Castle, Chief Judge, and Fairchild and Cummings, Circuit Judges.
This appeal is from defendant's conviction, upon a jury verdict of guilty, of armed robbery from a postal station, in violation of 18 U.S.C. § 2114. Defendant's main contention on appeal is that various references during the course of the trial to identification of defendant by use of "mug shots" violated defendant's constitutional rights and require reversal of the judgment of conviction.
The first mention of "mug shots" came during the prosecutor's opening statement when he told the jury that the Government expected to prove that, following the robbery, the owners of the postal station went to the Joliet, Illinois Police Station where they "looked at what the Police Department calls mug shots [and] picked out [defendant's] picture as the man who robbed him there." At this point, after denying a motion for mistrial, made by defense counsel at a side-bar conference, the trial court instructed the jury as follows:
"* * * Mr. Fohrman is properly concerned that you not misinterpret Mr. Jalovec's reference to 'mug shots.' You understand that whether it is the local police, or the FBI, or what have you, they have a whole lot of pictures of a lot of people. Because they have somebody's picture does not mean that this man has ever committed a crime before or since. They have pictures of people of all kinds and descriptions and mug shots do not mean that this is evidence of a man having previously committed a crime or that he is even suspected of committing a crime. They are pictures which the law enforcement agencies have for purposes of identification. They have them of all kinds of people, including me as a matter of fact, because anybody who has worked for the federal government has his fingerprints on file with the FBI and his picture is on file, for example.
"So you understand there is no connotation of guilt at all by virtue of the fact that some pictures were in the possession of the police or Mr. Jalovec says they were. * * *"
Later in the trial, during the Government's case in chief, both prosecution witnesses testified that they had looked at a "mug file," "picture file," "photographs of suspects," or "photographs" at the police station and also at a "line-up."
The defendant, who did not testify at trial, claims that the references to "mug shots" created an impression in the minds of the jurors that he had a prior criminal record. Consequently, defendant argues, since his character was not in issue, the presumption of innocence and defendant's right not to testify were destroyed, in violation of the Fifth Amendment. Defendant alleges that "the common juror is likely to attribute a connotation of criminality [either arrest or conviction] to the subject shown in a 'mug shot'," and relies mainly on United States v. Reed, 376 F.2d 226 (7th Cir. 1967), to substantiate his claim of unconstitutionality.
In Reed, the defendant was convicted of bank robbery and placing the life of a bank employee in jeopardy by using a dangerous weapon. During the direct examination of a Government witness, a state trooper, the following dialogue occurred:
A. "I received two mug shots from one of our detectives at the prison and he requested that I show them to the * * * [bank employee and his family].
Q. "You say mug shots, what is that?
A. "They are photographs of former inmates of the state prison."
During cross-examination, this same witness again stated the source of the photographs to be the state prison. Another Government witness, the County Sheriff, identified a Government exhibit as a "mug shot" of the defendant, and on cross-examination stated that he showed pictures of the defendant to the bank employee, along with "other" photographs from the Indiana State Prison. Another Government witness also mentioned the source of these pictures. In reversing Reed's conviction, this Court stated:
"We hold that the testimony with respect to the 'mug shot' of Reed taken in prison vitiated his right to be presumed innocent until proven guilty and was prejudicial error. * * * This testimony made the difference between the trial of a man presumptively innocent of any criminal wrongdoing and the trial of a known convict. His right not to take the stand in his own defense was substantially destroyed. His past record could not have been directly shown by the ...