*3 coats; others both wore white one of these MANSFIELD, and GUR- Before OAKES glasses, men wore hat, and the other a FEIN, Judges. Circuit stocking cap gloves. and The getaway car OAKES, Judge: Circuit Pontiac, red which was found twenty abandoned minutes after the rob- singular case This involves the admissibil- bery; it been day had stolen the before ity testimony regarding a .38-caliber from one Brown. Otis handgun appel- found in Robinson, lant, Cecil time of his One month after the robbery, on June robbery. Following for bank arrest the ex- Allen Simon was arrested charged of both the itself and testimony participation clusion the robbery as the Appellant conspiracy was also indicted for opposition motion without from the under 18 § commit bank U.S.C. guilty after return aof Government verdict on and armed bank under 18 U.S.C. robbery charge. the bank 2113(d), which counts were dismissed on with the sawed-off Government’s сase at black armed both man in trials3 rested if primarily, solely, was shown not almost shotgun. Simon surveillance coat, testimony of Simon. None of the eight in the white hat of the robber photos employees called as bank witnesses to the Edward mug shots of Gar- gloves, robbery identified Robinson partici- as a Corley. At first Simon de- ris and Carson Bank pant. surveillance photographs knowing Corley and denied Garris nied scooping a man money bag, showed into a in the white coat and hat the robber are photographs but far from clear. Later, however, appellant Robinson. Indeed, respect with due to the dissenting Robinson, also identified named Simon comparison appellant opinion, Robinson’s robber; “Merciful,” identified as this Gar- with those photograph taken in the bank ris, Equali- known as “A. E.” or “Allah also provokes appellate uncertainty as much as at the ty,” as the fourth man remained uncertainty juries; provoked door; a man known and identified moreover, nothing there in the surveil- *4 as “Karim” as the robber him white photos lance to show that the man who glasses who wounded the and teller. coat purportedly using Robinson was a at pleaded guilty to bank and Simon time robbery. Only Simon iden- 19, 1975, August a firearm on receiv- use in photographs tified the man as Robin- ing eighteen-year an sentence. He then son, nothing which of course adds to Si- testify against Robinson in return agreed to mon’s verbal account of the robbery. government aid in the reduction of his stipulated It was finger- Robinson’s appel- testified at both sentence. Simon prints appeared right on the cigarette rear November, 1975, trial in first and at lant’s car; lighter panel of Otis Brown’s Brown below, January, in 1976. At the trial tеstified, however, that prior May trial, appellant’s second Simon had time 1975, appellant had been in the same train- application for the a Rule reduction of ee-work-study program with him at Bronx pending, which subsequently his sentence Community College, and that given he had granted in the of a was form reduction of rides in his car a half-dozen times years. to twelve Throughout, his sentence April May, prior in and robbery, on the innocence of Corley, maintained Simon of which several occasions Robinson had had been arrested but was released who in the back seat. ridden There was no inculpate the failure of Simon to him.2 upon testimony that Robinson geta- obtained the on the was indicted basis Simon’s Garris robbers; car for the way the dissent’s refer- evidence, but neither he nor “Karim” has to “evidence” that ence Robinson “offered” apprehended. been yet such a car is to nothing obtain more than Appellant July arrested on testimony uncorroborated alleged robbery, at weeks after the Gou- ten accomplice, Simon. Government’s fin- Hospital, part- where he worked verneur gerprint expert testified that there was no program work-study in a as a student time scientific means to determine how long technology medical lab at Bronx Commu- fingerprint car, Robinson’s had been in the nity College. In his on arrest possible and that it was it had been there vinyl a .38 revolver in a case prior were longer $6.30 two months or to the date of robbery. with two bullets. addition to this ambiguous stipulated photo spread It was at trial a of the cus- from as one of the that one robbers. witnesses, however, who witnessed the but did not tomers None of these was evеr testify Corley photo photo appellant Robinson, from a shown a selected Carson and none “very closely resembling” identify participant spread as him as one of the could the rob- bery. manager in the white coats. The bank robbers Corley specifically resembling identified glasses government suggest in the white coat robber shot 3. The does not there teller, Corley’s parole as did Federal officer. relevant substantive variance between employees proof bank Two other who testified for submitted at the first trial and that Corley also had the Government identified trial below. introduced Robinson had (it show that the robbers.5 The jury did deliberated for for use in half, car that was stolen day reported after which it ridden itself testimony by robbery), there was bank 11 to deadlocked and received an Allen- em- Resources Administration Human charge. It type continued deliberation for Garris, the ac- appellant knew ployees three more hours until a note from one Personnel records robber. fourth cused the court juror, sealed and did not also showed that Hospital Gouverneur counsel, sought advice reveal work as sched- present at appellant “strong of her reasonable ground doubt.” 1975; is locat- hospital May uled the court This note answered with another Trust Com- from the Bankers two blocks ed Allen-type charge. On the afternoon of the bank. pany deliberations, day of jury third rendered verdict. guilty trial, first appellant’s the Government At to have the evidence of sought Appellant’s principal is that contention .38 handgun admitted Bryan erred in Judge admitting the testi- opportunity or Robinson’s concerning appellant’s mony рossession of charged to commit the crime preparation .38-caliber the time of his arrest Ravich, under weeks after the ten We first note Cir.), cert. the relevance of testimony is un- Duffy (1970). Judge Under Federal Rule contested. of Evidence concerning gun. the evidence excluded evidence, relevant, need days, as stat deliberated for three tendency to “any the existence make *5 conviction, for and a mistrial hung 8-4 ed that is of any fact consequence to the declared. of the action more probable determination trial, Janu- began the second At which than probable it would less be without or again sought the Government ary See also United evidence.” States v. the weapon appellant while admission Ravich, supra, F.2d at 1203-04. strenuously against reversal of argued complex The more problem or subtle ruling on the same Duffy’s prior Judge balancing probative we face the value of the evidence It was until all facts.4 against gun prejudicial evidence ef the (except testimony appel- the as to inwas Rule pro Federal of Evidence 403 fect. knowing Garris), and after several lant’s vides: question, Judge Bryan hearings on the relevant, Although may evidence be ex- the detective testimony admitted probative cluded if its value is substan- regarding the lat- arrested Robinson outweighed by danger of unfair .38; tially did not ter’s issues, confusion of the or mis- produced. Ap- prejudice, itself gun permit or leading jury, considerations of exception to the court’s in- pellant took time, waste limiting delay, or needless consideration of the undue structions appellant’s identity issue of as one of cumulative evidence. presеntation to the promised value, Appellant’s any, counsel also to make no 4. if whatever it has on the issue of argument identity robbers, in his summation to effect as one defendant’s guns appellant therefore had no access is, question on the of whether this de- committed the not have could person who committed the fendant charged. may any You not draw con- crimes evidentiary Bryan’s charge Judge val- 5. engage spec- or inferences or clusions as follows: ue of as to the defendant’s character or ulation may be ad- instances evidence In certain testimony reputation on the basis of this only. particular, purpose limited for a mitted anything else than the narrow about Now, testimony you have heard about a .38 just you. thing that I have mentioned to You was found when hand calibre solely may this evidenсe for the lim- consider charges, was arrested on these defendant give purpose I have it such described and ited robbery. That months after some any, you weight, purpose if for think very testimony limited was admitted for a may deserve. may only purpose. for It be considered .38, at essentially the rule of would have This rule restates had to draw two Dolan, inferences, Rule thirty jurisdictions. quite See weak with the least second be- Evidence, 49 Prejudice ing dependent Rule in 403: The on the first and with neither designed It is having much present- basis So.Cal.L.Rev. promote policies of the twin trial. While this court has principally “reject[ed] ed at assuring factual determinations in urged “correct” as untenable often claim that an perceived may grounded cases and actual and not be individual inference on an infer- process ence,” Ravich, judicial as a whole. supra, fairness in United States v. n.10, it at 226-30. F.2d at 1204 has at the Id. same time recognized that phrasing Rule 403 com length of the chain of inferences [t]he with the traditional also under ports necessary to connect the evidence with court, recognized by this standing, proved ultimate fact to be necessarily probative prejudicial value and weighing lessens value of the evi- generally is a matter left within the effect dence, may therefore render it more wide, wise, discretion of the trial court. susceptible to exclusion as Harvey, . (2d Cir. Id. Ravich, at supra, 1204- necessary The first inference to establish Here, however, we hold that the admis appellant’s identity involved his of the evidence constituted serious and sion of the .38 at the time of the robbery.7 As testimony regarding error. The reversible clear, Wigmore mаkes “this inference is al- very the .38 established weak infer doubt,” because, ways open to example, that appellant at best was one of the ence might very well appellant have acquired robbers; likely it was to have had a bank period since the .38 the robbery. 2 J. prejudicial impact on the significant minds Evidence Wigmore, at § ed. jurors; and, in the circumstances of 1940). also id. (“the See exceedingly close be treated disturbing contingency is that some circum- sufficiently affecting the verdict that its *6 operating stance in the interval requires reversal.6 admission the source of the subsequent been exist- Ravich, ence”). supra, however, this VALUE
PROBATIVE
court found
defendant’s post-robbery
the
appellant
To make
identification of
pistols
of six .38
possession
and a box of .38
possession
one robber
from his later
of
аmmunition was sufficient to allow an in-
point
by
The essential
reiterated
the dissent
Taylor
Co.,
is
see also
v. Northern States Power
trial
had discretion to admit or
415,
court
(1934) (civil case),
192 Minn.
617 Once the had appellant of found that at least some drawn that to be ference a .38 at the time of the possessed for a “substan- possessed been guns had actually used in and before the date and that a .38 of time” on period tial would robbery,8 1204. For then have had to find F.2d at robbery. 421 of inference, Judge undistinctive .38 was appellant’s an of such legitimacy an robbery. used in Such infer v. Consoli- the .38 on United States Friendly relied highly problematic best 563 Cir. ence was at Corp., 291 F.2d Laundries dated case. There was “the of this no evidence facts principle stated 1961), which guns.. single the two .38 to link found supports of a fact existence subsequent possession existence, appellant’s apparently a when the its earlier of infеrence handgun of far more ordinarily common type is one which condition subsequent than, e.g., York at New a sawed-off city it had also existed exist unless would not Jackson, 569, States citing Wig- shotgun, United 166 U.S. Id. at time.” earlier 166, 499, (1974), F.2d 508 n.73 413-14. In Consoli- more, App.D.C. at supra, § handguns together number of found Laundries, principle supported or a this dated large ammunition, amount of as in evi- that a file of documents with inference Ravich, supra.9 No from circumstantial evidence by the Government dently procured appellant to robbery, linked other than trial and found before key witness testimony, ambiguous could finger after trial possession Simon’s Government’s car, pos- Brown’s have been in its in Otis and print found properly work hospital at a two blocks applica- from trial. Whatever absence during session the bank robbed on date of the possession from principle bility of sharply case thus contrasts Ravich This guns in the quantity Ravich, supra, in which a wealth of upon stands prior possession inference evidence, circumstantial indepen footing here where direct weaker significantly possession guns, of defendants’ ex single gun unaccompanied dent possession defendants to the crime. isted to link Nor additionally suggestive circumstanc- Ravich, of inherently where there were existed es as cash, burglary robbery gear, or such as positive suspicious amounts unexplained large witnesses, quantities weapons burgla by five masks identification eyewitness tools, Eatherton, as in United evidence, ry States v. said the court (1st Cir.), linking F.2d “overwhelming,” 421 F.2d L.Ed.2d 304 guns to the crime. possessor Roberts, subsequent the inference strength of (5th 1973); Banning judged can be v. United prior possession of the facts of each casе. in the context *7 denied, 437, 695, 434, 414. 317 63 87 supra, cert. U.S. Wigmore, § 2 S.Ct. See testimony Ravich, direct on this latter was no It true that in United States v. 8. There is 421 Simon, who point. denied, 834, confessed co-robber (2d Cir.), cert. 400 U.S. 1196 F.2d Government, a .38 mentioned testified for the 69, (1970), three of the guns once, testifying only as to what when possession, which six in the defendant’s .38’s night apartment be- had in an robbers evidence, could not in all admitted into were guns, robbery. was the three one Of fore the robbery. They have been used fact .38, .32, and a third was a another his own however, were, particular quantity in their an .38,” but he have been like “looked part integral of the evidence of of a he later of the make. While “not sure” weapons large large and of sums of number handguns in the rob- were used testified guns money. probative value bery, the .38 in this context. mention he did not heavily depend so on direсt thus did not Ravich eight who testified as to witnesses None itself, with the as must connection any robbery identified observations their single, .38 otherwise unconnected Robinson’s by shotgun Simon. guns wielded than the depend in case. this so however, testimony, of Simon’s In view readily that a .38 have concluded could was used 618 PREJUDICIAL money, EFFECT sums of large 556
L.Ed. 1101, Fisher, F.2d 455 v. States United Thus, the value of the testimo- 1972); Yates v. United (2d Cir. appellant possessed ny that a .38 ten weeks 1966); 578, (10th 579 Cir. States, F.2d 362 after must be characterized as bank, robbed Unit money from bait But, 403, or under slight. finding Rule (9th Walters, 386, F.2d 388 v. 477 ed States probative value insufficient slight is to war- denied, 1007, 414 94 U.S. in and of Prejudice Cir. exclusion itself. rant 368, (1974). There 245 must “substantially 38 L.Ed.2d admission out- S.Ct. weigh” with a circumstan that value. specific no here crime, as in United connection to the tial proscribes Rule 403 “unfair 1165, (9th Burke, 1170 v. F.2d 506 by Advisory a term defined prejudice,” gun 1974) issue found with (gun at Cir. involving tendency “an undue Committee witnеsses), cert. de robbery by linked basis, improper decision on an suggest 1576, nied, 915, L.Ed.2d 95 43 421 S.Ct. U.S. though necessarily, commonly, an emo Thornton, 149 v. (1975); United States 781 Advisory Committee’s one.” Note to tional (1972) F.2d 309 U.S.App.D.C. “improper 403. One basis” of Fed.R.Evid. shortly with red sweater seen (defendant consistently the courts have decision theft; found red sweater next police after attempts concerns to obtain con disallowed victim near scene of defend property character, personal based victions Montalvo, v. arrest); United States traits, ant’s generalized bad acts of the or de 1959) (blade fendant, 271 F.2d “bad the so-called man conviction.” put caked with heroin narcotics it: Wigmore knife As denied, case), cert. deep tendency of human nature to sig Of further 589, 4 L.Ed.2d not because our punish, is [defendant] .38, time, any is that the use of the fact but becausе he guilty nificance is a bad involved, was not as well one here be condemned now less the man much caught, tendency is is a robbery, witness to the he by testified operate any jury, in Simon, fail to cannot coconspirator including appellant’s Court. out of by other to the identification contrast Jackson, in United States su witnesses Wigmore, supra, at 456. It is 1 J. (victim at 501-02 identified pra, 509 that Federal Rule 403 was clear intended shotgun similar to type prejudice. Dolan, and sawed-off apply to this See assailant Pinkney v. robbery); United at 238-39. supra, used in States, U.S.App.D.C. person is When found with a (1966) identified defend (eyewitness his in an urban area gun in such in homi knife as similar to one used ant’s City, many persons might York as New it); seeing it before and described cide gun being carried in conclude that States, supra, 362 F.2d at United Yates When, violent crimes. to commit order black and (six eyewitnesses identified person gun found with a is in this robbery); Jones v. .38 as used in prosecu white singled police out then tors, prosecution, virtue his as one 1958) exactly barrel fit (“deep-sixed” to use a for an likely unlawful shotgun larger identified sawed-off a far number would con purpose, ted possessor eyewitnesses), cert. is a clude victim *8 ought who (1959).10 dangerous person segre- to be 79 S.Ct. (1973) (sawed-off weapons shotgun 1060 to be Some have allowed courts crime); weapons ground used in that the were resembled that v. admitted (4th Cunningham, without 1276 used in the “similar” to ones testimony” “similarity” degree 1970) (“ample specific very of of as to the much elaboration may weapons). similarity the extent that these cases to nature of the other To or as the of evidence See, analysis, e.g., against with our we do not Unit be inconsistent follow them. the defendant. McKinley, U.S.App.D.C. 158 ed States
619 armed, any foreclosed Bryan’s danger limit- that the society.11 Judge in- from gated supra, troduction of ammunition instruction, was far too another note ing weapon robbery weapon found the severely dispel possibility the to cryptic Rather, could constitute reversible error. gun of the here.12 In view prejudice unfair Walker v. United case resembles value, we marginal evidence’s States, F.2d 683 where er- its admission constituted conclude admission the into evidence the defend- ror. gun ant’s of a unrelated to the held robbery was to be reversible error. ERROR REVERSIBLE court in Walker prosecu- noted that the In assessing whether the error of case,” produced airtight tion “less than an concerning evidence admission of eyewitness and that identification from reversible, question, the crucial we gun was “several” witnesses was contradicted reminded, whether there is “is not sub are inability of witnesses to the robbery support judgment, evidence stantial defendant, identify the partially judgment.” error affected the whether but Taking these disguised. circumstances into Error The Riddle of Harmless Traynor, R. account, well as the “preoccupation” as quite This case is different weapon with the evidence juror as indi- Knight, in situation note to the court on the by his sub- cated 21, 509 F.2d U.S.App.D.C. the Walker court concluded that ject, concluded, the court without (1974), where of the was reversible er- introduction error, resolving question case, we similarly take ror. overwhelming independent evidence of than airtight” account the “less into guilt, including other real and that none of the eight defendant’s the fact particularly nonparticipant identify ap- were witnessеs could testimonial evidence robbers comprehensive well-pub cautionary 11. In view of the effectiveness instructions in the regulation of firearms in the prejudice state licized city rule situation. . York, regulation many Although of New includes courts realized that 265.01, penalties, cautionary always criminal N.Y. Penal Law §§ instructions do not cure 265.20, 1975) (McKinney Supp. effects, 1967 & prejudicial 400.00 a substantial number of (known Law); cautionary as the Sullivan clung Administrative instructions courts have City any possible §§ of the of New York 436-5.0 Code for the solution of talismans as 1975), many (1971 Supp. doing, & New prejudice problem. 436-6.16 In so these courts person rule, that a effecting repeal prejudice Yorkers further conclude are simply by possibility with a violated a law arrested its terms concedes which being gun. aspects negative of some evidence that thе may simply unmanageable for the fact- opinion heavily upon regardless dissenting instructions. If the effi- finder 12. The relies limiting dissipat- cacy cautionary accepted Judge Bryan’s instructions is instruction as cases, prejudice likely prejudice ing from admission of the then the need for rule all problems with this There are several evidence. is obviated. First, Dolan, (foot- supra, even if the instruction were reliance. 49 So.Cal.L.Rev. may omitted). respects perfect, the best instruction all *9 620 deliberations, days jury days deliberations a the three note from
pellant, jury Allen -type charges conviction; to required revealed an 11-1 deadlock for and two guilty, and the deadlock, fact court a verdict revealed produce although hung in jury previously figure, a had that not 11-1 to gave counsel and an gun. While, Allen -type charge. of аdmission to absence Several later hours one in Walker sure, the court noted that juror sent another note to the court which weapons positively Honor, “not identi- regardless “similar” read: “Your of honest “regularly” admitted into evi- are my co-jurors fied” persuade me, efforts to I dence, (dictum), at 684 490 F.2d as we be- to reach a am unable decision without a above, demonstrated lieve we have deli- strong reasonable doubt. you Can advise balancing of factual relevance po- cate to note, me what do?” court sealed the given effect in a tential case is revealing its without contents to counsel.13 simplistic susceptible to so an analysis When told court the next day Walker dictum suggests. We as the must juror’s the note concerned one state of admission of the conclude here mind, aрpellant’s replied counsel that he judgment as to so affected constitute could not intelligently comment as to how reversible error. to answer the note without knowing the contents. The note’s court did not reveal
SEALING OF JUROR’S NOTE
counsel,
the contents to
but instead answer-
Appellant
point
ap-
by giving
raises
note
jury
ed the
the whole
anoth-
requires
comment. After
peal
Alien-type
charge.14
er
appellant’s
recognized by judges
contends that
13. The Government
and commentators alike.
object
sealing
Burger,
failure to
precludes
to the
of the note
Judge, upheld
Chief Justice
as Circuit
ground.
declaring
his claim of error on this
jury
of mistrial after the
fore-
expected
counsel need not be
to
But defense
object
man had revealed the status of the vote:
every sealing
precarious
to
of a note
the court on
undertaking
It would have been a
presumption
every
sealing may
Judge
give
supplemental
such
charge
for the
ignorance
be error. Because of
of the note’s
each
to consider
already
other’s views when he was
contents,
possess
jurors
counsel did not
advised that
4 of 12
voted
prompted
acquittal.
the information that could have
an
objection
sealing.
29,
initial
to the
U.S.App.D.C.
informed
Coun-
Mullin v. United
123
368,
sufficiently object
(1966).
Judge
sel did
court’s solution
370
356 F.2d
As
Sobeloff of
giving
-type charge.
the second Allen
Fourth
Circuit elucidated:
it, then,
is
“precari-
What
makes it a
disposition
our
of this
we
view of
undertaking”
judge
give
ous
for a
an Allen-
propriety
not consider the
of the trial
need
type charge after he has been made aware
judge’s giving
-type charges
two Allen
after
how the vote stands?
.
.
. When the
having
initially
jury’s
beеn informed
judge
jurors
does not know how the
division,
charge coming
11-1
with the second
voted,
properly
charge
and a
balanced Alien
minority juror
after the sole
had written to the
delivered,
jurors may readily accept
is
judge
“strong
about her
reasonable doubt.”
panel.
as addressed to the entire
past upheld
this court has in the
While
giving
However,
jurors
when the
know that the
charge
judge
of an Allen
after the trial
judge
precisely
they
has been advised
how
jury
received an
note from the
had
unsolicited
are divided .
.
.
the effect of an Alien
division,
Lee,
stating its
United States v.
509
unavoidably
charge
judge’s
to add the
in-
645,
Cir.)
curiam),
(2d
(per
646
cert. de
majority
fluence to the side of the
2645,
nied,
1044,
45 L.Ed.2d
S.Ct.
predicament minority jurors
likely
In this
are
(1975);
Jennings,
United States v.
471 F.2d
develop
a sense of isolation and the im-
1310,
denied,
935,
(2d Cir.), cert.
411 U.S.
pression
they
special objeсt
are the
S.Ct.
judge’s
attention.
Cir.),
Meyers,
States v.
Sawyers,
United States v.
1970) (dissenting opinion).
See also
(1969),
involving
two Allen
L.Ed.2d 86
charges,
case
Meyers, supra,
United States v.
Undoubtedly the able trial careful- mitted was not similar to the one used in weighed these and ly other factors in his justifica- the crime. Thus the traditional Evidence, 403, 2. Under Federal Rule proponent, say, give exclu- wards the tois sion of relevant evidence a matter for probative its maximum reasonable judge. discretion of the trial In the exercise of force and its minimum reasonable discretion, Judge suggested Weinstein has value.” Weinstein’s Evidence 403[03] H that, “Judges may differ in their assessment of because, jurors, they may value like Advisory 3. Committee’s Note to Rule 403 disagree respect hypothe- that, to the evidential reaching “in a decision states whether to and, consequently, significance grounds prejudice, sis on the exclude unfair Generally, approach given case. the better probable should consideration to the admissibility question proba- is to view both or lack of effectiveness effectiveness of a limit- favorably prejudice ing force and most to- tive instruction.” weapon is the admission of such a tion evidence must be seen and the LTD., away CO.,
cut CLARKSON Trustee in not probative it was since irrelevant Bankruptcy, appointed Supreme accused commit- proposition Newfoundland, Province of Court 684) (490 charged.” F.2d at crime ted the property of Newfoundland Refin- ing Co., Ltd., Refining and Provincial to the revolver introduced contrast Ltd., Co., Appellees, Walker, carried by the revolver “similar” to that upon arrest the same used in the —it al., Appellants.1 M. et John SHAHEEN Accordingly it was entitled to sub- caliber. probative value. stantial 22, Docket 76-5018. No. does majority Since the not reach Appeals, Court of judge’s the trial non-dis issue of whether Circuit. Second note, juror’s followed his closure charge, -type a second Allen giving of Argued Sept. 1976. еrror, only reversible a brief amounted to Decided Nov. *13 necessary. The action discussion becomes trial under the circum taken improper was neither nor an abuse
stances majority suggests,
of his discretion. As the juror’s to counsel of the name
disclosure jury stood have
and how the would been possibly
inappropriate, leading to undue
pressure upon juror. the lone dissenting of the balance
Disclosure of the note would afforded
hardly tactical advantage. He already
or other had
enough to ask for repetition information judge’s parts charge, e.g., doubt, on reasonable
instruction but he
chose not to do so and not to ask for the
unsealing of the note. The extremely short charge
Allen so mild as to border on clearly and was permissible innocuous
under the well-settled law of this Circuit.
See, Lee, e.g., (2d Cir.), 2645, 45 L.Ed.2d 696
Finding appeal, no merit in the I would
affirm. erroneously bankrupts Supreme captioned
1. This suit was cated Court of New- Division), papers (Trial appeal below court their here foundland Newfoundland bankruptcy matter, viz., bankruptcy brought as if it were a has In re trustee suit here Co., Ltd., Refining diversity citizenship jurisdiction alleging Provincial and Newfound- un- Co., Ltd., Refining Bankrupts. proper caption Thus the land While der 28 U.S.C. corporations adjudi- these two alien is as herein forth. have been set notes “ was, Finally, ‘The naive as- be insufficient: nevertheless the instruction here with all sumption prejudicial judge, сan be over- effects respect insufficient to dissi- to the trial jury proper, ... all pate prejudice. come instructions to It described the limited practicing lawyers unmitigated fic- know to be purpose evidence could be used States, 391 improper, . . Bruton v. United tion. described the once and then 1620, 1624, 123, 129, 20 L.Ed.2d proof 88 S.Ct. of char- use of the evidence forbidden (1968), quoting Krulewitch v. United give jury told to the evi- was then acter. L.Ed. any, weight, if for that [limited] dence “such Second, J., (1949) (Jackson, concurring). you purpose think it deserve.” See limiting particularly likely instruction is jury supra. If the were at all confused note being lim- ineffective when the evidence that is proper of the evidence was the about which use one, itself of a nature: ited is which could well have oc- a confusion curred, concluding statement would have need not take a definitive stand on the One give weight general question “it effectiveness of cau- led the may purposes. tionary denigrate and all instructions in order to deserve” for