FEINBERG, Circuit Judge:
After a jury trial before Judge Walter Bruchhausen in the United States District Court for the Eastern District of New York, appellant Horsun Howard was found guilty on both counts of an indictment charging him with violations of 18 U.S.C. § 2113(a) (bank robbery) and 18 U.S.C. § 2113(d) (aggravated bank robbery).
When the trial judge gave the jury the case, his instructions were quite brief. In what was to be the only mention of the crimes charged, the court summarized the two counts of the indictment:
The judge then went on to discuss aiding and abetting and the meaning of knowingly and wilfully. However, there was no further definition of the crimes charged, although the judge did explain to the jury such matters, among others, as the need to establish guilt beyond a reasonable doubt, the meaning of reasonable doubt, the nature of circumstantial evidence, and the credibility of witnesses. Of the 12 pages of charge, only the one-half page quoted above specifically described the offenses with which the jury was to concern itself.
Even a cursory reading of the bank robbery statutes indicates that more than the few short sentences of the charge quoted above are required. At the very least, this jury should have been told that it had to find, beyond a reasonable doubt, the following elements of the crime for Count One, charging a violation of section 2113(a): The defendants took money from a federally insured savings and loan association; the taking was accomplished through the use of force and violence, or by intimidation, and from the person or presence of individuals other than defendants; the money taken was in the care, custody, control, management or possession of the association; and the taking was done with wrongful intent, that is, knowingly and wilfully. United States v. Cooper, 462 F.2d 1343, 1344 (5th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 452, 34 L.Ed.2d 303 (1972); Scruggs v. United States, 450 F.2d 359, 361, 364 (8th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972); 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 48.01 et seq. (1970). For Count Two, charging a violation of section 2113(d), the jury should have been instructed that, along with the elements specified above, it had to find that defendants assaulted or placed in jeopardy the lives of any person by use of a dangerous weapon or device. United States v. Marshall, 427 F.2d 434, 437-438 (2d Cir. 1970); Scruggs v. United States, supra; United States v. Cooper, supra.
It is clear that the judge's charge did not cover all of these elements of the crime. The Government contends, however, that the error was harmless because the only truly contested issue for the jury was the identity of the bank robbers. While that may be substantially true, we do not think it
United States v. Clark, 475 F.2d 240, 248 (2d Cir. 1973). See also Byrd v. United States, 119 U.S.App.D.C. 360, 342 F.2d 939 (1965). When Howard exercised his constitutional right to a jury, he put the Government to the burden of proving the elements of the crimes charged to a jury's satisfaction, not to ours or to the district judge's. Thus, even if we believe that there was overwhelming proof of the elements not charged, we must still reverse.
To be distinguished from this case is our recent decision in United States v. Pravato, 505 F.2d 703 (2d Cir. 1974), which also involved bank robbery. In that case, after telling the jury that it had to find, beyond a reasonable doubt, all the elements listed above, the court inadvertently said that the existence of force and violence was included in a stipulation of counsel, when no such agreement had been made. In refusing to reverse the conviction, we pointed out that defendant's attorney did not object to the charge, apparently for strategic reasons, and in fact referred, in his closing argument, to the possibility of misidentification due to the "terror and fright" of the witnesses.
Accordingly, a new trial is required. In view of this disposition, we need not reach appellant's claims regarding the empaneling of the jury and the allegedly prejudicial effect on the jury of Howard's arrest on another charge outside the courtroom, but possibly viewed by some of the jurors.
Judgment reversed and case remanded for further proceedings consistent with this opinion.