United States v. Cecil Robinson

560 F.2d 507, 1977 U.S. App. LEXIS 12242

• Court: Court of Appeals for the Second Circuit
• Decided: July 28, 1977
• Docket: 19-4143
• Status: Published

Opinions

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”)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 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)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 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.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 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,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 Allen v. United States, 164 U.S. , 17 S.Ct. 154, 41 L.Ed. 528 (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.

DISCUSSION

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 401.⁷ 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.⁸ 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 ⁹ 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, 91 S.Ct. 69, 27 L.Ed.2d 66 (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, 94 S.Ct. 368, 38 L.Ed.2d 245 (1973); United States v. McKinley, 158 U.S.App.D.C. 280, 485 F.2d 1059 (1973); 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 Wig-more 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, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976), may pose a risk of unfair prejudice because it “tends to distract” the jury from the issues in the case and “permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.” Advisory Committee Notes, FRE 404, quoting with approval the California Law Revision Commission. The effect in such a case might be to arouse the jury’s passions to a point where they would act irrationally in reaching a verdict.

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

“The trial judge must weigh the probative value of the evidence against its tendency to create unfair prejudice and his determination will rarely be 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).

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“Notwithstanding the relevance of the guns and the ammunition, the trial judge would have been justified in excluding them if he decided that their probative value was outweighed by their tendency to confuse the issues or inflame the jury. He might well have done so in this case, in view of the overwhelming evidence that the defendants were the robbers, the rather small addition which the guns provided, and the undoubted effect on the jury of seeing all this hardware on the table. However, the trial judge has wide discretion in this area, see United States v. Montalvo, supra, 2 Cir., 271 F.2d 922, 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, 555 F.2d 1069 (2d Cir. 1977).

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

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

For these reasons we are persuaded that the preferable rule is to uphold the trial judge’s exercise of discretion unless he acts arbitrarily or irrationally. See United States v. McWilliams, 82 U.S.App.D.C. 259, 163 F.2d 695, 697 (1947). We thus adhere to the traditional formulation of the abuse of discretion standard, which is based on the premise that “the Court of Appeals should not and will not substitute its judgment for that of the trial court,” Atchison, Topeka and Santa Fe Rwy. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957).¹⁰ In a different context Judge Waterman, in Napolitano v. Compania Sud Americana De Vapores, 421 F.2d 382, 384 (2d Cir. 1970), expressed the general philosophy of this broad grant of discretionary power as follows:

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

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

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

Applying the arbitrary-irrational standard for abuse of discretion to the present case, Judge Bryan’s ruling clearly must be upheld. He carefully considered arguments of counsel and weighed the competing interests before admitting the evidence of Robinson’s possession of the .38 caliber gun tqjon arrest. In line with suggestions "made “by us in United States v. Leonard, supra, at 1092, he delayed its admission until virtually all of the other proof had been introduced, by which time he was in a better position to weigh the probative worth of the evidence against its prejudicial effect. Although there were competing considerations, it was neither unreasonable nor arbitrary to conclude that a sound basis existed for a probative inference to be drawn from the evidence which outweighed its prejudicial effect. He was, moreover, in a position to appraise Simon’s testimony and the other incriminating evidence against Robinson, including his fingerprints in the getaway car, his similarity in appearance before the court to that of the white-jacketed robber wearing a hat shown in the surveillance photos, his absence from his job at the Gouverneur Hospital on the day of the robbery, and his prior acquaintanceship with Karim and Brown, the owner of the stolen ear used for the getaway.¹¹ In addition, Judge Bryan took positive steps to minimize the potential impact of the evidence by precluding the government from introducing the gun itself or any ammunition ¹² and by carefully instructing the jury that the testimony in question was introduced for a limited purpose only.¹³ Under these circumstances 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 reversible error in sealing the contents of the note received from one juror on the second day of deliberations, advising 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 Criminal 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, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). Here appellant does not claim a violation of his right to be present at every stage of the trial. However, 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. However, the failure to do so here was hardly prejudicial error. Since the court was 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 suggest that Judge Bryan charge the jury in any other manner.

The propriety of an Allen -type charge depends on whether 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, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970), we held that proper Allen -type charges amount to

“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, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976), such a charge is “permissible” when it provides “encouragement 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 necessarily elapse before the charge may properly be 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 conviction. . . . ” United States v. Martinez, 446 F.2d 118, 119-20 (2d Cir. 1971), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971). As Judge Moore stated in United States v. Meyers, 410 F.2d 693, 697 (2d Cir.), 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, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966). The fact that the judge knew that there was a lone dissenter does not make 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 unnecessarily 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, 93 S.Ct. 1909, 36 L.Ed.2d 395 (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 Allen -type charge is error per se. Rather, we believe that an individualized 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 “individual conscience,” reduced any potential for coercion to the point where the charge might even have been construed as encouraging the dissenter not to abandon her views. Finally, the fact that the jury deliberated for three hours between the Allen -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.¹⁵

Finally, we find no merit in appellant’s claim that the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 Robinson. Since this information was already known to Robinson, who introduced the two, disclosure was not required under Brady, United States v. Stewart, 513 F.2d 957, 960 (2d Cir. 1975), and cases cited therein. Second, the evidence 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, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Finally, since the exact information 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.

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

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

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

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

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

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

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, the time of (.he 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 himself or herself and not merely acquiesce in the conclusions of 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 conscientious 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 cannot be reached, bearing in mind what I have said and my cautions to you.

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

7 . FRE 401 defines “relevant evidence” as follows:

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

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 Robinson at the time of arrest, which is characterized by the dissent as ‘undistinc-tive,’ ‘common’ and ‘unremarkable.’ In a similar vein Judge Oakes states that we do not dispute his earlier panel majority opinion characterizing the .38 caliber gun evidence as ‘very weak’ for the purpose of establishing appellant’s identity.

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

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

9 . FRE 404(b) provides in pertinent part:

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

10 . United States v. Ortiz, No. 76-1460, 553 F.2d 782, 787-789 (2d Cir. 1977), which is repeatedly referred to by Judge Oakes in his dissent, involved the wholly unrelated issue of whether a witness’ prior narcotics convictions have any probative value for impeachment purposes. Aside from its irrelevancy, we there upheld the trial judge’s exercise of discretion in ruling that the convictions were admissible under Rule 609(a) of the Federal Rules of Evidence, which is consistent with the majority opinion here.

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

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

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

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

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 approach” is to “give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” Wein-stein’s Evidence fl 403 [03] (1975). On the other hand, Professor Dolan, in Rule 403: The Prejudice Rule in Evidence, 49 So.Cal.L. Rev. 220, 233 (1976), suggests that courts should “resolve all doubts concerning the balance between probative value and prejudice in favor of prejudice.” Judge Bryan’s ruling would satisfy either standard.

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

16 . “There is one other matter I want to call to your attention.

“Counsel have stipulated that if 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 of Harlem Hospital. Simon was introduced as Arova, and the name ‘Simon’ was not mentioned. Edward Garris 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.”