dissenting:
Because the majority has misconstrued the holdings and the spirit of relevant cases from other circuits and threatens to establish for this circuit an ill-advised rule of law, I respectfully dissent.
The defendant here was convicted of three offenses arising out of a single occurrence: aiding and abetting larceny, as well as bank robbery, and the aggravated offense of armed bank robbery. He has not appealed from the convictions for the first two offenses. The defendant’s sole contention is that the district judge committed plain error when he failed to instruct the jury that the defendant could not be convicted of aiding and abetting armed bank robbery unless the defendant knew that the principals possessed and intended to use a dangerous weapon in the commission of the offense. Indeed, the district judge failed to mention the requirement of defendant’s knowledge of use of a weapon by the principals. This is the only additional element the prosecution had to prove with respect to the defendant’s mental state in order to distinguish the aggravated offense of armed bank robbery from simple bank robbery. The lower court allowed the defendant to be convicted, instead, of aiding and abetting an armed bank robbery on the basis of exactly the same evidence that was necessary for his conviction for aiding and abetting simple bank robbery. The affirmance by the majority of this panel condones the conviction of the defendant without requiring that the jury find the government has proved every element of the offense.
I.
The primary ground relied upon by the majority for upholding the conviction is that, contrary to analogous cases in other circuits, there is “direct evidence” here of the defendant’s knowledge that guns were going to be used in the robbery. The distinction the majority makes between direct and circumstantial evidence is grasped from thin air. Because there is direct evidence as opposed to convincing or even compelling circumstantial evidence, the majority finds no need for the jury to determine whether an element of the offense is present. I can find no authority for this distinction.
Circumstantial evidence is not inherently less probative than direct evidence, and in some circumstances it is even more reliable. United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir. 1974). Direct evidence is not superior to circumstantial evidence; Vuckson v. United States, 354 F.2d 918, 920 (9th Cir. 1966); either may lead to a correct or incorrect result, and both must be weighed by the jury in the same manner. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). The test for sufficiency of the evidence on appeal is the same whether the evidence is direct or circumstantial. United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977).
The majority claims that the direct, unrefuted evidence in the record establishes that the defendant knew his cohorts were armed and intended to use their weapons in robbing the bank. The majority then finds that in United States v. Sanborn, 563 F.2d 488 (1st Cir. 1977), there was a factual dispute as to whether the aider and abettor had knowledge of the intention to use a weapon. I disagree with the contention *1004that the defendant’s earlier statement to the Federal Bureau of Investigation was unrefuted and, therefore, that we may find as a matter of law that he knew the principals were armed when they entered the bank. I disagree, even more strenuously, with the majority’s finding that there was more of an issue of fact in Sanborn than there is here.
Throughout the trial, the defendant asserted that he knew nothing of the possession of guns by the principals on the day of the robbery until they were being chased by the deputy sheriff during the attempted getaway.1 If the testimony at trial was inconsistent with earlier statements to the Federal Bureau of Investigation agents, it is a matter of credibility to be considered by the jury. United States v. Young, 568 F.2d 588 (8th Cir. 1978). We, as an appellate court, have no authority to make this finding of fact, and on an issue of knowledge or intention the credibility of witnesses is of critical importance. It is possible, indeed, that the jury would have found the defendant’s statements at trial, after he had carefully considered the events on the day of the robbery, were more accurate than the cursory response during a Federal Bureau of Investigation interrogation shortly after his arrest.
The majority distinguishes Sanborn on the basis of its conclusion that there is direct rather than circumstantial evidence. Because the same weight is to be given direct and circumstantial evidence in this instance, I believe that the factual finding as to knowledge is perhaps in greater dispute here than it was in Sanborn. In that case, the court found that “the circumstantial evidence permitted and, indeed, virtually compelled a conclusion of knowledge”2 by the accomplice that the principal in the robbery was armed. The First Circuit would not allow itself to make this finding of fact, even though the truth of the fact was compelling, without first allowing the jury to consider this element of the crime. The holding of the case is open to no other interpretation than that a jury instruction must be given as to the element of the defendant’s knowledge that a weapon was likely to be used:
On this record, as already indicated, we would have no hesitancy whatever in affirming the present conviction for the aggravated crime (armed bank robbery) had the court given an instruction that the Government had to establish beyond a reasonable doubt that Sanborn was on notice of the likelihood that a gun or other dangerous weapon would be used in the robbery. Absent any such instruction following upon defendant’s explicit request, we are obliged to vacate the judgment of conviction for the aggravated § 2113(d) offense.
Id. at 491.
II.
The majority’s second ground for its holding is that no plain error is evident within the meaning of Fed.R.Crim.P. 52(b). Far from undertaking devious trial tactics as suggested by the majority, the defense at*1005torney did not try to withhold any issues from the district court in order to raise them on appeal. The attorney requested an instruction on the state of mind of the defendant regarding the use of firearms and cited United States v. Short, 493 F.2d 1170 (9th Cir. 1974) to the court. The attorney’s only mistake was in failing to object after the district court instructed the jury.3
By holding that the error committed by the trial court was harmless, the majority contradicts the finding in Short that this assertion was untenable. The court thoroughly explained its reasoning in Short, and the result was more logical than that reached by this circuit today:
This instruction is erroneous because it fails to require the jury to find an essential element of the crime of armed bank robbery as a prerequisite to conviction. It is the aider and abettor’s state of mind, rather than the state of mind of the principal, that determines the former’s liability.
493 F.2d at 1172.
In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court explicitly held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1072 (emphasis added). When the trial court fails to instruct the jury on an essential element of the offense and there is an attendant prejudice to a substantial right of the defendant, plain error has been committed. United States v. Bosch, 505 F.2d 78 (5th Cir. 1974); United States v. DeMarco, 488 F.2d 828 (2d Cir. 1973); United States v. Small, 472 F.2d 818 (3rd Cir. 1972); United States v. Williams, 463 F.2d 958 (D.C.Cir.1972); United States v. O’Dell, 462 F.2d 224 (6th Cir. 1972). The failure to have the jury consider whether the defendant knew the principals were armed and intended to use their weapons clearly comes within the plain error rule. Because I find that the defendant’s due process and trial by jury rights have been prejudiced with respect to his conviction for aiding and abetting armed bank robbery,4 I believe there is plain error and that the conviction should be reversed.
. The FBI agent who took the defendant’s statement provided the evidence that the majority considers “direct” and conclusive. The majority cites special agent Whitley’s verbal testimony that the defendant “knew that both Jackson and Tijuan McCaskill were carrying pistols when they went into the bank.” On cross examination, however, it became apparent that this statement was a conclusion rather than a factual recollection of the defendant’s statement. Whitley testified that the only direct statements by the defendant were that he knew the principals had been carrying guns in the days prior to the robbery, but he had not seen the guns on the day of the robbery.
. 563 F.2d at 490. It is obvious that the appellate court was convinced of the defendant’s knowledge of the intention to use a gun:
Not only was there ample evidence from which a jury could infer that Sanborn knew of Kell’s use of a gun, but the court in its instructions emphasized that the government had to establish Sanborn’s intentional and wilful participation in the act of taking the money by intimidation, assault and jeopardizing the lives of employees. Since the evidence and instructions along these lines turned on Kell’s use of the gun, the jury could scarcely have convicted without finding that Sanborn was aware of the gun. [citation omitted.]
Id.
. At the time this case was tried, a request for an instruction was adequate to preserve an issue for appeal in the North Carolina state courts without subsequent objection. N.C.Gen. Stat. § 15A~1231(d). Having requested an instruction, the attorney may have thought that the issue was adequately preserved as it would have been in a state court. But see Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, effective October 1, 1981.
. The convictions for aiding and abetting larceny and bank robbery could not be attacked successfully on this ground even if they had been appealed.