Waterman, Smith, and Timbers, Circuit Judges.
The decisive issue on this appeal is whether the District Court, in exercising its discretion under our Palumbo decision,*fn1 erred in ruling that the government could use a 21-year old narcotics conviction of appellant to impeach him while on trial in the instant case for violation of the federal narcotics laws. For the reasons stated below, we hold that the District Court did err in that ruling. We therefore reverse and remand for a new trial.
Appellant Albert Puco and co-defendant Robert Gonzalez were first convicted on February 18, 1970 in the Southern District of New York, after a three day trial before Judge Pollack and a jury, of selling cocaine without an order form and of conspiring to sell illegally imported narcotics. On January 8, 1971, this Court reversed Puco's conviction and remanded for a new trial, holding that improper use by the prosecutor, while cross examining Gonzalez, of a post-arrest, out-of-court statement by Gonzalez, which implicated Puco, had deprived Puco of a fair trial.*fn2
A superseding indictment was returned May 20, 1971, charging both defendants with selling cocaine without an order form and with conspiring to do so, in violation of the federal narcotics laws, 26 U.S.C. § 4705(a) (1964).*fn3 Puco and Gonzalez were convicted on both counts after a six day jury trial in the Southern District of New York, Dudley B. Bonsal, District Judge. Puco was sentenced to concurrent fourteen-year terms of imprisonment and has been released on bail pending determination of this appeal. Gonzalez was sentenced to concurrent seven-year terms of imprisonment and is now serving his sentence. Gonzalez has not appealed, and our ruling today affects only Puco.
The events which culminated in Puco's arrest are set forth in our earlier opinion, 436 F.2d at 761-62, and need be summarized only briefly here.*fn4 On June 25, 1969, undercover narcotics agents met with Gonzalez to arrange for the purchase of a large quantity of heroin. After several meetings, the deal fell through when Gonzalez reported that his supplier, a person by the name of "Al," was "feeling heat."
Agent Ellin then approached Gonzalez about purchasing cocaine. Gonzalez assured him that "Al" could supply excellent cocaine. On July 2, 1969, Gonzalez arranged to have Ellin drive him to an address on White Plains Road to consummate the cocaine purchase. The two men parked the car and waited until a man identified later as appellant Puco emerged from a TV repair shop. Gonzalez then said, "There is my man now. He has the stuff in a brown bag." Puco walked into an adjoining apartment building. Gonzalez left the car and entered the same building; he returned after 30 seconds with a bag containing one-half kilogram of cocaine. Agents then moved in and arrested Gonzalez and Puco.
Before his second trial, Puco requested an advance ruling prohibiting the government from impeaching him with his 1950 conviction for violating the federal narcotics laws.*fn5 This request was denied at a pre-trial hearing. Despite this adverse ruling, Puco testified in his own behalf.*fn6 Defense counsel questioned Puco about his prior conviction on direct examination. During cross examination, the government also questioned him about the conviction. The government then referred to the conviction during summation.
In United States v. Palumbo, supra note 1, at 273, we held that a trial judge does have power, in the exercise of sound discretion, to make an advance ruling prohibiting the use of a prior conviction for impeachment of a defendant "if he finds that a prior conviction negates credibility only slightly but creates a substantial chance of unfair prejudice, taking into account such factors as the nature of the conviction, its bearing on veracity, its age, and its propensity to influence the minds of the jurors improperly."*fn7 Upon considering the facts established by the record in the instant case in the light of the principles enunciated in Palumbo, we hold that the trial judge abused his discretion in ruling that Puco's prior conviction could be used for impeachment purposes.
The propensity of Puco's narcotics conviction to "influence the minds of the jurors improperly", Palumbo, supra, 401 F.2d at 273, needs little elaboration. Reference to a defendant's criminal record is always highly prejudicial. The average jury is unable, despite curative instructions, to limit the influence of a defendant's criminal record to the issue of credibility. Cf. Bruton v. United States, 391 U.S. 123, 129, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). The potential for prejudice, moreover, is greatly enhanced where, as here, the prior offense is similar to the one for which the defendant is on trial.*fn8 United States v. Bailey, 138 U.S. App. D.C. 242, 426 F.2d 1236, 1240 (D.C. Cir. 1970); United States v. Hildreth, 387 F.2d 328, 329 (4 Cir. 1967); Gordon v. United States, 127 U.S. App. D.C. 343, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 20 L. Ed. 2d 287, 88 S. Ct. 1421 (1968); Brown v. United States, 125 U.S. App. D.C. 220, 370 F.2d 242, 243 (D.C. Cir. 1966). As then Judge, now Chief Justice, Burger wrote in Gordon v. United States, supra :
"Strong reasons arise for excluding those [convictions] which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time.' As a general guide, those convictions . . . should be admitted sparingly. . . ." 383 F.2d at 940.
In view of the substantial likelihood of prejudice,*fn9 any decision to permit impeachment by reference to convictions for crimes similar to the one for which a defendant is on trial requires particularly careful consideration by the trial judge of the probative value of the prior convictions. See Gordon v. United ...