Seitz, Chief Judge, Hastie, Circuit Judge and Herman, District Judge.
At around 8:30 a.m. on April 18, 1967, two armed men robbed the Dublin, Pennsylvania branch of the Bucks County Bank & Trust Company of $8,950.75. The appellant is alleged by the government to be one of the robbers; no other suspect has been charged. Included in the stolen money were twenty-five socalled bait bills, i. e., those whose serial numbers had been recorded. On June 12, 1967, the appellant deposited a large sum of money in the Girard Trust Bank which included eighteen of the bait bills. On June 14, 1967, FBI Agents executed a search warrant at appellant's home but apparently obtained no additional evidence. Approximately fourteen months later, in August, 1968, appellant was indicted by a grand jury for violating the Federal Bank Robbery Act, 18 U.S.C.A. § 2113 (1970). In January, 1971, approximately two years and five months after indictment, appellant was brought to trial, convicted by a jury and sentenced to fifteen years imprisonment. This appeal followed. The government's evidence showed that appellant had substantial opportunity to become acquainted with the pre-opening procedures of the bank's personnel, including the opening of the bank vault; that appellant's financial distress at about the time of the crime might have induced him to take this drastic step; that unusual activity in the area between appellant's home and the bank tended to place the perpetrators in that general area and hence, near appellant's home; and that appellant was seen in this area a few days after the robbery, perhaps to retrieve a hat, earlier found left at the scene. It was introduced in evidence and subsequently identified at trial as having been worn by one of the robbers.
Bank employees testified that appellant was a regular customer of the bank, both as a depositor and as a borrower. He transacted business there about once a month. During the weeks before the robbery, the appellant appeared at the bank more frequently. Several times in this period, he arrived before opening time and had the opportunity to observe the assistant manager open the vault and to examine the rear entrance which the robbers had forced open on the morning of the robbery. Although the evidence showed the robbers were in the bank a substantial period of time, none of the witnesses could identify the perpetrators who used apparently fool-proof disguises.
The evidence concerning appellant's financial distress showed that, at about the time of the robbery, a bank loan to appellant was two months delinquent. There was evidence, in addition, of other outstanding loans and of a mortgage for which accelerated payment in full was demanded as of June, 1967.
Several witnesses testified about the movements of a tan car in the area of the bank and appellant's home in the early morning hours of the day of the robbery. Mrs. Kaprolet, who lived in the area, testified on behalf of the government to seeing the car around 8:00 a.m. However, FBI Agent Bass was called by the government to testify that Mrs. Kaprolet told him, on April 21, 1967, she had seen the tan car near her home twice, once at around 8:00 a.m. and a second time about 45 minutes later. Mrs. Kaprolet's testimony was important because a field search of this area turned up the hat allegedly worn by one of the robbers. We think it was error to permit the FBI agent to relate this hearsay statement of Mrs. Kaprolet. The hearsay exception for impeachment is inapplicable here since Mrs. Kaprolet was the government's witness and the government had no right to impeach her testimony under the circumstances.
A farmer, Mr. Kulp, who also lived in this area, related that on April 21, 1967, he observed a white pickup truck stop where Mrs. Kaprolet said she had seen the tan car. A man got out of the truck, looked around and then left. Mr. Kulp recorded the license plate number, and FBI Agent Bass testified from his investigatory notes that Mr. Kulp gave him the number S0633. The evidence showed appellant owned two pickup trucks with plate numbers S6003R and S6002R.
The main points of the appellant's case were that the large deposit he made in June, 1967, was a customary business transaction arising from the seasonal nature of his business; that he could not have participated in the crime because he was home asleep and without transportation; and that reputation witnesses testifying in his favor established that he was not a likely candidate for such a crime.
The evidence showed that appellant was in the business of running fairs in the area, and that his entire income was earned beginning in June and ending in October. Appellant's explanation of the presence of the eighteen bait bills in his deposit at the Girard Trust Bank was that he had recently received a large check from a horse show and cashed it at another bank (it was conceded that the Girard Trust Bank deposit money was in the wrappers of this other bank), presumably receiving the bait bills in the cash from this third bank.
Appellant testified at the trial that the morning of the robbery he arose around 8:45, received a call from a Mr. Cyzewsky, his business partner, at around 9:00 and left his house around 9:30. He said he had quarreled with his wife the day before and that she had left with the car. He also testified that his trucks were not in operating condition on the day of the robbery, and that he had taken one to be repaired at around 9:30 that morning.
To corroborate appellant's alibi, Mr. Czyewsky testified that he talked to appellant on the phone at his home around 9:00 that morning. Finally, the defense also put witnesses on the stand who attested to the good reputation appellant enjoyed in the community.*fn1
At the close of the case the trial judge charged the jury that the government bore the burden of proving appellant's guilt beyond a reasonable doubt; that this burden of persuasion continued throughout the trial; and that it never shifted to the appellant.
The charge also contained the following instruction:
"Obviously if he was at home he couldn't have been at the bank, and this is his alibi, if you call it that, and if you believe that and the Government hasn't convinced you beyond a reasonable doubt that he was not home but instead of being at home was at the bank, why, then of course you should find in favor of the Government. In other words, the alibi has not been established and the Government has not proved to you beyond a reasonable doubt that he was not at home."
Assuming that the judge was trying to explain the Government's burden of proving beyond a reasonable doubt that the appellant was not at home at the time of the robbery, it is evident that the last two sentences of this quoted excerpt do not express the intended instructions. Following the court's charge both the prosecution and defense counsel suggested a need for clarification of this segment of the charge. Specifically, appellant's counsel asked the trial judge to instruct the jury that whenever a defendant offers evidence of an alibi the burden remains on the Government to disprove it beyond a reasonable doubt. The judge refused this request, retorting that his charge had sufficiently covered this point. However, subsequently, by way of further charge, he did instruct that:
"Now, the defendant called to my attention that in a criminal case such as this the defendant doesn't have to prove anything. I thought you assumed that from the fact that it is the Government's burden of proof throughout to convince you beyond a reasonable doubt. I didn't mention that specifically, but that is the fact. It isn't up to them to prove anything. It is up to the government to prove its case. The defense may, if they wish, which they attempted to do in this case, but it isn't required by the law. The law requires that the Government convince you beyond a reasonable doubt."
This supplemental instruction still did not make clear that, on the issue of alibi, the government had to convince the jury beyond a reasonable doubt that the alibi was not true. Just as the language in the first quoted excerpt was confused, so this charge made only an oblique reference to the alibi defense. The inadequacy of both charges was not cured by the general allusion, interspliced throughout the entire instruction, to the fact that the Government bore the burden of persuasion on all issues raised at trial.
In United States v. Barrasso, 267 F.2d 908 (3d Cir. 1959), the defendant had requested a charge on the burden of proof on the alibi issue. The ...