Van Dusen and James Rosen, Circuit Judges and Layton, District Judge.
VAN DUSEN, Circuit Judge.
Defendant was indicted with two co-defendants in October 1969 in (a) Count I for conspiracy (18 U.S.C. § 371) to rob a bank "by force and violence, and by intimidation, to take and attempt to take from employees of the . . . Bank . . ." $50,980.00, offenses recited to be in violation of 18 U.S.C. § 2113(a), (b) and (d); (b) Count II for the substantive offense of bank robbery by force and violence and intimidation in violation of 18 U.S.C. § 2113(a); (c) Count IV for the substantive offense of entering the bank with intent to commit larceny in violation of 18 U.S.C. § 2113(a); (d) Count VI of taking the money from the bank with intent to steal in violation of 18 U.S.C. § 2113(b); and (e) Count VIII of putting in jeopardy the lives of bank employees while committing bank robbery in violation of 18 U.S.C. § 2113(d). His first trial on these counts was held in April 1970, at which time he was represented by counsel appointed by the court under the Criminal Justice Act. Although such counsel was present at all times, assisting Medina during this trial, Medina insisted on making the opening and closing arguments to the jury and examining the witnesses. Evidence which was not properly admissible and which was prejudicial to the Government was placed before the jury because of conduct of defendant during the trial, much of which was contrary to the directions of the trial judge.*fn1 For example, during the opening statement, the defendant told the jury that he would show that co-defendant Brahm stated in his confession to the police that the other man who robbed the bank was not Medina, but such evidence was not placed before the jury except through improper suggestion. Also, the defendant indicated through leading questions put to his co-defendant, who refused to answer every question asked him when called by Medina, that the co-defendant had told the police "that another man" robbed the bank.*fn2 Both during his opening and his closing arguments, even though Medina did not testify, he stated that he did not go into the bank and was at the racetrack on the day of the robbery.*fn3
On the third day of the trial, the trial judge charged the jury, which retired for its deliberations at 11:20 A.M. The jury was sent out to lunch and then returned to continue deliberations. At about 4:45 P.M., and again at 5:10 P.M. and 5:27 P.M., the jury sent questions to the court, indicating that they might be disagreeing on some counts but not on all counts. At 6:09 P.M., the jury notified the court that it had agreed on one count but "We cannot reach a verdict on the remaining counts." When the court, having brought the jury into the court room, read back the just quoted language, the foreman replied, "That's right, Sir."
The court then directed the Clerk to take the verdict. The jurors returned a verdict of guilty on Count I and repeated that they could not agree on the remaining counts. This language then appears in the transcript (N.T. 318, 319):
"THE COURT: As to the remaining counts, I am continuing the case, withdrawing a juror --
"MR. MEDINA: Your Honor, I object at this point.
"THE COURT: . . . As to the remaining counts, I am withdrawing a juror and continuing the case, as to the other counts, because you are hopelessly deadlocked as to the other counts; is that right?
"THE FOREMAN: Right, sir.
"THE COURT: And so say you all?
"THE COURT: Now, you want to say something, Mr. Medina?"
Although the trial judge gave the defendant this opportunity to state reasons in support of his objections, Medina did not request that the jury continue its deliberations on Counts II, IV, VI and VIII at that time or the next day, but contended that the judge had advised the jury that it could not find him guilty of conspiracy as charged on Count I (see footnote 5 below). The jury was polled as to (1) its verdict on Count I and (2) its disagreement on the remaining counts. The jury was then discharged for the ...