U.S. v. Cueto, 79-1365

• Decision Date: 15 August 1980
• Docket Number: No. 79-1365,79-1365
• Citation: U.S. v. Cueto, 628 F.2d 1273 (10th Cir. 1980)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. German Fidel CUETO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1273

628 F.2d 1273

UNITED STATES of America, Plaintiff-Appellee, v. German Fidel CUETO, Defendant-Appellant.

No. 79-1365.

United States Court of Appeals Tenth Circuit.

Argued June 10, 1980.

Decided Aug. 15, 1980.

John E. Green, First Asst. U.S. Atty., Oklahoma City, Okl. (Larry D. Patton, U.S. Atty., Oklahoma City, Okl., with him on brief), for plaintiff-appellee.

Earl E. Boyd of Stilz, Boyd, Levine & Handzlik, Los Angeles, Cal., for defendant-appellant.

Before McWILLIAMS, BREITENSTEIN and SEYMOUR, Circuit Judges.

McWILLIAMS, Circuit Judge.

In a one count indictment German Fidel Cueto was charged with taking from one Marilyn Sue Wallace by force and intimidation certain money belonging to Northwest Bank in Oklahoma City, Oklahoma, a federally insured bank. It was further alleged in the same count that in so doing Cueto put the life of Mrs. Wallace in jeopardy by the use of a dangerous device, namely, a bomb, all in violation of 18 U.S.C. § 2113(a) and (d). To that charge Cueto pleaded not guilty, and a jury trial ensued.

At the conclusion of the presentation of evidence the trial court dismissed that part of the indictment which charged Cueto with putting the life of Mrs. Wallace in jeopardy by use of a bomb. 18 U.S.C. § 2113(d). The jury, however, returned a guilty verdict on the bank robbery charge. 18 U.S.C. § 2113(a). Cueto was sentenced to imprisonment for a term of 15 years, and he now appeals the sentence thus imposed. We affirm.

Cueto was charged with bank robbery in the language of the statute. 18 U.S.C. § 2113(a) and (d). Although neither the word "principal" nor the phrase "aider and abettor" appeared in the indictment, it is agreed that he was charged as a principal. It was the Government's theory of the case that Cueto was the one who actually robbed the bank employee, and that he was aided in his efforts by one Frank Bavosa, who drove the getaway car which had been parked a block or two away while the robbery was in progress. It was the defendant's theory of the case that this was a case of mistaken identity, and that Frank Bavosa was the actual robber, and that Cueto was not himself at the scene of the robbery. To that end it was defense counsel's trial strategy to attempt to shake the bank teller's identification of Cueto as the robber, and to discredit Bavosa, who testified that Cueto robbed the bank and that he (Bavosa) had only aided Cueto.

At the conclusion of all the evidence, the trial court, at the request of the prosecution and over objection of defense counsel, instructed the jury that he who aids and abets in the commission of a crime is deemed in law to be a principal. During the course of its deliberations the jury asked for further instruction on the definition of a principal and an aider and abettor. Such was given. The foreman of the jury then asked whether an aider and abettor, "who did not actually rob the bank," would be guilty as a principal. The trial court answered, "Yes, he would."

As indicated, the jury thereafter returned a verdict finding Cueto guilty as charged in the indictment. On appeal, the principal ground urged for reversal relates to the giving of an instruction defining an aider and abettor. Defense counsel states that the Government proceeded on the premise that Cueto was the principal in the robbery and, after all the evidence was in, switched theories and proceeded on an aider and abettor basis. Counsel says such constituted an improper variance from the indictment and misled counsel to the end that he was not fully advised as to the exact nature of the charge against his client. In this same vein, counsel also suggests that there is insufficient evidence to support a conviction for aiding and abetting. We do not perceive the confusion which defense counsel claims existed.

As indicated, the evidence tying Cueto into the bank robbery came entirely from Mrs. Wallace, the bank teller, and Frank Bavosa, an accomplice. Mrs. Wallace identified Cueto both out of court and in court as the robber. Frank Bavosa testified that Cueto robbed the bank while he sat in the getaway car parked a couple of blocks away from the bank. Bavosa also testified that a day or so before the robbery he and Cueto had driven to Oklahoma City, Oklahoma, from Omaha, Nebraska, where they picked out a drive-in bank to rob. In preparation for the robbery, they stole an automobile which was later used in the robbery and then abandoned. Also, the two of them purchased materials which they used to make a fake bomb which was later used in the robbery.

Although Cueto did not testify at trial, it was the strategy of defense counsel to attempt to convince the jury that it was in fact Bavosa not Cueto who was the actual perpetrator of the robbery. To that end, defense counsel, by vigorous cross-examination, tried to shake Mrs. Wallace in her identification of Cueto. He also attempted to discredit Bavosa by suggesting that he was prejuring himself, in return for Government favors, by testifying that Cueto robbed the bank, when in truth he was the robber.

Even though the Government's theory of the case was that Cueto, and not Bavosa, was the one who actually robbed the bank, it was...