Appellant, Edwin Paxton Robinson, and a codefendant, Edward Zak, were brought to trial in the District Court under an indictment charging them with three counts of armed bank robbery, in violation of 18 U.S.C. § 2113(а) and (d). The first two counts of the indictment charged the successive armed robberies, on September 19, 1967, and October 24, 1967, of the Dix Avenue branch of the Bank of the Commonweаlth in Detroit, Michigan; the third count charged the robbery, on December 4, 1967, of the Warren Bank, Warren, Michigan. At the conclusion of all the evidence at trial, the District Court granted Zak's motion for judgment of acquittal with respect to the third count of the indictment, and submitted the remaining issues to the jury. The jury returned a verdict convicting appellant on all thrеe counts of the indictment and acquitting Zak of the remaining two counts with which he was charged. Appellant perfected this appeal, contending that a hat which was introduced into evidence against him at trial was the product of an illegal search and seizure, and that his conviction must therefore be reversed.
The government’s еvidence against both appellant and Zak under the first two counts of the indictment rested heavily upon the testimony of an alleged accomplice, Benjamin Luke, who pled guilty to those two robberies prior to the trial. Because the robbers wore stocking masks over their faces, none of the bank employees presеnt during the robberies could make a positive identification of either of the defendants after *1143 their arrest. 1 However, Luke’s testimony described in detail the activities of each of the alleged participants in the robberies, and some of those details, such as the description of the clothing worn by the robbers and of their getaway car, werе corroborated by bank employees.
One of the corroborative items of evidence was the hat referred to above. It was first identified by one of the bank tellers as similar to a hat worn by one of the participants in the second robbery. Luke later identified the hat as similar to the hats both he and appellant wore during the second robbery. Based on this identification, and over appellant’s objection on the grounds of relevancy, the hat was admitted into evidence. Subsequent evidence showed that the hat had been seized by FBI agents during a search of the appellant’s apartment on January 8, 1968, some 34 days after his arrest for the Warren Bank robbery. The evidence further showed that although appellant was continuously incarcerated during this intervening period, giving the agents an adequate opportunity to securе a search warrant, no warrant for the search was obtained. Instead, the agents merely sought and received the permission of the building manager to conduct the search of the apartment.
Upon disclosure of the circumstances of the seizure of the hat, appellant moved for a mistrial on the grounds that the hat was the product of an illegal search of his apartment. The District Court denied the motion, holding that the apartment had been abandoned by appellant at the time of thе search.
The principal issue here is thus whether appellant had abandoned the apartment at the time of the search, it being undisputed that the building manager’s consent to the search would be ineffective as a waiver of appellant’s Fourth Amendment rights without an abandonment on his part. See Chapman v. United States,
In denying the appellant’s motion for a mistrial, the District Court relied on the testimony of two witnessеs to conclude that appellant had abandoned the apartment at the time of the search. The first witness was the building manager who permitted the FBI agents to search the apartment. Viewed most favorably to the government, his testimony was that he considered the apartment abandoned at the time of the search becаuse the appellant had been absent therefrom without having paid any rent for over a month. However, as indicated, the building manager’s belief that *1144 appellant hаd abandoned the apartment was premised solely on the fact of appellant’s absence and thus sheds no light on appellant’s intention to return to the apartment. It was therefore totally irrelevant to the issue.
The second witness was a Miss Shirley Case, a friend of appellant’s wife, who testified that she and appellant’s wifе went to appellant’s apartment (appellant and his wife were not living together at the time) and removed some of his belongings in December 1967. However, her entire testimony on this point was contained in her response to one leading question, 2 and cannot be considered as evidence of an intent to abandon the premises on appellant’s part. We must therefore conclude that the government failed to show that the premises had been abandoned by appellant at thе time of the search, that the warrantless search of the premises was therefore unlawful, and that receipt of the hat into evidence constituted error.
There remains the question of whether the error requires reversal of appellant’s conviction under one or more counts of the indictment. More precisely, the quеstion is whether the government has on appeal shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict [s] obtained.” Chapman v. California,
We begin by recalling that with respect to the first two counts of the indictment, the government’s evidence against both appellant and his codefend-аnt Zak consisted primarily of the testimony of the alleged accomplice, Benjamin Luke, and that, although the testimony implicated appellant and Zak equally in the two Bank of the Commonwealth robberies, appellant was convicted while Zak was acquitted. Under such circumstances it cannot be said that the corroborative evidence of the hat, introduced only against the appellant, did not contribute to appellant’s guilty verdicts under the first two counts of the indictment.
The government’s еvidence under the third count of the indictment, the Warren Bank robbery, was linked in many respects to the evidence under the first two counts. The government relied on the facts thаt the method of operation in the Warren Bank robbery was similar to that used in the first two robberies, that the same automobile was used in connection with all three robberiеs, and that appellant was arrested at a stake-out of that automobile which apparently had been abandoned after the Warren robbery. There was the additional fact of appellant’s wife's use of a “bait” bill from the Warren Bank to pay her rent shortly after that robbery, but, as with all of the other evidence under the third cоunt, this was merely circumstantial.
Cf.
Harrington v. California,
The judgment of the District Court is therefore reversed, and the cause is remanded for further proceedings consistent herewith.
Notes
. One bank teller made an in-court identification of appellant, but that identification was subsequently weakened by a number of facts, including the fact brought out on cross-examination that she liad failed to identify appellant at a lineup conducted shortly after the robbery.
. “Q. [By the United States Attorney] Do you recall that in December of 1967 you went to his apartment with [appel-hint’s wife] for the purpose of getting his belongings?
“A. Yes.”