Knoch, Senior Circuit Judge, Pell, Circuit Judge, and Durfee, Senior Judge.*fn*
KNOCH, Senior Circuit Judge.
Defendant-appellant, John Philip Kwitek, has taken this appeal from his conviction in a jury trial on an indictment charging him with armed robbery of a bank in Greenfield, Wisconsin, in violation of Title 18, U.S.C. § 2113(a) and (d).
While awaiting trial on an earlier indictment charging the same offense, appellant escaped. Within a month of his recapture, he changed his prior plea of "not guilty" to "guilty." When a co-defendant's motion to vacate sentence imposed on him was granted on the ground that the indictment was defective in failing to allege that the bank was federally insured, this appellant's sentence was also vacated.
Another indictment was returned, and appellant was tried by a jury which brought in a verdict of guilty, but a mistrial was declared on motion of appellant when it became apparent that a summary of appellant's prior criminal record had been sent into the jury room by mistake.
A second trial also resulted in a verdict of guilty which was set aside on appeal on the ground that illegally seized evidence had been admitted. United States v. Kwitek, 7 Cir., 1970, 433 F.2d 18. It is from the verdict in the third trial that this appeal has been taken.
Appellant urges this Court to review the sufficiency of the evidence at his first trial despite the fact that a mistrial was declared on his own motion. Prior to the second trial, the Court denied appellant's renewed motion for judgment of acquittal. It is appellant's position that his second and third trials were barred by the double jeopardy clause of the Fifth Amendment.
In effect this theory was also presented in the prior appeal and decided adversely to appellant, 433 F.2d at 19. We do not agree that United States v. Jorn, 1971, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543, on which appellant relies, dictates a change in our view that the proceedings at the first trial became nugatory and without legal effect. In Jorn, there was not only no motion for mistrial by the defendant there, but the Trial Judge was held to have abused his discretion in granting mistrial without exploring other suitable alternatives. 400 U.S. at 485-486, 91 S. Ct. 547. Even had no defense motion been made, under the circumstances of this case, we do not believe that an abuse of discretion could have been found. Before declaring a mistrial, the Court ascertained that the jury in fact did know the content of the document inadvertently sent in to them and had considered it in their deliberations.
Appellant contends that the evidence at the third trial was also insufficient as a matter of law to sustain conviction. He argues that he was never drawn within the web of the government's circumstantial proof, and that the evidence was reasonably susceptible to hypotheses consistent with his innocence, at worst showing him only a possible receiver of the proceeds of the bank robbery.
He asserts that no more than four persons were shown to have been in the bank, although five were indicted. Considering the evidence at both trials, it is apparent that no more than four persons were seen at any one time, but there was evidence from which the jury must have concluded at the third trial that five robbers were involved. At neither trial did Mrs. Diane Rapp, the Assistant Cashier, refer to seeing more than four men, but at the third trial, it became apparent that she was aware of five robbers. She described being struck on the head by someone immediately behind her, whom she did not see, while at the same time, there were three men in front of her in her field of vision, and, simultaneously, she heard the voice of a fourth man off in the distance, from the doorway of the stairs going down to the basement of the bank. There was no real discrepancy in her testimony at the trials. She explained in cross-examination, that she was never asked before, "How many were there?" but only how many she had seen. Counsel for the defense read at the third trial segments of the transcript of prior trials which Mrs. Rapp acknowledged as her testimony. These supported her present assertion that she had said at one point:
Saw three and heard the voice of a fourth at the time I was slapped in the head from behind, yes.
The bank's Vice-President, Theodore T. Buckley, who at the outset attempted to block the entry of the robbers, was overpowered and brought back into the bookkeeping area where he was knocked to the ground, then dragged to two different areas behind the tellers' cages, and finally, with other bank employees, to a small conference room. Later when the robbers left, he and his assistant, who testified at the first trial, ran to their desks to sound the alarm and to call for help. Both looked through the windows and saw the robbers leaving by automobile. Both described the automobile in detail. They saw only four men in the car. The fact that Mr. Buckley had seen only four men in the bank at various times from his different positions of observation did not require the jury to discredit Mrs. Rapp's testimony. Mr. Buckley when asked on cross-examination whether he had not earlier that same day testified that when he observed the automobile driving away, it had all the robbers in it, corrected counsel, noting that he had seen it drive away, but as to how many men were in it, he did not know. He saw four. When asked how many individuals he personally observed participating in the robbery, he said he observed no more than four.
At the first trial, the assistant to Vice President Buckley had testified that all he could see were heads in the get-away car, and that it was his best estimate that there were four. In the bank itself, he had seen only two.
A witness who lived in a cottage behind the building in which the mother of co-defendant Harold Timm resided, testified that in the afternoon of a day in July, 1967, she saw four individuals in makeup and false beards in the ...