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 robbery, 18 U.S.C. § 2113(a), after a jury trial. Appellant's principal claim is that the district court abused its discretion 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 banc was granted. Affirmed.
Kaufman, Chief Judge, Feinberg, Mansfield, Mulligan, Oakes, Timbers, Gurfein, Van Graafeiland and Meskill, Circuit Judges. Oakes, Circuit Judge with whom Judge Gurfein concurs, dissenting. Gurfein, Circuit Judge, concurring in Judge Oakes' dissenting opinion. Feinberg, C.j., dissenting.
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")*fn1 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.
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)*fn2 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.*fn3 At the time of his arrest Robinson had in his possession a.38 caliber revolver.
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.*fn4 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.
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.
After hearing all the evidence and Judge Bryan's charge, the jury deliberated for about five hours,*fn5 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,*fn6 see Allen v. United States, 164 U.S. 492, 501-02, 41 L. Ed. 528, 17 S. Ct. 154 (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.
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 disposition 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 Allen -type charge.
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.*fn7 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.*fn8 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").
Regardless of the relevance of the evidence as corroborating Simon's testimony, Robinson's possession of the gun was also admissible under FRE 404*fn9 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.
See also United States v. Wiener, 534 F.2d 15 (2d Cir. 1976), cert. denied, 429 U.S. 820, 97 S. Ct. 66, 50 L. Ed. 2d 80 (1976) (loaded gun found with narcotics in burlap bag in apartment of defendant 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, 38 L. Ed. 2d 245, 94 S. Ct. 368 (1973); United States v. McKinley, 158 U.S. App. D.C. 280, 485 F.2d 1059 (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" 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., ...