MEMORANDUM AND ORDER
A jury found the defendant, Stanope Tyrone Pugh, "not guilty" on the first four counts and "guilty" on the fifth count of a five count indictment. The first four counts charged him with violating 18 U.S.C. §§ 2113(a), 2113(b) and 2113(d) in connection with a bank robbery. Count V of the indictment charged the defendant with conspiracy in violation of 18 U.S.C. § 371 alleging that he unlawfully conspired with another to commit the bank robbery. The defendant now seeks a judgment of acquittal on Count V, contending that the jury's verdict of not guilty on Counts I, II, III and IV mandates an acquittal on the conspiracy count.
Defendant contends first that the overt acts listed in Count V of the indictment are identical to the allegations set forth in Counts I to IV, and the jury's verdict of not guilty on the first four counts was a determination that the defendant had not committed any of the overt acts in connection with the conspiracy count. A review of the indictment reveals, however, that Counts I through IV allege that defendant by force and violence (Count I) entered the bank with intent to commit larceny (Count II), took $10,918.00 with the intent to steal (Count III) and used a handgun (Count IV), whereas Count V specifically alleges a conspiracy in violation of 18 U.S.C. § 371, and sets forth the following three overt acts: (1) that on June 1, 1977 the defendant drove an automobile to Jenkintown; (2) that he entered the bank on that date; and (3) that he left the bank on that date. Clearly, these latter enumerated acts are not identical to the allegations set forth in the first four counts.
However, even if the defendant's contention with respect to the contents of the indictment was accurate, the defendant would not be entitled to a judgment of acquittal. The Government is not limited in its proof at trial to those overt acts alleged in the indictment; nor is the Government under obligation to prove every overt act alleged. United States v. Adamo, 534 F.2d 31 (3d Cir. 1976). For a conspiracy at common law it was not necessary to allege or prove an overt act, but a conspiracy pursuant to 18 U.S.C. § 371 requires proof of some act in furtherance of the scheme. As Judge Rosenn pointed out in Adamo, supra, at 39:
The section 371 requirement that an overt act be committed need not necessarily be considered an element of the offense. "[An] overt act is necessary to complete the offense," Fiswick v. United States, supra, 329 U.S. at 216, 67 S. Ct. at 227, 91 L. Ed. at 200; it may, however, be considered apart from the offense "either an indispensable mode of corroborating the existence of the conspiracy or a device for affording a locus poenitentiae." Braverman v. United States, 317 U.S. 49, at 53, 63 S. Ct. 99, at 101, 87 L. Ed. 23, at 28.
The jury's determination that defendant was not guilty of Counts I through IV did not preclude the jury's having found beyond a reasonable doubt that he had committed an overt act in connection with the conspiracy count, such as driving his automobile to Jenkintown. As Judge Rosenn noted in Adamo, at page 39, n. 6, "[an] overt act in furtherance of a conspiracy may itself be an innocent act."
The defendant places great reliance on Herman v. United States, 289 F.2d 362 (5th Cir. 1961), which reversed a conspiracy conviction for failure to prove an overt act. Judge Wisdom in his opinion points out, however, at page 369:
But where the acquittal of the substantive offense does not necessarily constitute a determination that the overt act was not committed the acquittal does not preclude a conviction on the conspiracy count.