Biggs, Van Dusen and Aldisert, Circuit Judges.
The defendant-appellant was tried to a jury on a four-count indictment charging him with armed bank robbery on April 9, 1970 of the Industrial Valley Bank (the Bank), a government insured institution, in violation of 18 U.S.C. §§ 2113(a), 2113(b) and 2113(d). The jury found him guilty and he was sentenced generally to twenty years imprisonment. United States v. Corson, 449 F.2d 544 (3 Cir. 1971).
Two of the robbers, Viola and Devlin, have admitted their complicity, Beedle on the other hand has denied any connection with the robbery and no one within the Bank was able to link him with the crime.
Beedle was arrested for this robbery as a result of Viola's implicating statements. According to Viola's testimony, Beedle arrived in Howell Township, New Jersey between 5:00 and 6:00 P.M. on the evening of April 8, 1970 driving his blue 1966 Ford Galaxie, and Beedle registered at the Moon Motel under the pseudonym of Civitello. Viola testified that Beedle and he later went to Moms McCarthy's boarding house where they met Devlin, and around 8:00 P.M. Beedle and Devlin went out to eat. Viola spent the evening at the apartment of a female friend. The Government conceded at trial that it could not substantiate Viola's claim that Beedle had registered at the Moon Motel. The FBI could not find in the Moon Motel records that anyone named Civitello had been registered there on the evening of April 8, 1970.
Before 8:00 A.M. on the morning of the robbery, Viola testified that he met Beedle at the Moon Motel and Devlin at Moms McCarthy's, and each drove to Allentown in separate vehicles. In Allentown they stole a "get -away" car and arrived at the bank at about 10:30 A.M. After the robbery, Viola stated that the three men drove back to Moms McCarthy's boarding house and divided up the robbery proceeds, giving the greatest portion to Beedle. Viola claimed he did not see Beedle again until Viola's arrest for another bank robbery in Howell, New Jersey.
Devlin's story of the robbery deviated radically from that of Viola. The most significant deviation was that Devlin insisted that Beedle was not the third man, and was not implicated in the robbery. He called Viola a liar for implicating Beedle in the crime. Devlin claimed that Viola hated Beedle and would not associate with him due to a heated argument between them in 1968.
Beedle's main defense to the charges was an alibi that placed both him and his blue 1966 Ford Galaxie in Connecticut during the times on April 8 and 9 that Viola stated he saw Beedle in Allentown, Pennsylvania and Howell Township, New Jersey. Witnesses also testified that on the evening of April 8, Beedle and his wife were seen arriving at their home in Connecticut in the Ford Galaxie. A bill for automotive maintenance on the Ford Galaxie was received in evidence. That bill and testimony of a service station owner, Kaminsky, indicated that Beedle left his Ford at Kaminsky's service station in Orange, Connecticut on April 9, at about 9:00 to 10:00 o'clock in the morning.
At trial, the District Court Judge gave inconsistent and confusing instructions in his jury charge. He was referring to the alibi evidence when he first told the jury that ". . . if after consideration of all of the evidence in the case you have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed, you should acquit him. On the other hand, if you do not, by the same token, and regardless of how you deduce the testimony and what weight you give to it, if you have no reasonable doubt, then of course you should convict him, but an alibi is a proper defense."*fn1
Later, near the end of his jury charge, the Judge commented still further on the defendant's alibi and his burden of proof: "Now, members of the jury, I talked to you about credibility and I am not going to go into details of the evidence. You heard this over the past four or five days and you will recall it, and rather than emphasize any one particular phase of it, perhaps I will not go into detail. I will summarize it, however, and we will first talk about the alibi witnesses again.
"As I say, I find inconsistencies. That may be unimportant, it may have no bearing at all as far as what you determine, but you must consider that evidence carefully because, as I have said, if this man was in Connecticut on April 9 he couldn't have been in Allentown, it is just that simple.
"The defense has presented witnesses here from which you could conclude if you believe it that he was there, but you must be satisfied that he was there and you must be satisfied beyond a reasonable doubt that he was not there, that he was in New Jersey, if you are going to convict him.
"Now, as to the other two witnesses, the Government said in the opening and has said throughout this trial that they rely expressly on the testimony of Viola. Now, I won't go into all of the details, but my recollection is that Viola testified to every step of the proceedings from beginning to end; as to the meeting with Beedle in New Jersey, the going to Allentown, the casing of the bank, so to speak, ...