(dissenting):

I respectfully dissent.

My disagreement pertains to the holdings and discussion of the majority set forth in IV. B. and C. of its opinion. My position makes it unnecessary for me to pass on the majority’s holdings set forth in V, VI, VII, VIII, and IX. Briefly put, I would permit the striking of the defendant’s testimony, in its entirety, only after the trial judge has *442 made an articulated evaluation of the probable effectiveness of other sanctions, including civil contempt, and a specific determination that other sanctions will not serve the ends of justice. On the record of this case it is uncertain whether the district court weighed the possible effectiveness of sanctions other than striking Panza’s testimony. Therefore, I would reverse the defendant Panza’s conviction and, because the striking of Panza’s entire testimony undoubtedly prejudiced Tate, I would also reverse Tate’s conviction.

My difference with the majority concerns whether the discretion of the trial judge to strike a defendant’s testimony in its entirety should be subject to restraints more precise than are imposed by such phrases as “reason and fairness.” To impose additional restraints is more cumbersome than merely recognizing the discretion of the trial judge to strike summarily the defendant’s entire testimony subject only to the general standard of “reason and fairness.” Trials become more burdened with the possibility of error and appellate courts have available additional means by which convictions can be reversed.

Ordinarily these consequences promptly would lead me to embrace the majority’s position. They fail to do so in this case for two reasons. The first is that I have been unable to find authority precisely supporting the majority, and the second is that the severity of the sanction here imposed is sufficiently great to outweigh the modest inconvenience that my suggested restraint would impose.

With respect to authority, I acknowledge that a defendant’s testimonial rights can be waived by conduct which prevents the orderly conduct of the trial. United States v. Ives, 504 F.2d 935, 941-42 (9th Cir. 1974), vacated and remanded for further consideration in light of Drope v. Missouri, 420 U.S. 162 , 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975), 421 U.S. 944 , 95 S.Ct. 1671 , 44 L.Ed.2d 97 (1975), reinstated in pertinent part, remanded in other part, 547 F.2d 1100 (9th Cir. 1976), cert. denied, 429 U.S. 1103 , 97 S.Ct. 1130 , 51 L.Ed.2d 554 (1977). See generally Wright v. Estelle, 572 F.2d 1071, 1084 (5th Cir.) (en banc) (Godbold, J., dissenting), cert. denied, 439 U.S. 1004 , 99 S.Ct. 617 , 58 L.Ed.2d 680 (1978); United States v. Bentvena, 319 F.2d 916, 942-44 (2d Cir.), cert. denied, 375 U.S. 940 , 84 S.Ct. 345 , 11 L.Ed.2d 271 (1963). The government does not insist, however, that the contumaciousness of Panza threatened the orderly conduct of the trial. The vice in Panza’s position, as the majority points out, is that it severely limited the government’s right of cross-examination, not that it would threaten the orderly conduct of the trial.

Moreover, I find inapposite the district court’s reliance on the following passage from 5 Wigmore on Evidence § 1391 at 137 (Chadbourn rev. 1974) (emphasis in original, footnotes omitted):

This passage, however, rests on cases in which the testimony of a prosecution wit-, ness who refused to submit to proper cross-examination was struck in order to preserve the defendant’s Sixth Amendment right of confrontation. The defendant, as a recalcitrant witness, presents an entirely different situation involving a different balance of constitutional interests. Cf. Williams v. Florida, 399 U.S. 78 , 83 n.14, 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970); Wardius v. Oregon, 412 U.S. 470 , 472 n.4, 93 S.Ct. 2208 , 37 L.Ed.2d 82 (1973) (holding Oregon notice of alibi rule invalid on its face without reaching issue whether state court could impose sanction provided in statute, i. e., exclusion of defendant’s testimony based upon failure to comply with the rule); United States v. Barron, 575 F.2d 752 , 757 n.5 (9th Cir. 1978) (noting possible constitutional infirmity of excluding testimony of defendant’s witnesses pursuant to terms of Fed.R.Crim.P. 12.-1(d)). See also Ives, supra.

*443 In short, I have found no case reaching the result embraced by the majority. This in itself suggests caution should be exercised in authorizing the summary striking of a defendant’s testimony in its entirety. On the other hand, there exists ample authority permitting the use of civil contempt to induce answers following an unprivileged refusal to respond. See 28 U.S.C. § 1826 . See also United States v. Wilson, 421 U.S. 309 , 95 S.Ct. 1802 , 44 L.Ed.2d 186 (1975); Yates v. United States, 355 U.S. 66 , 78 S.Ct. 128 , 2 L.Ed.2d 95 (1957); United States v. Brannon, 546 F.2d 1242, 1247-49 (5th Cir. 1977) (defendant’s unprivileged refusal to answer questions when ordered to do so by court is contumacious conduct for which court may impose summary contempt under Fed.R.Crim.P. 42(a)).

It is easy to imagine circumstances, as perhaps existed here, in which civil contempt or any other available sanction, such as striking only a portion of the defendant’s testimony, would be ineffective. My position is that the trial judge should articulate the ineffectiveness of these sanctions and find specifically that justice will be served only by striking the defendant’s testimony in its entirety. A proper articulation and finding should be overturned, I would readily agree, only upon a showing on appeal that the trial court was clearly erroneous.

Finally, I find it not improper to suggest that counsel who advise their clients to rely •upon, or persist in, unprivileged refusals to answer proper questions are engaged in unprofessional conduct. One may hope that counsel would not exploit the requirement I would impose to impede the orderly progress of a trial. Those who would have been so tempted should remember that unprofessional conduct on the part of defense counsel begets the temptation for the prosecution to do likewise and in due course may well lead to fairly harsh rules of criminal procedure. In the interests of fairness, I should add that this conclusion is valid without regard to which side, defense or prosecution, first acts unprofessionally.

I would reverse the convictions.