would grant the petition for rehearing en banc for the following reasons:
1) This appears to be an appropriate case for the establishment of consistent guidelines by the full court relating to the admissibility of evidence of the accused’s criminal conduct not charged in the indictment. Although in theory such evidence is generally excluded, in practice the exceptions have virtually swallowed the rule.3
2) In this case the questioned evidence was admitted despite a general objection without an appropriate instruction explaining to the jury the limited purpose of the evidence. The panel opinion declines to consider this omission as error, holding that no limiting instruction is required in the absence of a specific defense request. See panel opinion, supra at note 7; citing United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973).
This restrictive approach seems inconsistent with the important principle of justice and fairness that the general rule excluding evidence of prior criminal acts seeks to implement. It is essential to our system that a conviction be based upon an unbiased examination of evidence of a specific criminal act rather than upon an attack upon a defendant’s character and associates.
In somewhat analogous circumstances the District of Columbia Circuit Court has held:
[Wjhenever evidence is admitted only for a limited purpose, it is plain error, in the absence of manifest waiver, to omit an immediate cautioning instruction. The danger of prejudicial effect from such evidence is so great that only an immediate and contemporaneous instruction can be considered sufficient to protect defendants. As long as we continue to have rules of evidence which admit testimony for some purposes but not for others, we must guard against its misuse by the jury. [United States v. McClain, 142 U.S. App.D.C. 213, 440 F.2d 241, 246 (1971).]
Obviously this language goes very far in labeling every omission of an immediate cautioning instruction plain error. McClain has not been applied to require reversal where substantial prejudice seemed unlikely. See United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1291, 1310 n.2 (1973)(en banc) (Bazelon, C. J., concurring and dissenting), and cases cited.
Here, the record discloses that, in response to an objection by the accused, the trial court admitted the questioned evidence for a limited purpose. Assuming, arguendo, the admissibility of this evidence as bearing on Conley’s intent, the appellant suffered a double prejudice — since the jury thus learned of the accused’s other criminal activity without *661then being told of the limited scope and purpose of that evidence.
This case is an appropriate one for the full court to consider adopting a rule, similar to that enunciated in McClain, requiring the trial court to immediately caution the jury against misuse of evidence of prior criminal activity by the accused, unless the cautionary instruction is expressly waived.
Circuit Judges LAY and HEANEY join me in these views.. See United States v. Goodwin, 492 F.2d 1141, 1148-55 (5th Cir. 1974). The court agreed with Professor Charles Wright that the exceptions have become so numerous that
the attitude of prosecuting attorneys may well be like that of the man who was asked what he thought of Prohibition and replied:
“It sure beats not drinking at all.” [Id. at 1149 n.5 quoting 2 C. Wright, Federal Practice and Procedure, Criminal § 410 at 125 n.75.]
It is interesting that of the approximately 60 circuit court opinions addressing this issue between June 1, 1973 and June 1, 1974, only United States v. Goodwin, supra, reversed because evidence of prior crimes was improperly admitted. “Note: The United States Court of Appeals: 1973-74 Term Criminal Law and Procedure,” 63 Georgetown Law Journal 325, 491-93 & nn. 1170-81 (1974). Arguably, United States v. Jaqua, 485 F.2d 193 (5th Cir. 1973), is a second reversal in this area. There the defendant was cross-examined about what the court termed “so-called ‘criminal activity.’ ” Id. at 195.