dissenting:

I disagree both with the district court’s action in admitting the prior conviction under Federal Rule of Evidence 609 and with the majority’s holding that because the trial court could have admitted the conviction under Rule 404 the error was harmless. I therefore dissent.

The record, cited in the majority opinion, strongly suggests that the trial court failed to perform the balancing test prescribed by Federal Rule of Evidence 609. 1 That rule commits to the sound discretion of the trial court the task of weighing the probative value of the prior conviction with respect to the witness’ truthfulness against the prejudicial effect of admission on the defense. In United States v. Hendershot, 614 F.2d 648, 653 (9th Cir.1980) we held that the possibility that the district court failed to perform the balancing test when adjudicating the admissibility of a prior conviction under Rule 609 constituted reversible error. See also, United States v. Mehrmanesh, 689 F.2d 822, 834 (9th Cir.1982).

In any event, the district court failed to articulate the reason for its decision to admit the prior conviction under Rule 609. As the majority points out, it is not entirely clear from our prior decisions that we require the district court to articulate the reasons underlying a Rule 609 decision. Compare United States v. Cook, 608 F.2d 1175, 1187 (9th Cir.1979), cert. denied, 444 U.S. 1034 , 100 S.Ct. 706 , 62 L.Ed.2d 670 (1980), with United States v. Hendershot, 614 F.2d 648, 653 (9th Cir.1980), and United States v. Mehrmanesh, 689 F.2d 822, 834 (9th Cir.1982). However, upon considering the necessity for protecting the integrity of the procedures used to determine the admissibility of a prior conviction and the importance of preserving a record of those procedures so that the reviewing court may properly perform its task, I believe that the reasoning of our later cases is persuasive and controlling. District courts are, or should be, required to articulate the bases of their finding regarding the potential probative or prejudicial impact of admitting a witness’ prior conviction into evidence under Rule 609. United States v. Hendershot, 614 F.2d 648, 653 (9th Cir.1980); United States v. Mehrmanesh, 689 F.2d 822, 834 (9th Cir.1982); accord, United States v. Crawford, 613 F.2d 1045, 1050 (D.C.Cir.1979); see also United States v. Hall, 588 F.2d 613, 615 (8th Cir.1978). Therefore, rather than leaving the law in the state of confusion in which the majority finds it, I would expressly hold that the district court was in error in admitting McCollum’s 1970 conviction into evidence under Federal Rule of Evidence 609 both because it failed to perform the appropriate balancing test and because it failed to articulate the basis for its decision. 2

I also disagree with the majority’s contention that any error committed by the trial court in admitting McCollum’s prior conviction under Rule 609(a)(1) was harmless. The majority bases this contention on the theory that the trial court could have *1428 admitted the prior conviction under Federal Rule of Evidence 404(b) for the purpose of demonstrating McCollum’s intent to commit bank robbery. The majority relies on United States v. Mekrmanesh, 689 F.2d at 831 n. 10 to support this proposition. In Mekrmanesh, however, we held that the district court’s erroneous admission of a prior conviction under 609(a)(1) was harmless error because the district court actually had admitted the prior conviction under Rule 404(b), not because it could have done so. Here the majority itself performs the balancing test that Rule 403 requires the district court to perform, and does so without affording the parties an opportunity to litigate the issue and without the benefit of an appropriate judgment, or analysis of the issues, by the district court. Instead the majority simply assumes that the district court would have drawn the same conclusions the majority draws had the district court itself considered and utilized Rules 403 and 404. I believe there is neither precedent nor justification for the majority’s post hoc application of a Rule 403 test when the district court fails to act under that Rule. There is accordingly neither precedent nor justification for the majority’s conclusion that the district court’s error in admitting the evidence under Rule 609(a)(1) was a harmless one.

The majority’s position not only fails to-accord sufficient importance to the procedures required to adjudicate the admissibility of a prior conviction, but seems inconsistent with its own general view regarding the necessity for district courts to perform balancing tests. In its opinion, the majority properly assumes that the trial court is required to perform the balancing test under Rule 609. It simultaneously asserts, however, that because the trial court mentioned some of the factors relevant to a Rule 403 balancing test in the course of the proceedings, the proceedings can be “construed” as encompassing the performance by the district court of a balancing test to determine the admissibility of the prior conviction under Rule 403 and Rule 404(b). This assertion is made in the face of the fact that the trial court never once considered Rule 403 or Rule 404(b) — a fact readily acknowledged in the majority opinion.

I also disagree with the manner in which the majority balances or fails to balance the prejudicial and probative effects of McCollum’s prior conviction. The majority asserts that because intent is the “key” issue, the evidence of McCollum’s prior conviction is “insufficiently prejudicial to warrant exclusion.” To me, this is a non sequitur. Rule 404 provides that evidence of prior convictions, even where indisputably relevant, “may ... be admissible,” if, after weighing its probative value against the preclusive effects listed in Rule 403, the trial court deems it desirable to so admit it. See, Fed.R.Evid. 404 advisory committee note. The importance of a careful balancing by the district court is emphasized by major commentators on this rule. See 22 C. Wright & K. Graham, Federal Practice & Procedure § 5250 (1978); 2 J. Weinstein & M. Berger, Weinstein’s Evidence it 404[18] (1982). Moreover, where the proffered prior conviction is introduced solely to establish intent to commit a criminal act, the balancing process has been deemed especially critical. United States v. Beechum, 582 F.2d 898, 914 (5th Cir. 1978), cert. denied, 440 U.S. 920 , 99 S.Ct. 1244 , 59 L.Ed.2d 472 (1979); Note, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763 , 771-73 (1961). Thus, contrary to the majority’s view, the fact that intent is the “crucial” issue does not obviate the need to engage in specific, careful balancing, including a weighing of the particular facts; it enhances it. Here the majority never fully considers the prejudicial implications of admitting McCollum’s prior conviction in a jury trial, or whether, given the incremental probative value of this fact at trial, it was necessary or appropriate to admit that evidence. See United States v. Bailleaux, 685 F.2d 1105, 1112 (9th Cir.1982) (trial court should consider need for prior conviction as evidence in light of other available evidence and issues at hand); 2 J. Weinstein & M. Berger, Weinstein’s Evidence H 404[18] at 404-101 to 102 (“Some commentators and courts have suggested that, in assessing the probative value of the evi *1429 dence, the courts should apply a ‘necessity’ test to exclude evidence when the prosecution’s other evidence on the issue is sufficient beyond a reasonable doubt.” (footnotes omitted)); Fed.R.Evid. 403 advisory committee note (“In reaching a decision whether to exclude on grounds of unfair prejudice ... [t]he availability of other means of proof may also be an appropriate factor.”); Note, 70 Yale L.J. at 772.

Moreover, balancing the prejudicial and probative effects of McCollum’s 1970 conviction in light of the facts before us, I draw a conclusion that is opposite to the majority’s. I believe that to admit McCollum’s 1970 conviction would have been substantially more prejudicial than probative of his intent to commit bank robbery. First, I find the fact that the earlier wrongful act was more than 12 years old would in any event greatly diminish its probative value. More significant, I have considerable doubt about the degree to which it is probative at all under the facts of this case. To the extent that McCollum’s prior conviction has probative value, I agree with the majority that it is with regard to the issue of intent. In the ordinary case, where intent is at issue, the fact that a defendant previously engaged in similar acts and harbored an actual specific intent on those occasions, may have some probative value with respect to the prosecution’s contention that the defendant intended to commit the subsequent similar or identical offense and may tend to controvert the defense theory that he did not have such an intent. But under the peculiar circumstances of this case, the fact of McCollum’s intent on the earlier occasion is probative of both the prosecution’s and defense’s theories. The prosecution sought to have the fact of McCollum’s prior conviction admitted for the purpose of contradicting his hypnotism defense. However, since the prosecution’s expert witness testified that one can only be commanded by a post-hypnotic suggestion to engage in acts which are consistent with one’s predisposition, the fact of McCollum’s previous armed robbery conviction just as readily corroborates the defense’s theory of this crime. Thus, the probative value of admitting the fact of the prior crime seems to me to be considerably less than in other cases. At the same time, I have no doubt whatsoever that introducing evidence of McCollum’s prior bank robbery conviction would significantly bias any jury’s view of McCollum’s credibility were he to testify on his own behalf and would, as the majority acknowledges, leave the jury with the impression that he was a “bad” man.

Rule 404(b) is intended to be a very limited exception to the longstanding common law tradition that protects a criminal defendant from guilt by reputation. A proper balancing of the probative value of a prior conviction against its prejudicial effects at trial is essential if this exception is to retain the limited character that Congress intended. Because I find the majority opinion to be at odds with that tradition, I respectfully dissent.

. See majority opinion n. 2, first paragraph. McCollum was released from confinement on the prior offense six years before the trial. Accordingly, the test required by 609(a)(1) rather than the stricter 609(b) standard was applicable to the requisite Rule 609 inquiry.

. We apply the abuse of discretion standard in reviewing a district court’s determination under Rule 609(a)(1) of the admissibility of a prior conviction in light of its prejudicial/probative impact. See United States v. Field, 625 F.2d 862, 871 (9th Cir.1980). However, that standard does not apply when the court does not make the necessary inquiry into the relevant Rule 609(a)(1) considerations and fails to perform the balancing test. United States v. Mehrmanesh, 689 F.2d 822, 834 (9th Cir.1982); see also United States v. Hendershot, 614 F.2d 648, 653 (9th Cir.1982).