(dissenting):
I respectfully dissent. While I must concede that the arguments made by the Government in its Petition for Rehearing are far more persuasive than those earlier made by the prosecution, I cannot join Judge Wright in his defection from our original majority opinion. In retrospect, I *399can acknowledge that our original opinion, written by me, was too severe in its criticism of the prosecutor and should have attributed to the district judge more of the responsibility for the regrettable impropriety with respect to the display of the inadmissible weapon.
The sole issue in Pratt’s trial was his identification as the robber, and the Government’s principal evidence against him consisted of eyewitness testimony from bank employees and customers. As is often true of eyewitness identifications in bank robbery trials, the identifications of Pratt were not entirely free from question. In defense, Pratt called several alibi witnesses, all of whom were either his relatives or close friends. The task for the jury was the difficult but common one of assessing the relative credibilities of different witnesses giving contradictory testimony.
Among Pratt’s contentions on this appeal are well-founded claims of both prosecutorial misconduct and error in the trial judge’s admission against Pratt of so-called “expert” testimony concerning photographs taken, during the robbery, by bank surveillance cameras. My review of the record convinces me that because the other evidence in the trial had created a close question for the jury, and because of the particularly prejudicial display to the jury of the gun, I cannot in good conscience agree, with fair assurance, that the jury’s decision was not impermissibly swayed. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
The Display of the Gun
When agents of the Federal Bureau of Investigation (FBI) arrested Pratt, they seized a loaded .32 caliber pistol from a nightstand that was near the bed in which he had been sleeping. Prior to trial, Pratt moved through his retained attorney to suppress the weapon, arguing that the Government could not prove any connection between the weapon and the robbery. As the trial began, the trial judge stated that it was his view that the weapon was not admissible and should not be displayed. He also said, however, somewhat ambivalently, that he would reserve his ultimate ruling on admissibility. The following colloquy occurred at the bench, outside the jury’s hearing:
THE COURT: I don’t see how you are going to be able to have a teller or somebody like that sufficiently identify a weapon. I am not saying that you can’t do it, but when you lay the foundation for that, why, I think you ought to proceed by having them describe it some way.
THE PROSECUTOR: Well, they have all seen it prior to testifying and they say it looks similar. They can’t say it was the exact gun. The point is he was arrested on the 29th and that is less than three days after the robbery, with a loaded revolver. I think it is relevant.
THE COURT: I don’t think so. I don’t think that is a sufficient foundation for the introduction of it.
After some other discussion, the trial court warned the prosecutor:
THE COURT: Yes, let’s proceed. Proceed carefully without displaying it to the jury, and that is a caution.
THE PROSECUTOR: I won’t mention it in my opening statement.
THE COURT: Yes, don’t mention it [the gun] in your opening statement. When we get to it, I will make a ruling on it.
THE PROSECUTOR: Well, it is coming up.
THE COURT: I will excuse the jury before you offer it.
THE PROSECUTOR: Okay.
Notwithstanding the judge’s explicit instructions, the prosecutor, when questioning the prosecution’s first witness only a short time later, openly and obviously displayed the gun to the witness, in the full view of the jury, and began to question the witness about the weapon. While I can hardly believe that the court’s explicit admonition as to the display of the weapon confused the prosecutor, it is possible that such was true. As he later chastised the prosecutor, the trial judge indicated that he thought he had *400made it clear that the gun should not have been displayed:
THE COURT: I told you, positively, that you were not to show that gun to any of the witnesses until after there had been sufficient identification of it from what they described to make it possible for them to identify the gun as the one that was used in the robbery.
Even if it is assumed that the prosecutor was, as he later explained, genuinely confused by the trial judge’s statements, the exercise of reasonable caution should have required him, at a minimum, to request a definitive ruling before commencing an inquiry in respect to the gun in the presence of the jury.1 Instead, the prosecutor placed a piece of highly inflammatory, but apparently inadmissible, evidence before the jury in direct contravention of the trial judge’s clear direction that such should not be done.2
I choose to believe that the prosecutor only momentarily forgot that his solemn duty is “to seek justice, not merely to convict.” ABA Standards, The Prosecution Function § 1.1(c). Nevertheless, we cannot too often remind the Government’s attorneys, as we so recently did in United States v. Polizzi, 500 F.2d 856, 892 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975), of Justice Sutherland’s *401classic description of their role in criminal prosecutions:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — -indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). See also Singer v. United States, 380 U.S. 24, 37, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); United States v. DeLoach, 504 F.2d 185 (D.C.Cir. 1974); United States v. Smith, 500 F.2d 293 (6th Cir. 1974); United States v. White, 486 F.2d 204 (2d Cir. 1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1569, 39 L.Ed.2d 876 (1974); United States v. LeFevre, 483 F.2d 477 (3d Cir. 1973).3
Forthrightness compels me to say that the trial judge bears a major portion of the responsibility for this regrettable error. Though the judge later expressed surprise, he should have been alert to the violation of his directions about the display of the gun at the very instant that the violation first occurred.
Wherever the blame may lie for what occurred, the ultimate result was that a piece of highly inflammatory evidence, ultimately held inadmissible, must have made an indelible impression upon the minds of the jurors in a case wherein the issue of guilt was very close. In my view, the trial judge’s curative instruction could not possibly have obviated such serious prejudice.
Photographic Identification
Pratt’s attorney moved the court to require the Government to make an offer of proof as to the proposed testimony of one Avignone, an employee of the FBI’s photographic laboratory. The judge denied the motion and permitted Avignone to testify as an expert on photographic identification. Avignone testified at great length, on direct and cross-examination, about what he perceived to be similarities in the physical features of the robber depicted in the surveillance camera photographs and the features of the appellant. Yet the surveillance photos were of poor quality, and the only articulable characteristics concerning which Avignone could testify were such broad generalities as the two individuals’ hairlines, eyebrows, chin shapes, earlobes, weight, and build. These observations were not beyond the common experience of the jury and hence were not proper subjects for expert testimony. United States v. Burke, 506 F.2d 1165 (9th Cir. 1974) cert. denied, 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975); United States v. Brown, 501 F.2d 146, 148-50 (9th Cir. 1974); United States v. Trejo, 501 F.2d 138, 143 (9th Cir. 1974).
After Avignone testified, the trial judge granted Pratt’s motion to strike all of the expert’s testimony, but the jury had already heard at length of Avignone’s qualifications as an FBI specialist and his observations about the similarities between Pratt’s and *402the robber’s characteristics. I cannot agree with the majority that the trial judge’s curative instruction adequately purged Avignone’s testimony of its prejudicial impact. In United States v. Brown, supra at 150 n. 1, our court noted the potential for prejudicial error in such testimony, and in light of the other circumstances in this case, I would hold that such error occurred here. The trial judge should have granted Pratt’s motion for an offer of proof as to Avignone’s contemplated testimony. Brown requires that
when a party seeks to introduce expert testimony on personal photographic identification — whether to prove or disprove similarity, he should first be required to make an offer of proof to the court outside the presence of the jury.
501 F.2d at 149. (Emphasis in original).
In fairness, Pratt deserves a new trial. Accordingly, I would reverse.
. Even absent the clear instructions given by the judge in this case, the prosecutor should not have displayed the gun, which was the subject of an outstanding motion to suppress, without first asking that the jury be excused. See ABA Standards, The Prosecution Function § 5.6(d):
“It is unprofessional conduct to tender tangible evidence in the view of the judge or jury if it would tend to prejudice fair consideration by the judge or jury unless there is a reasonable basis for its admission in evidence. When there is any doubt about the admissibility of such evidence it should be by an offer of proof and a ruling obtained.”
To the same effect, see American College of Trial Lawyers, Code of Trial Conduct, 19(g).
The Advisory Committee commentary to ABA Standards, The Prosecution Function § 5.6 states:
The premature display of a tangible article in the courtroom may be unduly inflammatory even though it is later admitted. Hence, such an article should not be exposed to view until it is formally offered for admission in evidence. Moreover, the offer must be made in good faith. If there is any doubt as to the admissibility of the article, the display and tender should be made outside the presence of the jury.
ABA Standards, The Prosecution Function § 5.6, comment c at 122 (Tent. Draft, 1970). See generally Poirier, The Federal Government Lawyer and Professional Ethics, 60 A.B.A.J. 1541 (1974).
. As the majority points out, Pratt’s attorney failed either to object or move for a mistrial when the prosecutor displayed the gun to the jury. Only after the defense counsel had cross-examined the Government’s first witness about her statement that the gun was similar to the one used in the robbery did he bring to the court’s attention the prosecutor’s disregard of the court’s earlier instructions, and even then he did not request a mistrial. The judge stated that he “was never so surprised in his life” as when the prosecutor displayed the gun, and he soundly rebuked the prosecutor; however he did not, sua sponte, order a mistrial. Since I would rest my decision in this case on cumulative error, I would find it unnecessary to hold that the judge, at that time, committed plain prejudicial error.
The majority makes much of defense counsel’s failure to move for a mistrial. However, as any experienced trial lawyer knows, the question of whether to move for a mistrial often presents defense counsel with a serious dilemma. If he makes such a motion in the presence of the jury, as he sometimes must, he risks emphasizing the disputed evidence in the minds of the jury. Moreover, there is a risk that some jurors may take personal offense, to the disadvantage of the defendant, at the suggestion that they are not capable of following a curative instruction to disregard evidence they have already heard. Thus, where the error is palpably egregious, the failure of defense counsel to move for a mistrial should be treated with some liberality.
I also note that although the trial judge did instruct the jury that the gun was shown for illustrative purposes only and there was no evidence to link the gun to the robbery, he did not do so until the^end of the trial, as a part of his final comments before the jury retired to deliberate. It is almost inconceivable, however, that any attempted curative instruction could have erased so dramatic an image as a firearm from the minds of all the jurors. See Thomas v. United States, 363 F.2d 159, 162-65 (9th Cir. 1966). Most assuredly, such an instruction given belatedly, at the close of the trial, is less likely to do so than would one rendered immediately after the occurrence of such grossly prejudicial misconduct.
. In recent months, our court has been compelled to consider a distressing number of appeals in which there were substantial allegations of prosecutorial misconduct. See, e. g., United States v. Bashaw, 509 F.2d 1204 (9th Cir. 1975); United States v. Polizzi, 500 F.2d 856, 889-92 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); United States v. Cash, 499 F.2d 26 (9th Cir. 1974); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974); United States v. Fernandez, 497 F.2d 730, 735 (9th Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1423, 43 L.Ed.2d 670 (1975); United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974); United States v. Greenbank, 491 F.2d 184 (9th Cir.), cert. denied, 417 U.S. 931, 94 S.Ct. 2462, 41 L.Ed.2d 234 (1974); United States v. Perez, 491 F.2d 167 (9th Cir.), cert. denied sub nom., Lombera v. United States, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974).