Fultz v. United States

• Decision Date: 29 July 1966
• Docket Number: No. 16381.,16381.
• Citation: 365 F.2d 404
• Parties: Edgar FULTZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

365 F.2d 404 (1966)

Edgar FULTZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 16381.

United States Court of Appeals Sixth Circuit.

July 29, 1966.

Edgar Fultz, in pro. per.

Boyce F. Martin, Jr., U. S. Atty., Lexington, Ky., for appellee.

Before PHILLIPS and CELEBREZZE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

This is an appeal from an order of the district court denying a petition to vacate a sentence of ten years' imprisonment.

Edgar Fultz is a man to whom life has not been kind. He was born in a mining camp near Harlan, Kentucky, where his father was a coal miner and an alcoholic. Edgar was able to go only to the fifth grade. He is an illiterate. The record discloses little of his life because no testimony was taken before or after he pleaded guilty to taking money, by force and violence, from a federal bank in Louisville, Kentucky, in what appears from the record as one of the most peculiarly executed crimes, if it was a crime, which we have come across.

It appears that Edgar started to work in the mines and, at the same time, to drink liquor, when he was only twelve years old. He had a long history of periodic, severe, alcoholism, and prolonged and immoderate use of drugs.

As stated by the District Attorney at the time of appellant's arraignment, plea, and sentencing on March 16, 1964:

"This defendant is 30 years of age. What happened, he went into the Liberty Bank down on Fourth Street and told them he wanted to make a loan and told the teller to give him a thousand dollars, and they counted him out $70.00, and he took the $70.00, and, thinking he had a thousand, went over to Readmore, which was next door, and was caught."

This is all we know of the crime with which he was charged and for which he was sentenced.

On November 6, 1963, Edgar was arrested for the crime with which he was charged.

On November 7, 1963, a preliminary hearing was requested and granted. On the same day, Edgar was admitted to the Jefferson County Jail, and it appears from the report of the court-appointed psychiatrist that he experienced convulsive seizures, and auditory and visual hallucinations for several days thereafter. About three months later, in early February 1964, agents of the Federal Bureau of Investigation had received information that while Edgar was confined in jail, awaiting the action of the grand jury, he was having a considerable degree of difficulty adjusting to confinement and, at the conclusion of their investigation, it was determined that it would be in the interest of all concerned to have Edgar examined by a qualified psychiatrist, pursuant to 18 U.S.C. Sec. 4244.

On February 14, 1964, after the agents of the Federal Bureau of Investigation had become suspicious of the sanity of the prisoner, the District Attorney filed a motion for a mental examination on the ground that he had "reasonable cause to believe that the defendant may be presently mentally incompetent and unable to understand the proceedings against him, or properly to assist in his own defense. The ground for such belief is based upon interviews with the defendant." The result of the examination has already been recited.

When Edgar's case was called for trial, the following proceedings took place:

"Mr. Rivers (the Assistant District Attorney): Your Honor, at the outset, we had a request that this man be examined by Doctor Trawick because of some information we have, and I\'ve never received a report from Doctor Trawick.

By the Court: Here\'s the report right here. (Handing document to Mr. Rivers) Let\'s pass this case at the present time and give you an opportunity to see it.

Mr. Rivers: All right.

(Whereupon, at this point the case was passed for about fifteen minutes and the following proceedings occurred.)

By the Court: United States versus Edgar Fultz.

(Whereupon, at this point the Defendant, without an attorney, and Mr. Rivers stand before the Court.)

By the Court: This defendant is charged with bank robbery. Do you have a lawyer?

Mr. Fultz: No, sir.

By the Court: Mr. Peyton, will you talk with this defendant, please?

Mr. Charles E. Peyton: Yes, sir.

By the Court: (To Mr. Rivers) Let Mr. Peyton see that letter.

(Whereupon, at this point Mr. Charles E. Peyton, a practicing attorney of the Louisville Bar, was duly appointed to represent the Defendant in this matter.)

By the Court: You may talk to the defendant out there, Mr. Peyton.

Mr. Peyton: Yes, sir.

(Whereupon, the following proceedings occurred after the noon recess at about the hour of 2:00 P.M.)

By the Court: Gentlemen, are we now ready in the cases in which counsel has been appointed?

Mr. Peyton: This is Fultz, Your Honor. I\'d like to wait until after 2:30 if I could.

By the Court: All right. When you are ready, why, call it to my attention and I\'ll call the case.

Mr. Peyton: Yes, sir.

(Whereupon, at this point the case was passed until about the hour of 4:00 P.M., at which time the following proceedings occurred.)

By the Court: United States versus Edgar Fultz.

(Whereupon, at this point the Defendant with his Court-appointed Attorney, Mr. Charles E. Peyton, and Mr. Ernest W. Rivers, assistant United States Attorney, stand before the Court.)

By the Court: Does this defendant desire formal arraignment?

Mr. Peyton: Your Honor, on behalf of Edgar Fultz, we admit identity of person, acknowledge receipt of a copy of the indictment, waive formal arraignment and enter a plea of guilty to the Count One of the indictment.

By the Court: All right. A plea of guilty will be entered to the one count of the indictment. Does the Government have a recommendation?"

The District Attorney replied:

"It\'s the recommendation of the United States, since this man didn\'t have a pistol, although he indicated so to the teller, that he be given a sentence of 12 years on the one count of the indictment."

In mitigation, Edgar's court-appointed counsel then stated:

"This defendant has had many problems particularly of alcoholism, for quite some time. But it\'s not only him at this time that we ask the Court to consider. He has a wife and five young children. * * * His wife and children are in need, and we plead for the mercy of the Court and as light a sentence as you can possibly give him, because he is — his help is needed at home."

The Court then stated:

"By the Court: The Government, I think, recommended what, 15 years?

Mr. Peyton: Twelve years.

By the Court: It will be the judgment of this Court that this defendant be sentenced to 10 years on the one count of this indictment. He may become eligible for parole at such time as the Attorney General determines. That means that you can become eligible for parole within — prior to serving a third of your sentence.

Custody of the Marshal."

Of course, no testimony having been taken, the statement of the District Attorney that "this man didn't have a pistol, although he indicated so to the teller," is left doubtful and uncertain, since the District Attorney had just previously informed the Court that Edgar went into the bank and told them he wanted "to make a loan," and requested the teller to give him a thousand dollars and they counted him out $70.00, and he took the $70.00, and thinking he had a thousand, went next door, and was caught.

It is an understatement to remark that, from the record before us, there is something strange and incredible about this occurrence considered as a bank robbery "by force, violence and intimidation." Edgar, it is conceded, did not have a pistol. How "he indicated so to the teller" seems contradictory to everything else the District Attorney said. For he stated that Edgar told them he wanted to make a loan, asked for a thousand dollars and after the teller counted out $70.00, he took that amount, thinking he had a thousand dollars, went next door and was caught. If Edgar asked for a thousand dollars and then received $70.00, which was counted out for him, and he took this amount peaceably and went next door with it, it hardly seems plausible that he could have robbed the bank with force, violence and intimidation by indicating to the teller, in some way, that he had a pistol. Edgar made no demand for the thousand dollars but merely stated that he wanted to make a loan. After they counted out $70.00, there was no demand made that he be given more. He accepted the $70.00 quietly, and went next door. If he had committed a bank robbery, or thought that he had done something wrong, it seems inconceivable that he would just step over next door knowing that he would be immediately caught — which he was. This presents a baffling situation, if Edgar knew what he was doing, or was in his right mind.

We have gone this far into the case because of Edgar's claim on appeal. In the brief which he filed, it is submitted that he was an indigent; that he appeared to the court "somewhat less than reasonably adequate than a normal person." He further states that after spending four and one half months in jail awaiting trial, and after the mental examination, legal counsel was appointed for him by the court on the day of his arraignment, plea and sentence, and that such counsel conferred with him for a maximum of fifteen minutes. He further declares that it was never his intention to plead guilty to bank robbery by force and violence. He said that he had no memory whatever of the facts of the alleged robbery, because of his alcoholism and his physical condition; and that when he realized he was in jail, after the event, he thought that he had been put there because of drunkenness; that when he told his court-appointed counsel of his desire to plead not guilty, under these circumstances, his counsel told him he was "nuts" if he thought the jury would believe that; and that the lawyer would not face the jury with a tale as "wild" or "crazy" as that; that his counsel "scared and threatened me with his repeated talk of a twenty-five year sentence to...