Kalodner, Adams and Max Rosenn, Circuit Judges.
MAX ROSENN, Circuit Judge.
Samuel Samson Allen appeals a conviction by a jury in the United States District Court for the Eastern District of Pennsylvania for conspiring to rob a bank in violation of 18 U.S.C. § 2113. Appellant claims plain error in the failure of the trial judge to instruct the jury on the necessity of finding commission of an overt act in order to find defendant guilty of conspiracy. He also claims several other errors, including the refusal of the trial judge to recuse himself from presiding over this retrial of Allen because the judge had seen Allen's presentence report at the conclusion of the first trial. We find it necessary to reverse the judgment of conviction due to the inadequate jury instructions.
Appellant was first tried and convicted on bank robbery and conspiracy charges in September 1970. The trial judge sentenced him to twenty years imprisonment. On appeal, this court reversed the judgment and remanded for a new trial. United States v. Small, 443 F.2d 497 (3d Cir. 1971).
Following the reversal, Allen was brought before the same trial judge on November 30, 1971, on the same charges of conspiring to rob and robbing the National Bank of Chester County and Trust Company in Exton, Pennsylvania. He was acquitted of the substantive bank robbery counts, but found guilty of the conspiracy charge.
Acquittal on the substantive counts emphasizes the substantial importance to defendant's rights of the failure by the trial judge to instruct properly on the elements of the conspiracy count. Commission of an overt act by one of the conspirators is an essential element of the crime of conspiracy. Bradford v. United States, 413 F.2d 467, 470 (5th Cir. 1969); Walker v. United States, 342 F.2d 22, 25 (5th Cir. 1965); Hansen v. United States, 326 F.2d 152, 156 (9th Cir. 1963). The overt act is important in demonstrating more than a subjective mental intent to commit a crime on the part of the conspirators. When the instructions fail to specify every essential element of the crime, the failure constitutes plain error which can be considered on appeal under Federal Rule of Criminal Procedure 52(b), even though no objection was made at trial. Byrd v. United States, 119 U.S. App. D.C. 360, 342 F.2d 939, 942 (1965); cf. United States v. Vitiello, 363 F.2d 240, 243 (3d Cir. 1966).
After a careful search of the jury instruction, we have found several references to overt acts, but at no point was the jury told that it must determine at least one overt act was committed in order to find Allen guilty of conspiracy. The jury was instructed that:
Any act done by any of the participants in pursuance of the original plan and with reference to the common object and contemplation of law is the act of all.
In setting out the elements of conspiracy, however, the trial judge listed as necessary elements only (1) a combination of two persons, (2) a real agreement, and (3) an unlawful purpose. Conspicuous by its absence is a reference to the necessity of finding the commission of an overt act. The most explicit reference to overt acts, rather than implying a necessity of finding such acts had been committed, unfortunately, conveyed an opposite impression:
Now, the indictment goes on to recite overt acts. If that comes to your attention, they are unimportant. You needn't conclude that each overt act in here was proven or not proven. What your concern is is whether the evidence presented from this witness stand and the other exhibits bring you to a conclusion that a crime was committed and that this man committed it, whether or not others did is unimportant; the question is if he did.
The failure to instruct on overt acts cannot be assumed to have been unimportant to defendant's due process rights. Twelve overt acts were charged in Allen's indictment. Seven of the alleged overt acts involved driving to, robbing, and leaving the bank. As Allen was acquitted on the substantive counts of the indictment, there must be some doubt as to whether the jury found proof of these acts. The other five alleged overt acts involved a reconnaissance of a bank. Witness testimony, however, is in conflict on whether this reconnaissance was of the Exton, Pennsylvania, National Bank of Chester County and Trust Company, and on what date the reconnaissance occurred.
Looking at the instructions as a whole, therefore, we find plain error was committed in the failure of the court to instruct on all necessary elements of the crime of conspiracy. We reverse on this ground.
Although we need not decide the recusal issue, appellant's argument raises serious questions of judicial ...