(Dissenting):
I am in agreement with the majority’s disposition of appellant’s contention relative to the admissibility of the evidence of flight.
I respectfully dissent from the majority’s treatment of the second and third questions.
As stated by Judge Carter for the majority, these questions are:
II. Should a district judge exercise an inherent discretion to exclude proof of prior felony convictions offered for impeachment purposes by balancing the factors concerning them?
III. Does the rationale of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) bar the use of felony convictions offered for impeachment purposes absent a clear showing that the convictions were not obtained in violation of the rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963)?
II.
After the Government had rested its case, appellant’s counsel, out of the presence of the jury, advised the Court that the appellant would testify in his own defense. The Government informed the Court and appellant’s counsel that for the purposes of impeachment, it would ask appellant on cross-examination whether or not he had previously been convicted of a felony. The Government represented that it had properly authenticated copies of two felony convictions of appellant in the State of Louisiana. Appellant’s counsel, having seen the records, conceded the convictions were for felonies, but argued that the Court should, in the exercise of its discretion, rule that it would refuse to admit the evidence of the prior felony convictions because of appellant’s youth at the time of the convictions in 1958 and 1959, and because it appeared from the records of the Louisiana proceeding that the appellant was without counsel. Appellant’s counsel urged the Court to follow the case of Luck v. United States, 1965, 121 U.S.App.D.C. 151, 348 F.2d 763, and in the exercise of sound discretion indicate at that time that it would exclude the evidence of the Louisiana convictions because the prejudicial effect of the proferred evidence outweighed its probative value as to appellant’s credibility. After some discussion with counsel, the Court refused to follow Luck v. *432United States, stating that in this circuit the rule is that prior felony convictions are admissible to impeach a defendant. Appellant then took the witness stand. His counsel, in view of the Court’s announced position and anticipating that the Government would be successful in proving the prior felony convictions, solicited from appellant the admissions that he had twice been convicted of felonies in Louisiana.
Since it seems unfair to me to hold that the trial judge has no discretion and must in all cases admit prior convictions for impeachment purposes, I disagree with the majority and approve the language used by Judge McGowan in Luck v. United States, supra. Beginning at page 768 of 348 F.2d, Judge McGowan states:
“ * * * There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction.7 There may well be other cases where the trial judge believes the prejudicial affect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field.8
“In exercising discretion in this respect, a number of factors might be relevant, such as the nature of the prior crimes,9 the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction. The goal of a criminal trial is the disposition of the charge in accordance with the truth. The possibility of a rehearsal of the defendant’s criminal record in a given case, especially if it means that the jury will be left without one version of the truth, may or may not contribute to that objective. The experienced trial judge has a sensitivity in this regard which normally can be relied upon to strike a reasonable balance between the interests of the defendant and of the public.” (Footnotes 7, 8 and 9 in the above quotation are found at pages 768 and 769 of the Luck case.)
The fact that the District of Columbia Code appears to give the trial court discretion (see Footnote 6, page 768, of the Luck case) does not diminish the wisdom and justice of the point of view expressed by Judge McGowan.
Also, I call attention to the following additional authorities which support the position that the trial judge does have discretion in deciding whether or not to admit evidence of prior felony convictions offered to impeach a defendant. Daniel v. United States, 5 Cir., 1959, 268 F.2d 849, at 852; United States v. Dea-ton, 2 Cir., 1967, 381 F.2d 114, 117.
See Judge Hamley’s and Judge Ely’s concurring opinions in Burg v. United States, 406 F.2d 235 (9th Circuit, 1969).
III.
Appellant urges this Court to reverse, contending that the rationale of Burgett v. Texas, supra1 bars the use of felony convictions for impeachment when those convictions were obtained in violation of *433the standards of Gideon v. Wainwright, supra. In Gideon, it was held that the right to counsel guaranteed by the Sixth Amendment of the Constitution was made applicable to the States by the Fourteenth Amendment, making it unconstitutional to convict a person for felony in a state court unless he had counsel or validly waived counsel.
The authenticated records of the State of Louisiana, Parish of Rapides, copies of which are attached as an exhibit to appellant’s brief, reveal the following:
1. Case No. 41,467. (Burglary) On October 9, 1958, defendant was present in open court. The record is silent as to presence of counsel and there is no record of waiver of counsel. Defendant waived arraignment and pled guilty.
2. Case No. 41,467. On October 13, 1958, the record shows that defendant was present in open court. The record is silent as to presence of counsel and there is no record of waiver of counsel. Defendant was sentenced to two years at hard labor in the Louisiana State Penitentiary.
3. Case No. 44,617. (Robbery) The record of November 2, 1959, shows that the accused was present in open court, that he was arraigned and pled guilty. The record is silent as to the presence of counsel and there is no record of waiver of counsel.
4. Case No. 44,617. The record of November 3, 1959, shows that the defendant was present in open court without counsel. The defendant was sentenced to five years at hard labor in the Louisiana State Penitentiary. There is no record of waiver of counsel.
The rule of Gideon applies to appellant’s convictions. It is not limited to prospective application. Burgett v. Texas, supra; Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964); Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963); United States ex rel. Durocher v. LaVallee, 2 Cir., 1964, 330 F.2d 303.
The authenticated records of appellant’s two Louisiana felony convictions raises a presumption that appellant was denied his right to counsel, rendering the proceedings void. Burgett v. United States, supra. To presume a waiver of counsel from a silent record is impermissible. Burgett v. United States, supra; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). We note, with interest, that after Gideon came down, but before Burgett was decided, the Supreme Court of California, in People v. Coffey, 1967, 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, stated, at page 25:
“We are convinced that the use of a constitutionally invalid prior conviction to impeach testimonial credibility is improper, and that to allow such impeachment is error under California law. (Cf. People v. Hamilton (1948) 33 Cal.2d 45, 50, 198 P.2d 873; Mac-farlane v. Dept. Alcoholic Bev. Control (1958) 51 Cal.2d 84, 89, 330 P.2d 769; People v. Banks (1959) 53 Cal.2d 370, 382, fn. 7, 1 Cal.Rptr. 669, 348 P.2d 102.) Further, we are of the view that such error is of federal constitutional dimension. It is clear that a conviction of crime, no matter when sustained, is constitutionally invalid if it was obtained in violation of the Sixth and Fourteenth Amendments. (Gideon v. Wainwright, supra, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Doughty v. Maxwell, supra, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; United States v. LaVallee, supra, 330 F.2d 303; In re Woods, supra, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913.) We think it equally clear that the utilization of such a conviction, at the trial of a subsequent offense, for any purpose leading to a conviction for such subsequent offense, is violative of the due process clause of the Fourteenth Amendment.”
I am impressed by the fact that although the Texas Court of Criminal Appeals affirmed the conviction because Burgett did not in fact suffer enhancement of punishment, and because the *434jury was instructed to disregard the prior convictions, the Supreme Court did not take the same view. Twice Justice Douglas stressed that the accused “suffered anew” the denial of his right to counsel.
The rule, as I see it, is that a prior conviction, void under Gideon, cannot be used for any purposes, proof of guilt, enhancement of punishment or impeachment, without denying due process.
While I agree that the evidence against the appellant is strong and that his guilt is clear from the record, and that this is a most serious case — a crime of potential violence, and while I concede that we might, in all fairness to this appellant, apply the harmless error rule, I cannot reason around the flat unequivocal statement of Justice Douglas in Bur-gett, page 115:
“The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ within the meaning of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.”
I believe that appellant’s argument under Burgett should be answered directly and not avoided, as the majority has done. I see no real basis for treating this case differently from one in which the prior convictions were offered by the Government, or came into evidence in response to direct questions of appellant while under cross-examination by the Government.
In Bates v. Dickson2 (N.D.Calif.S.D.1964), 226 F.Supp. 983, 989, wherein by writ of habeas corpus the question of proper admission of prior convictions of Bates was raised as a constitutional issue, the District Court held that the prior convictions of Bates were admitted in the state court under proper instruction for purposes of impeachment after defendant had voluntarily taken the stand. The district judge held that no error had been committed by the state court trial judge, and denied the petition.
On appeal from the District Judge’s decision, the Ninth Circuit, in Bates v. Wilson (1967), 385 F.2d 771, at 772 and 773, on the contention of Bates, “That he was deprived of due process of law by the use made of his prior convictions”, found that the “testimony concerning the prior convictions was elicited from Bates by his own counsel on direct examination” (emphasis added); that the state trial court gave instructions limiting the use to be made by the prior-convictions testimony; and concluded on this point by stating, “We hold that the use of the prior convictions did not result in a denial of due process and that the interest of the petitioner was protected by the instructions”.
In Bates v. Nelson, 393 U.S. 16, 89 S.Ct. 50, 21 L.Ed.2d 21, the Supreme Court granted certiorari from this decision of the Ninth Circuit, and on October 14, 1968, vacated the judgment and remanded the ease to the Court of Appeals for further consideration in the light of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. (On the prior conviction point.)
I would remand this case in order that the Government may have an opportunity to satisfy the District Court, if it can, that the Louisiana felony convictions were not obtained in violation of the Gideon rule. Under Burgett the Government must overcome the presumption that the appellant was denied his right to counsel, and under the same case, a waiver of counsel cannot be presumed from a silent record. Any waiver of counsel must be competently and intelligently made. Johnson v. Zerbst, 304 *435U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938). If the Government cannot satisfy the Court that the standards of Gideon were met, the judgment should be reversed and appellant afforded a new trial.
Order on Petition for Rehearing, etc.
Before KOELSCH and CARTER, Circuit Judges, and FOLEY,* District Judge.
JAMES M. CARTER, Circuit Judge:The panel having voted unanimously to deny the petition for rehearing and to reject the suggestion for a hearing in banc; and all members of the court having been so advised and no judge having voted for a hearing in banc.
It is ordered that the petition for rehearing is denied and the suggestion for hearing in banc is rejected.
. Burgett was decided November 13, 1967, while the case at bar went to the jury on September 20, 1967. No Federal Court case has been found restricting Burgett to prospective application only. Federal Courts have applied the Burgett doctrine retroactively to cases prior to the date of the Burgett decision. Clark v. Turner (Utah D.C.1968), 283 F.Supp. 909, 911 (conviction in 1961); Wilson v. Wiman (6 Cir. 1967), 386 F.2d 968, 969 (conviction in 1964); Williams v. Coiner (4 Cir. 1968), 392 F.2d 210, 211 (conviction in 1936); United States ex rel. Johnson v. Yeager (3 Cir. 1968), 399 F.2d 508, 511 (conviction in 1958); Bates v. Nelson (1968), 393 U.S. 16, 89 S.Ct. 50, 21 L.Ed.2d 21 (conviction in 1956).
. The prior histories of the Bates and Chavea cases are summarized in Chavez v. Dickson (9 Cir. 1962), 300 F.2d 683, cert. denied 371 U.S. 880, 83 S.Ct. 151, 9 L.Ed.2d 116, rehearing denied 371 U.S. 931, 83 S.Ct. 295, 9 L.Ed.2d 239; see People v. Chavez, 50 Cal.2d 778, 329 P.2d 907, cert. den. 358 U.S. 946, 79 S.Ct. 356, 3 L.Ed.2d 353; see also Chavez v. Dickson (9 Cir. 1960), 280 F.2d 727.
Hon. Roger D. Foley, Jr., United States District Judge, District of Nevada, sitting by designation.