(dissenting) :
I respectfully dissent from the decision to reverse Phillips’ second conviction for possessing stolen bank money. There are, I believe, two independent reasons why collateral estoppel should not apply in this case.
First, Phillips’ acquittal of bank robbery was only an implicit acquittal, arising by operation of law from the verdict of guilt on a lesser included offense.1 I would hold that such an implicit acquittal cannot be the basis for collateral estoppel because it leaves doubt whether the jury has made any factual determination in favor of the accused. For the purposes of subsequent prosecution for the greater offense, the jury’s silence is properly given the effect of an acquittal. It is unnecessary to speculate about the jury’s actual decision because the doctrine of double jeopardy does not require an actual verdict. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). When the jury has been impaneled and discharged under these circumstances, the exposure to conviction on the greater charge is enough to bar reprosecution. Green v. United States, 355 U.S. 184, 188, 78 S. Ct. 221, 2 L.Ed.2d 199 (1957). For collateral estoppel, however, an actual verdict is required, because the doctrine is premised on a factual determination in favor of the accused. The jury’s silence on the primary charge, coupled with conviction on a lesser offense, may suggest the kind of factual determination on which collateral estoppel is premised, but there is always a substantial likelihood that the jury reached no agreement at all on the primary charge. See United States ex rel. Hetenyi v. Wilkins, 348 *234F.2d 844, 856-857 (2d Cir. 1965), cert. denied, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966).
If Phillips’ first jury had returned a clear verdict of acquittal ten minutes after the trial judge delivered the supplemental instruction,2 I would agree that the jurors had probably decided Phillips was not in the bank at the time of the robbery. But other aspects of this case cast substantial doubt on the jury’s decision. The supplemental instruction on presence in the bank and the instruction on the lesser included offense were both given in response to the jury’s question. The jury was not told that it had to find Phillips not guilty of bank robbery before it could find him guilty of possessing stolen money. As a result, the jury could have reached its verdict without ever deciding whether Phillips was in the bank. The jury’s question does indicate that some jurors believed Phillips was not in the bank, but I do not think it proves unanimity where the verdict is silent. An aiding and abetting instruction had been given in the original charge, and the jury may have hoped the judge would give them an instruction that would relieve them of deciding whether he was in the bank.3
In summary, paraphrasing Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. 1189, 25 L.Ed.2d 469, I am convinced that a rational jury could have reached its verdict without deciding the issue which the defendant seeks to foreclose from consideration.
Second, even if I agreed that the implied acquittal could be set up as a collateral estoppel, I would not allow its use to restrict proof on retrial of the lesser charge. Retrial in cases like this one harbors none of the prosecutorial abuses that supplied the rationale of Ashe v. Swenson and its nonconstitutional forbears. See United States v. Kramer, 289 F.2d 909, 916 (2d Cir. 1961). The prosecutor cannot be accused of using the first trial as a practice run, of recasting the charge in slightly different form to get a second chance for conviction, or of harassing the defendant by repeatedly calling him to answer the same proof. Cf. Ashe v. Swenson, 397 U.S. at 445-447 & n. 10, 90 S.Ct. at 1195; United States v. Nash, 447 F.2d 1382, 1387 (4th Cir. 1971) (Winter, J., concurring); United States v. Davis, 369 F.2d 775, 780 (4th Cir. 1966), cert. denied, 386 U.S. 909, 87 S.Ct. 858, 17 L.Ed.2d 783 (1967). With or without collateral estoppel, the second trial will not be a replay of the first, and the second jury cannot be invited to convict the accused because he is guilty of the first crime. Evidence that tends to prove the first crime may not be used unless it is relevant to the second, and even then it may be excluded if the trial judge believes it more prejudicial than probative. See United States v. Woods, 484 F.2d 127, 134 (4th Cir. 1973), cert. denied, 415 U. S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875 (1974); United States v. Smith, 446 F.2d 200 (4th Cir. 1971).
Applying collateral estoppel to retrials like this one will serve none of the purposes of the doctrine, and I believe it will unjustifiably tip the balance in favor of the defendant. The acquittal operates as a complete bar to reprosecution on the bank robbery. That is enough. That the trial judge belatedly charged on the lesser included offense cuts both ways: it was the basis for vacating the conviction 4 but also may have saved the *235defendant from a conviction for bank robbery. See United States v. Maybury, 274 F.2d 899 (2d Cir. 1960); Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 16-28 (1960). If the defendant can also use the acquittal as collateral estoppel on retrial of the conviction, he may be able to keep the second jury from hearing evidence that helped persuade the first jury of his guilt. This result, in Judge Friendly’s words, “would convert the guarantee of double jeopardy from a shield into a sword.” United States v. Maybury, 274 F.2d at 905.5
Ashe v. Swenson did not pretend to define the outer limits of collateral es-. toppel, since the Court there found a clear case for applying the doctrine. In concluding that collateral estoppel is embodied in the concept of double jeopardy, the Court said: “For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” 397 U.S. at 445-446, 90 S.Ct. at 1195 (citations omitted). This principle should not be applied when its only effect is to help a person convicted of a lesser offense elude fair retrial on the charge. Collateral estoppel is a doctrine of fairness. It does not seem to me unfair to subject the appellant to retrial for a lesser offense of which he had been convicted. I think the defendant got more than he was entitled to when the first conviction was vacated. To set aside the second conviction is too much of a good thing.
. The verdict is quoted on page 3 of the majority opinion. Like the majority, I find it unnecessary to decide whether possession of stolen bank money under 18 U.S.C. § 2113 (c) is included in the offense of bank robbery under § 2113(a). I have merely assumed, for purposes of this case, that it is.
. Quoted at page 229 of the majority opinion.
. The record of the first trial does not show why the jury was not instructed that Phillips could have aided and abetted the bank robbery without being present at the bank. I would be surprised if the law were otherwise. See United States v. Waters, 461 F.2d 248 (10th Cir.), cert. denied, 409 U.S. 880, 93 S.Ct. 207, 34 L.Ed.2d 134 (1972); Asher v. United States, 394 F.2d 424 (9th Cir. 1968); Tarkington v. United States, 194 F.2d 63 (4th Cir. 1952).
. In Phillips’ ease the trial judge granted defendant’s motion for new trial, giving as his reason:
[I]n an abundance of caution, it may be that the charge of the lesser offense, given as it was, after a time of deliberation, could have been unduly influencing upon the jury.
*235App. 3. The trial judge had omitted the instruction on possessing stolen money from the original charge at the request of defense counsel who, in the judge’s words, “was willing to go whole hog or nothing.” Tr. 343, Trial of April 16, 17, 1973. The jury’s question persuaded the judge that withholding the instruction was error.
. Only a few federal cases have applied collateral estoppel as between an acquittal and a conviction rendered at the same trial. United States v. Pappas (Appeal of Misclilicli), 445 F.2d 1194 (3d Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971); Green v. United States, 426 F.2d 661 (D.C.Cir. 1970); Travers v. United States, 118 U.S.App.D.C. 276, 335 F.2d 698, 703 (1964) (dictum); Cosgrove v. United States, 224 F.2d 146 (9th Cir. 1954), modified on rehearing, 224 F.2d 157 (1955); United States v. Flowers, 255 F.Supp. 485 (E.D. N.C.1966). Compare United States v. Finnerty, 470 F.2d 78 (3d Cir. 1972); United State v. Carbone, 378 F.2d 420 (2d Cir.), cert. denied, 389 U.S. 914, 88 S.Ct. 242, 19 L.Ed. 2d 262 (1967). In United States v. May-bury, 274 F.2d 899 (2d Cir. 1960), a divided court reversed a conviction because it was inconsistent with an acquittal rendered at the same bench trial. Over Judge Lumbard’s dissent, Judge Friendly and Judge Hand held that collateral estoppel would not bar retrial of the conviction. Judge Friendly also expressed his opinion that collateral estoppel should not be allowed to restrict the evidence on retrial. Judge Hand did not address this final point, apparently because it was unnecessary for disposition of the immediate appeal.