U.S. v. Nabors

• Decision Date: 16 May 1985
• Docket Number: 84-2249,Nos. 84-2439,s. 84-2439
• Citation: 762 F.2d 642
• Parties: 18 Fed. R. Evid. Serv. 72 UNITED STATES of America, Appellee, v. Charles Bruce NABORS, Appellant. UNITED STATES of America, Appellee, v. John Calvin NABORS, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 642

762 F.2d 642

18 Fed. R. Evid. Serv. 72

UNITED STATES of America, Appellee, v. Charles Bruce NABORS, Appellant.

UNITED STATES of America, Appellee, v. John Calvin NABORS, Jr., Appellant.

Nos. 84-2439, 84-2249.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1985.

Decided May 16, 1985.

Rehearing and Rehearing En Banc in No. 84-2249 Denied June 17, 1985.

Samuel A. Perroni, Little Rock, Ark., for appellant in No. 84-2249.

William C. McArthur and Jack Lassiter, Little Rock, Ark., for appellant in No. 84-2439.

Robert L. Neighbors, Asst. U.S. Atty., Little Rock, Ark., for appellee.

Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and SACHS, ^* District Judge.

SACHS, District Judge.

The defendant brothers, Charles Bruce Nabors and John Calvin Nabors, Jr., appeal from a final judgment entered in the district court ¹ after a jury verdict finding each of them guilty of bank robbery by means of a deadly weapon and conspiracy to commit bank robbery in violation of 18 U.S.C. Secs. 2113(d) and 371. The trial judge sentenced Bruce Nabors to a term of eighteen years on the bank robbery count and to a concurrent five year term of imprisonment on the conspiracy count; John Nabors received a twenty year term for bank robbery (consecutive to a twenty year term of imprisonment he was presently serving) and a five year concurrent sentence on the conspiracy count.

For reversal, both defendants argue that the district court erred in (1) not granting their motions for mistrial or dismissal of the indictment when it was discovered, during closing arguments, that there were two versions of the indictment in this case, only one of which had been seen by defendants prior to trial, and (2) in not declaring a mistrial when Government counsel allegedly commented indirectly during closing argument on the defendants' failure to testify. In addition, defendant John Nabors urges the following grounds for reversal: that his motion for severance, or, in the alternative for mistrial, should have been granted; that the prosecutor was permitted to improperly lead a child witness; that a proposed jury instruction prohibiting a finding of guilt by association should have been given; and that the evidence presented at trial was insufficient as a matter of law to establish that John Nabors was guilty of the charges under either count of the indictment. ² For the reasons discussed below, we affirm the convictions.

The facts can be summarized as follows, keeping in mind that the evidence must be construed in the light most favorable to the jury verdict. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). On December 2, 1983, at approximately 10:45 a.m., the National Bank of Arkansas, in North Little Rock, Arkansas, was robbed of approximately $112,000 by two masked men. One of the robbers covered the bank surveillance camera and then held a gun on bank employees. The other proceeded to jump on and over a teller counter and then put bank funds into a bag he was carrying. No bank employee or customer was able to identify either robber. There was testimony, however, that both robbers carried guns, that the one who jumped on the teller counter was wearing boots, that both robbers left the scene of the crime in a black Jeep Wagoneer, and that the robber who drove the getaway vehicle pulled off his mask as he drove off, revealing that he was white. ³ Ron Tullos, the bank's president, unsuccessfully tried to follow the robbers in his own car. Several minutes later, law enforcement personnel located the abandoned Jeep Wagoneer a short distance from the bank behind a shopping center. ⁴ Leading from the vehicle to a high school parking lot nearby was a muddy incline. Police located and covered a fresh bootprint on this incline leading downwards toward the parking lot. Shoe prints from the teller counter were also dusted and preserved.

The getaway vehicle had been stolen from a supermarket parking lot about a week before the robbery. Ms. Bobbie Beliew, who lives in an apartment just north of the mall where the bank is situated, testified that an unfamiliar Jeep Wagoneer had been parked directly in front of her apartment for several days prior to December 2, 1983. On the date of the robbery, around 9:00 or 10:00 a.m., Beliew saw from her second story window a Datsun 280Z pull up beside the Wagoneer. ⁵ One man left the Datsun and entered the Wagoneer; both vehicles then drove off. Beliew made a rather dubious identification of Bruce Nabors as the man who moved from one to the other vehicle. ⁶

Key testimony connecting the defendants to the bank robbery was provided by twelve-year old Tray Campbell, a nephew by marriage of John Nabors. Tray testified that he was alone at home ill on the morning of December 2, 1983, when both defendants arrived at his home around 10:45. Tray's home, at 935 Garland, is between 2.1 and 2.4 miles from the high school parking lot where the Wagoneer had been abandoned and a four to five minute drive from there. Tray testified that when he either heard someone enter the house or saw Bruce Nabors leaving a Datsun 280Z in the driveway, he called his mother. With his mother still on the line, Tray went down to the basement and peeked through the door. There he saw the two defendants laughing and giggling about an amount of money that they had gotten. A dryer that was normally placed against a crawl space door had been moved into the middle of the room. Tray returned to the telephone and informed his mother of the defendants' presence. She insisted that Tray get John Nabors to speak to her. Tray returned to the basement; when the defendants noticed him, John purportedly said, "Oh, shit, Tray's here." Bruce then left the house while John spoke to Tray's mother, Bennie Nicolo, on the telephone. According to Mrs. Nicolo, John informed her that he was killing time waiting for his wife to pick him up. He did not immediately leave the house as requested by Mrs. Nicolo. About twenty or thirty minutes later, Bruce returned to the house in a van with another man. Tray watched as both defendants carried some bags outside and put them in the van.

Later that afternoon, a police search of the Nicolo home uncovered in the crawl space a white sheet with a slit mark in the center, a brown pair of pants, a briefcase and a pair of boots. Richard Nicolo, Tray's stepfather, testified that none of these objects belonged to him and that no one has permission to store things in the crawl space. A footwear impression evidence expert with the F.B.I. linked the boots found in the Nicolo crawl space with the bank robbery. He expressed his opinion that the right boot made the print found near the abandoned get-away car "and that no other boot could have made the impression." The left boot also matched the physical dimensions of the print found on the teller counter although no positive identification could be made. It was the Government's theory that Bruce Nabors had worn the boots found at the Nicolo residence during the robbery and that his masked accomplice was his brother John. ⁷

Indictment Controversy

During the Government's closing rebuttal argument, an unexplained difference between the signed indictment in the court file and the indictment in the possession of the defendants was discovered. Defendants had based part of their closing arguments on a poster of an indictment in which four overt acts were listed under the conspiracy count (count II). In rebuttal, the prosecutor spoke to the jury about a fifth overt act that was missing from defendants' poster. He informed the jury of the exact words of that missing overt act--"On or about December 2, 1983, John Calvin Nabors, Jr. and Charles Bruce Nabors went to a residence at 935 Garland, North Little Rock, Arkansas." A bench conference immediately ensued in which the existence of two different versions of count II was first discovered and discussed.

The certified indictments in the possession of the defendants lacked overt act number five. The certified indictment in the court file from which the prosecutor was reading to the jury did contain all five overt acts. Both indictments were marked as filed on the same day, May 22, 1984. Both defendants immediately moved for dismissal of the indictments and for mistrial based on this defect. ⁸ The Government could not explain (and cannot now explain) the difference in forms but contended that the error could be cured by merely striking overt act number five. The district court agreed with the Government. The prosecutor proceeded to apologize to the jury for the discrepancy; the trial court then gave a cautionary instruction--"I'm going to admonish you to disregard completely, wipe out of your minds that observation made by Mr. Neighbors pertaining to paragraph five of the overt acts referred to in count II of the Indictment." As part of the instructions later submitted to the jury, a copy of count II without overt act number five was included. ⁹

On appeal, defendants argue that the district court's action upon discovering differences in the indictments was reversible error because the striking of the fifth overt act constituted an improper amendment of an indictment and an insufficient means to cure obvious prejudice. Prejudice to defendants allegedly flows from the fact that the most probative evidence against them on the conspiracy charge is encompassed by overt act number five--the arrival at the Nicolo residence where Tray Campbell saw the defendants and where the boots were later found. It is defendants' contention that the defects described above mean that the notice function of the criminal indictment was not served and that it is impossible to determine on what basis the grand jury chose to charge defendants with conspiracy.

Although the general rule is that a court may not amend an indictment, an exception has been recognized where mere surplusage is eliminated ("merely a matter of form")...