Swygert, Chief Judge, Kiley and Pell, Circuit Judges. Kiley, Circuit Judge (dissenting).
On June 5, 1968 two men at gunpoint robbed the First National Bank of Grand Ridge, Illinois. Norman Bayer and Allen Figge were charged with the commission of the crime under 18 U.S.C. § 2113(d). Defendant-appellant, James Grooms, was charged under the same statute with aiding the robbery. Upon their pleas of guilty Bayer and Figge received seven and ten year prison sentences respectively. After Grooms was found guilty by a jury, he was given a twelve year sentence. In seeking a reversal of his conviction Grooms assigns a number of alleged errors.
We deem it unnecessary to state the evidence in great detail since its sufficiency is not in question. After robbing the bank, the two robbers fled in a maroon Plymouth car. The police were called and set out in pursuit. While two of the officers were driving on a gravel road outside of Grand Ridge, they met a white Ford car traveling at a high rate of speed. A Plymouth, matching the description of the getaway car, was following the Ford. The police sought to set up a roadblock, but the Plymouth eluded them and sped away; however, they were able to stop the Ford. Figge, the driver, was arrested and the stolen money was found in the car.
About twenty-five minutes later the Plymouth approached another roadblock some distance from where it and the Ford had passed the two police officers. In an attempt to elude the roadblock, the Plymouth collided with another car and overturned. Bayer, the driver, was arrested. Later that day, Grooms presented himself to the local sheriff's office upon learning that he was wanted by the authorities. After being questioned, he was released. Two days later he was rearrested for his alleged participation in the crime.
The evidence submitted to the jury as to Grooms was conflicting. The two officers first encountering the Plymouth on the gravel road positively identified Grooms, whom they had known for a long time, as the driver of the car. Other evidence showed that Bayer was the only person in the Plymouth when it crashed at the second roadblock and that Bayer's fingerprints were the only ones found on the car. Moreover, agent Stratton of the Federal Bureau of Investigation admitted, on cross-examination, that Bayer and Figge had told him that, though they had met with Grooms before the robbery, he had not been with them that day, either before or after its commission. At the time the Ford was apprehended, an airline ticket covering a flight from Baltimore to Chicago which had been issued to Grooms' wife on April 26, 1968 was found. As to this circumstance, Grooms testified that he and his wife had been in the car prior to the date of the robbery.
After his rearrest on June 7, 1968, Grooms was questioned by agent Stratton. The agent testified that on that occasion the defendant stated he had discussed the robbery and planned it with Bayer and Figge. According to the agent, Grooms also admitted that he had gone over with Figge the planned getaway route from the bank. The agent, on cross-examination, said that at the same interview Grooms denied that he had agreed to aid in the robbery.
Grooms, testifying on his own behalf, denied that he had helped plan the robbery or assisted in its commission, although he admitted that while riding with Figge two days before the robbery, Figge had said that he was thinking of robbing the Grand Ridge bank and that they had driven over the getaway route which Figge said he proposed to take.
During the Government's presentation of its case, agent Stratton testified that at his interview with the defendant on June 7, he told Grooms that he had information indicating that the defendant had "gone over the get-away route" with Figge, to which Grooms responded: "Yeah, . . . but you sic blowing this all out of proportion." The defendant contends that, indirectly at least, the Government in this fashion got before the jury the content of statements made by codefendants, Bayer and Figge, and that the admission of such hearsay violates Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), particularly in light of defense counsel's cross-examination of the witness which he thought must be undertaken and which brought out the fact that the information had indeed come from Bayer and Figge.
Defendant's contention must be rejected. During his direct examination, agent Stratton did not indicate the source of his information nor did he attribute any statements to either Bayer or Figge. Clearly there was no admission by a codefendant implicating Grooms in the agent's testimony. Only on cross-examination did the witness reveal the source of his information. Thus, a Bruton situation, if it can be said that one existed at all, was created by the defendant himself and not by the Government; this cannot form the basis of reversible error.
On July 16, 1968 Bayer and Figge entered pleas of guilty to the bank robbery charge. On September 10, 1968 they were sentenced and immediately transported to a federal penitentiary. Grooms' trial started September 25. On the second day of the trial and after the Government had rested its case, the defendant filed a petition to require the production of Bayer and Figge as witnesses in his behalf. Further, he asked for a continuance until these witnesses could be returned from the penitentiary. The district court denied both the petition and the continuance. Under the circumstances we find no error.
Although different counsel represented Bayer and Figge, Grooms' attorney was fully aware that Bayer and Figge had entered pleas of guilty and had been sentenced to prison. He was therefore chargeable with the knowledge that Bayer and Figge had been transported from Chicago to the federal penitentiary. In his petition defense counsel stated that "by reason of pretrial developments" he believed that Grooms' codefendants would be used by the Government as witnesses in its case. Yet there was no showing that the government made any representation that Bayer and Figge would be returned. The record provides no basis for any assumption by defense counsel that they would be pressent at the trial. Moreover it is clear that the defendant at no time prior to trial requested the Government that Bayer and Figge be produced or be kept available. A defendant is responsible for the production in court of the witnesses he desires to testify in his ...