Santos Medina appeals from Judge Werker's order denying his motion to dismiss count two of a three count indictment or, alternatively, to exclude certain evidence in a possible subsequent prosecution. Medina was tried before Judge Werker and a jury in December 1982. He was charged with conspiracy to rob a bank, 18 U.S.C. Secs. 371, 2113(a) (count 1), aiding and abetting a bank robbery, 18 U.S.C. Secs. 2, 2113(a) (count 2), and aiding and abetting an armed bank robbery, 18 U.S.C. Secs. 2, 2113(d) (count 3). The jury acquitted Medina on counts one and three, but was unable to reach a verdict on count two. Following the verdict, the district court declared a mistrial, and Medina then submitted the motion to which we have referred.

We affirm the order for the reasons stated in Judge Werker's thorough opinion. 563 F. Supp. 979 (S.D.N.Y. 1983). Medina cannot demonstrate "that the issue he seeks to foreclose was 'necessarily' resolved in his favor in the first verdict," and accordingly, he may not successfully invoke the collateral estoppel component of the Double Jeopardy Clause. United States v. Seijo, 537 F.2d 694, 697 (2d Cir.1976), cert. denied, 429 U.S. 1043, 97 S. Ct. 745, 50 L. Ed. 2d 756 (1977).**

On March 25, 1982, Edwin Torres, Roman Rodriguez, and Jorge Pierna robbed the Manufacturers Hanover Trust Company located at 200 E. Gunhill Road, Bronx, New York, armed with loaded revolvers. They were subsequently charged with violation of 18 U.S.C. Sec. 2113(d). They pled guilty to the charge on May 7, 1982.

On October 18, 1982, a three count indictment was returned against Santos Medina in connection with the aforesaid robbery. Count One charged Medina with membership in a conspiracy to rob the bank in violation of 18 U.S.C. Sec. 2113(a) and (d).1 Count Two charged that Medina aided and abetted the bank robbery in violation of Sec. 2113(a). Count Three charged that Medina aided and abetted the bank robbery "and in the course of committing said offense, did assault a person and put in jeopardy the life of a person by the use of a dangerous weapon." 18 U.S.C. Sec. 2113(d).

The government's case against Medina consisted primarily of the testimony of four witnesses. Roman Rodriguez and Edwin Baez testified that Medina planned the robbery. (Baez was the driver of the switch car used in the robbery.) The third witness was Victor Rosado. Rosado observed the robbery while riding past the bank in a van. He pursued three individuals who fled from the bank in a green car. Rosado testified that his pursuit of the robbers was cut off when Medina drove his car into the path of the van. According to Rosado, Medina warned that "the assailants were armed and dangerous and the police already had information." The fourth witness was F.B.I. Agent Edward Bodigheimer. Bodigheimer introduced a post-arrest statement made by Medina in which Medina admitted knowing that the bank was going to be robbed. In his statement, Medina claimed that he was at the scene of the robbery to persuade his friend, Rodriguez, not to rob the bank. Medina falsely claimed to have given a description of the robbers to a police officer.

The jury acquitted Medina on Counts One and Three and was unable to reach a verdict on Count Two. The government expressed its intention to retry Medina on Count Two. Medina then moved, on double jeopardy grounds, for an order barring further prosecution or, in the alternative, precluding the government from seeking to prove that Medina recruited personnel for the robbery or acted as a lookout for the robbers. In an order dated January 31, 1983, the court denied Medina's motions. The trial judge reasoned that

the acquittal on count three did not necessarily resolve in Medina's favor any of the elements of count two. While the proof at trial overwhelmingly demonstrated that a gun was used during the course of the robbery, there was no direct evidence that Medina aided, induced or procured that activity. In addition, although the jury most likely concluded that Medina knew that the robbers were armed, I instructed the jury that knowledge alone was not a sufficient ground upon which to find Medina guilty as an aider and abettor.

With respect to the acquittal on the conspiracy count, the trial judge concluded that the jury might have found that Medina's role as a lookout "was not sufficiently indicative of Medina's entering into an agreement ... to commit the robbery." As for the evidence that Medina recruited personnel for the robbery, the court hypothesized that the jury might have found the evidence either incredible or insufficient to establish a conspiracy. Because I believe that the doctrine of collateral estoppel bars the government from proving an essential element of the crime for which it seeks to retry Medina, I would reverse the decision of the learned trial judge and direct dismissal of the indictment.

The doctrine of collateral estoppel "means simply that when a [sic] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970). Collateral estoppel is applicable to criminal prosecutions as an element of the double jeopardy clause. Id. at 445-46, 90 S.Ct. at 1195. Application of the doctrine "has two phases. The first is to determine what the first judgment determined, a process in which ... the court must look not simply to the pleadings but to the record in the prior trial. The second is to examine how that determination bears on the second case." United States v. Kramer, 289 F.2d 909, 913 (2d Cir.1961). In Ashe v. Swenson, supra, the Supreme Court fleshed out the nature of this process, explaining that

the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 240 [92 L. Ed. 180]. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.

397 U.S. at 444, 90 S. Ct. at 1194.

Under Ashe, we must look to the judge's charge and the evidence to determine whether the "jury resolved in his favor the very issue he seeks to foreclose from consideration in the second trial." United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir.1979). Medina argues that he cannot be retried for bank robbery. Thus, the issue which he seeks to foreclose from reconsideration is whether he aided and abetted the bank robbery. Although a conviction for aiding and abetting an armed bank robbery requires proof that Medina knew of or contemplated the use of a dangerous weapon in the robbery, United States v. McCaskill, 676 F.2d 995, 998 (4th Cir.), cert. denied, --- U.S. ----, 103 S. Ct. 381, 74 L. Ed. 2d 513 (1982); United States v. Sanborn, 563 F.2d 488, 491 (1st Cir.1977), the trial judge neglected to include this requirement in his charge to the jury. He instead gave a general charge for aiding and abetting and did not specifically apply the charge to the separate counts in the indictment. Thus, he instructed the jury as follows:

The government contends that the defendant by his conduct before, during and after the robbery of the Manufacturers Hanover Trust Company, aided and abetted others in the commission of the crimes charged in Counts Two and Three.

....

Of course, to find the defendant guilty of aiding and abetting, you must find something more than mere knowledge on his part that a crime was being committed, for a mere spectator at a crime is not a participant.

....

To determine whether the defendant aided the commission of an offense, you may ask yourselves the following questions: Did he associate himself with the venture? Did he participate in it as something he wished to bring about? ....

I must caution you, however, that mere association with criminals, mere presence at the scene of the crime, and mere knowledge that a crime is being committed are not sufficient to establish that the defendant aided and abetted the crime, unless you find that the defendant was a participant and not merely a knowing spectator.

Since the jury was instructed that in order to convict Medina, the government must prove that he "participated" in the criminal venture, the acquittal on Count Three necessarily reflects the jury's finding that there was a reasonable doubt whether Medina participated in the criminal venture. This issue having been resolved in Medina's favor, the government is precluded from relitigating it. Since participation in the criminal venture is also an essential element of Count Two of the indictment, the preclusion of this issue makes it impossible for the government to prove the elements of Count Two in a subsequent attempt to convict Medina on that Count. Accordingly, retrial is barred by collateral estoppel.

The government argues that the acquittal of Count Three established only that the jury was unconvinced that a dangerous weapon was used in the robbery. In support of this, the government points to the jury's inability to reach a verdict on Count Two which, the government notes, is identical to Count Three in all respects except that it does not require the use of a dangerous weapon. There are two answers to this contention. First, little significance can be accorded to the jury's failure to reach a unanimous verdict. See United States ex rel. Rogers v. LaVallee, 517 F.2d 1330 (2d Cir.1975), cert. denied, 423 U.S. 1078, 96 S. Ct. 866, 47 L. Ed. 2d 89 (1976).2 Second, the government's contention completely ignores the evidence presented at trial. Not only was the use of a weapon clearly established and uncontested by Medina, it was conceded by Medina's attorney in his closing remarks to the jury. See United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir.1979). The Supreme Court cautioned in Ashe v. Swenson, supra, against interpretations of the jury's verdict which are unrealistic and which fail to take into account the evidence presented to the jury.

The government next argues that even if the jury believed that a dangerous weapon was used in the robbery, they may have acquitted because the government's proof did not establish that Medina specifically participated in or otherwise aided and abetted in the use of the dangerous weapon. The simple answer to this contention is that the jury was not charged that aiding and abetting a violation of Count Three required participation in the use of a dangerous weapon. As noted earlier, the jury was charged only that a conviction for aiding and abetting required proof of participation in the criminal venture. Moreover, there was no evidence that Medina himself was armed or that he ever entered the bank and thus could have participated in the use of a gun by others. It stretches credulity too far to assume that the jury interpreted the judge's charge as requiring participation in the use of a gun when the facts before the jury could not support even an inference of such participation by Medina.

The jury having found Medina "not guilty" of aiding and abetting the robbery of the bank on March 25, 1982, he should not be required "to 'run the gauntlet' a second time." Ashe v. Swenson, 397 U.S. at 446, 90 S.Ct. at 1195 (quoting Green v. United States, 355 U.S. 184, 190, 78 S. Ct. 221, 225, 2 L. Ed. 2d 199 (1957)).3 Accordingly, I vote to reverse.