United States v. Tyrone B. Diggs, United States of America v. Garrett J. Keys, United States of America v. Percy Floyd, (Two Cases)

522 F.2d 1310, 173 U.S. App. D.C. 95, 1975 U.S. App. LEXIS 12115

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 3, 1975
• Docket: 73-1667, 73-1750, 74-1010, 74-1011
• Status: Published

Opinions

DANAHER, Senior Circuit Judge:

We have here consolidated appeals¹ following jury verdicts establishing the guilt of each of the appellants. We will discuss first the claims that the trial judge erred in denying their motion to suppress the evidence seized following their arrest by two Special Agents of the Federal Bureau of Investigation.

t

On February 11, 1972, about 9:30 a. m. the District of Columbia National Bank branch on Wisconsin Avenue was robbed by two armed men. A woman in a store across the street saw two men, one wearing a ski mask and the other with his face covered, leave the bank and enter a getaway ear, a green Chevrolet, driven by a third man. Earlier, about 9:10, another witness had seen two black men some three to four blocks from the bank as they were parking a white Cadillac car with a red leather panel on the door. She testified that about 10:15 she saw that a green car had knocked over some trash cans near her neighbor’s driveway and that the Cadillac was gone.

The Government’s evidence at trial developed that the taller of the two robbers with gun in hand was carrying an attache case and was wearing a gray ski mask, a dark raincoat, gloves, brown or tan trousers and brown “hush puppy” shoes. He had gone to each teller window, gathering all currency and coins which he placed in his attache case.² The shorter of the two robbers stationed in the lobby was wearing a blue denim jacket and a black turtle neck pulled up around his face. He pointed his gun at the tellers and told them to get down, and when one of them moved, he grabbed her by the hair, pulled her back and ordered her to stay down.

An audit disclosed that the robbers had taken more than $5,000, including $400 of “bait money.”

Word of the robbery reached the Washington Field Office of the FBI at approximately 9:30 a. m. and came to the notice of Special Agent Berry. The latter, with some 22 years of experience in the Bureau, had already been developing evidence involving appellants Diggs and Floyd as to other crimes, indeed only a fortnight earlier, Berry had arrested Diggs for his part in another robbery in which his distinctive red and white Cadillac had been utilized in the transportation of the avails of that robbery. Agent Berry was well aware that robbers might abandon a getaway car and switch to another waiting vehicle. Berry also knew that Diggs “hung out” in the 2200 block of M Street, N.E., where he had seen both Diggs and Floyd in the recent past. Taking Special Agent Mowrey with him, Berry, in an unmarked Bureau car, headed for that destination.

En route, over the car radio, the agents monitored radio broadcasts put out by the FBI and by Metropolitan Police. They thus learned that one of the robbers at the bank was seen to be tall, to have worn a gray ski mask, gloves, a three-fourths length raincoat and to have been carrying a rust-colored brief case. They also learned that the second robber had worn a denim jacket, dark trousers and a black turtle neck. With the 2200 block under surveillance, the agents saw the Diggs Cadillac with three occupants coming toward them, with Diggs at the wheel. That car pulled up to the curb and stopped. The agents radioed for help, recognized Diggs and Floyd, and then alighted from the Bureau car.

Berry produced his identification, and with guns drawn, the agents approached the Diggs car and ordered the three occupants to raise their hands above their heads and to keep them there.

The agents noticed that the rear seat passenger, Keys was wearing a black trench coat and that next to him was a short denim jacket. In plain view at Keys’ feet was a rust-colored brief case. Seeing that the car’s occupants conformed to the monitored descriptions and with their reasonable suspicions confirmed, the agents then placed all three appellants under arrest. Search incident to that arrest developed that both Keys and Floyd possessed .38 caliber revolvers. Contemporaneous search of the brief case revealed more than $5,000 in cash, and in due course, the bank’s bait money was identified.

That the agents were undertaking the steps as described for the purpose of investigating their powerful suspicion ³ that these appellants had been involved in the robbery is apparent. The agents had taken for their own protection and safety entirely reasonable precautions as they confronted the three appellants, at least two of whom had been armed during the bank robbery. See Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Coates, 161 U.S.App.D.C. 334, 337-39, 495 F.2d 160, 163-65 (1974); United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, cert. denied, 406 U.S. 969, 92 S.Ct. 2427, 32 L.Ed.2d 669 (1972); United States v. James, 147 U.S.App.D.C. 43, 45-46, 452 F.2d 1375, 1377-78 (1971); Brown v. United States, 125 U.S.App.D.C. 43, 46 n.4, 365 F.2d 976, 979 n.4 (1966).

The courts have considered other aspects of situations such as had here been presented, see, e. g., Young v. United States, 140 U.S.App.D.C. 333, 337, 435 F.2d 405, 409 (1970); Bailey v. United States, 128 U.S.App.D.C. 354, 357, 362, 389 F.2d 305, 308, 313 (1967).

When the agents saw what Floyd was wearing, what Keys was wearing, when, in plain view, they saw the brief case and the denim jacket, ample probable cause for the arrest existed. United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Johnson, 143 U.S.App.D.C. 215, 220, 442 F.2d 1239, 1244 (1971) and see Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). After the arrest and as incident thereto, further search of the vehicle even revealed the ski mask which had been used in the commission of the crime. United States v. Free, 141 U.S.App.D.C. 198, 437 F.2d 631 (1970), and see generally the discussion, id., 141 U.S.App.D.C. at 201-202, 437 F.2d at 634-635; cf., Cardwell v. Lewis, 417 U.S. 583, 588-590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

We may, perhaps definitively, terminate further present treatment of appellants’ contention that the search and seizure here had been invalid,⁴ simply by turning to this court’s opinion in Bailey v. United States, supra, and to Judge Leventhal’s concurring opinion, id., 128 U.S.App.D.C. at 361-365, 389 F.2d at 312-316. There was no error in Judge Pratt’s denial of the motion to suppress filed by Keys and Diggs with which Floyd had asked to be associated.

II

Floyd’s Contentions

A

Quite apart from the bank robbery situation, Floyd presents another problem in his appeal No. 74-1010. Floyd had filed a written motion to dismiss the indictment which stemmed from another robbery, next to be treated. He contended that the jury selection system in the courts of the District of Columbia had improperly discriminated against young adults.⁵ After extensive hearings, the district judge denied Floyd’s motion to dismiss the grand jury indictment.

On November 3, 1971, three men armed with pistols entered the Minnesota Market in Southeast Washington. “Everybody go back, a robber ordered. An employee with a pistol pointed at his head was dragged to the front of the store by Floyd, positively identified at trial by various witnesses, including a young woman whose boy friend “ran around” with Floyd. This employee’s wallet containing $18 was taken from him, and he was ordered to open a cash register. When it developed he was unable to comply, the robbers seized as much money as possible and fled from the store. The jury found Floyd guilty of two counts of armed robbery and four counts of assault with a dangerous weapon.⁶

Floyd’s indictment by a grand jury sworn in on October 6, 1971, had charged him with participation in the robbery and assault with a dangerous weapon, just described. His motion, first, to dismiss that indictment, and later, his motion to strike the petit jury panel, had been based on his claim that there had been unlawful discrimination against young people in the District of Columbia compilation of eligible jurors.⁷

Through an expert witness, he sought to establish by a mathematical test, the “chi square test,” an underrepresentation of various age groups who should have been selected at random from a fair cross section of the community. Floyd contended that there had been a failure to comply with the requirements of 28 U.S.C. § 1863 in the formulation of a plan for random jury selection. His expert concluded from his study of the selection process that the actual number of jurors in the age group 21-24 in the District Court petit jury panels was only one-quarter of the numbers he expected. Similarly, the actual number in the age group 25 — 29 was one-third of the number he would have expected to find, he said. The expert witness then concluded that the selection process resulted in underrepresentation of the younger age groupings and was not random. The trial court deemed that Floyd had presented prima facie evidence of discrimination against young persons in the District of Columbia jury selection process.

The Government then presented various witnesses including the Director of Data Processing at the Superior Court who explained the process by which all jury panels for the District of Columbia courts were selected. Unlike the course followed elsewhere, 28 U.S.C. § 1863(b)(2) expressly provides that

The plan for the District of Columbia may require the names of prospective jurors to be selected from the city directory rather than from voter lists.

Utilizing a computer program, the data processing unit had selected some 60.000 names chosen at random from the Polk Directory for the District of Columbia. The process so begun was further refined, when a group of people, some 12.000 in number selected at random, had been recipients of questionnaires, prepared by the Jury Commission. From the responses, that Commission determined whether people should be considered eligible, disqualified, exempt or excused, and from among those deemed eligible, jury panels each month were selected by the computer on a random basis.

The United States District Court, pursuant to 28 U.S.C. § 1863, adopted a MODIFIED PLAN FOR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR THE RANDOM SELECTION OF GRAND AND PETIT JURORS,⁸

with explicit directions, inter alia, for the compilation of a master jury wheel and the use of the R. L. Polk Company’s city directory. The Plan conferred authorization, subject to the supervision and control of the Chief Judge, to the Jury Commission, to adopt a selection procedure which the Court has found “shall result in the drawing of names proportionally representing a cross section of all parts of the District.”

The Jury Commission is required to prepare an alphabetical list of names drawn, not to be disclosed except on order of court or- pursuant to 28 U.S.C. §§ 1867 and 1868. Thereupon, if the Commission shall determine that to supply court jury requirements, for example, for 18 months, it will need 60,000 names in the master wheel, and if there is a total of 600,000 names in the R. L. Polk file, a “quotient” formula must be devised. Thus the total will be divided by the number of names required, so that, as here, if the quotient be 10, every tenth name would then be taken for the master wheel.

We interrupt our analysis to observe that there was no proof of purposeful exclusion of any cognizant group, whether of youth or of any other (presently pertinent) coherent, identifiable class, see generally the discussion in Ware v. United States, 123 U.S.App.D.C. 34, 37-38, 356 F.2d 787, 790-791 (1965), cert. denied, 383 U.S. 919, 86 S.Ct. 914, 15 L.Ed.2d 673 (1966). Nor was there evidence that Floyd had been prejudiced in any way by the denial of his motion to strike the petit jury panel.⁹

Rather, after the extensive hearings which had been conducted, the judge could see that Floyd at most had shown only that the names of persons under age 30 had appeared on the master wheel somewhat less frequently than was representative of their numbers in the general population.¹⁰ Assuming that, statistically, such was the fact, the same could be said respecting persons thereafter actually chosen to sit on petit juries.¹¹

The simple fact is that the Jury Selection Act provides no criteria for the identification of young people as a class. It may even be doubted that “young people” constitute a sufficiently coherent group to require their selection as part of a representative cross section of the community. “[Cjlaims of exclusion of the young from juries have met with little success in the federal courts,” Hamling v. United States, 418 U.S. 87, 137, 94 S.Ct. 2887, 2917, 41 L.Ed.2d 590 (1974) (footnote omitted). We intimated as much (dictum) in United States v. Greene, 160 U.S.App.D.C. 21, 23-26, 489 F.2d 1145, 1147-1150 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974), and other courts have more firmly taken a positive position to the effect that there is nothing in the statutes or in the case law identifying youth as a cognizant group.¹²

We find no error whatever in Judge Bryant’s denial of Floyd’s motion to dismiss the indictment and his denial of the motion to strike the jury panel.

B

Floyd here has further contended that the trial judge erroneously declined to permit his counsel to inquire whether or not the prospective jurors “have had any dealings or experience with black persons that might make it difficult for them” to sit in judgment on this case. This question¹³ and others had been canvassed with the prosecutor and the judge before the prospective jurors entered the courtroom. The judge might readily have thought the equivocal phraseology had failed to present an issue and that the question might be rephrased and made specific. Floyd’s counsel did no more about it, whether by way of argument or objection or otherwise. The respective counsel went on to ask the prospective jurors as to any possible preconceived notions as to Floyd’s guilt or innocence. Counsel inquired whether or not these jurors would hear the case fairly and impartially and decide solely on the evidence presented in the courtroom.

After counsel saw the prospective jury, no effort was made by detailed questions to disqualify any prospective juror. On the contrary, Floyd’s counsel did not even exhaust the peremptory challenges to which he was entitled. It might be assumed that Floyd took his chances with the jury as selected.¹⁴

It now is being argued that we are bound to reverse, counsel relying upon Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) where the judge, the victim, (a white policeman) and all members of the jury were white while Aldridge was a negro. Floyd points further to Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), where the accused, a black bearded civil rights activist, had alleged that local law enforcement officials had “framed” him on charges of possession of marijuana. The judge and most of the jury panel were white. The Supreme Court, 409 U.S. at 527, 93 S.Ct. at 850, ruled that “the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice.”¹⁵ (Emphasis added).

From our post-trial vantage point, it is easy enough to say that the judge could readily have asked counsel’s question despite its imperfection. The judge himself could have reframed the inquiry, but his failure to do so is not fatal. Floyd had made no effort whatever to establish any such factual situation as can be noted in Aldridge and Ham. Nothing was shown actually to cause the judge to inquire into possible prejudice against Floyd because he was black. It would seem that some development of a situation of that sort is essential since the Court itself has so read those cases. See, e. g., Hamling v. United States, 418 U.S. 87, 140, 94 S.Ct. 2887, 2919, 41 L.Ed.2d 590 (1974). There the opinion notes that Aldridge and Ham had held that “in certain situations a judge must inquire into possible racial prejudices of the jurors in order to satisfy the demands of due process.” (Emphasis added).

Such a limiting evaluation of the significance of the language quoted would seem the more cogent if we consider Ross v. Massachusetts, 363 Mass. 665, 296 N.E.2d 810, certiorari denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973). The dissenting views of Mr. Justice Marshall sharply focused on the racial prejudice issue which arose in a trial where a white security officer had been the victim of assault by Ross and other young negroes. See 414 U.S. 1082—1083, 94 S.Ct. 599. The majority in its denial of certiorari could not possibly have failed to realize the impact of the dissent.¹⁶

Floyd’s reliance upon the Aldridge and Ham cases definitely is misplaced. We are satisfied that the views we have expressed correctly reflect applicable law which indicates the course to be followed here. Other circuits after consideration of the problem have taken a similar position. See, e. g., United States v. Walker, 491 F.2d 236, 239 (CA 9), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974) and United States v. Grant, 494 F.2d 120, 122-123 (CA 2 1974). We reject Floyd’s claim of error in the respects under consideration.

C

We now reach Floyd’s contention that the trial judge fatally erred when, in the absence of counsel the judge undertook to respond to the jury’s request for further instructions. Details presently will be discussed.

Of course, it is so that an accused is entitled to be present at every stage of his trial, Fed.Rule Crim.Proc. 43. Especially since Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), the courts have frowned upon communications between judge and jury in the absence of the defendant and his counsel. In usual course, a jury’s message should be answered in open court, with an opportunity afforded to counsel to be heard before the trial judge undertakes to respond. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975).

However, a failure to comply with the requirements of Rule 43 does not call automatically for reversal. The situation requires consideration in light of Fed.Rule Crim.Proc. 52(a), and so there “may in some circumstances be harmless error,” Rogers v. United States, supra, 422 U.S. at 40, 95 S.Ct. at 2095.¹⁷ The “circumstances” to be considered will be, inter alia, “the nature of the information conveyed to the jury, in addition to the manner in which it was conveyed,” id. 422 U.S. at 40, 95 S.Ct. at 2095. The trial judge might there have induced unanimity, said the Court,

by giving members of the jury who had previously hesitated about reaching a guilty verdict the impression that the recommendation might be an acceptable compromise, Id.

The judge had responded to the jury’s inquiry in the absence of the accused and his counsel. Moreover, the judge had quite erroneously failed to instruct that the jury had no sentencing function and should reach its verdict without regard to what sentence might be imposed. The cumulative errors were seen to be “fraught with potential prejudice.” at 41, 95 S.Ct. 2091.¹⁸

We here take up what happened in the instant case. The jury had retired to consider its verdict at 4:30 p.m. on April 5, 1973. At six p.m., no verdict having been reached, the jury was released with directions to resume deliberations at 9 a.m. the following day, and it did so.

On April 6, 1973, at 4:37 p.m., and before the jury was brought in to the court room to render its verdict, the judge informed the parties that earlier, and in their absence, there had been a communication from the jury.

THE COURT: When the jury came back from lunch, I received the following note:

We have reached a decision on all counts with the exception of one juror. Would you give us further instructions on the one holdout. Thank you. Peter J. Long.

I replied:

I regret that I cannot give you any instructions on the above. All I can say is that you should continue your deliberations. You have been in session for four and a half hours which is not unusually long. If I discharge the jury without a verdict being reached one way or the other, the case will have to be retried. That was it. I am going to make that a part of the record. Except for asking for some of the exhibits, that is the only message we got.

When the judge in the presence of all defendants and their counsel concluded the foregoing recitation for the record, no objection was raised by any of the attorneys. There was no complaint that the jury had been coerced into agreement during the afternoon’s deliberations. Seventeen days later, Floyd’s counsel alone reverted to the episode in connection with Floyd’s motion for a new trial which the judge denied.

Floyd now argues that had his counsel been present some two or more hours earlier when the judge, as above, replied to the jury’s request, counsel would have been able to note an objection. Yet, when, before the return of the verdict, counsel had been informed as to just what had transpired, she registered no objection. She certainly had been aware of the various counts and of the evidence in support of each charge. Even after the verdict had been returned, she made no comment.¹⁹ It would appear from her belated complaint that she had stood by having elected to take her chances as to just what verdict might be returned. Indeed, after she heard the bad news, we re-emphasize, no objection was voiced, and the conclusion would seem inevitable that no prejudice was then perceived, and we see none now. Cf. United States v. Johnson, 139 U.S.App.D.C. 193, 200, 432 F.2d 626, 633, cert. denied, 400 U.S. 949, 91 S.Ct. 257, 27 L.Ed.2d 255 (1970).²⁰

We carefully considered this very subject in Walker v. United States, 116 U.S.App.D.C. 221, 222, 322 F.2d 434, 435 (1963), cert. denied, 375 U.S. 976, 84 S.Ct. 494, 11 L.Ed.2d 421 (1964). There, under the circumstances shown, we ruled against reversal where the record had shown “with reasonable certainty” that there had been no prejudice to the defendant’s “substantial rights,” Fed.Rule Crim.Proe. 52(a).²¹

It is clear enough that the trial judge should not have communicated with the jury in the absence of the defendants and their counsel. Even so, in light of the permissible “harmless error” considerations open to us pursuant to Rogers v. United States²² and other authorities cited,²³ we conclude that there has been no reversible error on that account. No slightest showing of prejudice has been made to appear; the evidence of Floyd’s guilt in particular — and that of his codefendants — was overwhelming.

Floyd insists that the reply to the jury’s request for instructions was coercive. That reply, set forth supra page 18, is completely factual, it can be seen, down to the last sentence wherein its vice is said to lié. The judge had not suggested what verdict should be returned, indeed the jury had not indicated, “one way or the other” just what “decision” the jurors had reached. We must read the excerpt “have to be retried” as an inadvertence,²⁴ and totally superfluous in view of the magnitude of the crimes, so well known to all concerned. Perhaps the language could be taken as neutral, having in mind that a verdict could be reached “one way or the other.” In any event, as we said in Fulwood v. United States, 125 U.S.App.D.C. 183, 186, 369 F.2d 960, 963 (1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2058, 18 L.Ed.2d 996 (1967):

The statement that some other jury would have to decide the case if this one could not was accurate as a generality and, in any event, could have had no coercive impact on the jury. If they already knew what would likely happen if they deadlocked, it was surplusage; if they did not know, this information, far from being coercive, would have had the effect of reducing the pressure on them to reach a verdict.²⁵

In Fulwood, we concluded that the remarks of the judge were nonprejudicial and noncoercive. We take the same position here.

We find no merit whatever in Floyd’s claim that he was entitled automatically to a mistrial on the ground that the jury had made an unsolicited disclosure of its numerical division. As authority, Floyd points to Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), but there, the judge erroneously had required the jury to disclose the extent of its division. Floyd cites Mullin v. United States, 123 U.S.App.D.C. 29, 356 F.2d 368 (1966). The issue in Mullin involved the appellant’s claim of double jeopardy presented in a second trial after an earlier mistrial had been ordered. It must there have appeared to the first trial judge just as obviously as it does to us that the Mullin jury was in hopeless confusion where the foreman reported that the jury stood 7 for a guilty verdict, 4 for a not guilty verdict with one juror undecided. So it was that Mullin held that there had been no double jeopardy since the mistrial properly had been granted. Floyd also points to Williams v. United States, 119 U.S.App.D.C. 190, 338 F.2d 530 (1964). There, the majority not only had reported disagreement but actually went on to ask the trial judge to replace the minority with two alternate jurors. Sensing the degree of coercion implicit in those circumstances, we noted additionally that the trial judge had compounded the confusion by what was said during his further colloquy with the jury and by the instructions he submitted.

Substantial authority runs against Floyd’s claim. See, e. g., United States v. Jennings, 471 F.2d 1310, 1313-1314 (CA 2), cert. denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973), where the jury, unsolicited, reported that it stood 11 to 1 for conviction; United States v. Martinez, 446 F.2d 118 (CA 2), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971); Sanders v. United States, 415 F.2d 621, 629, 631-632 (CA 5 1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271 (1970); United States v. Rao, 394 F.2d 354, 356 (CA 2), cert. denied, 393 U.S. 845, 89 S.Ct. 129, 21 L.Ed.2d 116 (1968); United States v. Williams, 444 F.2d 108, 109 (CA 9 1971).²⁶

We are satisfied that Floyd’s respective appeals in Nos. 74-1010 and 74-1011 must be rejected in toto.27

We find no error in the trials of any of these appellants.

CONCLUSION

We turn now to various problems involving the sentences imposed upon each of the appellants.

Taking up, first, United States v. Floyd, No. 74-1010, the jury on November 22, 1972, returned its verdict of guilty on two counts of armed robbery and four counts of assault with a dangerous weapon. We vacate the latter convictions for the ADW counts were lesser included offenses under the armed robbery counts. United States v. Johnson, 155 U.S.App.D.C. 28, 29, 475 F.2d 1297, 1298 (1973); cf. United States v. Canty, 152 U.S.App.D.C. 103, 118 note 21, 469 F.2d 114, 129, note 21 (1972). Comparable treatment was discussed in United States v. Caldwell, sl. op. 66 and notes 177, 178 and 179 (D.C. Cir. December 31, 1974, not yet reported; and see United States v. Belt, 169 U.S.App.D.C. 1, 3, and note 3, 514 F.2d 837, 839, and note 3 (1975) (en banc).

We let stand the convictions on two counts of armed robbery, for there were two distinct offenses perpetrated at the Minnesota Market. One involved the property of the store owners as discussed in our text, pages 6 and 7, supra. We do not view this episode as a “unitary transaction,” cf. United States v. Hopkins, 150 U.S.App.D.C. 307, 313-314, 464 F.2d 816, 822-823 (1972), for the second armed robbery count concerned the robbery of an employee whose own property,28 his wallet containing $18, was taken from him at pistol point by Floyd. See Barringer v. United States, 130 U.S.App.D.C. 186, 399 F.2d 557 (1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 697, 21 L.Ed.2d 698 (1969); and United States v. Dixon, 152 U.S.App.D.C. 200, 203, n. 15, 469 F.2d 940, 943, n. 15 (1972). (As to sentence, see note 6, supra).

Different treatment is required in United States v. Floyd, No. 74-1011, where the jury returned guilty verdicts on two counts of bank robbery under the federal statute, followed by concurrent sentences of 5 to 20 years on each count; and two counts of armed robbery under the D.C.Code, for which concurrent sentences of 10 to 30 years on each count were pronounced. See footnote 1, supra.

In United States v. Canty, 152 U.S. App.D.C. 103, 115, 469 F.2d 114, 126 (1972) it was pointed out

The crime is bank robbery, and the statute is entitled “Bank Robbery and Incidental Crimes.” There is no doubt here that only one transaction took place and that only one bank was robbed. Compare United States v. Hopkins. [Supra ]

Canty rejected the Government’s contention that the robbery of each teller could predicate a separate taking within the language of 18 U.S.C. § 2113(a). Accordingly, as in Canty we must vacate one conviction of bank robbery. Moreover, we vacate one conviction of armed robbery under the D.C. Code. See footnote 1, supra. We vacate the sentences on one count of bank robbery and on the remaining count of armed robbery and remand for re-sentencing by the district judge.²⁹ It is to be expected that he will take into account the command in United States v. Shepard, 169 U.S.App.D.C. 353, 365, 515 F.2d 1324, 1336 (1975) where it was held that the Government properly may charge in the same indictment offenses against both the federal bank robbery statute and the District’s armed robbery statute. The court was specific, however, that a defendant is not ultimately to be sentenced under two statutes proscribing essentially the same offense. Imposed upon the trial court is the duty, 169 U.S.App.D.C. at 365, 515 F.2d at 1336, “to select the counts on which to impose sentence when the jury returns verdicts of guilty under both statutes.”³⁰ And see discussion in United States v. Caldwell, supra.

Passing to United States v. Keys, No. 73-1750, it will be recalled that Keys and Floyd had been charged on identical counts respecting the bank episode. Similarly they were found guilty, with sentences as to Keys as will appear in our footnote 1, supra. One conviction of bank robbery and one conviction of armed robbery will be vacated just as has been directed respecting Floyd, supra. Again, as in Floyd’s case, the matter of re-sentencing will devolve upon the district judge pursuant to United States v. Shepard, supra.

Respecting Diggs, found guilty in No. 73-1667 of two counts of robbery under the D.C.Code with sentences to concurrent terms of 3 to 9 years on each count, one conviction will be vacated, and the other is affirmed. His participation only as driver of the getaway car seems clearly to have led the jury to return not guilty verdicts as to all other counts.

Since it is not possible for us to penetrate the degree to which the sentences actually imposed on the respective appellants had been affected by considerations stemming from the counts we have vacated, we remand for possible re-sentencing in light of what here has been said.³¹

1 . The Keys appeal in No. 73-1750 followed his convictions on two counts of bank robbery and two counts of armed robbery, with concurrent sentences of 5 to 15 years on each count.

The Diggs appeal in No. 73-1667 followed his convictions on two counts of robbery with concurrent sentences of 3 to 9 years on each count.

Floyd’s appeal in No. 74-1011 followed his convictions on two counts of bank robbery and two counts of armed robbery with sentences of 5 to 20 years on each of the two bank robbery counts and 10 to 30 years on each of the armed robbery counts, such sentences to be served concurrently with each other, with a sentence previously imposed by the United States District Court for the Eastern District of Virginia and with a sentence previously imposed by a state court in Virginia. And see the correlation of the foregoing with the sentence imposed following a separate conviction in No. 74-1010, infra note 6.

The Government at pre-trial dismissed certain ADW counts and the jury was instructed to disregard two other lesser included ADW counts if it should find the armed robbery charges had been proved. See United States v. Belt, 169 U.S.App.D.C. 1, 514 F.2d 837 (1975) (en banc).

2 . After that case had been retrieved from the Cadillac, it was shown to a teller who immediately recognized it and while the case remained closed, described in detail the inside of the case and its contents. When opened, the inside and the contents were found to conform precisely to the description the teller had given in advance.

3 . See Judge Friendly’s opinion in United States v. Riggs, 474 F.2d 699, 703-705 (CA 2 1973).

4 . The course here followed by the alert perceptive FBI agents reminds us of the factual developments in Coleman v. United States, 137 U.S.App.D.C. 48, 51, 53, 420 F.2d 616, 619, 621 (1969); consider the “collective information” relied upon by officers in Smith v. United States, 123 U.S.App.D.C. 202, 204, 358 F.2d 833, 835, cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967).

When we take account of the exigent situation confronting these agents and the facts of which they had knowledge as well as those creating the basis for their reasonable suspicion, probable cause was clear, and the course pursued by the agents was lawful. It makes little difference where the officers seized two .38 caliber revolvers from Floyd and Keys whether we are talking about a permissible “frisk” incident to an investigative stop, as in Terry, supra, or whether there has been a “lawful” arrest. See United States v. Robinson, 414 U.S. 218, 234, 235, and cases cited at 236, 94 S.Ct. 467, 476, and cases cited at 477, 38 L.Ed.2d 427 (1973); see Gustafson v. Florida, 414 U.S. 260, 263, 264, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Compare Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) and cases cited, including Chambers v. Maroney, 399 U.S. 42, 47, 51, 90 S.Ct. 1975, 1979, 1981, 26 L.Ed.2d 419 (1970).

5 . On the same basis he later made an oral motion to strike the petit jury. However, he used only four of his ten peremptory challenges, and in any event has failed to indicate any possible prejudice.

6 . Floyd following his convictions in this case was sentenced to serve 8 to 24 years on each count of armed robbery and 3 to 10 years on each count of assault with a dangerous weapon, these sentences to be served concurrently with each other and with a sentence previously imposed by a state court in Virginia but consecutively to sentences already imposed by the U. S. District Court in Virginia and by the District Court in the bank robbery case, No. 74-1011, see footnote 1, supra.

7 . 28 U.S.C. § 1862 provides that no citizen shall be excluded from service as a grand or petit juror “on account of race, color, religion, sex, national origin or economic status.” The statute makes no mention of the factor of “age.”

8 . Government Brief, pp. 40 et seq.

9 . See note 5, supra.

10 . Floyd’s expert conceded on cross-examination that his analysis had not taken account of persons excused from jury duty by the court and that his analysis had been based on the relatively small numbers of responses received by the Jury Commission from the large number of questionnaires sent out. Taking into consideration such additional factors, one exhibit showed the distribution of jury venires by age, so that for the group 21-24, the actual distribution would be 10.2 per cent against an expected 14.3 per cent, and for the group 25-29, the actual distribution would be 10.6 per cent against an expected distribution of 14.7 per cent. Jury Commissioner Carusi testified that certain categories of exclusion from jury duty tended to apply more importantly to those between the ages of 21 and 30. These included persons in the armed forces, women caring for children under 10 years of age, practical nurses, students away at college and the like. Mr. Carusi emphasized that the Jury Commission never excused young people in the 21-30 age group solely because of age, indeed, as the law then read, age was a factor in the Commission’s operations only to the extent that persons under 21 were ineligible and those over 70 could be excused upon request.

11 . The Court has made it clear that even though petit juries must be drawn from a source fairly representative of the community, there is “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975).

The Court compendiously has stated for us the governing rule that

the jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.

Id., at 538, 95 S.Ct. at 702.

It is evident that after full hearings, the judge here had concluded there was no systematic exclusion of young people as a distinctive group. He realized that there had been no purposeful failure to regard “youth” as a cognizant classification.

12 . See generally: United States v. Olson, 473 F.2d 686, 688 (CA 8 1973); United States v. Gast, 457 F.2d 141, 142-143 (CA 7), cert. denied, 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972); United States v. Gooding, 473 F.2d 425, 430 (CA 5 1973); United States v. Blair, 470 F.2d 331, 334-337 (CA 5 1972); United States v. Guzman, 468 F.2d 1245, 1247-1248 (CA 2 1972); United States v. Ross, 468 F.2d 1213, 1217 (CA 9 1972); Chase v. United States, 468 F.2d 141, 144-146 (CA 7 1972); United States v. Kuhn, 441 F.2d 179, 180-181 (CA 5 1971); cf. United States v. Camara, 451 F.2d 1122, 1125-1126 (CA 1 1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1513, 31 L.Ed.2d 808 (1972). But see United States v. Butera, 420 F.2d 564, 570 (CA 1 1970).

13 . Counsel on brief has told us that “the record clearly shows no other questions were asked involving specifically any potential racial prejudice.” Note that Floyd’s counsel did not seek to elicit possible bias against Floyd because he was black. Cf. United States v. Grant, 494 F.2d 120, 121 (CA 2 1974). Counsel might just as well have proposed to ask whether the prospective jurors here had any dealings or experience with white persons that “might make it difficult” for them to sit in judgment in this case.

14 . “We need draw no conclusion concerning whether or not it was ... for the purpose of creating the basis now asserted for objecting to the jury’s composition,” as Mr. Justice Rutledge put it in Frazier v. United States, 335 U.S. 497, 506, 69 S.Ct. 201, 206, 93 L.Ed. 187 (1948).

We here will indulge in no speculation. Rather, we can say with reasonable certainty in light of the overwhelming evidence arrayed against Floyd, there has been no showing that he suffered prejudice here.

15 . Not unlike the manner in which the issue had arisen in Aldridge and Ham, supra, was that presented in King v. United States, 124 U.S.App.D.C. 138, 362 F.2d 968 (1966) where the victim and the majority of the veniremen were white and the defendant was black. Our discussion, text infra, as to limitations upon Aldridge and Ham will, of course, apply to the King case which had followed Aldridge.

16 . Justice Marshall indeed had concluded, in Ross,

To deny this petition for certiorari is to see our decision in Ham v. South Carolina stillborn and to write an epitaph for those “essential demands of fairness” recognized by this Court 40 years ago in Aldridge.

Id., 414 U.S. at 1085, 94 S.Ct. at 602.

17 . We may profitably take account of the opinion in United States v. Compagna, 146 F.2d 524, 528 (CA 2 1944), cert. denied, 324 U.S. 867, 65 S.Ct. 912, 89 L.Ed. 1422 (1945) where Judge Hand observed:

while lapses should be closely scrutinized, when it appears with certainty that no harm has been done, it would be the merest pedantry to insist upon procedural regularity.

Cf. United States v. Graham, 102 F.2d 436 (CA 2 1939) where, at 444, the court noted there had been no prejudice of substantial rights despite the absence of counsel.

18 . See United States v. Glick, 463 F.2d 491, 493 (CA 2 1972).

A not entirely dissimilar situation arose in our own case of United States v. Patrick, 161 U.S.App.D.C. 231, 494 F.2d 1150 (1974), where the Government argued that a response by the trial judge constituted, at most, harmless error. There the judge consulted with the appellant and defense counsel before informing the jury they might make a recommendation for psychiatric treatment along with a verdict of murder in the second degree. We read that response as aimed, 161 U.S.App.D.C. at 236, 494 F.2d at 1155,

at facilitating a compromise verdict by soliciting information that would assure those dissenting jurors, who would not otherwise have acquiesced, that appellant would receive treatment. (See, id., note 9).

In Patrick, the jury had informed the court that it had been “unable to reach a verdict— ten find [appellant] guilty, and two not guilty by reason of insanity.” Id., 161 U.S.App.D.C. at 234, 494 F.2d at 1153.

19 . Cf. Ware v. United States, 376 F.2d 717, 718 (CA 7 1967) where the court ultimately finding harmless error, commented:

His trial counsel, though present, found no basis for objecting to what the court did, nor for asking that it do more. He made no objection to proceeding in Ware’s absence.

20 . As the Fourth Circuit put it where an objection was first raised after the verdict:

Finally, the conclusion of harmless error is confirmed by the failure of the appellant through his counsel, to raise any objection until after the verdict . ... Had it appeared to the appellant or his counsel that the action of the District Court involved any prejudice, objection would have been promptly entered by the appellant and not tardily raised after verdict.

United States v. Arriagada, 451 F.2d 487, 489 (CA 4 1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1300, 31 L.Ed.2d 481 (1972). Cf. Jackson v. United States, 128 U.S.App.D.C. 214, 386 F.2d 641 (1967) where, as here, counsel had remained silent throughout the poll, and no objection had been voiced until after the verdict had been returned.

21 . The conclusion we reached in Walker, text supra, has not gone unnoticed, see, e. g., United States v. Amagada, supra, note 20; United States v. Schor, 418 F.2d 26, 29 (CA 2 1969) where, at 30, the court could not say that the judge’s unfathomable reply to the jury’s obscure question did not affect the verdict; Ware v. United States, supra note 19 (harmless error); United States v. Howard, 433 F.2d 1 (CA 5 1970) (harmless error), cert. denied, 401 U.S. 918, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971); United States v. Glick, 463 F.2d 491, 493 and note 11 (CA 2 1972); United States v. Calabro, 467 F.2d 973, 989, note 7 (CA 2 1972) (distinguishing United States v. Glick, supra), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973); United States v. Hoffa, 367 F.2d 698, 713 (CA 7 1966), vacated on other grounds, 387 U.S. 231, 87 S.Ct. 1583, 18 L.Ed.2d 738 (1967); cf Bustamonte v. Cardwell, 497 F.2d 556, 558 (CA 9 1974) (no prejudice shown); cf. United States v. Jones, 170 U.S.App.D.C. 362, 368, 517 F.2d 176, 182 (1975).

22 . Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), our text supra, 173 U.S.App.D.C. page -, 522 F.2d page 1319. The argument before the Court reported April 22, 1975, 43 LW 3565, had alerted readers to the possibility of impending authoritative treatment of an aspect of the issue pending here.

23 . See note 21, supra.

24 . Of course, a mistrial need not “require” a retrial. Witnesses disappear; other considerations often affect the prosecutor’s discretion; the problem may involve a “close and difficult issue of coercion in fact under the surrounding circumstances.” That was the situation (but not present here) in United States v. Thomas, 146 U.S.App.D.C. 101, 108, 449 F.2d 1177, 1184 (1971) (en banc with four judges dissenting). The “close” balance in Thomas is in no way to be compared with the strong case before us now.

The Court saw “coercion” in United States v. Jenkins, 380 U.S. 445-446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); cf. United States v. Smoot, 150 U.S.App.D.C. 130, 132, 463 F.2d 1221, 1223 (1972).

25 . Our opinion there, written by Judge (now Chief Justice) Burger, approached the issue taking account of the Allen charge, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). There was no Allen charge in the instant case. More than once of late we have considered the impact of the Allen language. For example, we assayed various phases (not overlooking Fulwood), in United States v. Johnson, 139 U.S.App.D.C. 193, 200, 432 F.2d 626, 633, cert. denied, 400 U.S. 949, 91 S.Ct. 258, 27 L.Ed.2d 256 (1970). We weighed possibilities again in United States v. Thomas, supra note 24. There, for all practical purposes, explicit coercion was perceived —(retrying the case where such a backlog existed “just doesn’t make sense to me,” said the judge).

Nothing of the sort is shown on our record where the evidence of guilt is so compelling. Moreover, unlike Thomas, the jury had not declared itself hopelessly deadlocked. Indeed, were we to speculate in terms of plausibility, whatever problem had disturbed the jury did not involve Floyd at all, only Diggs. Both Floyd and Keys who actually entered the bank were found guilty of bank robbery, 18 U.S.C. § 2113(a), and armed robbery, 22 D.C.Code §§ 2901 and 3202. On the other hand, as to Diggs, the driver of the getaway car, who had not entered the bank at all, the jury returned its verdict of not guilty of bank robbery and of armed robbery. He was found guilty only of robbery as defined in 22 D.C.Code § 2901, subject in any event to treatment as a principal, 18 U.S.C. § 2, D.C.Code § 22-105; cf. United States v. Parker, 143 U.S.App.D.C. 47, 442 F.2d 779 (1971).

26 . The fact that some of these cases in some degree involved versions of the Allen charge does not impair the weight we are inclined to give to them. See n. 25, supra.

27 . Since Floyd’s appeal in No. 74-1010 was consolidated by this court’s order with his appeal in No. 74-1011, we have followed the format of his counsel’s brief, discussing the jury composition claims in our Part II-A.

28 . See United States v. Spears, 145 U.S.App.D.C. 284, 293, 449 F.2d 946, 955 (1971); cf. Irby v. United States, 129 U.S.App.D.C. 17, 390 F.2d 432, 433 (1967) (en banc).

29 . Compare our present treatment with the important discussion in United States v. Caldwell, supra, slip opinion page 67 with pertinent footnotes and page 68 where the federal convictions were vacated and re-sentencing was to be predicated upon certain nonfederal convictions. The option discussed in Caldwell, it would seerti, readily may be reconciled with the direction of the court pronounced in United States v. Shepard, text infra, 169 U.S.App.D.C. 353, 365, 515 F.2d 1324, 1336 (1975).

30 . “Thus, if the United States Attorney elects to combine local offenses with federal, he must do so in the knowledge that the trial will be conducted under federal evidentiary law.” United States v. Belt, supra, 169 U.S.App.D.C. at 8, 514 F.2d at 844. He will know what evidence is available to establish the events in light of the evidentiary standard to be applied and thus to be guided in the exercise of his discretion as to the count upon which he expects to rest his case. So, too, the trial judge, fully advised of circumstances throughout the trial, can be expected to exercise his informed discretion in selecting the conviction upon which to predicate sentence.

31 . Bryant v. United States, 135 U.S.App.D.C. 138, 141, 417 F.2d 555, 558 (1969).