decided as amended november 1 1971.: September 24, 1971.
Forman, Aldisert and Gibbons, Circuit Judges.
In a four-count superseding indictment (Cr. 70-318), Eugene Gaines, Reginald Dent, the appellants, and John Dent*fn1 were accused (1) of conspiracy under 18 U.S.C. § 371 to commit the offenses named in the following substantive counts; (2) unlawfully entering the Continental Bank & Trust Company (the Bank) at Adams Avenue and Howland Street, Philadelphia, Pennsylvania, insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. § 2113(a); (3) taking and carrying away $24,598.00, in violation of 18 U.S.C. § 2113(b); and (4) putting in jeopardy the lives of certain employees of the Bank and witnesses while committing the above-named offenses, in violation of 18 U.S.C. § 2113(d).
Reginald Dent and Eugene Gaines were brought to a jury trial and took the stand in their defense, but were convicted of all counts in the indictment. Each was represented by separate counsel, who made motions for a new trial, which were denied. Each was sentenced to a term of 25 years, subject to a study and resentencing as provided by 18 U.S.C. § 4208(b). On completion of the study, Eugene Gaines was resentenced to six years on the fourth count under 18 U.S.C. § 4208(a) (2), and imposition of sentence on Counts 1, 2 and 3 was ordered suspended.*fn1a The record discloses no further disposition of the sentence of Reginald Dent. Appellants filed timely notices of appeal.*fn1b
At the trial there was testimony that in mid-morning of November 26, 1969, the Bank was entered by four men, who robbed it at gun point of $24,598.00. The robbers made their getaway in a U-Haul auto-van, which was shortly overtaken by the police in the vicinity of the Bank. Three men, Reginald and John Dent and James A. Smith were apprehended in the van. The fourth man was seen to flee from the van. Also found in it were two shotguns and the precise amount of stolen money, $24,598.00. Within a half-hour of the robbery, Eugene Gaines was picked up by the police not far from the Bank.
Appeal of Reginald Dent No. 19,404
Mr. Dent's first contention is that the charge of the District Judge was erroneous in that he used prejudicial language and, in effect, usurped the province of the jury in its prerogative of solely determining Mr. Dent's credibility.
In summarizing the evidence concerning Mr. Dent, the District Judge stated as follows:*fn2
"The evidence against Reginald Dent is more cumulative than against Eugene Gaines. He was identified by Catherine Degirolamo and Marjorie Griffith. He was identified in court before you without any hesitancy. He was identified at a pretrial proceeding in connection with this case when he was sitting in the third or fourth row back with six or seven other young Negro males. Marjorie Griffith identified him on that occasion. He was identified by Miss Griffith immediately after the robbery when the men that the police apprehended were taken back to the bank. He was identified at the lineup later that day. He doesn't deny having been there. He testified that he just happened to be around that corner that day when all of a sudden his brother and three other men came running out of this bank and said, 'Come on, Reginald,' and he hops into the truck. Now, can you believe that or is this another coincidence ?
" You determine in your own mind whether there is any substance to his defense whatever.
" He [Mr. Dent] more or less had to admit he was in the truck because there was just no question about his being arrested in the back of the truck with a shotgun in his hand, although he denied that.
" The police officer, Officer Moore, who, thank God, was not a murder victim as a result of this affair, testified.
"So he explains being in the back of the truck by saying he just happened to be standing there when these men came out of the bank.
"Well, members of the jury, I say to you sincerely it is your function to make the final factual adjudication in this case, and although I am permitted by law to express an opinion to you so long as I leave the final say to you, I don't ordinarily, and I won't in this case.
"This is a very, very serious crime, and you have a very, very serious duty to perform here. I submit to you that you should not permit yourselves to be fooled by stories that simply don't make sense. You are not asked to leave your common sense outside when you get into a jury box. You are asked to bring that into the jury box with you and use it to analyze the testimony and come up with a verdict which makes sense in the light of the evidence you have heard in the case." (Emphasis supplied).
Mr. Dent first contends that the statement, "Now, can you believe that or is this another coincidence?" constituted an instruction to the jury that Mr. Dent was unworthy of belief, and was compounded by the language immediately following, "You determine in your own mind whether there is any substance to his defense whatever." In addition, he argues that this language was accompanied by "sarcastic intonations."
Secondly, Mr. Dent alleges that the language relating to his arrest in the van informed the jury that he was both arrested in the van and that he had a shotgun in his hands. Mr. Dent contends that there was a question whether he had a shotgun in his hands at the time he was arrested and that the trial judge, therefore, attempted to press a disputed issue upon the jury as fact, usurping the jury's function to be the final fact finder. He urges further that the next sentence referring to Officer Moore served to emphasize the prejudice allegedly established.
Thirdly, Mr. Dent complains that the language of the District Judge concerning "stories that simply don't make sense" allegedly following comments on his testimony, again amounted to an instruction that he was ...