OPINION AND ORDER
PETTINE, Chief Judge.
Patrick Vincent Butler brings this action pursuant to 28 U.S.C. § 2255 attacking his conviction and sentence for a 1968 bank robbery under subsections (a) and (d) of 18 U.S.C. § 2113 which resulted in the imposition by this Court of three concurrent terms of twenty years each. The prisoner is presently incarcerated and in federal custody pursuant to those sentences and therefore has properly instituted the instant proceeding. 28 U.S.C. § 2255. See Peyton v. Rowe, 391 U.S. 54, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968); United States v. Hayman, 342 U.S. 205, 96 L. Ed. 232, 72 S. Ct. 263 (1952).
Before considering the claims presented herein, it may be appropriate to review the earlier proceedings which resulted in the petitioner's present confinement. On January 29, 1968, a federally-insured bank located in Rhode Island was robbed by two armed men, one of whom remained in a getaway car. Within one month, a federal grand jury for the District of Rhode Island returned a "John Doe" indictment. On September 27, 1968, the indictment was amended to identify Patrick Vincent Butler as one of the "John Does" and charged him with three counts of bank robbery. As more fully appears in the margin, Count I of indictment number 7507 closely tracked the language of the second paragraph of 18 U.S.C. § 2113(a); the language in Count II followed that of the first paragraph of 18 U.S.C. § 2113(a); and Count III charged the offense outlined by subsection (d) of 18 U.S.C. § 2113. 1"
Petitioner was arraigned on the indictment on July 17, 1969 and brought to trial in September, 1969. In the interim his trial counsel advanced several grounds in support of motions to suppress identification testimony and to dismiss the indictment. These same issues were raised on appeal, United States v. Butler, 426 F.2d 1275 (1st Cir. 1970), and petitioner's speedy trial claim was also the subject of a remand and further appeal, 434 F.2d 243 (1st Cir. 1970), cert. denied, 401 U.S. 978, 91 S. Ct. 1207, 28 L. Ed. 2d 328. At the trial, this Court instructed the jury that it should consider each count of the indictment separately and that it could return a verdict of guilty on each count. (Transcript pp. 664-675). The jury returned a guilty verdict on each count, and the Court sentenced the petitioner as described above.
Petitioner now presses three separate claims, never before raised, in support of the instant action. First, he claims that the arrest warrant was "defective in that it failed to meet the requirements of Rule 4(b) Federal Rules of Criminal Procedure." The factual basis for such an assertion completely eludes the Court, and, needless to say, the petitioner has failed to establish that there was such a defect (the warrant having been amended to identify him by name), that the asserted defect was "an error of the character or magnitude cognizable under a writ of habeas corpus," Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962), or to provide any excuse for his failure to raise the issue at trial or on appeal. Cf. Kaufman v. United States, 394 U.S. 217, 227 n. 8, 22 L. Ed. 2d 227, 89 S. Ct. 1068 (1969).
Second, the petitioner claims that the indictment was defective in that Counts I and II, which he claims described but a single crime, could not be charged in the same indictment without twice placing the petitioner in jeopardy. Petitioner further claims the invalid double charge inflamed and prejudiced the jury against him. Although he does not challenge the conviction and sentence under Count III (charging a violation of 18 U.S.C. § 2113(d)), petitioner asserts that he could neither be charged nor convicted of both Counts I and II of the indictment. In support of his argument he cites, inter alia, O'Clair v. United States, 470 F.2d 1199 (1st Cir. 1972), cert. denied, 412 U.S. 921, 37 L. Ed. 2d 148, 93 S. Ct. 2741.
A careful reading of the First Circuit opinion in O'Clair reveals that petitioner at once argues for too little and for too much. The petitioner in O'Clair brought an action under 28 U.S.C. § 2255 to challenge his convictions and sentences under a two-count indictment which charged violations of 18 U.S.C. § 2113(a) and (d). The petitioner had pleaded guilty to both counts and was sentenced to two concurrent terms of 15 years each. Following Green v. United States, 365 U.S. 301, 306, 5 L. Ed. 2d 670, 81 S. Ct. 653 (1961), the district court set aside the sentence under Count I (§ 2113(a)), but let both convictions and the sentence for the § 2113(d) violation stand.
After a careful analysis of a long line of Supreme Court interpretations of the Bank Robbery Act (18 U.S.C. § 2113), the First Circuit concluded that subsection (a) of § 2113 described a lesser included offense of subsection (d) for which only one conviction could stand. The First Circuit observed that the Supreme Court in Prince v. United States, 352 U.S. 322, 1 L. Ed. 2d 370, 77 S. Ct. 403 (1957), had similarly concluded that the "bank entry" provision of § 2113(a) [par. 2] merged into the completed robbery provision of that subsection [par. 1]. The First Circuit agreed with the Fifth Circuit, also writing in Prince v. United States, that:
"When one is charged with committing or attempting to commit an offense defined in (a) or (b), and also the aggravating acts defined in (d) in conjunction therewith, only one conviction will stand."
Prince v. United States, 230 F.2d 568, 571 (5th Cir. 1956), rev'd, 352 U.S. 322, 1 L. Ed. 2d 370, 77 S. Ct. 403 (1957), quoted in O'Clair, supra 470 F.2d at 1202 (emphasis supplied in O'Clair).
The First Circuit reasoned that principles of statutory construction and the Double Jeopardy Clause required that the petitioner's conviction under Count I (§ 2113(a)), as well as the concurrent sentence, be vacated, thus leaving only the conviction and sentence for § 2113(d), the greater inclusive offense.
The Court was at great pains to point out that its holding
"does not prevent the filing of a twocount indictment [charging violations of both § 2113(a) and (d)], nor a trial under such an indictment . . . . But when such a two-count case is to be submitted, the trial judge should instruct the jury that it must first consider the more serious count and, if it finds all of the elements proven, convict for that offense. This would be its sole verdict, no response being necessary as to the less serious count. . . . The Court should, of course, instruct the jury similarly as to the lesser included offense of simple bank robbery if the indictment contains only a single count charging aggravated bank robbery under § 2113(d)."
Id. at 1204.
Applying the teachings of O'Clair and Prince to the case at bar, the Court makes the following conclusions of law. First, indictment 7507 properly charged three counts of bank robbery, under 18 U.S.C. § 2113, Count I representing a lesser included offense of Counts II and III, and Count II representing a lesser included offense of Count III. Second, the petitioner was properly tried under the three-count indictment. Third, the Court erred in instructing the jury that it should consider each count separately and not seriatim, as prescribed in O'Clair. This error does not, however, require a new trial nor undermine the jury's verdict as to the most serious offense. See Prince, supra; O'Clair, supra. See also United States v. White, 440 F.2d 978, 982 (5th Cir. 1971), cert. denied 404 U.S. 839, 30 L. Ed. 2d 72, 92 S. Ct. 129. Fourth, petitioner's multiple convictions and sentences for but one offense of armed bank robbery constitute plain error of constitutional proportions. O'Clair, supra. See also Green v. United States, 365 U.S. 301, 306, 5 L. Ed. 2d 670, 81 S. Ct. 653 (1961); United States v. Leyba, 504 F.2d 441 (10th Cir. 1974); United States v. Faleafine, 492 F.2d 18 (9th Cir. 1974); Sullivan v. United States, 485 F.2d 1352 (5th Cir. 1973); United States v. White, supra, at 981; Holland v. United States, 384 F.2d 370 (5th Cir. 1967) (each holding multiple sentences under various § 2113 subsections are illegal). The convictions and sentences under Counts I and II, the lesser included offenses, must be and are hereby vacated.
Although clearly not mandated by the First Circuit's decision in O'Clair, compare supra at 1205, the Court also believes it proper in this case to vacate petitioner's sentence under Count III and order that petitioner be resentenced nunc pro tunc. This Court is troubled by the fact that at the time sentence was originally imposed, the Court erroneously believed that the petitioner stood before it guilty of three separate and each independently serious offenses. The Court cannot categorically state that this serious misperception did not influence its sentence determination. Therefore, out of an abundance of caution, the Court hereby vacates petitioner's sentence under Count III of indictment 7507 and orders that petitioner be brought before the Court for resentencing, at which time it will entertain updated pre-sentence reports from the government and the petitioner. See United States v. Jasper, 481 F.2d 976 (3d Cir. 1973); United States v. Corson, 449 F.2d 544, 551-552, n. 16 (3d Cir. 1971); Bryant v. United States, 135 U.S. App. D.C. 138, 417 F.2d 555, 558 (1969), cert. denied, 402 U.S. 932, 28 L. Ed. 2d 866, 91 S. Ct. 1534.
Petitioner lastly claims that newly discovered evidence mandates the order of a new trial. 2" Petitioner has filed the affidavits of two federal prisoners, B. J. Harrelson and F. J. Higgins, in which they profess to be the two individuals responsible for the 1968 bank robbery of which petitioner stands convicted. n3
"[Before] a sentence may be vacated and a new trial granted on the ground of newly discovered evidence, the following criteria must be satisfied: '(a) The evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.' United States v. On Lee, 201 F.2d 722, 723 (2 Cir.), cert. denied, 345 U.S. 936, 97 L. Ed. 1364, 73 S. Ct. 798 (1953). See also United States v. Bradwell, 295 F. Supp. 958, 959-60 (D.Conn. 1968), aff'd, 388 F.2d 619 (2 Cir.), cert. denied, 393 U.S. 867, 21 L. Ed. 2d 135, 89 S. Ct. 152 (1968); United States v. Capaldo, 276 F. Supp. 986, 987 (D.Conn. 1967), aff'd, 402 F.2d 821 (2 Cir. 1968), cert. denied, 394 U.S. 989, 22 L. Ed. 2d 764, 89 S. Ct. 1476 (1969)."
Tropiano v. United States, 323 F. Supp. 964, 966 (D.Conn. 1971). Cf. United States v. Zannino, 468 F.2d 1299 (1st Cir. 1972), cert. denied, 410 U.S. 954, 35 L. Ed. 2d 687, 93 S. Ct. 1419.
n3 The affidavit of Francis J. Higgins, sworn to on February 22, 1974, states: "STATE OF GEORGIACOUNTY OF FULTON S.S.