 393 U.S. 994, 89 S.Ct. 481, 21 L.Ed.2d 460 (1968) (renumbered No. 201, 1968 Term).