U.S. v. Robinson

• Citation: 544 F.2d 611
• Decision Date: 01 November 1976
• Docket Number: D,No. 1184,1184
• Parties: UNITED STATES of America, Appellee, v. Cecil ROBINSON, Appellant. ocket 76-1153.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 611

544 F.2d 611

UNITED STATES of America, Appellee, v. Cecil ROBINSON, Appellant.

No. 1184, Docket 76-1153.

United States Court of Appeals Second Circuit.

Argued June 18, 1976.

Decided Nov. 1, 1976.

Jesse Berman, New York City, for appellant.

Elliot Sagor, Sp. Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Lawrence B. Pedowitz, John C. Sabetta, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before MANSFIELD, OAKES and GURFEIN, Circuit Judges.

OAKES, Circuit Judge:

This singular case involves the admissibility of testimony regarding a .38-caliber handgun found in the possession of appellant, Cecil Robinson, at the time of his arrest for bank robbery. Following the exclusion of both the gun itself and testimony pertaining thereto at appellant's first trial, the jury hung 8-4 for conviction. With the admission of evidence pertaining to the gun at a retrial, a conviction was rendered after three days of jury deliberation and two Allen-type charges, Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The conviction, for bank robbery under 18 U.S.C. § 2113(a), ¹ led to the imposition of a twelve-year prison sentence by the United States District Court for the Southern District of New York, Frederick van Pelt Bryan, Judge.

A principal ground for appeal is that it was reversible error to admit into evidence testimony regarding the .38-caliber handgun found in appellant's possession ten weeks after a bank robbery in which several guns, including a .38, were allegedly used. After a review of the evidence, we agree with appellant that the admission of testimony regarding his possession of the gun was error. We also conclude that this error affected the judgment, and we therefore reverse and remand for a new trial.

On May 16, 1975, four men entered the 177 East Broadway branch of the Bankers Trust Company in New York and robbed it of $10,122. One robber wielded a sawed-off shotgun, and a teller received a bullet wound from a .32, not a .38, caliber revolver held by one of the other robbers. Bank surveillance films recorded rather limited images of only three of the men, the fourth robber having remained by the door and out of the camera's range. The robber with the shotgun was dressed in black. The two others both wore white coats; one of these men wore glasses, and the other a hat, stocking cap and gloves. The getaway car was a red 1974 Pontiac, which was found abandoned twenty minutes after the robbery; it had been stolen the day before from one Otis Brown.

One month after the robbery, on June 17, 1975, Allen Simon was arrested and charged with participation in the robbery as the Appellant was arrested on July 25, 1975, ten weeks after the robbery, at the Gouverneur Hospital, where he worked part-time in a work-study program as a student in medical lab technology at Bronx Community College. In his possession on arrest were $6.30 and a .38 revolver in a vinyl case with two bullets.

man in black armed with the sawed-off shotgun. Simon was shown surveillance photos of the robber in the white coat, hat and gloves, and mug shots of Edward Garris and Carson Corley. At first Simon denied knowing Garris or Corley and denied that the robber in the white coat and hat was appellant Robinson. Later, however, Simon identified Robinson, also named "Merciful," as this robber; identified Garris, also known as "A. E." or "Allah Equality," as the fourth man who remained at the door; and identified a man known only to him as "Karim" as the robber in the white coat and glasses who wounded the teller. Simon pleaded guilty to bank robbery and use of a firearm on August 19, 1975, receiving an eighteen-year sentence. He then agreed to testify against Robinson in return for government aid in the reduction of his sentence. Simon testified at both appellant's first trial in November, 1975, and at the trial below, in January, 1976. At the time of appellant's second trial, Simon had a Rule 35 application for the reduction of his sentence pending, which subsequently was granted in the form of a reduction of his sentence to twelve years. Throughout, Simon maintained the innocence of Corley, who had been arrested but was released upon the failure of Simon to inculpate him. ² Garris was indicted on the basis of Simon's evidence, but neither he nor "Karim" has yet been apprehended.

The Government's case at both trials ³ rested primarily, if not almost solely, on the testimony of Simon. None of the eight bank employees called as witnesses to the robbery identified Robinson as a participant. Bank surveillance photographs showed a man scooping money into a bag, but the photographs are far from clear. Indeed, with due respect to the dissenting opinion, comparison of appellant Robinson's photograph with those taken in the bank provokes appellate uncertainty as much as it provoked uncertainty in two juries; moreover, there is nothing in the surveillance photos to show that the man who purportedly is Robinson was using a gun at the time of the robbery. Only Simon identified the man in the photographs as Robinson, which of course adds nothing to Simon's verbal account of the robbery.

It was stipulated that Robinson's fingerprints appeared on the right rear cigarette lighter panel of Otis Brown's car; Brown testified, however, that prior to May 16, 1975, appellant had been in the same trainee-work-study program with him at Bronx Community College, and that he had given Robinson rides in his car a half-dozen times in April and May, prior to the robbery, on several of which occasions Robinson had ridden in the back seat. There was no testimony that Robinson obtained the getaway car for the robbers; the dissent's reference to "evidence" that Robinson "offered" to obtain such a car is to nothing more than the uncorroborated testimony of the alleged accomplice, Simon. The Government's fingerprint expert testified that there was no scientific means to determine how long Robinson's fingerprint had been in the car, and that it was possible it had been there two months or longer prior to the date of the robbery. In addition to this ambiguous At appellant's first trial, the Government sought to have the evidence of appellant's possession of the .38 handgun admitted as probative of Robinson's opportunity or preparation to commit the crime charged under 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). Judge Duffy excluded the evidence concerning the gun. The jury deliberated for three days, as stated hung 8-4 for conviction, and a mistrial was declared.

evidence (it did show that Robinson had ridden in the car that was stolen for use in the bank robbery), there was testimony by two Human Resources Administration employees that appellant knew Garris, the accused fourth robber. Personnel records from Gouverneur Hospital also showed that appellant was not present at work as scheduled on May 16, 1975; the hospital is located two blocks from the Bankers Trust Company bank.

At the second trial, which began on January 21, 1976, the Government again sought admission of the weapon while appellant argued strenuously against a reversal of Judge Duffy's prior ruling on the same facts. ⁴ It was not until all the evidence was in (except the testimony as to appellant's knowing Garris), and after several hearings on the question, that Judge Bryan admitted the testimony of the detective who arrested Robinson regarding the latter's possession of the .38; the judge did not permit the gun itself to be produced. Appellant took exception to the court's instructions limiting consideration of the gun to the issue of appellant's identity as one of the robbers. ⁵ The jury deliberated for a day and a half, after which it reported itself deadlocked 11 to 1, and received an Allen-type charge. It continued deliberation for three more hours until a note from one juror, which the court sealed and did not reveal to counsel, sought advice on the ground of her "strong reasonable doubt." This note the court answered with another Allen-type charge. On the afternoon of the third day of deliberations, the jury rendered its guilty verdict.

Appellant's principal contention is that Judge Bryan erred in admitting the testimony concerning appellant's possession of the .38-caliber gun at the time of his arrest ten weeks after the robbery. We first note that the relevance of the testimony is uncontested. Under Federal Rule of Evidence 401, evidence, to be relevant, need only have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See also United States v. Ravich, supra, 421 F.2d at 1203-04.

The more complex or subtle problem we face is balancing the probative value of the gun evidence against its prejudicial effect. Federal Rule of Evidence 403 provides:

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.

This rule essentially restates the rule of at least thirty jurisdictions. See Dolan, Rule 403: The Prejudice Rule in Evidence, 49 So.Cal.L.Rev. 220, 224 (1976). It is designed principally to promote the twin policies of assuring "correct" factual determinations in individual cases and actual and perceived fairness in the judicial process as a whole. Id. at 226-30.

The phrasing of Rule 403 comports also with the traditional understanding, recognized by this court, that the weighing of probative value and prejudicial effect is a matter generally left within the wide, and wise, discretion of the trial court. United States v. Harvey, 526 F.2d 529, 536 (2d Cir. 1975), cert. denied, 424 U.S. 956, 96...