United States v. Robinson Opinion

    UAACP Defense Fund
! ' bus

N- ..019

AUG 5 1977
UNITED STATES COURT OF APPEALS

F or the Second Circuit

-----------------------------< -e -> -----------------------------

No. 1184—September Term, 1976.

(Submitted March 17, 1977 Decided July 28, 1977.)

Docket No. 76-1153

E n  B a n c

United S tates op A merica, 

•— against—
Appellee,

Cecil R obinson,
Appellant.

B e f o r e  :
K aufman , Chief Judge,

F einberg, Mansfield, M ulligan, Oakes, T imbers, 
Gurfein, V an Graafeiland and M eskill, Circuit Judges.

Appeal from a judgment of the United States District 
Court for the Southern District of New York, Frederick 
vanPelt Bryan, Judge, convicting appellant of bank rob­
bery, 18 U.S.C. §2113(a), after a jury trial. Appellant’s 
principal claim is that the district court abused its discre­
tion in admitting testimony that upon arrest appellant had 
in his possession a revolver similar to certain guns used 
in the robbery. After a panel decision, 544 F.2d 611, 
reversing the conviction, rehearing en lane was granted.

Affirmed.

5021



Jesse Berman, Esq., New York, N.Y., for Ap­
pellant.

R obert J. J ossen, Assistant United States At­
torney (Robert B. Fiske, Jr., United States 
Attorney for the Southern District of New 
York, Audrey Strauss, Frederick T. Davis, 
Assistant United States Attorneys, New 
York, N.Y., of counsel), for Appellee.

M a n s f i e l d , 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” )1 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 evi­
dence 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 intro­
duced and that the district court’s admission of the evi­
dence should not be disturbed for abuse of discretion in 
the absence of a showing that the trial judge acted arbi-

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

5022



trarily or irrationally. Under this standard the conviction 
here must he affirmed.

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 con­
victed of bank robbery in violation of 18 U.S.C. §2113(a)2 
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.

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.3 At the time of his arrest Robinson had 
in his possession a .38 caliber revolver.

Upon the trial before Judge Bryan the principal wit­
ness against Robinson was Simon, who admitted participat­
ing 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

2 The indictment also charged Bobinson 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 Bobinson’s con­
viction o f bank robbery, 18 U.S.C. $2113(a), these other charges against 
him were dismissed with the government's consent.

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

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

5023



Robinson in return for government aid in gaining a re­
duction in his sentence, which was subsequently reduced 
to 10 years.

Simon testified that he and Robinson (known as “Merci­
ful” ) 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 tech­
nician, 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 conspira­
tors assembled four guns to be used in carrying out the 
crime: one shotgun, one .32 caliber hand gun, one .38 cal­
iber revolver, and one revolver that “looked like it might 
have been a .38.” The guns were hidden in a vacant apart­
ment 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. Im­
mediately 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 Pon­
tiac’s owner was identified as Otis Brown, a friend of 
Robinson and a fellow student at Bronx Community Col­
lege, which Robinson attended on a part-time basis. Pull- 
face bank surveillance photographs taken during the com­
mission of the crime revealed a man wearing a hat and

5024



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 Re­
sources 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), in­
cluding 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 evi­
dence was received solely on the issue of Robinson’s iden­
tity as one of the robbers.4 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

4 Judge Bryan’s charge on the evidentiary value of the gun was as 
follows:

"In certain instances evidence may he 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 testi­
mony was admitted for a very limited purpose. It may be con­
sidered 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, i f  any, for that purpose as you think it 
may deserve.”

5025



that “looked like” a .38 caliber), which was introduced at 
the second trial.

The only evidence offered by Robinson m 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.

After hearing all the evidence and Judge Bryan’s charge, 
the jury deliberated for about five hours,5 after which in 
a note to the court it reported itself deadlocked “ 11-1 for 
conviction on Count Two [bank robbery].” After advising 
counsel of the note, but not of the precise division of the 
jury, Judge Bryan delivered a modified Allen charge,6 see

5 This was the estimate of defense counsel.

6 "The Court: Well, ladies and gentlemen, this case has been tried 
for quite a number of days before the Court here, and it is eminently 
desirable that you reach an agreement on a verdict in this case, if 
you possibly can.

"The case is an important one for the parties. It involved a 
great amount of time and effort on the part of both the parties,

5026



Allen v. United States, 164 U.S. 492, 501-02 (1896). After 
three more hours, one juror in a note to the court sought 
advice on the ground that “ regardless of honest efforts 
of my co-jurors to persuade me, I am unable to reach a 
decision without a strong reasonable doubt.” After sealing 
the note, Judge Bryan informed counsel of its existence. 
Both sides agreed that jury deliberations should continue 
but, since it was after 6:30 P.M., the jury was sent home 
for the night.

the time of the Court and the time of you citizens who are serving 
on the jury.

"Now, if you fail to agree on a verdict, the case is going to 
have to be tried, I  expect, before another jury, and I  see no reason 
to suppose that another jury would be more competent to determine 
the issues here than you ladies and gentlemen are.

"As I  say, it is wholly desirable and it is your duty to reach 
a verdict here if  you possibly can. Of course, by pointing out the 
desirability of your reaching a verdict here and your duty to do 
so if you possibly can, I  am not suggesting that any of you should 
surrender a conscientious conviction as to where the truth lies here 
or as to the weight and effect of all the evidence.

"However, while each of you must decide the question for him­
self or herself and not merely acquiesce in the conclusions o f your 
fellow jurors, I  think you ought to examine the issues here with 
candor and frankness and with proper deference and regard for 
the opinions of one another.

" I  will put it to you this way:
"You should examine the questions submitted to you with candor 

— and I  am repeating— and with a proper regard and deference 
for the opinions of each other. You should listen to each others’ 
views with a disposition to be convinced.

"Now, that does not mean that you should give up any conscien­
tious views that you hold, but it is your duty, after full deliberation 
here, to agree, if  you can do so, without violating your individual 
conscience and judgment.

"So I  am going to ask you to go back— I know how tedious these 
things are, but I  am going to ask you to go back at this thing 
and work at it again in the spirit and atmosphere that I  have 
suggested to you. It is important that a decision, a verdict be 
reached here, and I  really see no good reason why a decision can­
not be reached, bearing in mind what I  have said and my cautions 
to you.

"Please, now, go back and try once more.”

5027



At 10:00 A.M. the following morning, as part of his 
opening remarks, Judge Bryan delivered a short modified 
Allen-type charge, stating that

“the only response that I can give to that note is to 
state again for you some of what I stated yesterday 
afternoon, that is, you should examine the questions 
submitted to you with candor and with a proper regard 
for and deference to the opinions of one another; 
you should listen to one anothers’ views with a dis­
position to be convinced.

“That does not mean that you should give up any 
conscientious views that you hold, but it is your duty 
after full deliberation, to agree upon a verdict, if you 
can do so without violating your individual judgment 
and your individual conscience.”

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.

Appellant’s principal contentions on appeal are that the 
district judge erred in admitting testimony concerning 
the gun found in Robinson’s possession at the time of the 
arrest and in sealing the juror’s note and giving a second 
AWeM-type charge.

D is c u s s io n

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

5028



that issue, as the term is defined in FRE 401.7 As evi­
dence linking him to the crime, it tended to make his par­
ticipation 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 pur­
poses, 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 rob­
bery (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 co­
incidence 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.8 As we

7 FEE 401 defines "relevant evidence”  as follows:
"  'Eelevant evidence’ means evidence having any tendency to make 

the existence of any fact that is o f consequences to the determina­
tion o f the action more probable or less probable than it would be 
without the evidence.”

8 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 Eobinson 
at the time of arrest, which is characterized by the dissent as 'undis- 
tinetive,’ 'common’ and ’unremarkable.’ In a similar vein Judge Oakes 
states that we do not dispute his earlier panel majority opinion charac­
terizing 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 ma­
jority 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

5029



said in United States v. Ravich, 421 F.2d 1196, 1204 (2d 
Cir. 1970) :

“Nevertheless, a jury could infer from the posses­
sion 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 de­
fendants 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, 485 F.2d 1059, 1060 
(D.C. Cir. 1973) (sawed-off shotgun similar to that used 
in crim e); 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 rel­
evant” ).

Regardless of the relevance of the evidence as cor­
roborating Simon’s testimony, Robinson’s possession of the 
gun was also admissible under FRE 404* 9 on the indepen­
dent ground that it tended to show he had the “ oppor­
tunity” to commit the hank 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,

used a .38 caliber hand gun in the bank robbery is sufficiently co­
incidental to be extraordinary. I  cannot agree with the majority 
that this evidence 'established only a very weak inference that ap­
pellant was one of the bank robbers.’ ” United States v. Robinson, 
544 F.2d 611, 622 (2d Cir. 1976).

9 FRE 404(b) provides in pertinent part:
” (b ) . . . Evidence o f other crimes, wrongs, or acts is not ad­

missible 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 o f motive, opportunity, intent, 
preparation, plan, knowledge, identity, or absence of mistake or 
accident.” (Emphasis added).

5030



421 F.2d 1196 (2d Cir.), cert, denied, 400 U.S. 834 (1970),
where we upheld the admission of the defendant’s pos­
session upon arrest of guns and ammunition other than 
those used in the alleged hank 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.

See also United States v. Wiener, 534 F.2d 15 (2d Cir.
1976), cert, denied, ------  U.S. ------  (1977) (loaded gun
found with narcotics in burlap hag in apartment of de­
fendant charged with narcotics law violations admitted “ as 
tools of the trade” ) ; United States v. Campanile, 516 F.2d 
288 (2d Cir. 1975) (admission of Luger handgun seized 
upon search upheld); United States v. Walters, 477 F.2d 
386, 388-89 (9th Cir.), cert, denied, 414 U.S. 1007 (1973); 
United States v. McKinley, 485 F.2d 1059 (D.C. Cir. 1975); 
Walker v. United States, 490 F.2d 683 (8th Cir. 1974).

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” with­
in the meaning of FRE 403, which provides that “ [A]l- 
though 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 de­
cision on an improper basis, commonly, though not neces­
sarily, 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 he punished for possession of the gun rather than 
because he was guilty of the substantive offense, 1 Wig-

5031



more on Evidence §57 (3d ed. 1940). Absent counterbal­
ancing probative value, evidence having a strong emo­
tional 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 (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 Com­
mission. 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 re­
versal 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 prej­
udice and his determination will rarely be disturbed 
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).

*  *  *  *  #

5032



“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 ev­
idence that the defendants were the robbers, the rather 
small addition which the guns provided, and the un­
doubted effect on the jury of seeing all this hardware 
on the table. However, the trial judge has wide dis­
cretion 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.

See in accord United States v. Dwyer, 539 F.2d 924 (2d 
Cir. 1976); United States v. Leonard, supra; United States 
v. Cheung Kin Ping, Dkt. No. 76-1362, Slip Opin. 2071 (2d 
Cir. Feb. 28, 1977).

Broad discretion must be accorded to the trial judge in 
such matters for the reason that he is in a superior posi­
tion 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 de­
fendant, Judge Bryan, based on his own personal observa­
tion 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

5033



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 (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 photo­
graphs, or judge the success of impeachment by cross- 
examination through observation of the jurors. As Pro­
fessor 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 su­
periority 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 Dis­
cretion 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, 163 F.2d 695, 697 (D.C. Cir. 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

5034



and Santa Fe Rwy. v. Barret, 246 F.2d 846, 849 (9th Cir. 
1957).10 In a different context Judge Waterman, in Napo- 
litano 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 can­
not 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 dur­
ing 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 gen­
erous 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.”

10 United States v. Ortiz, Dkt. No. 76-1460, Slip Opin. 2789, 2800-03 
(2d Cir. April 11, 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 
Eule 609(a) of the Federal Eules of Evidence, which is consistent with 
the majority opinion here.

5035



Construction Ltd. v. Brooks-Skinner Building Co., 488 
F.2d 427, 431 (3d Cir. 1973).

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 admit­
ting the evidence of Robinson’s possession of the .38 cali­
ber gun upon arrest. In line with suggestions made by us 
in United States v. Leonard, supra■, at 1092, be delayed its 
admission until virtually all of the other proof bad been 
introduced, by which time be was in a better position to 
weigh the probative worth of the evidence against its 
prejudicial effect. Although there were competing consid­
erations, it was neither unreasonable nor arbitrary to con­
clude that a sound basis existed for a probative inference 
to be drawn from the evidence which outweighed its prej­
udicial 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 Gouver- 
neur 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.11 In addition, Judge Bryan

XI Appellant also argues that the ease 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

5036



took positive steps to minimize the potential impact of the 
evidence by precluding the government from introducing 
the gun itself or any ammunition* 12 and hy carefully in­
structing the jury that the testimony in question was in­
troduced for a limited purpose only.13 Under these cir­
cumstances Judge Bryan did not abuse his discretion in 
concluding that the balance weighed in favor of admitting 
the evidence.14

Appellant next contends that the court committed re­
versible error in sealing the contents of the note received 
from one juror on the second day of deliberations, advis­

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 
o f guilt is overwhelming the jury may have less need to consider evi­
dence of a prejudicial nature, even though relevant, see, e.g., United 
States v. Ravioli, supra; United States v. Leonard, supra, the "close­
ness” of the case is irrelevant to this weighing process.

12 In this respect the potential for prejudice fell far short of that pre­
sented 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 o f 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 defen­
dant’s arrest was displayed to the jury.

13 The Advisory Committee Notes to Rule 403 state that "in reaching 
a decision whether to exclude on the grounds o f unfair prejudice, con­
sideration should be given to the probable effectiveness or lack o f effec­
tiveness of a limiting instruction.”

14 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 ap­
proach” is to "give the evidence its maximum reasonable probative force 
and its minimum reasonable prejudicial value.” Weinstein's Evidence 
11403 [03] (1975). On the other hand, Professor Dolan, in Rule 40S: 
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.

5037



ing the court that she had “a strong, reasonable doubt” 
and in giving a second Allen-type charge. The Sixth 
Amendment and Rule 43 of the Federal Rules of Crimi­
nal Procedure require that ordinarily a message from the 
jury be answered in open court and that counsel be given 
the opportunity to be heard before the trial judge responds 
to the jury’s questions. Rogers v. United States, 422 U.S. 
35, 39 (1975). Here appellant does not claim a violation 
of his right to be present at every stage of the trial. How­
ever, he does contend that Judge Bryan should not have 
sealed the note, arguing that if its contents had been known 
his counsel would not have consented to the second Allen- 
type charge or might have proposed other charges.

Ordinarily the better procedure is for the trial judge to 
disclose the contents of a juror’s note to the parties. How­
ever, the failure to do so here was hardly prejudicial error. 
Since the court Avas already aware that the jury stood 11-1 
for conviction and no new questions of law were raised by 
the note, there was little or no need for Judge Bryan to 
consult with counsel concerning his response. Moreover, 
disclosure of the lone hold-out juror’s name to counsel 
might, if this became known to her, embarrass her and 
have the contrary effect of leading her to yield rather than 
adhere to her views. In addition, appellant’s counsel at 
no time sought to have the note unsealed. Nor did he sug­
gest that Judge Bryan charge the jury in any other 
manner.

The propriety of an Allen-type charge depends on 
Avhether it tends to coerce undecided jurors into reaching 
a verdict by abandoning without reason conscientiously 
held doubts. See United States v. Green, 523 F.2d 229, 236 
(2d Cir. 1975). In United States v. Hynes, 424 F.2d 754, 
757 (2d Cir.), cert, denied, 399 U.S. 933 (1970), we held 
that proper Allen-type charges amount to

5038



“no more than a restatement of the precepts which the 
trial judge almost invariably gives to guide the jurors’ 
deliberations in his original charge. Its function is to 
emphasize that a verdict is in the best interests of 
both prosecution and defense, and we adhere to the 
view that ‘ [t]he considerable costs in money and time 
to both sides if a retrial is necessary certainly justify 
an instruction to the jury that if it is possible for 
them to reach a unanimous verdict without any juror 
yielding a conscientious conviction . . . they should 
do so. United States v. Rao, 394 F.2d 354, 355 (2d 
Cir. 1968).”

As Judge Oakes stated in United States v. Bermudez, 526 
F.2d 89,100 (2d Cir. 1975), cert, denied, 425 U.S. 970 (1976), 
such a charge is “permissible” when it provides “ encour­
agement to the jurors to pursue their deliberations toward 
a verdict, if possible, in order to avoid the expense and 
delay of a new trial.” No fixed period of time must nec­
essarily elapse before the charge may properly he given. 
Moreover, the charge is “acceptable not only when the 
jury has informed the judge that it cannot agree . . . but 
also when [as in the present case] the judge has learned 
that the jury was deadlocked 11 to 1 in favor of convic­
tion. . . .”  United States v. Martinez, 446 F.2d 118, 119-20 
(2d Cir. 1971). As Judge Moore stated in United States 
v. Meyers, 410 F.2d 693, 697 (2d Cir.), cert, denied, 404 U.S. 
944 (1971), where the jury also had advised the trial judge 
it was deadlocked 11 to 1:

“The judge’s warning that ‘under no circumstances must 
any juror yield his conscientious judgment’ makes the 
use of the Allen charge proper and not coercive, United 
States v. Kenner, 354 F.2d 780 (2d Cir. 1965), cert, 
den. 383 U.S. 958 (1966). The fact that the judge 
knew that there was a lone dissenter does not make

5039



the charge coercive inasmuch as the nature of the 
deadlock was disclosed to the Court voluntarily and 
without solicitation. See Bowen v. United States, 153 
F.2d 747 (8th Cir. 1946). To hold otherwise would un­
necessarily prohibit the use of the Allen charge. . . . ”

See also United States v. Jennings, 471 F.2d 1310, 1313-14 
(2d Cir.), cert, denied, 411 U.S. 935 (1973) (where jury 
advised that it stood 11 to 1 for conviction).

Although the chances of coercion may increase with each 
successive appeal by the court to the jurors to try to reach 
a verdict, we are unwilling to hold that a second A Mew-type 
charge is error per se. Rather, we believe that an individu­
alized determination of coercion is required. Applying that 
principle here, Judge Bryan’s second charge was far short 
of being coercive. Its brevity and failure to mention any 
“need” to reach a verdict, while studiously emphasizing 
the “duty” to adhere to “ individual judgment” and “ in­
dividual conscience,” reduced any potential for coercion 
to the point where the charge might even had been con­
strued as encouraging the dissenter not to abandon her 
views. Finally, the fact that the jury deliberated for three 
hours between the AMew-type charges and for more than 
four hours after the second such charge before reaching 
its verdict are strong indications that the effect of the 
charge was minimal. We therefore hold that the trial court 
did not abuse its discretion.16

Finally, we find no merit in appellant’s claim that the 
government violated Brady v. Maryland, 373 IT.S. 83 
(1963), by failing to disclose that Simon, who testified he 
did not “know” Otis Brown, the owner of the getaway 
car, had once been introduced to him as “Hakim” by Rob­
inson. Since this information was already known to Robin-

15 Nor can we accept Judge Oakes' characterization of our opinion as 
not disputing his view that "the second charge was not necessary.”

5040



son, who introduced the two, disclosure was not required 
under Brady, United States v. Steivart, 513 F.2d 957, 960 
(2d Cir. 1975), and cases cited therein. Second, the ev­
idence was of minimal relevance or materiality on the 
issue of possible access to Brown’s automobile since there 
was no evidence that Simon knew that Brown owned a 
car, much less the getaway car. See Moore v. Illinois, 408 
U.S. 786, 794-97 (1972). Finally, since the exact informa­
tion under consideration here was read to the jury by 
stipulation of counsel during deliberations,16 it tended in 
such a context to fully counteract the arguments that had 
been made by the government in summation.

The conviction is affirmed.

O a k e s , 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 ev­
idence 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 16

16 "There is one other matter I  want to call to your attention.
"Counsel have stipulated that i f  Mr. Simon were recalled to the 

stand, he would testify that in late 1974 he was once introduced 
to Otis Brown by Robinson on the ground floor o f Harlem Hospital. 
Simon was introduced as Arova, and the name 'Simon’ was not 
mentioned. Edward Gams was present at that introduction but 
was not introduced.

"Simon would also testify that he saw Brown from a distance 
at Harlem Hospital on a subsequent occasion.”

5041



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 No. 76- 
2109, slip op. 4227 (2d Cir. June 17, 1977) (denial of rehear­
ing en banc in prisoners’ rights case). Of course, I recog­
nize 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.

L

Review of Trial Court Discretion

The en banc majority opinion cites many authorities, 
from this circuit and others, for the unexceptionable propo­
sition that we should not substitute our judgment for that 
of the trial judge on matters within his discretion, par­
ticularly matters dependent on personal observation at

5042



trial. This proposition by repetition hardly takes on new 
meaning. If the nse 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. E. 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 (1948) 
(“ [w]ide discretion is accompanied by heavy responsibility 
on trial courts” ) ; Rosenberg, Judicial Discretion of the 
Trial Court, Vieived 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. Divyer, 
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 arguing that a specific weighing of pro­
bative value and prejudice amounted to an abuse of dis­
cretion. United States v. Ortiz, No. 76-1460, slip op. 2789, 
2800-03 (2d Cir. Apr. 11, 1977) (dissenting opinion). See 
also Contemporary Mission, Inc. v. Famous Music Corp., 
No. 76-7403, slip op. 3591, 3609-10 (2d Cir. May 18, 1977) ; 
Marx & Co. v. The Diners’ Club, Inc., No. 76-7050, slip op. 
2013, 2024-26 & nn.18-19 (2d Cir. Feb. 25, 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 review­
ing the exercise of trial court discretion here.

5043



Relevance, Probative Value and Prejudicial Impact

Before the balancing1 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,------F.2d a t ------- ,
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 determina­
tion of admissibility.1

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,------ F.2d a t -------

II.

1 Relevancy in the sense used in Fed. It. 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 Mc­
Cormick’s Handbook o f the Law o f Evidence § 185 (2d ed. E. Cleary 
1972).

5044



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 estab­
lish 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 par­
ticipants, corroborating Simon’s testimony.” Ante, ------
F.2d a t ------ . The majority does not explain how corrob­
oration of an accomplice’s testimony can amount to “di­
rect” 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,2 it stands to

2 Early in his interrogation by the Federal Bureau o f Investigation 
(F B I), Simon was given reason to believe that the F B I wanted him 
to implicate appellant. FBI Agent McLaughlin showed Simon bank sur­
veillance photographs of the robber with the white coat and hat and 
said, apparently in the first mention of appellant’s name in this ease, 
"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, pend-

5045



reason that he would provide the authorities with support­
ing 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 ex­
ample 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.

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 
(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. Ap­
pellant did possess, when arrested, a single .38 caliber gun, 
and that fact does show that “he had access to an instru­
ment similar to that used to commit [the robbery],” ante, 
------  F.2d at ------ . But had any one of the hundreds of

ing 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 Huffy 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 o f appellant’s 
retrial, Simon had spent 12 of his 29 years in custody.

5046



thousands of persons who possess the same caliber gun— 
no one contends that the gun here was other than undis- 
tinctive and unremarkable—been arrested for this crime, 
his possession of the gun would have been just as pro­
bative of his “ opportunity” as was appellant’s possession 
here.3

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 (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. Cam­
panile, 516 F.2d 288 (2d Cir. 1975), was the particular gun 
that the defendant himself admitted taking to the area 
of the robberies.4 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

3 It is o f course true that certain other factors tended to link appellant 
to the crime, factors that would not have been present for other indi­
viduals who own .38 caliber guns. But these factors do not and cannot 
make the gun evidence more probative o f appellant’s opportunity, for 
then we would assume the conclusion in the minor premise; we would 
m 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.

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

5047



to the commission of the crime.5 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.

In view of the thinness of the gun evidence from both 
“ corroboration” and “ opportunity” standpoints, it is per­
haps 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 rea­
son 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 ev­
idence’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 evi­
dence 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 “ [t]he 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

5 Simon did not testify that Eohinson carried a gun in the hank; 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 Bobinson do not show him carrying a gun.

5048



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.6 See 2 J. 
Wigmore, Evidence § 410, at 384 (3d ed. 1940) (“ this in­
ference is always open to doubt” ) ; id. §437, at 413 (“ the 
disturbing contingency is that some circumstance operat­
ing in the interval may have been the source of the sub­
sequent existence” ). Second, even assuming that appel­
lant, along with thousands of other New Yorks, 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 undistinctive .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 pos-

6 The majority opinion, ante, ------- F.2d at -------, quotes United States
v. Ravich, 421 F.2d 3 496, 1204 (2d Cir.), cert, denied, 400 U.S. 834 
(1970), for the proposition that the jury may draw such an inference 
of prior possession from the fact of later possession. In context, how­
ever, 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.

5049



sessed a .38 ten weeks after the robbery must be character­
ized as slight.” 544 F.2d at 618.

I believe that this slight probative value “ is substan­
tially 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,------
F.2d a t ------ , is that such inflammatory evidence may dis­
tract the jury from the question of guilt or innocence of a 
specific crime, leading it to return a conviction not be­
cause the defendant committed a particular robbery, hut 
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, slip op. at 3613 (Van 
Graafeiland, J., concurring and dissenting) (“Evidence 
which may he 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, hut, 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 rob­
ber, 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 “improp­
erly” by a jury, “notwithstanding instructions.”  United 
States v. Ortiz, supra, slip op. at 2801 (dissenting opin­
ion), 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 crimi­
nal record to the issue of credibility.” ). Indeed, Rule 403

5050



“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 (1968), quoting 
Krulewitch v. United States, 336 U.S. 440, 453 (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.

m .

Reversible Error: Tine Relevance 
of Other Evidence in the Case

The en banc majority opinion displays a certain ambiv­
alence 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, ------  F.2d at ------  n.9. On the other, it seems pre­
occupied 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. a t ------ .

The majority cannot have it both ways. I f indeed there 
were substantial other evidence against appellant, then the 
already slight probative value of the gun evidence is further

5051



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 some­
what more value to the Government, also makes it more 
likely that the trial court’s error in admitting the gun ev­
idence affected the judgment, see R. Traynor, The Riddle 
of Harmless Error 28 (1970).

The weakness of the Government’s case becomes immedi­
ately 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, ------  F.2d
at ------ ; 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 back­
ground” of crucial Government witness in context of weigh­
ing 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 appel­
lant had at some point ridden in Brown’s car, a fact that 
is undisputed and unsurprising in view of Brown’s testi­
mony that he had given appellant, an acquaintance and fel­
low 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,

5052



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 substan­
tial 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,------ F.2d a t------- . This
latter fact is particularly surprising because it is incon­
sistent 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 intro­
duction 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. Con­
cluding that the error in admitting the gun evidence af­
fected the judgment, I would reverse.

5053



IV.

The Juror’s Note and the 
Two Allen Charges

Because the panel majority reversed on the Buie 403 
ground, Judge Gurfein and I did not have to reach the 
questions whether the court below committed reversible 
error either in sealing the juror’s note expressing her 
“ strong reasonable doubt” or in giving two Allen-type 
charges after knowing of the jury’s 11-1 split, with the 
second charge obviously directed at the particular woman 
who had written the judge of her doubt. The en banc 
majority concludes that neither issue provides ground for 
reversal.

The majority’s conclusion as to the first issue is ap­
parently based on the harmless error doctrine. The 
majority states that “ the better procedure is for the trial 
judge to disclose the contents of a juror’s note to the 
parties,”  but that “ the failure to do so here was hardly
prejudicial error.” Ante, ------  F.2d at — —. This latter
conclusion may be supported on the record before us, but 
the seriousness of the trial court’s failure to disclose the 
note’s contents should be emphasized. This court recently 
held that a trial court’s failure to disclose the substance 
of its communications with a juror constituted error, 
United States v. Taylor, No. 76-1210, slip op. 2805, 2840 
(2d Cir. Apr. 13, 1977), noting that such private com­
munications violate a defendant’s right to be present at all 
stages of the proceedings, id. at 2839; see Fed. R. Crim. P. 
43(a); Illinois v. Allen, 397 U.S. 337, 338 (1970). In 
another recent opinion, this court stressed the importance 
of “an informed discussion [between court and counsel] 
on the proper course to follow,” United States v. Van 
Meerhehe, 548 F.2d 415, 418 (2d Cir. 1976), cert, denied, 45 
U.S.L.W. 3691 (U.S. Apr. 18, 1977), citing the Robinson

5054



panel opinion for this proposition, id. at 418 n.2; see 544 
F.2d at 621 (“benefits”  of “ informed discussion and debate 
between court and counsel . . . even where a court may be 
aware in the abstract of its own alternatives” ). The trial 
court here should have revealed to counsel the substance 
of the juror’s note, without disclosing the individual juror’s 
name or the jury vote.7 See United States v. Dellinger, 472 
F.2d 340, 377-80 (7th Cir. 1972), cert, denied, 410 U.S. 970 
(1973).

With regard to the trial court’s giving of two Allen-type 
charges after knowing of the jury’s 11-1 split, the majority 
emphasizes parts of the court’s second charge and ignores 
the overall potential for coercion. The charge did mention 
“individual judgment” and “ individual conscience,” hut 
it also instructed the jurors—and in reality only the one 
juror whose note the court was explicitly answering by 
giving the second Allen charge—that they should have “a 
proper regard for and deference to the opinions of one 
another,”  that they “ should listen to one another’s views 
with a disposition to he convinced,” and that they had a 
“duty . . .  to agree upon a verdict” if they could do so. 
The charge here, in short, was quite similar to the charge 
of Allen v. United States, 164 U.S. 492, 501 (1896), a charge 
that, “ [1] ike dynamite . . . should be used with great 
caution, and only when absolutely necessary,” United 
States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971).

7 The majority’s reference to the problems that might arise were the
juror’s name to be disclosed, a n te,-------F.2d a t -------- , is puzzling. There
simply was no reason for the name to be revealed; the note’s contents 
could have been read to counsel by the court with the name at the 
bottom of the note withheld. The majority opinion also states that 
appellant's counsel did not seek to have the note unsealed. Id. He did, 
however, make clear his belief that the sealing prejudiced his ability to 
act on behalf o f his client. In response to the court’s request for advice 
as to how to answer the note, appellant’s counsel stated: "Without my 
knowing what is in her note, I  can’t comment too intelligently, except 
that I  believe it is premature to give an Allen charge.”

5055



Here the second charge was not necessary and could not 
he otherwise than coercive. While the majority cites cases 
in which we have upheld the giving of one Allen charge
after trial court notice of an 11-1 jury division, ante,------
F.2d at ------there is apparently no case, in this or any
other circuit, upholding the giving of two Allen charges 
after the jury informs the judge of its 11-1 split. The 
fact that such a case has not arisen is itself indicative of 
a well-founded reluctance on the part of trial judges twice 
to tell a lone holdout to listen to other jurors’ views “with 
a disposition to be convinced.” When the judge so in­
structs the lone holdout, “ the effect . . .  is unavoidably to 
add the judge’s influence to the side of the majority . . . .,” 
with the sole minority juror “develop [ing] a sense of isola­
tion and the impression that [he or she is] the special 
object of the judge’s attention.” United States v. Sawyers, 
423 F.2d 1335, 1349 (4th Cir. 1970) (Sobeloff, J., dissent­
ing) ; see United States v. Meyers, 410 F.2d 693, 697 (2d 
Cir.) (Smith, J., dissenting), cert, denied, 396 U.S. 835 
(1969); Mullin v. United States, 356 F.2d 368, 370 (D.C. 
Cir. 1966); Note, The Allen Charge: Recurring Problems 
and Recent Developments, 47 N.Y.U.L. Rev. 296, 306-08 
(1972); Note, Due Process, Judicial Economy and the 
Hung Jury: A Reexamination of the Allen Charge, 53 Va. 
L. Rev. 123, 130-32 (1967).

Here the lone holdout quite obviously knew that she was 
“ the special object of the judge’s attention.” Her note 
told the judge that she was the holdout, so that he knew 
to whom his remarks were addressed, and she knew that he 
knew. This aspect of our case, coupled with the giving of 
two Allen charges, differentiates it from the cases cited by 
the majority. Making “an individualized determination of
coercion,” as the majority opinion suggests, ante, ------
F.2d a t ------ , I cannot avoid the conclusion that there was
impermissible coercion here.

5056



V.

I would reverse and remand for a new trial. In the light 
of two legal questions that by any stretch of the imagina­
tion have to he 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.

G u r f e in , Circuit Judge (concurring in Judge Oakes’ dis­
senting 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 he 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 de­
fine what is “arbitrary” or “ irrational,” the use of such 
pejorative words simply tends to support an utter abdica­
tion 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 re­
sulted and when we shall he compelled by our own verbiage

5057



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 out­
weighs “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, par­
ticularly 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 “had 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 other­
wise 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 dif­
ference of opinion here turns on whether there is sufficient 
probative force in the evidence, which it seems to me turns

5058



little in this ease 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, hut 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.

F einberg, C.J., dissenting:

I would vacate the order for rehearing en hanc as im- 
providently granted. Although the opinions of the en hanc 
court are typically thorough and learned, the principal 
question they address is a simple and commokme: Did the 
trial judge abuse his discretion in admitting eviiWice that 
the defendant possessed a gun when arrested? Whatythen, 
is the justification for the vkjay and burden of an en b W  
court? The majority opinion d o^ n ot purport to announce''1 
a new rule governing the admission o f evidence of weapons, 
since the majority says that it adheres v“ 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 demon­
strates, the facts of Ravicln 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 admis­
sibility in view of its tendency to create unfair prejudice.” 1

1 The majority opinion does not mention this statement.

5059



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 jirocedure 
appropriate whenever a majority of the active judges dis­
agree 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 com­
pelling an en banc hearing in this routine case has that 
effect.

Following our precedent in United* States v. Collins, 462 
F.2d 792, 801 (2d Cir.), cert, denied, 409 U.S. 988^1972), 
I would simplj vacate the petition for rehearing en banc 
as improvidently granted.2

2 Cf. Rudolph v. United States, 370 U.S. 269 (1962); Ferguson v. 
Moore-McCormach Lines, 352 U.S. 521, 524-58 (1957) (Frankfurter, J., 
dissenting); Stern & Gressman, Supreme Court Practice, $ 5.15 at 227-30 
(4th ed. 1969).

5060
480— 8-1-77 . USCA— 4221

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