OPINION AND ORDER
HANNUM, District Judge.
Presently before the court are motions by one of the defendants, Lynwood Burley, for new trial and/or judgment of acquittal pursuant to Fed. R. Crim. P. 33 and 29(c) respectively. On March 5, 1970, a jury found the defendant guilty of bank robbery in violation of 18 U.S.C. § 2113(a), (b) and (d). Essentially five grounds are presented in support of defendant's motions. They are: (1) that the evidence of the government as the identification of the defendant as the perpetrator of the crime charged did not rise to the level of proof required for submission of the case to the jury; (2) that the court erred in refusing defendant's motion that he be placed among the spectators whenever identification witnesses were to testify; (3) that the court erred in failing to adequately instruct the jury on the law applicable to identification evidence; (4) that the court erred in refusing to adequately explain to the jury the absence of Samuel Gaymen, a codefendant for whom a motion for judgment of acquittal had been granted; and (5) that the court erred in failing to adequately instruct the jury on the requirement that their verdict be unanimous.
After carefully reviewing the record and the briefs of counsel, the court has concluded that the above-mentioned contentions are without merit and that the defendant's motions should be denied.
As to defendant's first contention concerning the sufficiency of the government's identification evidence, a review of the testimony of the witnesses in question reveals that each identified the defendant as a participant in the robbery. Each witness honestly admitted that they were not absolutely positive in their identification. But the record reveals that each witness had an opportunity to observe the defendant at the time of the robbery and each singled out the defendant in court as one of the participants. One must bear in mind that a defendant is never to be convicted on mere suspicion or conjecture, but it must also be remembered that it is rarely possible to prove anything to an absolute certainty.
The government's witnesses testified to the best of the recollection and each identified the defendant as a participant in the robbery. As such the identification was adequate and sufficient to permit the question to be submitted to the jury. It was counsel's responsibility to argue the weight to be accorded the testimony illicited at trial, but the ultimate determination was for the jury.
Prior to the commencement of the trial, counsel for the defendant requested that the court permit the defendant to be seated among the spectators and not at counsel table whenever identification witnesses were to testify. The court refused to grant this motion and the defendant now contends that this refusal was sufficiently prejudicial so as to negate the identifications which were made in court, nullify his conviction and award a new trial. In support of this position defendant cites United States v. Moss, 410 F.2d 386 (3d Cir. 1969). A reading of this case reveals however that the court did not address itself to the question of whether the defendant has a right to sit among the audience during the course of testimony seeking to establish that he was a participant in a bank robbery in which a guard was seriously wounded. Rather, the court in that case concluded:
"We cannot agree with defendant that the Government is faced with the choice of providing a defendant with members of his race to sit with him or foregoing incourt identification. Here the trial judge continued the trial so that the defense attorney might procure other members of defendant's race to sit with him. It was permissible for the defense to bring to the jury's attention that the defendant was the only member of his race in the courtroom, as it did at two points in the trial."