No. 72-1785.

469 F.2d 79 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Angel Del VALLE-ROJAS, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

November 13, 1972.

Attorney(s) appearing for the Case

Kevin J. McInerney, of McInerney, Milchen & Frank, San Diego, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Stephen G. Nelson, Douglas G. Hendricks, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.

Before ELY and HUFSTEDLER, Circuit Judges, and TALBOT SMITH, District Judge.


Valle-Rojas was convicted of having attempted to escape from custody, a violation of 18 U.S.C. § 751(a). While being transported from one jail facility to another, the appellant slipped from the handcuffs with which he was bound to two other prisoners. Subsequently, he was found hiding in a portion of the bus which had been used for the transportation. The evidence was sufficient to support the conviction.

The principal argument advanced by Valle-Rojas on this appeal is that the prosecution committed prejudicial error in introducing evidence of the accused's conviction of prior felonies, including a previous conviction, in February 1971, of the offense of escape. He relies upon Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). While many of the district judges of our Circuit have apparently followed the Luck rule, see, e.g., United States v. O'Day, 467 F.2d 1387 (9th Cir. 1972); Burg v. United States, 406 F.2d 235 (9th Cir. 1969) (concurring opinion), the rule has not been fully adopted by our court, Burg, supra. In any event, however, a fair interpretation of the record reveals that the District Court did indeed exercise its discretion in deciding whether to admit the challenged evidence.

The judgment is



* The Honorable Talbot Smith, United States District Judge, Detroit, Michigan, sitting by designation.


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