finding that defendant’s “possession of the gun was also admissible under [Rule 404(b) ] 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”
How later courts described this case
- finding that defendant’s “possession of the gun was also admissible under [Rule 404(b) ] 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”
- finding no prejudicial error “[sjince 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 [the trial judge] to consult with counsel concerning his response.”
- concluding that a district court did not abuse its discretion in giving a second Allen-type charge
- holding that more than four hours of jury deliberation after the trial court’s second Allen instruction was a “strong indicatio[n] that the effect of the charge was minimal”
Written by the judges who cited it.
The opinion
GURFEIN, Circuit Judge
(concurring in Judge OAKES’ dissenting opinion):
I concur in Judge Oakes’ strong dissenting opinion. I wish to add that I am sorry the court saw fit to take this case en banc. The only rule of law that has emerged is one that will be of little help in reviewing future rulings on evidence under Rule 403. Nobody disagrees that generally the ruling of the trial judge on his weighing of probative value against the substantial prejudice is entitled to great weight. But to say that he may not be reversed unless his decision is “arbitrary or irrational,” in my view, simply detracts from meaningful review. For unless we can define what is “arbitrary” or “irrational,” the use of such pejorative words simply tends to support an utter abdication of appellate review. I think that when we are weighing “prejudice” our duty as a first reviewing court should go somewhat further, for, as Judge Mansfield puts it, “the effect in such a case might be to arouse the jury’s passions to a point where they would act irrationally in reaching a verdict.” And I predict that occasions will arise when we will feel, as appellate judges, that prejudice has resulted and when we shall be compelled by our own verbiage to *526 say that a fine District Judge has been “arbitrary” or, indeed, “irrational,” when all we can really mean is that in the particular case, “substantial prejudice” clearly outweighs “probative value.”
As I believe Judge Oakes has demonstrated, this was a weak case in which the proof of identity rested almost entirely on the accomplice’s testimony, given under hope of quite specific reward in the form of a reduced sentence and, perhaps, with some motive to shield another suspect who was a friend. The panel majority is inferentially taxed for not following United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), a decision which we have no difficulty accepting. There the evidence of guilt was overwhelming, and I would agree that the strong evidence of an arsenal of guns there admitted was, if erroneous, quite harmless. I do not believe that the same applies to a weak case, particularly one where the issue is identity. I do not agree that because evidence of slight probative force in terms of logical relevance exists, it ought to be admitted to supply a needed knockout blow.
On the contrary, it is in cases in which the prosecution case is weak where the weighing suggested in Rule 403 comes into sharp focus. In such cases, the “bad man” theory as a ground for conviction should be “outweighed” only if there is a heavier logical connection on the facts than where guilt is overwhelming. In sum, we cannot weigh prejudice except in a “tipping of the scale” context. This does not mean that evidence of strong probative value necessarily should be excluded because the case is otherwise weak. If its logically probative force is strong enough, the circumstance that the evidence will hurt the defendant is obviously not ground for exclusion. The difference of opinion here turns on whether there is sufficient probative force in the evidence, which it seems to me turns little in this case on what the judge saw in the courtroom, as against what we see in the record.
I have the greatest respect for the able trial judge in this case, but in my view, there is not a tight enough logical connection on the facts to outweigh the prejudice which all appear to concede can arise from this type of evidence.