United States of America, Appellee, v. Riley Ray Fultz, Appellant, 602 F.2d 830 (8th Cir. 1979)

Riley Ray Fultz appeals his conviction of charges arising from the robbery of the Breton National Bank of South Des Moines in Des Moines, Iowa, on May 19, 1978. On July 25, 1978, a federal grand jury returned a two-count indictment against Fultz. Count I charged violation of 18 U.S.C. §§ 2 and 2113(d).¹  Count II charged him with conspiring with Curtis Gale Doby and John Stanley Campbell to rob the bank in violation of 18 U.S.C. § 371.²  The indictments against Fultz and Campbell were consolidated for trial, and Doby was tried separately.³  After trial, a jury returned a guilty verdict on both counts against Fultz on November 16, 1978. On February 28, 1979, Chief Judge Stuart sentenced Fultz to a term of imprisonment for twenty-five years on the first count, and for a period of five years on Count II, the terms to run concurrently.

On appeal, Fultz urges three grounds for reversal of his conviction: defective indictment; misconduct on the part of law enforcement officials; and introduction of improper testimony before the jury. We find the errors, if any, do not warrant reversal and affirm his conviction.

Appellant asserts that a mistake contained in Count I of the indictment created sufficient confusion to deny him effective assistance of counsel as well as procedural due process because it did not sufficiently apprise him of the crux of the offense with which he was charged to enable him to formulate a proper defense. Count I of the indictment first charges Riley Ray Fultz with regular bank robbery in terms of the statutory language of 18 U.S.C. § 2113(a).⁴  Then it lists Curtis Gale Doby as having put in jeopardy the life of a bank teller by means and use of a dangerous weapon while committing the robbery.⁵  This latter charge constitutes aggravated bank robbery in violation of 18 U.S.C. § 2113(d).⁶ 

It appears that the Government in drafting the indictment inadvertently substituted the name of Curtis Gale Doby when it intended to use Fultz's name. The District Court recognized that the Government had not intended to charge the crime in the manner in which it appears in the indictment, but indicated that it would hold the Government to proof of the indictment in the form in which it was drafted. The court concluded that Count I could properly be read as charging that Fultz, during the commission of the robbery, had aided and abetted Curtis Gale Doby in assaulting a bank employee with a dangerous weapon. All three of the bank robbers were armed. The court found that the Government had presented sufficient evidence on this charge to submit it to the jury.⁷  The jury found him guilty.

The United States Supreme Court, in Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 2907, 41 L. Ed. 2d 590 (1974), stated:

Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U.S. 427, 52 S. Ct. 417, 76 L. Ed. 861 (1932); United States v. Debrow, 346 U.S. 374, 74 S. Ct. 113, 98 L. Ed. 92 (1953).

See also United States v. Starr, 584 F.2d 235, 237 (8th Cir. 1978), Cert. denied, 439 U.S. 1115, 99 S. Ct. 1019, 59 L. Ed. 2d 73 (1979); United States v. Brown, 540 F.2d 364, 371 (8th Cir. 1976); Tasby v. United States, 504 F.2d 332, 335 (8th Cir. 1974), Cert. denied, 419 U.S. 1125, 95 S. Ct. 811, 42 L. Ed. 2d 826 (1975).

We agree with the District Court that Count I of the indictment sufficiently apprised the defendant of the charges against him to enable him to prepare his defense. The indictment clearly set forth all of the essential elements of a violation of 18 U.S.C. § 2113(d) in terms of the statutory language. The substitution of the name of Curtis Gale Doby merely indicated that Fultz had not actually performed the actions constituting the aggravation portion of the robbery, but did assist and abet in that aggravation. The language of the indictment indicated that the grand jury considered Riley Ray Fultz responsible for the commission of the actions constituting the aggravation portion of the robbery. This logical reading of the language and the citation to the aiding and abetting statute, 18 U.S.C. § 2, was sufficient to apprise Fultz of the charge of violation of 18 U.S.C. § 2113(d) against which he had to defend. As this court stated in United States v. Garrison, 527 F.2d 998, 999 (8th Cir. 1975); "(I)t is not necessary that an indictment state how and in what manner the defendant aided and abetted another in the commission of an offense against the United States." And an aider and abetter may be held liable as a principal. 18 U.S.C. § 2. See also United States v. Harris, 523 F.2d 172, 174 (6th Cir. 1975). The trial transcript indicates that Fultz was not unfairly surprised at the evidence that he was called upon to meet.

Count I of the indictment is also sufficient to enable Fultz to plead his conviction as a bar to future prosecutions for the same offense. The indictment charged him with aggravated bank robbery of the Breton National Bank of South Des Moines on May 19, 1978, and it protects him against the possibility of double jeopardy arising from this event. The evidence showed Fultz to be both a principal and an aider and abetter of other principals.⁸ 

II. Misconduct on the Part of Law Enforcement Officials

On May 26, 1978, law enforcement officials obtained evidence relating to the bank robbery in a search of the Doby residence.⁹  Before trial, the District Court found the search of Doby's residence to be illegal, and suppressed the evidence seized in the search. Fultz, however, is dissatisfied with the remedy of suppression of the evidence, and contends that the illegal search mandates dismissal of the indictment or a directed verdict. This argument directly opposes established law and practice. In United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966), the Supreme Court stated:

Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.

The trial judge suppressed the illegally seized evidence. Dismissal of the indictment or a directed verdict was not required. On the contrary, granting this relief to the defendant would drape a cloak of immunity around a perpetrator of a serious crime, and would be inimical to the public's interest in law enforcement.

Fultz argues that testimony by a Government witness, Paula Ross Skrove, improperly alleged his involvement in unrelated crimes. In particular Fultz alleges that Skrove intimated that he was guilty of possession of burglary tools.¹⁰  After the completion of the presentation of the evidence, the defendants moved for a mistrial on the basis of this testimony, which motion the District Court denied.

We find it unnecessary to decide if this testimony is permissible under Fed.R.Evid. 404(b), See United States v. Maestas, 554 F.2d 834, 836 (8th Cir.), Cert. denied, 431 U.S. 972, 97 S. Ct. 2936, 53 L. Ed. 2d 1070 (1977), because upon a review of the record as a whole we conclude that it is beyond a reasonable doubt that the asserted error did not influence the jury or had but slight effect. See United States v. Aaron, 553 F.2d 43, 46 (8th Cir. 1977); Wright v. United States, 389 F.2d 996, 1000 (8th Cir. 1968); Atkinson v. United States, 344 F.2d 97, 101 (8th Cir.), Cert. denied, 382 U.S. 867, 86 S. Ct. 141, 15 L. Ed. 2d 106 (1965); Fed. R. Crim. P. 52(a). Directly after the challenged testimony, in the presence of the jury, the judge stated his belief that the testimony was not relevant. There was no evidence of bad faith on the part of the Government in eliciting the testimony, but rather the record reveals that the Government made substantial efforts to impress upon this particular witness that she was not to refer to the prior criminal activities of the defendant. In discussing the matter outside of the presence of the jury, the court repeatedly emphasized its willingness to specifically instruct as to the irrelevance of the testimony, although it also expressed its feeling that "since it was underplayed at that time, any further reference would merely exaggerate the effect of that particular testimony." Bearing this advice in mind, we note that defense counsel failed to request instructions regarding this testimony. Furthermore, the evidence of defendant's guilt presented to the jury was overwhelming. Bait money from the bank was found on Fultz's person at the time he was arrested. A former employee of the bank who had carefully observed the robbers during the commission of the robbery clearly identified the defendant as a participant, and the witness who gave the challenged testimony also testified in detail regarding the defendant's planning of and the flight after the commission of the robbery.

Conviction affirmed.