Keith Joseph Burg v. United States

406 F.2d 235 Keith Joseph BURG, Appellant, v. UNITED STATES of America, Appellee. No. 22619. United States Court of Appeals Ninth Circuit. Jan. 16, 1969. J. Rayner Kjeldsen (argued), Reno, Nev., for appellant. Julien Sourwine (argued), Asst. U.S. Atty., Joseph L. Ward, U.S. Atty., Reno, Nev., for appellee. Before MADDEN, * Judge of the United States Court Claims; HAMLEY and ELY, Circuit Judges. MADDEN, Judge: 1 The appellant Burg, hereinafter called the defendant, was convicted in a jury trial in the District Court, of bank robbery, a violation of Title 18, United States Code, 2113(a). He has appealed. There is no problem concerning the jurisdiction of the District Court or of this court. 2 The appellant states, as his grounds for appeal: 3 A. It was prejudicial error for the trial court to refuse defendant's motion that the Government not be allowed to ask any questions with regard to whether the defendant had prior felony convictions, upon the representation that the defendant would state if he were asked said questions that he had prior felony convictions. B. Even though no objection was raised in the trial court, the instant case should be reversed because of improper argument…

The appellant Burg, hereinafter called the defendant, was convicted in a jury trial in the District Court, of bank robbery, a violation of Title 18, United States Code, § 2113 (a). He has appealed. There is no problem concerning the jurisdiction of the District Court or of this court.

The appellant states, as his grounds for appeal:

The question raised by the defendant under paragraph A above concerns the admissibility against a defendant who is a witness in his own defense, of evidence that he has had one or more prior convictions of felonies. Rule 26 of the Federal Rules of Criminal Procedure provides, so far as here pertinent:

The weight of authority in the federal courts is that evidence of conviction of a felony is admissible to impeach the credibility of a witness. In the last few years that consistent line of precedents has been interrupted by decisions of the United States Court of Appeals for the District of Columbia. In Luck v. United *236 States, 121 U.S.App.D.C. 151 , 348 F.2d 763, 768-769 (1965), that court discussed at length the problem which had been a subject of discussion by legal writers and in State legislatures, the problem of prejudice resulting from such…

(concurring) :

I concur in the result reached in Judge Madden’s opinion because in my view, under the circumstances of this case, the evidence pertaining to Burg’s criminal record was properly received under either the orthodox rule or the “balancing of factors” rule recently developed in the District of Columbia and Second Circuits. Judge Madden’s opinion demonstrates that there was compliance with the orthodox rule. Judge Ely’s concurring opinion demonstrates that, under the circumstances of this case, there was also compliance with the “balancing of factors” rule.

I do not fully concur in either opinion since Judge Madden’s opinion may be *238 construed as breathing new life into the orthodox rule and Judge Ely’s opinion may be interpreted as foretelling the doom of that rule. I prefer to postpone a reexamination of the orthodox rule until this is necessary in order to decide the case. In the light of past and recent Ninth Circuit precedent, when the necessity for a reexamination of the rule arises, it ought to be undertaken by the Court in banc.

(concurring):

I concur in the result reached in the principal opinion, but I find it unnecessary, presently, to express my fixed…