Appeal from a judgment of conviction in the Western District of New York, entered after a trial before Judge John T. Elfvin and a jury, finding appellants guilty of bank robbery, 18 U.S.C. § 2113(a), conspiracy, 18 U.S.C. § 371, and appellants Lord and Schwartz guilty of armed bank robbery, 18 U.S.C. § 2113(d). The principal issues are whether appellants' right to a fair trial was jeopardized by the Government's disclosure to the jury panel of the multiple stabbing of its chief witness, which was later excluded as unconnected with the crimes charged, and by the court's failure to inquire whether any jurors had read prejudicial newspaper articles about the ongoing trial.
Mansfield and Timbers, Circuit Judges, and Dooling, District Judge.*fn*
MANSFIELD, Circuit Judge:
After a four-day trial in the Western District of New York before Judge John T. Elfvin and a jury, appellants Lord, Yagy and Schwartz were convicted of bank robbery, 18 U.S.C. § 2113(a), and conspiracy to commit bank robbery, 18 U.S.C. § 371. Lord and Schwartz were also convicted of armed bank robbery, 18 U.S.C. § 2113(d). We reverse because of two errors that seriously jeopardized the defendants' right to a fair trial: (1) the Government's disclosure to the entire venire during jury selection of highly prejudicial information that was later excluded from evidence, and (2) the district court's refusal during the course of the trial to inquire whether members of the jury had seen or read newspaper articles containing prejudicial information not in evidence.
On April 9, 1976, the Columbia Banking Savings and Loan Association in Rochester, New York, was robbed of approximately $43,365 by two armed men wearing stocking masks, coveralls and gloves.
The evidence adduced at trial showed that Lord and Schwartz entered the bank and carried out the robbery. Yagy's role was that of mastermind and planner, who did not participate in the execution of the crime but conferred in advance with the others and recruited 17-year old Ronald Hook, a delivery boy in his Rochester, New York, pizzeria, to drive the getaway car. All four shared in the proceeds. Three months after the robbery, Lord and Schwartz, for reasons that are not entirely disclosed in the record, assaulted Hook, stabbing him with an ice pick approximately 45 times. Hook, who was not indicted, survived and became the Government's principal witness.
At trial Hook incriminated the defendants, describing the planning and execution of the crime and the part played by each of the defendants in it.*fn1 He further indicated that the stabbing incident was not connected with the bank robbery. However, the reason or reasons for the stabbing remained undisclosed. In addition, the Government relied upon a confession given by Schwartz to agents of the Federal Bureau of Investigation admitting his involvement, which was received against him only. The Government also offered the testimony of an FBI agent that when interviewed less than seven hours after the robbery Lord had $1,300 in his possession, even though he had been unemployed for several months. Lord told the agent that he had been at the hospital visiting his mother at the time of the robbery. Testimony of a hospital nurse, however, would permit a jury to infer that Lord's alibi was false. Another witness, Dennis Wakefield, testified that one week prior to the Columbia Savings and Loan robbery Lord and Schwartz disclosed to him their plan to rob a bank.
In March 1977 Schwartz was sentenced to 25 years imprisonment on the bank robbery counts and five years on the conspiracy charge, to run consecutively. Yagy was sentenced to 10 years imprisonment on the bank robbery count and five years on the conspiracy count, to run consecutively, and Lord was sentenced to 20 years on the bank robbery counts and five years on the conspiracy count, to run consecutively. Upon this appeal from the judgments of conviction numerous errors are claimed by the appellants, only a few of which warrant discussion.
At a pretrial conference approximately one month before trial, defense counsel moved to preclude any evidence of the stabbing incident from the trial on the ground that it was unrelated to the bank robbery and unfairly prejudicial. The Government opposed the motion, contending that "one of the reasons" for the assault was "Hook's threat to disclose their [appellants'] involvement in the Columbia bank robbery" and that evidence of the assault was admissible as proof of "the guilty minds of the defendants."*fn2 The court denied the motion without prejudice to its renewal but prophetically observed that "great prejudice . . . attends that evidence."
On February 8, 1977, jury selection commenced. During voir dire of the jury panel, the prosecutor, without advance notice to the court or parties, stated in the presence of the entire venire:
"One of the Government witnesses in this case is a young man named Ronald Hook, and there was some publicity concerning Mr. Hook at one time as to the fact that he was stabbed some 45 times. . . ."
All defense counsel immediately moved for a mistrial, arguing that the jury panel had been irreparably exposed to unfairly prejudicial information that would make impossible the jurors' impartial evaluation of the evidence in the case. The court denied the motions, but repeatedly warned the prosecutor that a mistrial would be declared if the ...