Maris and Max Rosenn, Circuit Judges and VanArtsdalen, District Judge.
These are appeals from judgments of conviction entered in the District Court for the District of New Jersey pursuant to jury verdicts finding Clarence Frederick Wright and Charles Carpenter, codefendants in a bank robbery case, guilty on the two counts of an indictment charging violations of 18 U.S.C. §§ 2113(a) and (d). The defendants Wright and Carpenter were charged, jointly with James Leftwich, Lawrence Pierce, John Sloan, Edmond Louis Carter, Jr., and Seaborn Drew Howell, with robbing a federally insured savings and loan association of the sum of $5,734.00, using dangerous weapons, and putting in jeopardy the lives of certain individuals. Prior to trial, the indictment was dismissed as to defendant Leftwich who had died. The trial was severed as to defendant Sloan, who had entered a plea of guilty to count one of the indictment and who later testified as a Government witness. During the trial the Government informed the trial judge that it would call defendant Pierce as a witness. Pierce was thereupon severed as a defendant and, subsequently, the indictment was dismissed as to him. At the close of the Government's case the trial judge granted a motion of the defendant Carter for a judgment of acquittal. The jury returned verdicts of guilty on both counts against defendants Wright, Carpenter and Howell. The trial judge set aside the verdict against defendant Howell and entered a judgment of acquittal as to him. The defendants Wright and Carpenter were each sentenced to 15 years imprisonment and judgments were entered accordingly. From these judgments the defendants Wright and Carpenter took the appeals now before us. The two appeals were consolidated for the purpose of consideration. The appellants each raise a number of identical questions. In addition, the defendant Wright raises further questions.
We first address ourselves to the issues which have been raised by both defendants.
They contend that the trial judge committed reversible error in failing on voir dire examination, to ask the prospective jurors the question: "Does the fact that the defendants are all colored prevent the jury from fairly and impartially deciding the case?" This was one of a number of written questions which the defendant Wright submitted to the trial judge. All the defendants were black and all were represented by counsel. The record discloses that the trial judge went to considerable length in examining the prospective jurors in an effort to secure an impartial jury which would decide fairly as between the Government and the defendants,*fn1 but he did not ask the specific question submitted by defendant Wright as above quoted. However, at the close of the voir dire examination of the twelve jurors initially selected he stated that he had substantially covered the written requests for supplementation of his interrogation. At this statement and at his question whether they were content counsel remained silent, raising no objection to the trial judge's failure to propound the question in the specific language requested. Thrice thereafter during the proceedings counsel stated that the jury was satisfactory and after alternate jurors had been drawn again stated, in response to a question from the trial judge, that the jury was "Eminently satisfactory." The jury was then sworn and instructed to appear for the trial on the following Monday morning and the remaining prospective jurors were excused. On the following Monday morning counsel for the defendants informed the trial judge that they now objected to his failure on the preceding Friday to interrogate the prospective jurors with respect to "the treatment of the defendants, be they black or white, in the same manner, and the fact that the jury would not, because of their color alone, find them to be telling truths or lies on that basis." The trial judge did not sustain the objection but proceeded with the trial.
In support of their contention that the trial judge erred in failing to make the requested inquiry of the jurors as to racial prejudice, they cite Aldridge v. United States, 1931, 283 U.S. 308, 51 S. Ct. 470, 75 L. Ed. 1054; Frasier v. United States, 1 Cir. 1959, 267 F.2d 62; King v. United States, 1966, 124 U.S.App.D.C. 138, 362 F.2d 968; United States v. Gore, 4 Cir. 1970, 435 F.2d 1110, and United States v. Carter, 6 Cir. 1971, 440 F.2d 1132. It is true that in those cases it was held reversible error to refuse to interrogate the jurors as to possible racial prejudice. But we do not think that they are applicable to the facts of this case. For here the trial judge went to pains to instruct the jurors that impartiality was required and to inquire of them whether they would be completely impartial as between the Government and the defendants and whether they "could decide the case fairly and without prejudice, " and, although counsel for defendant Wright had requested the trial judge to inquire as to racial prejudice, this request was not pressed on the day the jury was empanelled but, on the contrary, as we have seen, counsel remained silent when the trial judge stated his belief that he had covered the substance of all their requests and they thereafter stated repeatedly that the jury was satisfactory and that they were content. The voir dire examination had been completed, the selected jurors sworn and the other prospective jurors excused on a Friday. It was not, as we have seen, until the following Monday that defendants raised the objection which they now press. We think that the objection came too late and that under the circumstances the trial judge's instructions to and in interrogation of the jurors on Friday, when they were being selected, adequately covered the matter of prejudice, racial or other, as counsel after hearing the judge's statements on that day obviously believed that they did.
The defendants contend that the district court erred in admitting evidence that three of the defendants had stolen an automobile three days before the robbery, arguing that this evidence was so prejudicial as to deny them a fair trial. It is, of course, the rule that evidence of other offenses wholly independent of the one charged is inadmissible when offered merely to show character or proclivity toward criminal conduct. But this rule is subject to the exception that such evidence is admissible when offered for another proper purpose, such as preparation for the crime charged. United States v. Persico, 2 Cir. 1970, 425 F.2d 1375, 1384, cert. den. 400 U.S. 869, 91 S. Ct. 102, 27 L. Ed. 2d 108; Ignacio v. People of Territory of Guam, 9 Cir. 1969, 413 F.2d 513, 519-520, cert. den. 397 U.S. 943, 90 S. Ct. 959, 25 L. Ed. 2d 124; Rule 404(b), Proposed Rules of Evidence for the United States District Courts and Magistrates. Here the evidence indicated that the automobile stolen was used by the defendants as a getaway car and was found parked close to the apartment where the defendants gathered after the robbery. We think that the trial judge did not err in admitting evidence of the automobile theft thus shown to have been committed in preparation for the commission of the crime with which the defendants are here charged.
The defendants contend that it was error to permit a codefendant, Pierce, to testify as a witness for the Government when he had been present in the courtroom during a period of time during which an order had been in effect excluding all witnesses from the courtroom other than the witness actually testifying. There are two answers to this contention. The first is that Pierce as a defendant had a constitutional right to be present in the courtroom during the trial so long as he was one of the defendants then on trial, as he continued to be until his case was severed which took place after the immediately preceding witness had finished his direct testimony and nearly all of his testimony on cross-examination. And the second answer is that a witness is not disqualified from testifying merely because of a violation of a sequestration order but may nonetheless be permitted to testify in the sound discretion of the court. Holder v. United States, 1893, 150 U.S. 91, 14 S. Ct. 10, 37 L. Ed. 1010. Massiah v. United States, 1964, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246, upon which the defendants rely, is wholly distinguishable on its facts. There was no abuse of discretion in permitting Pierce to testify for the Government.
The defendants contend that the district court erred in denying their motion for a new trial based on after discovered evidence which, they assert, established that they were denied a fair trial by reason of perjured testimony of defendant Pierce knowingly offered by the Government. They claimed that defendant Pierce in an affidavit recanted a part of his testimony at trial and indicated that he was coerced into giving it by his counsel and counsel for the Government. The district court held three hearings on the motion, taking the testimony of Pierce, of his counsel, of Government counsel and of an FBI agent. The court found that the testimony thus adduced did not support the allegations of the motion and accordingly denied it. It is settled that such a factual determination by the district court in passing upon a motion for a new trial based upon after discovered evidence will not be set aside unless it clearly appears that the findings are wholly unsupported by the evidence. United States v. Johnson, 1946, 32 ...