Bazelon, Chief Judge, and Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Date Reported: Supplemental Opinion on Sua Sponte Suggestion for Rehearing En Banc (D.C. Criminal 75-12). Original Opinion of February 23, 1977 at: 561 F.2d 859.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
On consideration of the sua sponte suggestion for rehearing en banc and a majority of the judges of the court in regular active service not having voted in favor thereof, it is
ORDERED by the court, en banc, that the aforesaid sua sponte suggestion for rehearing en banc is denied.
Statement of Circuit Judge MACKINNON, in which Circuit Judges TAMM, ROBB and WILKEY join, is attached.
STATEMENT OF JUDGE MACKINNON
MACKINNON, Circuit Judge:
I have voted to rehear this case en banc in order to maintain the uniformity of our decisions. FED. R. APP. P. 35(a). I
Justice Clark's dissent alone sets forth an adequate basis for rehearing en banc. The following additional reasons also exist.
Sprinkled throughout the majority opinion are understatements of facts which do not fairly reflect the strength of the circumstances that are probative of guilt, and comments are made on the Government's theory that do much less than justice to the Government's position. For example, at page 863 the majority opinion states "the prosecutor's closing argument casts considerable doubt on any claim that the photographs here were decisive." This is an unjustifiable attempt to characterize the Government as representing that its case was weak. But the reason given is an insufficient one for reversing the jury's verdict because the photos do not have to be "decisive."
The Government pointed out that this is an unusual case in that you almost have a movie of this whole robbery because there are over two hundred frames, that means individual pictures of these two reels of films that I have . . . . Pay very careful attention to them, ladies and gentlemen. *fn1 But they are not the most crucial element in this case. . . . &2 (Emphasis added.)
(Closing Argument Tr. 3). Guilt thus in the Government's view never depended on the photographs being "decisive." Actually the Government's case rested on all the evidence: (1) the photographs,3 the visual identifications (Tr. 175, 176), (3) the coat (jacket) and (4) the money (Closing Argument Tr. 9, 12), and the relationship of each to the other.
Even if there was no other evidence of guilt the law does not compel a conclusion that the jury could not consider the pictures as decisive, particularly in relation to other aspects of the proof of guilt. The pictures of the coat alone could have been decisive as a practical matter. Williams was arrested on December 3, 1974, fifteen days after the bank robbery. When arrested he was wearing a coat (jacket) that exactly matched the coat in the pictures (Closing Argument Tr. 26). The majority opinion fails to state this vital fact, this being another instance where it attempts to play down the evidence of guilt. This jacket was introduced as Government's Exhibit 1d. Personal examination of the jacket exhibit and comparison with the photographs of the robbery discloses the following: The snaps the jacket used in lieu of buttons have the exact same metallic color and are exactly the same size, and are located in exactly the same places that would result in the reproduction that appears in the photographic exhibits. The style and length of the jacket are exactly the same in every particular. The flaps on the two breast pockets are cut in exactly the same ...