Kalodner, Freedman and Seitz, Circuit Judges.
Jerry Miles, Wilbert Vaughn and George Kirby (appellants) were charged with the armed robbery of the Eureka Savings and Loan Association of Pittsburgh, Pennsylvania, in violation of 18 U.S.C.A. § 2113(a) and (b). Appellants here challenge the judgments of conviction and the sentences of imprisonment which followed jury verdicts of guilty at their joint trial.
Each of the appellants contends that the district court erred in permitting the United States to plead surprise and to cross-examine and impeach two government witnesses, Arletta Edge and Delores Key.
In its case-in-chief the United States called Arletta Edge who had previously given a statement to the Pittsburgh Police and the FBI implicating each of the appellants in the bank robbery. The witness was the girl friend of the appellant Miles. Before the trial Miss Edge indicated to the United States Attorney that she repudiated her statement. Notwithstanding the repudiation, the United States called the witness, arguing that it believed that she would re-adopt her previous statement when under oath and in a courtroom setting.
When called to the stand, Arletta Edge testified that she and the appellant Miles had driven to New York from Pittsburgh in a hired car on the evening of October 29, 1965, two days after the robbery, that they were accompanied by the appellant George Kirby and Delores Key, and that upon arriving in New York all four of them registered at the Chesterfield Hotel. The witness then went on to state that while at the hotel, where the foursome stayed for about a week, Kirby visited Miles in the room which she and Miles were occupying. The prosecutor then asked whether she had overheard any conversations between Miles and Kirby. She replied that she had not.
At this point in his examination the prosecutor claimed surprise and asked leave to cross-examine and impeach the witness by referring to the statement which she had earlier given the Government, in which statement she claimed to have overheard Miles and Kirby discussing the bank robbery. Thereupon the court adopted the suggestion of the attorney for appellant Kirby that before the court ruled, it would be appropriate for the Government to interrogate the witness on voir dire.*fn1 In the course of the voir dire the witness declined to adopt any significant portion of the statement. She explained that she had signed the statement only in response to police coercion. The Government renewed its motion to permit impeachment and the court, over objection, permitted the Government to repeat the examination before the jury.
When proceedings recommenced before the jury, the prosecutor asked the witness whether she had given a statement to the authorities concerning the robbery. She replied that she had no knowledge of the robbery. Then, as was done on voir dire, the prosecutor showed her a copy of her statement. After the witness identified her signature and initials, the prosecutor interrogated her on her statement, proceeding through it line by line. The statement placed the appellants together on the day of the robbery and credited Miles and Kirby with "talking that they had robbed the bank."
At the close of the case, the trial judge instructed the jury that the out-of-court statement of the witness Arletta Edge was not to be considered as evidence against the appellants, but solely as matter which would bear on their evaluation of her credibility.
The United States takes the position*fn2 that surprise was properly pleaded and that the scope of the examination was proper because the witness "not only testified in a manner contradictory to an earlier sworn statement but, unsolicitedly and in the expectation of being confronted with her signed statement, assailed the police and FBI as having forced her to give that statement." The Government says that "under these circumstances, to have allowed this testimony to go unchallenged, would have permitted an outrageous distortion of the Government's presentation, to its serious detriment."
We find that the impeachment of Arletta Edge was improper in scope and inexcusably prejudicial to appellants.
The United States may properly claim surprise and impeach its own witness by use of an out-of-court statement where (1) the witness' testimony was contrary to that which had been anticipated and (2) where the testimony was actually injurious to the Government's case. Bushaw v. United States, 353 F.2d 477 (9th Cir. 1965) cert. den., 384 U.S. 921, 86 S. Ct. 1371, 16 L. Ed. 2d 441 (1966), 1 Underhill's Criminal Evidence, Chapter 21, § 232, 1968 Supplement. However, the impeachment examination must be reasonably calculated to rehabilitate the Government's case without unnecessarily prejudicing the defendants. Culwell v. United States, 194 F.2d 808 (5th Cir. 1946). In making these determinations, the district court quite naturally exercises a certain amount of discretion.
We have no doubt that the United States was free to call Arletta Edge in expectation of eliciting from her material generally helpful to the Government and in expectation -- or perhaps merely in hope -- that she would repeat the subject matter of her sworn out-of-court statement. However, the voir dire examination made clear that she would in nowise ratify her statement and would persist in her repudiation of it. Indeed, she labelled it a product of police coercion. The United States therefore had full cognizance of her hostility when it elected to replay the voir dire examination before the jury. In these circumstances, the Government cannot now justify the scope of the impeachment examination by relying on testimony which it knowingly invited.
Up to the point where the jury was removed for the voir dire, the only testimony given by Arletta Edge which differed from her signed statement was that she had "failed to recall" having overheard any conversations of substance between appellants Miles and Kirby. Even assuming that such testimony came as a surprise to the United States, there had been no affirmative prejudice or injury up to that point in the presentation of the Government's case. See Bushaw v. United States, supra, 353 F.2d 481. The fact that she would not testify in all particulars as the Government had hoped is not to say that the Government was injured. Moreover, the ...