United States v. Mark Edwin Cook

(with whom BROWNING, TRASK, J. BLAINE ANDERSON and TANG, Circuit Judges, concur):

Upon a vote of a majority of the judges, pursuant to Fed.R.App.P. 35(a), the court en banc has taken the question whether a defendant, who elected not to testify during his trial, could preserve on appeal his challenge to the trial judge’s ruling on a motion for an order excluding evidence of his former robbery convictions.

The trial court ruled in advance of trial that if Cook chose to testify the government could impeach him with evidence of any of his prior convictions not time-barred by Fed.R.Evid. 609(b).4…