An essential part of the subject matter of this course in the law of evidence is inference. Bentham devised some terminology about inference that remains in use:

In many of our discussions so far we have assumed the sort of "simple" inference shown above, inferences involving one step. However, inferences can have more than one step. For example:

What bearing does the point immediately above have on United States v. Robinson (which is considered next)?

 

A Preliminary Point:

Portions of two opinions in United States v. Robinson are set forth below. In reading those opinions please keep in mind two interwined points.

First, there is talk in the case about the undue prejudice rule.

Second, there is talk in the case about the character evidence rule -- a rule also known as the propensity rule.

These two matters play an important part in the reasoning in the Robinson opinions found below.

The character evidence rule prohibits the use of a person's propensity to show his behavior; it prohibits showing what a person is to prove what he did. See Federal Rule of Evidence 404(a).

Assume

Pr = propensity

Cr = criminal conduct

The inference from propensity to criminal conduct (shown below) is prohibited.

Since character cannot be used to show conduct, it also follows that a fact cannot be shown when the purpose of proving that fact is show that a person has a certain kind of character trait or propensity and then to show that, because that person had that character trait or propensity, he acted in a certain way. For example, it is not permissible to offer evidence that a defendant possessed a gun, to show that the defendant had a propensity to commit a crime, in order to show that he therefore committed the crime charged:

United States v. Robinson, 544 F.2d 611 (2d Cir., 1976) (edited for student use):

Oakes, Circuit Judge:

This singular case involves the admissibility of testimony regarding a.38-caliber handgun found in the possession of appellant, Cecil Robinson, at the time of his arrest for bank robbery. Following the exclusion of both the gun itself and testimony pertaining thereto at appellant's first trial, the jury hung 8-4 for conviction. With the admission of evidence pertaining to the gun at a retrial, a conviction was rendered after three days of jury deliberation and two Allen-type charges, Allen v. United States, 164 U.S. 492, 501-02, 41 L. Ed. 528, 17 S. Ct. 154 (1896). The conviction, for bank robbery under 18 U.S.C. § 2113(a), n1 led to the imposition of a twelve-year prison sentence by the United States District Court for the Southern District of New York, Frederick van Pelt Bryan, Judge.

n1 Appellant was also indicted for conspiracy to commit bank robbery under 18 U.S.C. § 371, and armed bank robbery under 18 U.S.C. § 2113(d), which counts were dismissed on appellant's motion without opposition from the Government after return of a guilty verdict on the bank robbery charge.

A principal ground for appeal is that it was reversible error to admit into evidence testimony regarding the.38-caliber handgun found in appellant's possession ten weeks after a bank robbery in which several guns, including a.38, were allegedly used. After a review of the evidence, we agree with appellant that the admission of testimony regarding his possession of the gun was error. We also conclude that this error affected the judgment, and we therefore reverse and remand for a new trial.

On May 16, 1975, four men entered the 177 East Broadway branch of the Bankers Trust Company in New York and robbed it of $10,122. One robber wielded a sawed-off shotgun, and a teller received a bullet wound from a.32, not a.38, caliber revolver held by one of the other robbers. Bank surveillance films recorded rather limited images of only three of the men, the fourth robber having remained by the door and out of the camera's range. The robber with the shotgun was dressed in black. The two others both wore white coats; one of these men wore glasses, and the other a hat, stocking cap and gloves. The getaway car was a red 1974 Pontiac, which was found abandoned twenty minutes after the robbery; it had been stolen the day before from one Otis Brown.

One month after the robbery, on June 17, 1975, Allen Simon was arrested and charged with participation in the robbery as the man in black armed with the sawed-off shotgun. Simon was shown surveillance photos of the robber in the white coat, hat and gloves, and mug shots of Edward Garris and Carson Corley. At first Simon denied knowing Garris or Corley and denied that the robber in the white coat and hat was appellant Robinson. Later, however, Simon identified Robinson, also named "Merciful," as this robber; identified Garris, also known as "A.E." or "Allah Equality," as the fourth man who remained at the door; and identified a man known only to him as "Karim" as the robber in the white coat and glasses who wounded the teller. Simon pleaded guilty to bank robbery and use of a firearm on August 19, 1975, receiving an eighteen-year sentence. He then agreed to testify against Robinson in return for government aid in the reduction of his sentence. Simon testified at both appellant's first trial in November, 1975, and at the trial below, in January, 1976. At the time of appellant's second trial, Simon had a Rule 35 application for the reduction of his sentence pending, which subsequently was granted in the form of a reduction of his sentence to twelve years. Throughout, Simon maintained the innocence of Corley, who had been arrested but was released upon the failure of Simon to inculpate him. n2 Garris was indicted on the basis of Simon's evidence, but neither he nor "Karim" has yet been apprehended.

n2 It was stipulated at trial that one of the customers who witnessed the robbery but did not testify selected Carson Corely from a photo spread as "very closely resembling" one of the robbers in the white coats. The bank manager specifically identified Corley as resembling the robber in the white coat and glasses who shot the teller, as did Corley's Federal parole officer. Two other bank employees who testified for the Government also had identified Corley from a photo spread as one of the robbers. None of these witnesses, however, was ever shown a photo of appellant Robinson, and none could identify him as a participant in the robbery.

Appellant was arrested on July 25, 1975, ten weeks after the robbery, at the Gouverneur Hospital, where he worked part-time in a work-study program as a student in medical lab technology at Bronx Community College. In his possession on arrest were $6.30 and a.38 revolver in a vinyl case with two bullets.

The Government's case at both trials n3 rested primarily, if not almost solely, on the testimony of Simon. None of the eight bank employees called as witnesses to the robbery identified Robinson as a participant. Bank surveillance photographs showed a man scooping money into a bag, but the photographs are far from clear. Indeed, with due respect to the dissenting opinion, comparison of appellant Robinson's photograph with those taken in the bank provokes appellate uncertainty as much as it provoked uncertainty in two juries; moreover, there is nothing in the surveillance photos to show that the man who purportedly is Robinson was using a gun at the time of the robbery. Only Simon identified the man in the photographs as Robinson, which of course adds nothing to Simon's verbal account of the robbery.  

n3 The government does not suggest that there was any relevant substantive variance between the proof submitted at the first trial and that introduced in the trial below.

It was stipulated that Robinson's fingerprints appeared on the right rear cigarette lighter panel of Otis Brown's car; Brown testified, however, that prior to May 16, 1975, appellant had been in the same trainee-work-study program with him at Bronx Community College, and that he had given Robinson rides in his car a half-dozen times in April and May, prior to the robbery, on several of which occasions Robinson had ridden in the back seat. There was no testimony that Robinson obtained the getaway car for the robbers; the dissent's reference to "evidence" that Robinson "offered" to obtain such a car is to nothing more than the uncorroborated testimony of the alleged accomplice, Simon. The Government's fingerprint expert testified that there was no scientific means to determine how long Robinson's fingerprint had been in the car, and that it was possible it had been there two months or longer prior to the date of the robbery. In addition to this ambiguous evidence (it did show that Robinson had ridden in the car that was stolen for use in the bank robbery), there was testimony by two Human Resources Administration employees that appellant knew Garris, the accused fourth robber. Personnel records from Gouverneur Hospital also showed that appellant was not present at work as scheduled on May 16, 1975; the hospital is located two blocks from the Bankers Trust Company bank.

At appellant's first trial, the Government sought to have the evidence of appellant's possession of the.38 handgun admitted as probative of Robinson's opportunity or preparation to commit the crime charged under United States v. Ravich, 421 F.2d 1196 (2d Cir.), cert. denied, 400 U.S. 834, 27 L. Ed. 2d 66, 91 S. Ct. 69 (1970). Judge Duffy excluded the evidence concerning the gun. The jury deliberated for three days, as stated hung 8-4 for conviction, and a mistrial was declared.

At the second trial, which began on January 21, 1976, the Government again sought admission of the weapon while appellant argued strenuously against a reversal of Judge Duffy's prior ruling on the same facts. n4 It was not until all the evidence was in (except the testimony as to appellant's knowing Garris), and after several hearings on the question, that Judge Bryan admitted the testimony of the detective who arrested Robinson regarding the latter's possession of the.38; the judge did not permit the gun itself to be produced. Appellant took exception to the court's instructions limiting consideration of the gun to the issue of appellant's identity as one of the robbers. n5 The jury deliberated for a day and a half, after which it reported itself deadlocked 11 to 1, and received an Allen-type charge. It continued deliberation for three more hours until a note from one juror, which the court sealed and did not reveal to counsel, sought advice on the ground of her "strong reasonable doubt." This note the court answered with another Allen-type charge. On the afternoon of the third day of deliberations, the jury rendered its guilty verdict.  

n4 Appellant's counsel also promised to make no argument in his summation to the effect that appellant had no access to guns and therefore could not have committed the robbery.

n5 Judge Bryan's charge on the evidentiary value of the gun was as follows:

In certain instances evidence may be admitted for a particular, limited purpose only. Now, you have heard testimony about a.38 calibre hand gun which was found when the defendant was arrested on these charges, some two months after the robbery. That testimony was admitted for a very limited purpose. It may be considered only for whatever value, if any, it has on the issue of defendant's identity as one of the robbers, that is, on the question of whether this defendant was the person who committed the crimes charged. You may not draw any conclusions or inferences or engage in any speculation as to the defendant's character or reputation on the basis of this testimony or about anything else other than the narrow thing that I have just mentioned to you. You may consider this evidence solely for the limited purpose I have described and give it such weight, if any, for that purpose as you think it may deserve.

Appellant's principal contention is that Judge Bryan erred in admitting the testimony concerning appellant's possession of the.38 caliber gun at the time of his arrest ten weeks after the robbery. We first note that the relevance of the testimony is uncontested. Under Federal Rule of Evidence 401, evidence, to be relevant, need only have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See also United States v. Ravich, supra, 421 F.2d at 1203-04.

The more complex or subtle problem we face is balancing the probative value of the gun evidence against its prejudicial effect. Federal Rule of Evidence 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

This rule essentially restates the rule of at least thirty jurisdictions. See Dolan, Rule 403: The Prejudice Rule in Evidence, 49 So.Cal.L.Rev. 220, 224 (1976). It is designed principally to promote the twin policies of assuring "correct" factual determinations in individual cases and actual and perceived fairness in the judicial process as a whole. Id. at 226-30.

The phrasing of Rule 403 comports also with the traditional understanding, recognized by this court, that the weighing of probative value and prejudicial effect is a matter generally left within the wide, and wise, discretion of the trial court. United States v. Harvey, 526 F.2d 529, 536 (2d Cir. 1975), cert. denied, 424 U.S. 956, 96 S. Ct. 1432, 47 L. Ed. 2d 362 (1976); United States v. Ravich, supra, 421 F.2d at 1204-05. Here, however, we hold that the admission of the evidence constituted serious and reversible error. The testimony regarding the.38 established only a very weak inference at best that appellant was one of the bank robbers; it was likely to have had a significant prejudicial impact on the minds of the jurors; and, in the circumstances of this exceedingly close case, may be treated as sufficiently affecting the verdict that its admission requires reversal. n6

n6 The essential point reiterated by the dissent is that the trial court had discretion to admit or exclude the evidence. While we of course agree with this statement as a general proposition, it is equally plain that this discretion is far from unlimited and that appellate courts have a vital role to play in overseeing the exercise of this discretion. Cf. Michelson v. United States, 335 U.S. 469, 480, 93 L. Ed. 168, 69 S. Ct. 213 (1948) ("wide discretion is accompanied by heavy responsibility on trial courts"). Appellate review is particularly important when the case is, in other respects, a close one, as this one was, since then greater care must be exercised to ensure a rational verdict. See Dolan, supra, 49 So.Cal. L.Rev. at 255 n.133. Moreover, with all due respect to Judge Weinstein, whose treatise statement that evidence be given "its maximum reasonable probative value and its minimum reasonable prejudicial value," is quoted approvingly by the dissent, see also Taylor v. Northern States Power Co., 192 Minn. 415, 256 N.W. 674 (1934) (civil case), it can be argued with equal cogency, and in a criminal case with greater urgency, that, in the interests of "more humane and rational trials," courts should "resolve all doubts concerning the balance between probative value and prejudice in favor of prejudice." Dolan, supra, 49 So.Cal.L.Rev. at 233.

PROBATIVE VALUE

To make the identification of appellant as one robber from his later possession of a.38, the jury would have had to draw two quite weak inferences, with the second being dependent on the first and with neither having much basis in the evidence presented at trial. While this court has "rejected as untenable the often urged claim that an inference may not be grounded on an inference," United States v. Ravich, supra, 421 F.2d at 1204 n.10, it has at the same time recognized that

the length of the chain of inferences necessary to connect the evidence with the ultimate fact to be proved necessarily lessens the probative value of the evidence, and may therefore render it more susceptible to exclusion as ... prejudicial ....

Id.

The first inference necessary to establish appellant's identity involved his possession of the.38 at the time of the robbery. n7 As Wigmore makes clear, "this inference is always open to doubt," because, for example, appellant might very well have acquired the.38 in the period since the robbery. 2 J. Wigmore, Evidence § 410, at 384 (3d ed. 1940). See also id. § 437, at 413 ("the disturbing contingency is that some circumstance operating in the interval may have been the source of the subsequent existence"). In Ravich, supra, however, this court found that defendant's post-robbery possession of six.38 pistols and a box of.38 ammunition was sufficient to allow an inference to be drawn that at least some of the guns had been possessed for a "substantial period of time" on and before the date of the robbery. 421 F.2d at 1204. For the legitimacy of such an inference, Judge Friendly relied on United States v. Consolidated Laundries Corp., 291 F.2d 563 (2d Cir. 1961), which stated the principle that "the subsequent existence of a fact supports the inference of its earlier existence, when the subsequent condition is one which ordinarily would not exist unless it had also existed at the earlier time." Id. at 569, citing 2 Wigmore, supra, § 437, at 413-14. In Consolidated Laundries, this principle supported the inference that a file of documents evidently procured by the Government from its key witness before trial and found in the Government's possession after trial could properly be found to have been in its possession during trial. Whatever the applicability of this principle to possession of the quantity of guns in the Ravich case, the inference of prior possession stands upon a significantly weaker footing here where the possession of a single gun is unaccompanied by any additionally suggestive circumstances as existed in Ravich, where there were large unexplained amounts of cash, positive eyewitness identification by five witnesses, and other evidence, said by the court to be "overwhelming," 421 F.2d at 1204, linking the possessor of the guns to the crime. The strength of the inference from subsequent possession to prior possession can be judged only in the context of the facts of each case. See 2 Wigmore, supra, § 437, at 414.

n7 More specific inferences, of course, are possible, such as that appellant did not possess a.38 before the robbery but simply kept a gun used at the robbery until he was arrested. It is the most general possible inference, therefore, that of access or opportunity to use a.38 two months later, which the Government relied on to prove Robinson's possession of a.38 at the time of the robbery and hence his participation in that robbery.

Once the jury had found that appellant possessed a.38 at the time of the robbery and that a.38 was actually used in the robbery, n8 it would then have had to find that appellant's undistinctive.38 was the.38 used in the robbery. Such an inference was at best highly problematic on the facts of this case. There was no evidence to link the two guns. The single.38 found in appellant's possession was apparently a type of handgun far more common in the city of New York than, e.g., a sawed-off shotgun, United States v. Jackson, 166 U.S. App. D.C. 166, 509 F.2d 499, 508 n.73 (1974), or a number of handguns found together with a large amount of ammunition, as in Ravich, supra. n9 No circumstantial evidence linked appellant to the robbery, other than Simon's testimony, the ambiguous fingerprint in Otis Brown's car, and appellant's absence from work at a hospital two blocks from the bank robbed on the date of the robbery. This case thus contrasts sharply with Ravich, supra, in which a wealth of direct and circumstantial evidence, independent of defendants' possession of guns, existed to link defendants to the crime. Nor was Robinson in possession of inherently suspicious burglary or robbery gear, such as masks or quantities of weapons and burglary tools, as in United States v. Eatherton, 519 F.2d 603, 611-12 (1st Cir.), cert. denied, 423 U.S. 987, 46 L. Ed. 2d 304, 96 S. Ct. 396 (1975) ...; large sums of money, United States v. Fisher, 455 F.2d 1101, 1103-04 (2d Cir. 1972) ...; or bait money from the robbed bank, United States v. Walters, 477 F.2d 386, 388 (9th Cir. 1973), cert. denied, 414 U.S. 1007, 38 L. Ed. 2d 245, 94 S. Ct. 368 (1974). There was here no specific evidence with a circumstantial connection to the crime, as in United States v. Burke, 506 F.2d 1165, 1170 (9th Cir. 1974) (gun at issue found with gun linked to robbery by witnesses), cert. denied, 421 U.S. 915, 43 L. Ed. 2d 781, 95 S. Ct. 1576 (1975); United States v. Thornton, 149 U.S. App. D.C. 203, 462 F.2d 307, 309 (1972) (defendant seen with red sweater shortly after theft; police found red sweater next to property of victim near scene of defendant's arrest); United States v. Montalvo, 271 F.2d 922, 925, 927 (2d Cir. 1959) (blade of knife caked with heroin in narcotics case), cert. denied, 361 U.S. 961, 4 L. Ed. 2d 543, 80 S. Ct. 589 (1960). Of further significance is the fact that the use of any.38, much less the one here involved, was not testified to by any witness to the robbery, including appellant's coconspirator Simon, in contrast to the identification by other witnesses in United States v. Jackson, supra, 509 F.2d at 501-02 (victim identified assailant and sawed-off shotgun similar to one used in robbery); Pinkney v. United States, 124 U.S. App. D.C. 209, 363 F.2d 696, 698 (1966) (eyewitness identified defendant's knife as similar to one used in homicide and described it before seeing it); Yates v. United States, supra, 362 F.2d at 579 (six eyewitnesses identified black and white.38 as used in robbery); Jones v. United States, 262 F.2d 44, 47 (4th Cir. 1958) ("deep-sixed" gun barrel exactly fitted sawed-off shotgun identified by two victim eyewitnesses), cert. denied, 359 U.S. 972, 3 L. Ed. 2d 839, 79 S. Ct. 887 (1959). n10

n8 There was no direct testimony on this latter point. Simon, the confessed co-robber who testified for the Government, mentioned a.38 only once, when testifying as to what guns the robbers had in an apartment on the night before the robbery. Of the three guns, one was his own.32, another was a.38, and a third "looked like it might have been a.38," but he was "not sure" of the make. While he later testified that handguns were used in the robbery, he did not mention the.38 in this context. None of the eight witnesses who testified as to their observations of the robbery identified any guns other than the shotgun wielded by Simon. In view of Simon's testimony, however, the jury could readily have concluded that a.38 was used in the robbery.

n9 It is true that in United States v. Ravich, 421 F.2d 1196 (2d Cir.), cert. denied, 400 U.S. 834, 27 L. Ed. 2d 66, 91 S. Ct. 69 (1970), three of the six.38's in the defendant's possession, which were all admitted into evidence, could not in fact have been used in the robbery. They were, however, in their particular quantity an integral part of the evidence of possession of a large number of weapons and of large sums of money. The probative value of the guns in Ravich thus did not depend so heavily on direct connection with the robbery itself, as must Robinson's single, otherwise unconnected.38 so depend in this case.

n10 Some courts have allowed weapons to be admitted on the ground that the weapons were "similar" to ones used in the robbery without very much elaboration as to the specific degree of similarity or as to the nature of the other evidence against the defendant. See, e.g., United States v. McKinley, 158 U.S. App. D.C. 280, 485 F.2d 1059, 1060 (1973) (sawed-off shotgun resembled that used in crime); United States v. Cunningham, 423 F.2d 1269, 1276 (4th Cir. 1970) ("ample testimony" of "similarity" of weapons). To the extent that these cases may be inconsistent with our analysis, we do not follow them.

 

Thus, the probative value of the testimony that appellant possessed a.38 ten weeks after the robbery must be characterized as slight. But, under Rule 403, a finding of slight probative value is insufficient to warrant exclusion in and of itself. Prejudice from admission must "substantially outweigh" that value.

Rule 403 proscribes only "unfair prejudice," a term defined by the Advisory Committee as involving "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Note to Fed. R. Evid. 403. One "improper basis" of decision that the courts have consistently disallowed concerns attempts to obtain convictions based on the character, personal traits, or generalized bad acts of the defendant, the so-called "bad man conviction." As Wigmore put it:

The deep tendency of human nature to punish, not because our [defendant] is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury, in or out of Court.

1 J. Wigmore, supra, § 57, at 456. It is clear that Federal Rule 403 was intended to apply to this type of prejudice. See Dolan, supra, at 238-39.

When a person is found with a gun in his possession in an urban area such as New York City, many persons might conclude that the gun was being carried in order to commit violent crimes. When, as in this case, the person found with a gun is then singled out by the police and prosecutors, by virtue of his prosecution, as one who is likely to use a gun for an unlawful purpose, a far larger number would conclude that the possessor of the gun is a dangerous person who ought to be segregated from society. n11 Judge Bryan's limiting instruction, note 5 supra, was far too cryptic to dispel the possibility of severely unfair prejudice here. n12 In view of the gun evidence's marginal probative value, we conclude that its admission constituted error.

n11 In view of the comprehensive and well-publicized regulation of firearms in the state and city of New York, regulation that includes criminal penalties, N.Y. Penal Law § § 265.01, 265.20, 400.00 (McKinney 1967 & Supp. 1975) (known as the Sullivan Law); Administrative Code of the City of New York § § 436-5.0 to 436-6.16 (1971 & Supp. 1975), many New Yorkers might further conclude that a person arrested with a gun violated a law simply by being in possession of the gun.

n12 The dissenting opinion relies heavily upon Judge Bryan's limiting instruction as dissipating likely prejudice from admission of the gun evidence. There are several problems with this reliance. First, even if the instruction were in all respects perfect, the best instruction may nevertheless be insufficient: "'The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be an unmitigated fiction. ...'" Bruton v. United States, 391 U.S. 123, 129, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), quoting Krulewitch v. United States, 336 U.S. 440, 453, 93 L. Ed. 790, 69 S. Ct. 716 (1949) (Jackson, J., concurring). Second, a limiting instruction is particularly likely to be ineffective when the evidence that is being limited is itself of a prejudicial nature:

One need not take a definitive stand on the question of the general effectiveness of cautionary instructions in order to denigrate the effectiveness of cautionary instructions in the prejudice rule situation. ...

Although many courts have realized that cautionary instructions do not always cure prejudicial effects, a substantial number of courts have clung to cautionary instructions as talismans for the solution of any possible prejudice problem. In so doing, these courts are effecting a repeal of the prejudice rule, which by its terms concedes the possibility that the negative aspects of some evidence may simply be unmanageable for the fact-finder regardless of instructions. If the efficacy of cautionary instructions is accepted in all cases, then the need for the prejudice rule is obviated.

Dolan, supra, 49 So.Cal.L.Rev. at 248-50 (footnotes omitted).

Finally, the instruction here was, with all respect to the trial judge, insufficient to dissipate prejudice. It described the proper, limited purpose for which the evidence could be used only once and then described the improper, forbidden use of the evidence as proof of character. The jury was then told to give the evidence "such weight, if any, for that [limited] purpose as you think it may deserve." See note 5 supra. If the jury were at all confused about which use of the evidence was the proper one, a confusion which could well have occurred, the concluding statement would have led the jury to give the evidence the weight "it may deserve" for any and all purposes.

...

Judgment reversed and remanded.

MANSFIELD, Circuit Judge (Dissenting):

I must respectfully dissent for the reason that in my view Judge Bryan did not abuse his discretion in admitting proof that when Robinson was arrested he had on his person a.38 caliber hand gun, the same caliber as the gun which was shown by other proof to have been possessed by Robinson when he participated in the bank robbery. As the majority concedes, this evidence was clearly relevant. In my view it represented strong corroboratory proof of Robinson's participation in the robbery, clearly outweighing any prejudice.

The significance of Robinson's post-arrest possession of a.38 caliber revolver becomes apparent when one examines the other evidence in the case, which reveals both his participation in the bank robbery and his use of a.38 caliber revolver during the robbery. His participation was shown by the direct testimony of his co-participant Simon, by bank photos showing Robinson scooping money into a paper bag during the robbery, n1 and by evidence that on the day before the robbery Robinson had offered to obtain a get-away car. The stolen get-away car used in the robbery, and later found abandoned, was a 1974 Pontiac owned by a friend of Robinson named Otis Brown. In addition, the evidence showed that on the day of the robbery Robinson failed to show up for work as a laboratory technician at the Gouverneur Hospital, two blocks away from the bank which was robbed, that in order to allay any suspicions on the part of bank employees the robbers wore white jackets of the type worn by employees of that hospital who frequented the bank, and that after the robbery Robinson's fingerprint was found in the abandoned get-away car.

n1 On the basis of my own close examination of the photographs introduced into evidence, including comparison of conceded photos of Robinson (GX 17) with some of those taken by the bank surveillance camera of one of the persons engaged in the robbery (GX 106A-109A), I am persuaded (as apparently was the jury) by the similarity in facial features, including the shape and contours of the mouth, chin, nose, eyebrows, forehead, mustache, and hairline, that they depict one and the same person, as Simon testified at trial. In addition, of course, the jury was able at trial to see Robinson in person for comparison with the bank photos, which we have not done.

There also was ample proof that Robinson used a.38 caliber revolver during the bank robbery. Simon testified that on the night before the robbery the four participants (Simon, Robinson, " Karim," and Garris) assembled four guns to be used in the carrying out of the crime: one shotgun, one.32 caliber hand gun, one.38 caliber revolver, and one revolver "that looked like it might have been a.38." During the course of the robbery Simon used the shotgun, Karim used the.32 caliber revolver, which he accidentally discharged during the robbery (wounding a teller), and Garris held a gun on a teller, while Robinson emptied the cash drawers. Immediately after the robbery Simon testified that Robinson handed over his gun to Garris in the back seat of the get-away car. From this evidence it was logical for the jury to infer that during the robbery Robinson had in his possession a.38 caliber hand gun.

In light of the independent evidence of Robinson's participation in the robbery and possession of a.38 caliber hand gun, his possession of a.38 caliber hand gun on the day of his arrest has considerable probative significance. In determining the probative value to be attached to this type of circumstantial evidence we are, of course, always dealing with probabilities. While hand guns may be all too plentiful in our society, the majority would imply that they are as common as subway tokens. In fact, the vast majority of people do not possess a hand gun, much less one of.38 caliber. To find such a gun in the possession of the very person against whom there is independent proof that he used a.38 caliber hand gun in the bank robbery is sufficiently coincidental to be extraordinary. I cannot agree with the majority that this evidence "established only a very weak inference that appellant was one of the bank robbers." On the contrary, while there is always the outside possibility that the gun might have been acquired by him after the robbery, the strong probability is that, absent any evidence that it came from some intervening source, the gun had been in his possession and used by him in the bank robbery. In United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir. 1970), which the majority tries mightily but in my view without success to distinguish, Judge Friendly stated the guiding principle:

"Nevertheless, a jury could infer from the possession of a large number of guns at the date of arrest that at least some of them had been possessed for a substantial period of time, and therefore that the defendants had possessed guns on and before the date of the robbery. See United States v. Consolidated Laundries Corp., 291 F.2d 563, 569 (2 Cir. 1961), and 2 Wigmore, Evidence § 437(1) (3d ed. 1940). Direct evidence of such possession would have been relevant to establish opportunity or preparation to commit the crime charged, and thus would have tended to prove the identity of the robbers, the only real issue in this trial. See Morton v. United States, 87 U.S.App.D.C. 135, 183 F.2d 844 (1950); United States v. Montalvo, 271 F.2d 922, 927 (2 Cir. 1959), cert. denied, 361 U.S. 961, 80 S. Ct. 589, 4 L. Ed. 2d 543 (1960). Circumstantial evidence of such possession was therefore also relevant." [Footnote omitted].

Since Robinson's post-robbery possession of a.38 caliber hand gun corroborated the independent evidence of his possession of such a gun during the robbery itself, the experienced trial judge acted well within his discretion in concluding that its probative value outweighed any improper prejudicial effect. As the majority must recognize, the balance of probative value versus prejudicial effect is a matter best left to the wide discretion of the trial judge who, because he personally views the witnesses and the jury, is in a much better position to judge the effect of testimony as it unrolls than we are, relying only on a cold, printed record. n2 United States v. Leonard, 524 F.2d 1076, 1092 (2d Cir. 1975). In United States v. Ravich, supra, the possible prejudice from introduction of the guns into evidence, which had "the undoubted effect on the jury of seeing all this hardware on the table," 421 F.2d at 1204-05, was far greater than in the present case, where one of the guns was introduced. Yet Judge Friendly, noting that the trial judge's "determination will rarely be disturbed on appeal " found no abuse there.  

n2 Under Federal Rule of Evidence, 403, exclusion of relevant evidence is a matter for the discretion of the trial judge. In the exercise of this discretion, Judge Weinstein has suggested that, "Judges may differ in their assessment of probative value because, like jurors, they may disagree with respect to the evidential hypothesis and, consequently, its significance to the case. Generally, the better approach on the question of admissibility is to view both probative force and prejudice most favorably towards the proponent, that is to say, to give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Weinstein's Evidence para. 403[03] (1975).

Similarly I would find no abuse of discretion on the part of Judge Bryan in the present case. It denigrates the common sense of the average jury to suggest that simply because of a defendant's later possession of a hand gun a Jury would find him guilty of an earlier bank robbery. A jury is quite capable of distinguishing between the crime of bank robbery and that of possible violation of New York's Sullivan Law. When that jury is then clearly, effectively, and repeatedly instructed by the trial judge n3 that the evidence of his later possession of the gun is admitted "for a very limited purpose ..., the issue of defendant's identity as one of the robbers," and told by the court that it may not on the basis of this evidence "draw any conclusions or inferences or engage in any speculations as to the defendant's character or reputation," the jury is not going to convict the defendant of robbery merely because he may have possessed a hand gun ten weeks after the robbery was committed. Jurors hardly expect evidence in a bank robbery case to be limited to the discreet and delicate niceties that might characterize a highly technical civil suit.

n3 The Advisory Committee's Note to Rule 403 states that, "in reaching a decision whether to exclude on the grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction."

Undoubtedly the able trial judge carefully weighed these and other factors in his mind before admitting the evidence. Indeed, the conscientious exercise of his discretion is confirmed by the fact that he waited until all of the independent evidence of Robinson's participation in the robbery had been introduced (including the photographs showing Robinson engaged in the act) before permitting proof of his later possession of the gun. Judge Bryan's decision was well within his discretion.

Walker v. United States, 490 F.2d 683 (8th Cir. 1974), so heavily relied upon by the majority, is not only distinguishable but, if anything, supports the introduction of Robinson's later possession of the.38 caliber gun. There the admission of the defendant's later possession of a revolver was held error because it was "demonstrably unconnected with the crime," 490 F.2d 683, since the bank manager and teller, witnesses called by the government, testified that the pistol "was definitely not the weapon used in the robbery" and they "detailed the difference between the chrome-plated revolver found on Walker and the one used in the robbery which he said 'had a flat black or bluing on it like a Rossi or imported Italian.'" Said the court:

"This is not at all the classic case of admitting into evidence a 'similar' weapon which was found in the possession of a defendant but which could not be positively identified as that used in a crime. Such evidence has been regularly admitted as relevant. E. G., Banning v. United States, 130 F.2d 330, 335 (6th Cir. 1942); United States v. Cunningham, 423 F.2d 1269, 1276 (4th Cir. 1970). Here there was positive evidence that the pistol admitted was not similar to the one used in the crime. Thus the traditional justification for the admission of such a weapon is cut away and the evidence must be seen as irrelevant since it was not probative of the proposition that the accused committed the crime charged." (490 F.2d at 684)

In contrast to the revolver introduced in Walker, the revolver carried by Robinson upon arrest was not only "similar" to that used in the robbery -- it was of the same caliber. Accordingly it was entitled to substantial probative value.

Since the majority does not reach the issue of whether the trial judge's non-disclosure of the juror's note, followed by his giving of a second Allen-type charge, amounted to reversible error, only a brief discussion becomes necessary. The action taken by the trial judge under the circumstances was neither improper nor an abuse of his discretion. As the majority suggests, disclosure to counsel of the juror's name and how the jury stood would have been inappropriate, possibly leading to undue pressure upon the lone dissenting juror. Disclosure of the balance of the note would hardly have afforded Robinson any tactical or other advantage. He already had enough information to ask for a repetition of parts of the judge's charge, e.g., the instruction on reasonable doubt, but he chose not to do so and not to ask for the unsealing of the note. The extremely short Allen charge was so mild as to border on the innocuous and was clearly permissible under the well-settled law of this Circuit. See, e.g., United States v. Lee, 509 F.2d 645, 646 (2d Cir.), cert. denied, 422 U.S. 1044, 45 L. Ed. 2d 696, 95 S. Ct. 2645 (1975).

Finding no merit in the appeal, I would affirm.

United States v. Robinson, 560 F.2d 507 (2d Cir., 1977) (en banc) (edited for student use):

MANSFIELD, Circuit Judge:

Following a decision by a panel of this court reversing appellant's conviction of bank robbery, see 544 F.2d 611, we granted rehearing of this appeal en banc in order to consider the recurring questions of when evidence of a defendant's possession of a weapon at the time of arrest may properly be admitted under Rule 403 of the Federal Rules of Evidence ("FRE") n1 and what standard of review is to be applied in reviewing the trial court's exercise of discretion in balancing the probative value of such evidence against its prejudicial effect. We vacate the panel judgment and decision, and hold that upon a charge of armed robbery evidence of the defendant's possession at the time of arrest of a weapon similar to that shown by independent proof to have been possessed by him at the time of his participation in the alleged crime may be introduced and that the district court's admission of the evidence should not be disturbed for abuse of discretion in the absence of a showing that the trial judge acted arbitrarily or irrationally. Under this standard the conviction here must be affirmed.

n1 Rule 403 provides that "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

After trial before a jury and Judge Frederick vanPelt Bryan of the United States District Court for the Southern District of New York, appellant Cecil Robinson was convicted of bank robbery in violation of 18 U.S.C. § 2113(a) n2 and sentenced to 12 years imprisonment. An earlier trial before Judge Kevin T. Duffy had resulted in a jury hung 8 to 4 for conviction and the declaration of a mistrial.

n2 The indictment also charged Robinson and a fugitive co-defendant, Edward Garris, with conspiracy to commit bank robbery, 18 U.S.C. § 371, and armed bank robbery, 18 U.S.C. § 2113(d). Upon Robinson's conviction of bank robbery, 18 U.S.C. § 2113(a), these other charges against him were dismissed with the government's consent.

The indictment against Robinson and Garris superseded an earlier indictment (75 Cr. 635) which also named Allen Simon as one of the bank robbers. A fourth alleged participant in the robbery, one "Karim," has not been indicted.

Robinson was charged with being one of four men (the other three were Allen Simon, Edward Garris, and a person named "Karim") who robbed the Bankers Trust Company branch at 177 East Broadway, New York City, of $10,122 on the morning of May 16, 1975. He was arrested on July 25, 1975, 10 weeks later, after Allen Simon, who had been arrested and charged with participation in the crime, confessed and identified Robinson as one of his co-participants. n3 At the time of his arrest Robinson had in his possession a.38 caliber revolver.

n3 The evidence at the trial showed that Simon named Robinson as one of the conspirators on the day of his arrest and again when he identified Robinson as a participant shown in bank surveillance photographs of the robbery.

Upon the trial before Judge Bryan the principal witness against Robinson was Simon, who admitted participating in the May 16 robbery and who had on August 19, 1975, pleaded guilty to bank robbery and the use of a firearm, receiving an 18-year sentence. He agreed to testify against Robinson in return for government aid in gaining a reduction in his sentence, which was subsequently reduced to 10 years.

Simon testified that he and Robinson (known as "Merciful") along with Edward Garris (known as "A.E.") and a person named "Karim," planned and carried out the robbery. According to Simon, Robinson selected a Bankers Trust branch located two blocks away from the Gouverneur Hospital, where Robinson worked as a laboratory technician, as the bank to be robbed. Robinson also introduced "Karim," who was to drive the getaway car, to Garris and Simon, and suggested that he and "Karim" wear white jackets during the robbery in order to blend in with the hospital employees who frequented the bank. In addition, Robinson offered to obtain a getaway car. Simon also testified that on the night before the robbery the conspirators assembled four guns to be used in carrying out the crime: one shotgun, one.32 caliber hand gun, one.38 caliber revolver, and one revolver that "looked like it might have been a.38." The guns were hidden in a vacant apartment and picked up by the conspirators later that night for use in the robbery. During the robbery Simon used the shotgun and "Karim" used the.32 caliber revolver, which he accidentally discharged, wounding a teller. Immediately after the robbery, Robinson passed his gun to Garris in the back seat of the getaway car.

The government also introduced proof that Robinson's fingerprint had been found on the right rear cigarette panel of the red 1974 Pontiac used as the getaway car, which was abandoned 20 minutes after the robbery. The Pontiac's owner was identified as Otis Brown, a friend of Robinson and a fellow student at Bronx Community College, which Robinson attended on a part-time basis. Full-face bank surveillance photographs taken during the commission of the crime revealed a man wearing a hat and a white hospital-type jacket, who appears to have facial features quite similar to those of Robinson and to be scooping money into a paper bag. It was also established that Robinson had failed to appear for work as scheduled at the hospital on the day of the robbery. Two Human Resources Administration employees testified that Robinson was a long standing acquaintance of Garris, the fourth robber.

After the foregoing evidence (except for the testimony of the Human Resources Administration employees), including proof of the guns used in the robbery, had been introduced, Judge Bryan admitted testimony by FBI agents that, when arrested on July 25, 1975, Robinson had a.38 caliber revolver in his possession. The court refused to permit the gun itself to be put in evidence or shown to the jury, and carefully instructed the jury that this evidence was received solely on the issue of Robinson's identity as one of the robbers. n4 At the first trial Judge Duffy had excluded similar evidence but did not have before him the proof of the assembling and calibers of the guns used in the robbery (including the use of a.38 caliber and one that "looked like" a.38 caliber), which was introduced at the second trial.

n4 Judge Bryan's charge on the evidentiary value of the gun was as follows:

"In certain instances evidence may be admitted for a particular, limited purpose only. Now, you have heard testimony about a.38 calibre hand gun which was found when the defendant was arrested on these charges, some two months after the robbery. That testimony was admitted for a very limited purpose. It may be considered only for whatever value, if any, it has on the issue of defendant's identity as one of the robbers, that is, on the question of whether this defendant was the person who committed the crimes charged. You may not draw any conclusions or inferences or engage in any speculation as to the defendant's character or reputation on the basis of this testimony or about anything else other than the narrow thing that I have just mentioned to you. You may consider this evidence solely for the limited purpose I have described and give it such weight, if any, for that purpose as you think it may deserve."

The only evidence offered by Robinson in his defense was the testimony of several employees of the bank that the photo-spreads they were shown by the FBI prior to Simon's arrest did not include Robinson's photograph.

None of the bank witnesses was asked by the government or the defense whether they could identify Robinson as one of the robbers or as the robber wearing the white jacket and hat in the bank surveillance photos. However, those bank witnesses who were called testified that they would not be able to identify the robber shown in the surveillance photos as wearing the hat and white jacket because they did not concentrate on him or get a good look since their attention was diverted by the shooting of one of the tellers and because they were concentrating on the robber who held the shotgun. The trial judge excluded the government's proffer of testimony by persons who had seen Robinson on numerous occasions to the effect that the robber shown in the bank surveillance photographs as wearing a hat was Robinson.

...

..

At 2:45 P.M. the jury reached a verdict finding Robinson guilty of Count Two of the indictment. The government did not oppose dismissal of the other counts.

[One of] Appellant's principal contentions on appeal [is] that the district judge erred in admitting testimony concerning the gun found in Robinson's possession ....

The principal issue at trial, as happens so often in bank robbery cases, was the identification of appellant as one of the bank robbers. As the panel majority conceded, see 544 F.2d at 615, the proof that upon arrest he had had a.38 caliber revolver in his possession was "relevant" to that issue, as the term is defined in FRE 401. n7 As evidence linking him to the crime, it tended to make his participation in the robbery "more probable ... _than it would be without the evidence," id. According to Simon, whose testimony must be accepted as credible for present purposes, Robinson, within minutes after the robbery and as the robbers were speeding away in the getaway car, handed over a gun to Garris, one of the robbers. Since four guns had been assembled by the four robbers for use in the robbery (a shotgun, a.32 caliber gun, a.38 caliber gun, and a gun that "looked like" a.38 caliber) and during the robbery Simon carried the shotgun while Garris held the.32 caliber gun, the gun in Robinson's possession was by the process of elimination either the.38 caliber or the gun that "looked like" a.38 caliber. The remarkable coincidence that he possessed a.38 caliber gun some weeks later thus tended directly to identify appellant as one of the participants, corroborating Simon's testimony. n8 As we said in United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir. 1970):

"Nevertheless, a jury could infer from the possession of a large number of guns at the date of arrest that at least some of them had been possessed for a substantial period of time, and therefore that the defendants had possessed guns on and before the date of the robbery. See United States v. Consolidated Laundries Corp., 291 F.2d 563, 569 (2 Cir. 1961), and 2 Wigmore, Evidence § 437(1) (3d ed. 1940)."

See also United States v. McKinley, 158 U.S. App. D.C. 280, 485 F.2d 1059, 1060 (1973) (sawed-off shotgun similar to that used in crime); United States v. Cunningham, 423 F.2d 1269, 1276 (4th Cir. 1970) (similarity of weapons); Walker v. United States, 490 F.2d 683, 684 (8th Cir. 1974) (evidence of similar weapon "has been regularly admitted as relevant").

n7 FRE 401 defines "relevant evidence" as follows:

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequences to the determination of the action more probable or less probable than it would be without the evidence."

n8 Our dissenting colleague, Judge Oakes, repeatedly states, without any record or judicially noticeable support, that "hundreds of thousands of persons ... possess the same caliber gun" as the.38 caliber hand gun used in the crime according to Simon's testimony and found on Robinson at the time of arrest, which is characterized by the dissent as 'undistinctive,' 'common' and 'unremarkable.' In a similar vein Judge Oakes states that we do not dispute his earlier panel majority opinion characterizing the.38 caliber gun evidence as 'very weak' for the purpose of establishing appellant's identity.

Our views on these matters are best summarized by reiterating with approval the following statement from the earlier panel dissent:

"While hand guns may be all too plentiful in our society, the majority would imply that they are as common as subway tokens. In fact, the vast majority of people do not possess a hand gun, much less one of.38 caliber. To find such a gun in the possession of the very person against whom there is independent proof that he used a.38 caliber hand gun in the bank robbery is sufficiently coincidental to be extraordinary. I cannot agree with the majority that this evidence 'established only a very weak inference that appellant was one of the bank robbers.'" United States v. Robinson, 544 F.2d 611, 622 (2d Cir. 1976).

Regardless of the relevance of the evidence as corroborating Simon's testimony, Robinson's possession of the gun was also admissible under FRE 404 n9 on the independent ground that it tended to show he had the "opportunity" to commit the bank robbery, since he had access to an instrument similar to that used to commit it. This ground was recognized by us in United States v. Ravich, 421 F.2d 1196 (2d Cir.), cert. denied, 400 U.S. 834, 27 L. Ed. 2d 66, 91 S. Ct. 69 (1970), where we upheld the admission of the defendant's possession upon arrest of guns and ammunition other than those used in the alleged bank robbery.

"Direct evidence of such possession would have been relevant to establish opportunity or preparation to commit the crime charged and thus would have tended to prove the identity of the robbers, the only real issue in this trial." 421 F.2d at 1204.

...

n9 FRE 404(b) provides in pertinent part:

"(b) ... Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added).

The proof of Robinson's possession of the.38 caliber gun at the time of arrest, while relevant on two separate grounds, also posed the "danger of unfair prejudice" within the meaning of FRE 403, which provides that "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...." The Advisory Committee Notes define "unfair prejudice" as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Evidence that a defendant had a gun in his possession at the time of arrest could in some circumstances lead a juror to conclude that the defendant should be punished for possession of the gun rather than because he was guilty of the substantive offense, 1 Wigmore on Evidence § 57 (3d ed. 1940). Absent counterbalancing probative value, evidence having a strong emotional or inflammatory impact, such as a "bloody shirt" or "dying accusation of poisoning," see United States v. Leonard, 524 F.2d 1076, 1091 (2d Cir. 1975), cert. denied, 425 U.S. 958, 48 L. Ed. 2d 202, 96 S. Ct. 1737 (1976), may pose a risk of unfair prejudice because it "tends to distract" the jury from the issues in the case and "permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened." Advisory Committee Notes, FRE 404, quoting with approval the California Law Revision Commission. The effect in such a case might be to arouse the jury's passions to a point where they would act irrationally in reaching a verdict.

The duty of weighing the probative value of the gun-at-arrest evidence against its prejudicial effect rested squarely on the shoulders of the experienced trial judge. To determine whether he committed error requiring reversal by admitting proof of appellant's possession of the.38 caliber gun upon arrest, we must first consider what standard of review should be applied. We have repeatedly recognized that the trial judge's discretion in performing this balancing function is wide. See, e.g., United States v. Ravich, supra, where we upheld the admission of six guns seized from the defendants at the time of arrest, stating:

"The trial judge must weigh the probative value of the evidence against its tendency to create unfair prejudice and his determination will rarely be distrubed on appeal. Cotton v. United States, 361 F.2d 673, 676 (8 Cir. 1966); Wangrow v. United States, 399 F.2d 106, 115 (8 Cir.), cert. denied, 393 U.S. 933, 89 S. Ct. 292, 21 L. Ed. 2d 270 (1968).

.... "Notwithstanding the relevance of the guns and the ammunition, the trial judge would have been justified in excluding them if he decided that their probative value was outweighed by their tendency to confuse the issues or inflame the jury. He might well have done so in this case, in view of the overwhelming evidence that the defendants were the robbers, the rather small addition which the guns provided, and the undoubted effect on the jury of seeing all this hardware on the table. However, the trial judge has wide discretion in this area, see United States v. Montalvo, supra, 271 F.2d at 927, and we do not find that it was abused here." 421 F.2d at 1204-05.

...

Broad discretion must be accorded to the trial judge in such matters for the reason that he is in a superior position to evaluate the impact of the evidence, since he sees the witnesses, defendant, jurors, and counsel, and their mannerisms and reactions. See United States v. Leonard, supra, 524 F.2d at 1094. He is therefore able, on the basis of personal observation, to evaluate the impressions made by witnesses, whereas we must deal with the cold record. For instance, on the vital issue of identification of the defendant, Judge Bryan, based on his own personal observation of the accused and comparison with bank surveillance photos, could form a clearer impression than that which we might gain from only a comparison of photographs. Though we may strive most diligently and with all of our accumulated experience to obtain from the black and white of transcripts before us a perspective equivalent to that of the experienced and able district court judge who tried this case, unless complete videotaped trial records become available, see United States v. Weiss, 491 F.2d 460, n.2 (2d Cir.), cert. denied, 419 U.S. 833, 42 L. Ed. 2d 59, 95 S. Ct. 58 (1974), we simply cannot successfully put ourselves in his position. Specifically, we cannot weigh on appeal, as he could at trial, the intonation and demeanor of the witnesses preceding the testimony in issue, particularly the strength of Simon's testimony, nor can we determine the emotional reaction of the jury to other pieces of evidence such as the surveillance photographs, or judge the success of impeachment by cross-examination through observation of the jurors. As Professor Maurice Rosenberg has cogently observed:

"The final reason - and probably the most pointed and helpful one - for bestowing discretion on the trial judge as to many matters is, paradoxically, the superiority of his nether position. It is not that he knows more than his loftier brothers; rather he sees more and senses more. In the dialogue between the appellate judges and the trial judge, the former often seem to be saying: 'You were there. We do not think we would have done what you did, but we were not present and may be unaware of significant matters, for the record does not adequately convey to us all that went on at the trial.'" Rosenberg, Judicial Discretion Viewed From Above, 22 Syracuse L. Rev. 635, 663 (1971).

For these reasons we are persuaded that the preferable rule is to uphold the trial judge's exercise of discretion unless he acts arbitrarily or irrationally. See United States v. McWilliams, 82 U.S. App. D.C. 259, 163 F.2d 695, 697 (1947). We thus adhere to the traditional formulation of the abuse of discretion standard, which is based on the premise that "the Court of Appeals should not and will not substitute its judgment for that of the trial court," Atchison, Topeka and Santa Fe Rwy. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957). n10 In a different context Judge Waterman, in Napolitano v. Compania Sud Americana de Vapores, 421 F.2d 382, 384 (2d Cir. 1970), expressed the general philosophy of this broad grant of discretionary power as follows:

"Had any one of us been in a position to exercise the discretion committed to a trial judge ... we would have no hesitancy in stating that the decision would have been otherwise; but as appellate judges we cannot find that the action of the district judge was so unreasonable as to amount to a prejudicial abuse of the discretion necessary to repose in trial judges during the conduct of a trial."

Similar views were expressed by Judge Adams of the Third Circuit:

"The task of assessing potential prejudice is one for which the trial judge, considering his familiarity with the full array of evidence in a case, is particularly suited. ... The practical problems inherent in this balancing of intangibles - of probative worth against the danger of prejudice or confusion - call for a generous measure of discretion in the trial judge. Were we sitting as a trial judge in this case, we might well have concluded that the potentially prejudicial nature of the evidence ... _outweighed its probative worth. However, we cannot say that the trial judge abused his discretion in reaching the contrary conclusion." Construction Ltd. v. Brooks-Skinner Building Co., 488 F.2d 427, 431 (3d Cir. 1973).

n10 United States v. Ortiz, 553 F.2d 782, Slip Opin. 2789, 2800-03 (2d Cir. 1977), which is repeatedly referred to by Judge Oakes in his dissent, involved the wholly unrelated issue of whether a witness' prior narcotics convictions have any probative value for impeachment purposes. Aside from its irrelevancy, we there upheld the trial judge's exercise of discretion in ruling that the convictions were admissible under Rule 609(a) of the Federal Rules of Evidence, which is consistent with the majority opinion here.

Applying the arbitrary-irrational standard for abuse of discretion to the present case, Judge Bryan's ruling clearly must be upheld. He carefully considered arguments of counsel and weighed the competing interests before admitting the evidence of Robinson's possession of the.38 caliber gun upon arrest. In line with suggestions made by us in United States v. Leonard, supra, at 1092, he delayed its admission until virtually all of the other proof had been introduced, by which time he was in a better position to weigh the probative worth of the evidence against its prejudicial effect. Although there were competing considerations, it was neither unreasonable nor arbitrary to conclude that a sound basis existed for a probative inference to be drawn from the evidence which outweighed its prejudicial effect. He was, moreover, in a position to appraise Simon's testimony and the other incriminating evidence against Robinson, including his fingerprints in the getaway car, his similarity in appearance before the court to that of the white-jacketed robber wearing a hat shown in the surveillance photos, his absence from his job at the Gouverneur Hospital on the day of the robbery, and his prior acquaintanceship with Karim and Brown, the owner of the stolen car used for the getaway. n11 In addition, Judge Bryan took positive steps to minimize the potential impact of the evidence by precluding the government from introducing the gun itself or any ammunition n12 and by carefully instructing the jury that the testimony in question was introduced for a limited purpose only. n13 Under these circumstances Judge Bryan did not abuse his discretion in concluding that the balance weighed in favor of admitting the evidence. n14

n11 Appellant also argues that the case against him was close and that because of this "closeness" the evidence of his possession of the.38 caliber handgun upon arrest should have been excluded as too prejudicial since it may have tipped the scales against him. To the extent that appellant relied upon the 8 to 4 deadlock at the first trial, which led to a mistrial, the argument ignores the additional incriminating evidence adduced at the second trial (including the calibers of the guns used in committing the robbery and the proof of prior close acquaintanceship between Simon, Garris and Robinson). Moreover, appellant confuses the factors to be considered by the court in the weighing process, which are (1) the probative value of the proffered evidence, and (2) whether the evidence, either inherently or when considered with other proof, would so inflame the jury that it might act irrationally.

Although it has often been suggested that where the other evidence of guilt is overwhelming the jury may have less need to consider evidence of a prejudicial nature, even though relevant, see, e.g., United States v. Ravich, supra; United States v. Leonard, supra, the "closeness" of the case is irrelevant to this weighing process.

n12 In this respect the potential for prejudice fell far short of that presented in United States v. Ravich, supra, where a small arsenal of weaponry seized from the defendants upon arrest was introduced as real evidence and lay in full view of the jury on the courtroom table and was available for examination by it, or United States v. Wiener, supra, where the loaded gun found by police at the time of the defendant's arrest was displayed to the jury.

n13 The Advisory Committee Notes to Rule 403 state that "in reaching a decision whether to exclude on the grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction."

n14 Nor do we find it necessary to determine whether Judge Bryan applied the correct standard in performing his weighing function. Two standards have been suggested. Judge Weinstein advocates that the "better approach" is to "give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Weinstein's Evidence para. 403 [03] (1975). On the other hand, Professor Dolan, in Rule 403: The Prejudice Rule in Evidence, 49 So. Cal. L. Rev. 220, 233 (1976), suggests that courts should "resolve all doubts concerning the balance between probative value and prejudice in favor of prejudice." Judge Bryan's ruling would satisfy either standard.

...

The conviction is affirmed.

OAKES, Circuit Judge with whom Judge Gurfein concurs (dissenting):

The panel majority opinion sets forth Judge Gurfein's and my views on the principal issues in this case. 544 F.2d 611 (2d Cir. 1976). I stated there that the case was "exceedingly close" on its facts. Id. at 616. Without evidence that Robinson was in possession of a gun at the time of his arrest (because the trial judge in the exercise of his discretion excluded it), there was a hung jury in the first trial. With such evidence (admitted by another trial judge in the exercise of his discretion), it still took a second Allen charge and further deliberation to move the second jury to vote for conviction. One is led to infer that the testimony as to possession of the gun made a crucial difference (despite limiting instructions). Since I believe that admission of the gun evidence constituted reversible error, I dissent.

As will be seen, this case turns to a large extent on its facts, which the en banc majority views differently from the panel majority. Because this case, insofar as it relates to the exercise of trial court discretion, must be resolved on its facts, and because, as would be expected, the en banc majority opinion establishes no new principles of law in the process, a disinterested observer might inquire as to purpose of en banc treatment. Obviously the court must either have a new, more liberal test for what is to be reheard en banc or a great deal of free time to engage in this type of exercise. But see Gilliard v. Oswald, 557 F.2d 359 (2d Cir. 1977) (denial of rehearing en banc in prisoners' rights case). Of course, I recognize that the court does make new - and I think bad - law in its disposition of the double Allen charge point, see Part IV infra, but that point was not the basis of the petition for rehearing en banc or its grant.

The en banc majority opinion cites many authorities, from this circuit and others, for the unexceptionable proposition that we should not substitute our judgment for that of the trial judge on matters within his discretion, particularly matters dependent on personal observation at trial. This proposition by repetition hardly takes on new meaning. If the use of the words "arbitrary or irrational" is designed somehow to change this circuit's standard for review of trial court discretion, the majority opinion does not say so. The rule in this circuit, restated not long ago in the context of the provision here involved, Fed. R. Evid. 403, is that "great discretion in the trial judge ... does not mean immunity from accountability." United States v. Dwyer, 539 F.2d 924, 928 (2d Cir. 1976). See also Michelson v. United States, 335 U.S. 469, 480, 93 L. Ed. 168, 69 S. Ct. 213 (1948) ("wide discretion is accompanied by heavy responsibility on trial courts"); Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 665-66 (1971).

Recognizing this rule, we held under Fed. R. Evid. 403 that a trial judge's "wide discretion" in the "balancing of probative value against unfair prejudice" had been abused in a particular factual context, United States v. Dwyer, supra, 539 F.2d at 927-28, without making any claim that the trial judge had acted irrationally. Nor did the author of the en banc majority opinion make any such claim in his recent opinion [**35] arguing that a specific weighing of probative value and prejudice amounted to an abuse of discretion. United States v. Ortiz, 553 F.2d 782, slip op. 2789, 2800-03 (2d Cir. 1977) (dissenting opinion). See also Contemporary Mission Inc. v. Famous Music Corp., 557 F.2d 918, slip op. 3591, 3609-10 (2d Cir. 1977); Marx & Co. v. The Diners' Club, Inc., 550 F.2d 505, slip op. 2013, 2024-26 & nn.18-19 (2d Cir. 1977). For the balance of this discussion I will assume that the standard established by these cases and others and not departed from in the majority opinion is the proper one for reviewing the exercise of trial court discretion here.

Before the balancing process mandated by Fed. R. Evid. 403 can begin, the court must determine that the evidence in issue is "relevant," as that term is defined in Rule 401. The relevancy test of Rule 401 is an extremely modest one, so that the en banc majority's assertion of a "concession" of relevancy by the panel majority, ante, 560 F.2d at 512, provides no help at all in resolving this case. Since the bank robbers here carried guns, evidence of appellant's later possession of a gun does meet the rule's test of having "any tendency" to make appellant's participation in the robbery "more probable," but so would evidence of, e.g., appellant's sex (assuming identification of the sex of the robbers), despite the fact that millions of others share that characteristic. Relevancy under Rule 401 is nothing more than a threshold test, a starting point in the determination of admissibility. n1 

n1 Relevancy in the sense used in Fed. R. Evid. 401 was frequently called, in pre-Federal Rules days, "logical relevancy," which was then contrasted with " legal relevancy," a term referring to the balancing process now incorporated in Fed. R. Evid. 403. See, e.g., Cotton v. United States, 361 F.2d 673, 676 (8th Cir. 1966); Hoag v. Wright, 34 App. Div. 260, 266, 54 N.Y.S. 658, 662 (1898). See generally McCormick's Handbook of the Law of Evidence § 185 (2d ed. E. Cleary 1972). 

Once evidence is deemed relevant, the trial court must then weigh carefully its probative value against the danger of unfair prejudice that evidence creates. The probative value of evidence cannot, of course, be assessed in a vacuum; the value must always be measured in terms of the purpose for which the evidence was introduced. See Dolan, Rule 403: The Prejudice Rule in Evidence, 49 S. Cal. L. Rev. 220, 233 (1976). In this case, as Judge Bryan's charge to the jury makes clear, see ante, 560 F.2d at 511 n.4, the evidence was admitted "solely for the limited purpose" of establishing "defendant's identity as one of the robbers." The en banc majority offers two indirect ways in which the gun evidence might have helped to establish appellant's identity, neither of which was mentioned by the trial court. The majority contends that the evidence helped to corroborate Simon's testimony and that it was relevant to appellant's "opportunity" to commit the crime charged. Significantly, the majority does not discuss the degree of probative value of the gun evidence for either of these purposes, nor does it discuss whether the evidence provided any genuine direct proof of appellant's identity, pursuant to the trial court's charge.

The majority opinion first states that the gun evidence "tended directly to identify appellant as one of the participants, corroborating Simon's testimony." Ante, 560 F.2d at 512. The majority does not explain how corroboration of an accomplice's testimony can amount to "direct" identification of a defendant from his later possession of a gun. Such corroboration at best is an indirect form of identification, but even for this corroborative purpose the evidence here lacked probative value. Once Simon had decided to link appellant to the robbery, n2 it stands to reason that he would provide the authorities with supporting details that would help to implicate appellant in the crime. Thus the fact that appellant was found with a.38 caliber gun after Simon had said such a gun was prepared for use in the robbery may show nothing more than that Simon knew that appellant owned a.38. To use the example referred to above, it is as if Simon had told the authorities that all the robbers were men. We would then not be surprised if Simon identified a man as a robber, but we would hardly argue that Simon's statement had been significantly corroborated merely because the one identified turned out to be a man.

n2 Early in his interrogation by the Federal Bureau of Investigation (FBI), Simon was given reason to believe that the FBI wanted him to implicate appellant. FBI Agent McLaughlin showed Simon bank surveillance photographs of the robber with the white coat and hat and said, apparently in the first mention of appellant's name in this case, "That's Cecil Robinson." Simon at the time said, "No," but he later changed his mind after being asked if the robber in question was one Corley, a person whom Simon, according to his testimony, desired to protect because of his innocence. Later that day, however, Simon failed to implicate appellant in an interview with an Assistant United States Attorney.

Simon had strong motivation to testify about appellant in a manner that would ensure appellant's conviction. Simon had received an 18-year sentence from Judge Duffy for his part in the bank robbery, and he had a motion to reduce sentence, pursuant to Fed. R. Crim. P. 35, pending before the judge at the time he testified. He stated at appellant's retrial his understanding that the Assistant United States Attorney prosecuting appellant would be telling Judge Duffy whether he (the prosecutor) was satisfied with Simon's testimony.

Finally, it should be noted that Simon was hardly the type of person who would have strong moral scruples against testifying falsely. In addition to his bank robbery conviction, he had earlier weapons and narcotics convictions, had violated the terms of bail and of conditional discharge, and had used and sold heroin. At the time of appellant's retrial, Simon had spent 12 of his 29 years in custody.

The alternative purpose alleged in the majority opinion, that of showing that appellant had the "opportunity" to commit the robbery, see Fed. R. Evid. 404(b), is also indirectly linked to identity, see United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir.), cert. denied, 400 U.S. 834, 27 L. Ed. 2d 66, 91 S. Ct. 69 (1970), but the gun evidence is of virtually no probative significance in this regard. Neither the en banc majority nor the Government attempts to demonstrate that the gun evidence had any more probative value than that necessary to meet Rule 401's test of relevancy, discussed above. Appellant did possess, when arrested, a single.38 caliber gun, and that fact does show that "he had access to an instrument similar to that used to commit [the robbery]," ante, 560 F.2d at 513. But had any one of the hundreds of thousands of persons who possess the same caliber gun - no one contends that the gun here was other than undistinctive and unremarkable - been arrested for this crime, his possession of the gun would have been just as probative of his "opportunity" as was appellant's possession here. n3 

n3 It is of course true that certain other factors tended to link appellant to the crime, factors that would not have been present for other individuals who own.38 caliber guns. But these factors do not and cannot make the gun evidence more probative of appellant's opportunity, for then we would assume the conclusion in the minor premise; we would in effect be asserting that the gun evidence shows that appellant had the opportunity to commit the crime because other evidence shows that he did commit the crime.

The possession of a single gun of a common type is manifestly different from the situation in a case like United States v. Ravich, supra, where a number of handguns were found together with a large amount of ammunition, see 421 F.2d at 1204. Such an arsenal is unusual enough to give its finding some probative value on the question of opportunity or preparation. Similarly, the gun found in United States v. Wiener, 534 F.2d 15 (2d Cir.), cert. denied, 429 U.S. 820, 50 L. Ed. 2d 80, 97 S. Ct. 66 (1976), was seized from a distinctive burlap bag that also contained the narcotics and paraphernalia which were the principal items of evidence in the case, see id. at 17 & n.3, 18. The gun in United States v. Campanile, 516 F.2d 288 (2d Cir. 1975), was the particular gun that the defendant himself admitted taking to the area of the robberies. n4 Such guns, found in unusual situations or closely linked to the crimes in question, have a degree of probative value that is entirely missing in this case, where the gun was undistinctive and no evidence linked it to the commission of the crime.n5 The gun here thus showed no more about appellant's "opportunity" to commit the crime than it would have shown about the opportunity of anyone else found in possession of such a gun.

n4 The Campanile court, in admitting the gun evidence, noted that it "was on the borderline of admissibility in view of its tendency to create unfair prejudice." 516 F.2d at 292.

n5 Simon did not testify that Robinson carried a gun in the bank; no other witness testified that the robber, whom only Simon identified as Robinson, carried a gun; the surveillance photographs showing the man Simon identified as Robinson do not show him carrying a gun. 

In view of the thinness of the gun evidence from both "corroboration" and "opportunity" standpoints, it is perhaps not surprising that the trial judge's charge did not mention either of these purposes in connection with that evidence. One would think that, had the judge intended to allow the jury first to link the gun evidence to Simon's testimony or to appellant's "opportunity" and then to reason from there to appellant's identity as a robber, he would have instructed the jury accordingly, particularly in view of the relative complexity or sophistication of such analysis. Instead, Judge Bryan stated that the "only" purpose for the evidence's admission was for the light it shed on the question of identity. This statement, combined with the obvious weakness of the evidence in terms of other purposes, led the panel majority to focus on the evidence's probative value in directly establishing appellant's identity, something that the en banc majority opinion (as I read it) fails to do.

Since the panel majority's characterization of the evidence as "very weak" for this purpose, 544 F.2d at 616, is not disputed by the en banc majority, a short summary of the panel majority's reasoning should suffice here. We recognized in United States v. Ravich, supra, 421 F.2d at 1204 n.10, that "the length of the chain of inferences necessary to connect the evidence with the ultimate fact to be proved necessarily lessens the probative value of the evidence." Here the "chain of inferences" contained two tenuous links. First, from appellant's possession of a.38 ten weeks after the robbery, the jury would have had to infer that he possessed a.38 at the time of the robbery, when he might just as well have purchased the gun in the interval between the robbery and his arrest. n6 See 2 J. Wigmore, Evidence § 410, at 384 (3d ed. 1940) ("this inference is always open to doubt"); id. § 437, at 413 ("the disturbing contingency is that some circumstance operating in the interval may have been the source of the subsequent existence"). Second, even assuming that appellant, along with thousands of other New Yorkers, possessed a.38 on the date of the robbery, and assuming that a.38 was actually used in the robbery, see 544 F.2d at 617 n.8; note 5 supra, the jury would then have had somehow to infer that appellant's indistinctive.38 was the.38 used in the robbery. This inference was highly problematic on the facts of this case, since no evidence was introduced linking appellant's gun to the robbery or indicating that appellant carried a gun during the robbery, see note 5 supra. With two such difficult inferences to be overcome, "the probative value of the testimony that appellant possessed a.38 ten weeks after the robbery must be characterized as slight." 544 F.2d at 618.

n6 The majority opinion, ante, 560 F.2d at 513, quotes United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir.), cert. denied, 400 U.S. 834, 27 L. Ed. 2d 66, 91 S. Ct. 69 (1970), for the proposition that the jury may draw such an inference of prior possession from the fact of later possession. In context, however, this Ravich statement is plainly not meant to stand on its own, as an independent reason for admission of gun evidence, but rather is a necessary precondition to the Ravich holding that possession of guns prior to the robbery is evidence of opportunity to commit the crime charged. See id. The applicability of this latter aspect of Ravich to the instant case is discussed supra. In any event, it is certainly true that an inference of prior possession may be drawn from the fact of later possession. The problem, implicitly acknowledged in Ravich, see id. (noting "rather small" probative value of gun evidence), is that the inference is quite weak, as discussed in text, and is here compounded by the necessity for making a second very weak inference before the evidence can be held to have any direct bearing on the identity question.

I believe that this slight probative value "is substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. I need not dwell here on the likelihood of prejudice from admission of the gun evidence, since the en banc majority opinion essentially agrees with the analysis of the panel majority opinion, 544 F.2d at 618-19. The danger, as the en banc majority points out, ante, 560 F.2d at 514, is that such inflammatory evidence may distract the jury from the question of guilt or innocence of a specific crime, leading it to return a conviction not because the defendant committed a particular robbery, but rather in order to punish him for carrying a gun or for being an unsavory character. See Contemporary Mission, Inc. v. Famous Music Corp., supra, 557 F.2d at 930 (Van Graafeiland, J., concurring and dissenting) ("Evidence which may be arguably relevant should not be admitted if it tends ... to mislead rather than enlighten the jury.").

The trial court's limiting instruction here was directed at dispelling this danger, but, in my view, was inadequate for this purpose. It mentioned the proper use of the gun evidence, the identification purpose, only once and did not mention any of the intermediate inferences necessary to connect the gun evidence to appellant's identity as a robber, e.g., whether appellant had the gun on the date of the robbery. Moreover, as Judge Mansfield has recently noted, certain types of evidence are likely to be used "improperly" by a jury, "notwithstanding instructions." United States v. Ortiz, supra, 553 F.2d at 788 (dissenting opinion), citing United States v. Puco, 453 F.2d 539, 542 (2d Cir. 1971) ("The average jury is unable, despite curative instructions, to limit the influence of a defendant's criminal record to the issue of credibility."). Indeed, Rule 403 "by its terms concedes the possibility that the negative aspects of some evidence may simply be unmanageable for the factfinder regardless of instructions," for the rule would be wholly unnecessary if cautionary instructions could always dispel the possibility of unfair prejudice. Dolan, supra, 49 S. Cal. L. Rev. at 250. See generally Bruton v. United States, 391 U.S. 123, 129, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), quoting Krulewitch v. United States, 336 U.S. 440, 453, 93 L. Ed. 790, 69 S. Ct. 716 (1949) (Jackson, J., concurring) ("'The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.'"). Given the probable inefficacy of the cryptic limiting instruction here, the slight probative value of the gun evidence, and the very real danger of unfair prejudice, I believe that admission of the gun evidence constituted error.

The en banc majority opinion displays a certain ambivalence on the question of how evidence other than the gun evidence is relevant to the Rule 403 assessment. On the one hand, it asserts that the fact that this was a close case before the jury is "irrelevant to [the] weighing process." Ante, 560 F.2d at 516 n.9. On the other, it seems preoccupied with showing that a strong case for conviction existed apart from the gun evidence, summarizing the other evidence against appellant in the same paragraph that it approves the Rule 403 balancing done by the trial judge. Id. at 516.

The majority cannot have it both ways. If indeed there were substantial other evidence against appellant, then the already slight probative value of the gun evidence is further diminished to the vanishing point, since the Government would have less need for this evidence in order to win its case. See United States v. Ravich, supra, 421 F.2d at 1204. But I believe that the other evidence against appellant was weak, a fact that, while making the gun evidence of somewhat more value to the Government, also makes it more likely that the trial court's error in admitting the gun evidence affected the judgment, see R. Traynor, The Riddle of Harmless Error 28 (1970).

The weakness of the Government's case becomes immediately apparent when the evidence summarized in the en banc majority opinion is placed in its proper context. The principal witness against appellant, Simon, had strong motivation to help the prosecution in order to reduce his own sentence, as the majority recognizes, ante, 560 F.2d at 510; the majority fails to note certain other ways in which Simon's credibility was diminished, summarized in note 2 supra. Cf. United States v. Ortiz, supra, slip op. at 2800-01 (Mansfield, J., dissenting) (noting "unsavory background" of crucial Government witness in context of weighing probative value and prejudice). As for other evidence, the majority mentions that appellant's fingerprint was found on the right rear cigarette lighter panel of Brown's car, but it fails to note that Simon had appellant riding in the left rear position going to the robbery and testified that appellant was not in the rear at all after the robbery. Hence the fingerprint evidence, which could not be dated, see 544 F.2d at 614, proves nothing more than that appellant had at some point ridden in Brown's car, a fact that is undisputed and unsurprising in view of Brown's testimony that he had given appellant, an acquaintance and fellow student, rides a half-dozen times prior to the robbery.

As for the use of "hospital-type jackets," from which the Government implies some sort of connection with appellant, who worked at a hospital, it is undisputed that the jackets, while white, were actually butchers' jackets and in fact had "meat market" written on them. The bank surveillance photographs of the robber alleged to be appellant were described by Simon as "hazy" and have provoked substantial uncertainty on this court, see 544 F.2d at 614. The robber in those photographs, as is noted above, note 5 supra , does not appear to be carrying any gun, whereas appellant allegedly carried the infamous.38, which he later "handed over" to Garris in the car, according to Simon and as emphasized by the majority, ante, 560 F.2d at 512. This latter fact is particularly surprising because it is inconsistent with appellant's possession of a.38 at the time of arrest. If he handed it over after the robbery, how did he get it back? Why, if it were his gun as Simon claimed, would he hand it over to someone else after the robbery? I note, as the majority does not, that none of the eight non-participant eyewitnesses to the crime identified appellant as one of the robbers. Only Simon did so.

In view of the infirmities in the Government's case, it is not surprising that a hung jury resulted at appellant's first trial, where the jury was not exposed to the gun evidence, and that the jury at appellant's second trial nearly hung, requiring extensive deliberations over three days and two Allen-type charges before it could reach a verdict. While there were some minor differences between the evidence adduced at the two trials, there is little doubt that the introduction of the gun evidence was by far the most significant difference. Given the weakness of the Government's other evidence, the gun evidence had to have had an impact on the jury. There is simply no way to view its admission as harmless, and the majority does not argue otherwise. Concluding that the error in admitting the gun evidence affected the judgment, I would reverse.

...

I would reverse and remand for a new trial. In the light of two legal questions that by any stretch of the imagination have to be treated as close, a weak Government case, one hung jury, and one temporarily hung jury, a new trial for appellant seems to me to be just as desirable in the overall interests of justice, as it did at the time this case was heard, like any other, by a panel of this court.

GURFEIN, Circuit Judge (concurring in Judge Oakes' dissenting opinion):

I concur in Judge Oakes' strong dissenting opinion. I wish to add that I am sorry the court saw fit to take this case en banc. The only rule of law that has emerged is one that will be of little help in reviewing future rulings on evidence under Rule 403. Nobody disagrees that generally the ruling of the trial judge on his weighing of probative value against the substantial prejudice is entitled to great weight. But to say that he may not be reversed unless his decision is "arbitrary or irrational," in my view, simply detracts from meaningful review. For unless we can define what is "arbitrary" or "irrational," the use of such pejorative words simply tends to support an utter abdication of appellate review. I think that when we are weighing "prejudice" our duty as a first reviewing court should go somewhat further, for, as Judge Mansfield puts it, "the effect in such a case might be to arouse the jury's passions to a point where they would act irrationally in reaching a verdict." And I predict that occasions will arise when we will feel, as appellate judges, that prejudice has resulted and when we shall be compelled by our own verbiage to say that a fine District Judge has been "arbitrary" or, indeed, "irrational," when all we can really mean is that in the particular case, "substantial prejudice" clearly outweighs "probative value."

As I believe Judge Oakes has demonstrated, this was a weak case in which the proof of identity rested almost entirely on the accomplice's testimony, given under hope of quite specific reward in the form of a reduced sentence and, perhaps, with some motive to shield another suspect who was a friend. The panel majority is inferentially taxed for not following United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), a decision which we have no difficulty accepting. There the evidence of guilt was overwhelming, and I would agree that the strong evidence of an arsenal of guns there admitted was, if erroneous, quite harmless. I do not believe that the same applies to a weak case, particularly one where the issue is identity. I do not agree that because evidence of slight probative force in terms of logical relevance exists, it ought to be admitted to supply a needed knockout blow.

On the contrary, it is in cases in which the prosecution case is weak where the weighing suggested in Rule 403 comes into sharp focus. In such cases, the "bad man" theory as a ground for conviction should be "outweighed" only if there is a heavier logical connection on the facts than where guilt is overwhelming. In sum, we cannot weigh prejudice except in a "tipping of the scale" context. This does not mean that evidence of strong probative value necessarily should be excluded because the case is otherwise weak. If its logically probative force is strong enough, the circumstance that the evidence will hurt the defendant is obviously not ground for exclusion. The difference of opinion here turns on whether there is sufficient probative force in the evidence, which it seems to me turns little in this case on what the judge saw in the courtroom, as against what we see in the record.

I have the greatest respect for the able trial judge in this case, but in my view, there is not a tight enough logical connection on the facts to outweigh the prejudice which all appear to concede can arise from this type of evidence.

FEINBERG, C.J., dissenting:

I would vacate the order for rehearing en banc as improvidently granted. Although the opinions of the en banc court are typically thorough and learned, the principal question they address is a simple and common one: Did the trial judge abuse his discretion in admitting evidence that the defendant possessed a gun when arrested? What, then, is the justification for the delay and burden of an en banc court? The majority opinion does not purport to announce a new rule governing the admission of evidence of weapons, since the majority says that it adheres "to the traditional formulation of the abuse of discretion standard ...." True, the majority opinion implies - although it nowhere flatly says so - that the original panel decision of Judges Oakes and Gurfein disregarded the teachings of such earlier cases as United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970). But as Judge Oakes' en banc dissenting opinion demonstrates, the facts of Ravich were "manifestly different" from those present here. The original panel majority no more "overruled" Ravich than the en banc majority now "overrules" the warning in United States v. Campanile, 516 F.2d 288, 292 (2d Cir. 1975), that the stronger evidence there of gun possession "was on the borderline of admissibility in view of its tendency to create unfair prejudice." n1 Such questions of admissibility ordinarily depend upon the facts of the particular case and do not call for convening an en banc court, unless we regard that cumbersome procedure appropriate whenever a majority of the active judges disagree with the result reached by two of their brethren. Such a doctrine would wholly misconceive the purpose of the extraordinary en banc procedure. While the majority does not formally embrace that view, its action in compelling an en banc hearing in this routine case has that effect. 

n1 The majority opinion does not mention this statement.

Following our precedent in United States v. Collins, 462 F.2d 792, 801 (2d Cir.), cert. denied, 409 U.S. 988, 34 L. Ed. 2d 254, 93 S. Ct. 343 (1972), I would simply vacate the petition for rehearing en banc as improvidently granted. n2

n2 Cf. Rudolph v. United States, 370 U.S. 269, 8 L. Ed. 2d 484, 82 S. Ct. 1277 (1962); Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524-58, 1 L. Ed. 2d 511, 77 S. Ct. 457 (1957) (Frankfurter, J., dissenting); Stern & Gressman, Supreme Court Practice, § 5.15 at 227-30 (4th ed. 1969).

Your job is to consider the arguments for against the admissibility of the gun evidence in Robinson. Be prepared to present and critique those arguments in class. When formulating and assessing those arguments please consider the following seven diagrams:

FIGURE 1

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LEGALLY PERMISSIBLE INFERENTIAL ROUTE

 

FIGURE 2

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THE RISK OF PREJUDICE BY THE USE OF "LEGITIMATE" EVIDENCE

 

FIGURE 3

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IDENTITY ARGUMENT

 

FIGURE 4

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Identity Argument with Credibility Analysis

 

FIGURE 5

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FIGURE 6

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FIGURE 7

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