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
FEINBERG, Circuit Judge,
dissenting:
I would vacate the order for rehearing en banc as improvidently granted. Although the opinions of the en banc court are typically thorough and learned, the principal question they address is a simple and common one: Did the trial judge abuse his discretion in admitting evidence that the defendant possessed a gun when arrested? What, then, is the justification for the delay and burden of an en banc court? The majority opinion does not purport to announce a new rule governing the admission of evidence of weapons, since the majority says that it adheres “to the traditional formulation of the abuse of discretion standard . .” True, the majority opinion implies — although it nowhere flatly says so — • that the original panel decision of Judges Oakes and Gurfein disregarded the teachings of such earlier cases as United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970). But as Judge Oakes’ en banc dissenting opinion demonstrates, the facts of Ravich were “manifestly different” from those present here. The original panel majority no more “overruled” Ravich than the en banc majority now “overrules” the warning in United States v. Campanile, 516 F.2d 288, 292 (2d Cir. 1975), that the stronger evidence there of gun possession “was on the borderline of admissibility in view of its tendency to create unfair prejudice.” 1 Such questions of admissibility ordinarily depend upon the facts of the particular case and do not call for convening an en banc court, unless we regard that cumbersome procedure appropriate whenever a majority of the active judges disagree with the result reached by two of their brethren. Such a doctrine would wholly misconceive the purpose of the extraordinary en banc procedure. While the majority does not formally embrace that view, its action in compelling an en banc hearing in this routine case has that effect.
*527 Following our precedent in United States v. Collins, 462 F.2d 792, 801 (2d Cir.), cert. denied, 409 U.S. 988 , 93 S.Ct. 343 , 34 L.Ed.2d 254 (1972), I would simply vacate the petition for rehearing en banc as improvidently granted. 2
. The majority opinion does not mention this statement.
. Cf. Rudolph v. United States, 370 U.S. 269 , 82 S.Ct. 1277 , 8 L.Ed.2d 484 (1962); Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524-58 , 77 S.Ct. 457 , 1 L.Ed.2d 511 (1957) (Frankfurter, J., dissenting); Stern & Gressman, Supreme Court Practice, § 5.15 at 227-30 (4th ed. 1969).