dissenting:
The court reverses this bank robbery conviction despite the fact that 71 frames of bank surveillance film depict full length, facial, and profile views of Williams robbing the Public National Bank in Washington, D.C.1 In addition to the strong case made by these photos, the jury was also presented with other substantial evidence of Williams’s participation: (1) two eyewitnesses identified Williams as one of the robbers; (2) the coat he was wearing at the time of his arrest was identified as being the one worn by a participant in the robbery;'2 and (3) $995 of the proceeds of the robbery were found in Williams’s sister’s apartment.3 The court’s sole ground for reversal is the admission of the $995 and testimony about where it had been found. The court concludes that the admission of this evidence is error so prejudicial as to require reversal.4 I cannot agree and respectfully dissent.
The proceeds of the robbery were clearly admissible evidence as fruits of the crime. The testimony had been that money was taken from the Public National Bank and that a particular teller’s identification mark had been placed on the money. The money proffered had the same bank’s wrappers around it and contained the identification marks of the teller who testified to being robbed. The fact of where the money was found was likewise probative.5 Its admission left a rebuttable inference that Williams did try to rebut. Upon defense counsel’s questions, his sister testified that Williams seldom frequented the apartment and that Wolford was her common-law husband and shared the apartment and its furnishings with her, including the dresser in the master bedroom in which the money was found. The jury heard this testimony and resolved this question against Williams. We should not second guess the jury’s reso*866lution or the judge’s conclusion that the evidence was relevant.6
But even if the admission of the fact of where the money was found was error, there can be no question that the error was harmless. Substantial direct evidence linking Williams to the crime had been given to the jury, including some very clear pictures of the robbery in progress. As the court recites, some two hours after the case was submitted to the jury, the foreman requested that the jury be permitted to view Williams. Accordingly, the trial judge directed appellant, over defense counsel’s objection, to approach the jury box and face the jurors. The jury then retired and 21 minutes later returned a guilty verdict. This chronology suggests that the identification issue was the jury’s principal concern. Indeed, an examination of the bank photos suggests that a viewing of the frames and a comparison to Williams would be the best way to resolve the question of guilt,7 after weighing and deciding the credibility of Williams’s alibi witnesses. More than ten of the 71 frames in which Williams appears unmistakably depict the robbery participant alleged to be Williams in full face and profile views. The court itself says “the photographs are reasonably clear” and that “the resemblance between appellant and the person alleged to be him in the bank photos is not far-fetched.” Opinion at 8. The court adds, however, that the jury was “troubled by the issue of identity,” and speculates that some jurors might not have been able to vote to convict without knowing where the money was found. However, this is sheer speculation by the court in disregard of the appellate court’s longstanding role:
It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.
Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).8 There was substantial direct evidence — which the court minimizes unbelievably — that Williams was the robber. I ask, what more proof could be required than positive identification by two eyewitnesses and the coat that Williams wore when robbing the bank? If these were not sufficient to support a clear film of the robbery, then the banks might as well stop taking surveillance pictures.
In light of the dim view the court has of the bank film, the weight it places upon the two witnesses who could not positively identify Williams, and the lack of weight it ascribes to the two eyewitnesses who did identify Williams and to the coat, it might be advisable to avoid a retrial of Williams unless Wolford will testify against him. The court’s conclusions in its discussion of harmless error suggests, without directly articulating it as such, that without Wol-ford’s testimony tying Williams to the money, sufficient proof of Williams’s guilt does not exist. On the basis of the evidence presented below, it is difficult to imagine *867any other means of establishing an adequate foundation linking Williams with the money.
I,, therefore, dissent.9
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
ORDER
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 MacKIN-NON, in which Circuit Judges TAMM, ROBB and WILKEY join, is attached.
STATEMENT OF JUDGE MacKINNON
. Altogether, 176 frames depict Williams and his accomplice during the robbery. Williams appears in 71(40%) of those frames submitted to the jury. The quality of the film cannot be exaggerated; the face, hat, coat, and gun of Williams are clearly depicted.
. This coat was specifically identified before the jury, first by the officer who arrested Williams and then by an eyewitness to the robbery. In addition, the bank film clearly depicts the coat in all its features. The arresting officer also testified that, when arrested, Williams identified himself as Richard Johnson. The arrest was made on December 3, 1974, upon a warrant issued on November 22, 1974, only three days after the robbery.
. Roland Wolford, the appellant’s accomplice, also lived in that apartment. Wolford pled guilty to the robbery, but apparently the Government allowed, as part of the agreement accepting the plea, that Wolford would not be required to testify at Williams’s trial. The jury was carefully instructed to disregard all mention of Wolford in considering the case against Williams.
. The court says that “counsel clearly articulated the objectionable characteristics of this evidence in two lengthy bench colloquies,” but admits that no objection was made at the time the money was offered. Opinion at 6. What the court fails to note is that the objection made earlier was made to both the money and a gun that was recovered at the sister’s apartment. Although two guns were used in the robbery, the record made on the motion to suppress reveals that the gun recovered was a small caliber handgun as had been used by the participant alleged to be Williams, while Wol-ford’s gun was a much larger caliber gun. The court refused to admit the small gun, no doubt because the gun, unlike the money, could not be directly linked to the gun used by Williams in the robbery, indeed, this difference between the gun and the money explains why an objection to the money should have been more clearly articulated when the money was finally offered into evidence.
. Unlike the gun, the money here was directly linked to the robbery. The question of the weight to be given the evidence of where the money was found was left clearly for the jury to resolve, especially when the defense counsel failed to articulate an objection to the evidence. The probative value of the evidence clearly outweighed any prejudice.
. The general rule has been stated before in this circuit:
Ordinarily a ruling on the relevancy of evidence depends upon the exercise of the sound discretion of the trial judge and will not be disturbed on appeal except for grave abuse.
Hardy v. United States, 118 U.S.App.D.C. 253, 335 F.2d 288, 289 (1964).
. The court characterizes, in Footnote 7 and its related text, comments made by the prosecutor in closing argument as, in effect, apologies for lack of clarity in the photos. While I will admit some immaturity in the prosecutor’s method, I do not interpret the argument as does the court. He seems to me to be laying groundwork for his later emphasis upon the eyewitness testimony by indicating that the prosecution’s case does not rest completely on the photos. It is worth noting that the prosecutor did not once say that the pictures were unclear, inaccurate, or anything other than an unanswerable portrayal of Williams and Wolford robbing the bank. Perhaps Wolford thought so too.
. Of course, a degree of this presumption must be taken away when it is concluded that error was committed below. 1 do not believe, however, that minor evidentiary error, for which objection by defense counsel was not timely made, requires that the case be turned completely around or that every presumption must then be made in the appellant’s favor.
. I am reminded of a ditty of my childhood: Mother, may I go out and swim. Yes," my darling daughter. Hang your clothes on a hickory limb, but don’t go near the water.