Swygert, Kiley and Sprecher, Circuit Judges.
During the afternoon of September 9, 1970, five armed men entered and robbed the Bank of Indiana, in Gary. One hour and a half later, defendant Spinks was arrested. Subsequently Spinks, Turner, Moore, Ward and Willis were indicted under 18 U.S.C. § 2113(d) for aggravated bank robbery. Spinks and Turner were tried together and convicted of the robbery. Spinks has appealed. We affirm.
Spinks does not question the sufficiency of the evidence to convict him.
Before trial Spinks moved for a separate trial from his co-defendants on the ground that Turner's statement implicating him would be introduced at the trial and deny him his Sixth Amendment right to cross-examine Turner. The court in a memorandum opinion denied the motion on the grounds that Spinks and Turner had both given confessions with no substantial factual differences, and that although both confessions would probably be used at trial, it could not see how either defendant would be prejudiced by a joint trial.*fn1
The ruling was within the discretion of the district court. F.R.Crim.P. 14; United States v. Kahn, 381 F.2d 824, 838 (7th Cir. 1967); 1 Wright, Federal Practice and Procedure § 227 (1969); and the court complied with Rule 14 in reading in camera both confessions. Furthermore, for the reasons discussed below, we can see no prejudice to Spinks under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). We hold there was no abuse of discretion in the ruling.
At the trial an FBI agent testified, over Spinks' objection, that Turner surrendered on September 29 and gave a statement admitting participation in the bank robbery. The agent detailed what Turner told him in confessing the preparations for the robbery and the implementation and execution of the plans. Turner's confession as related by the agent implicated*fn2 Spinks in the bank robbery.
Spinks claims that since Turner did not take the stand, the agent's testimony of Turner's confession violated his Sixth Amendment right of confrontation and cross-examination. He relies on Bruton, supra. However, the Bruton decision is of no aid to Spinks.
In Bruton two defendants were tried jointly for armed robbery. Neither testified at trial. But prior to trial Bruton's co-defendant confessed, implicating Bruton. The confession was introduced at the trial. The Supreme Court reversed Bruton's conviction and held that his rights under the Confrontation Clause of the Sixth Amendment had been violated because there was a substantial risk that the jury, despite instructions to the contrary, had looked to the incriminating extrajudicial statements in the confession of Bruton's codefendant.
Bruton involved one defendant who did not confess and a co-defendant who did. In the case before us, however, both Spinks and Turner gave substantially similar confessions. We think that "where the jury has heard not only a codefendant's confession but the defendant's own confession, no such 'devastating' risk attends the lack of confrontation as was thought to be involved in Bruton." United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296, 300 (2nd Cir. 1968); Metropolis v. Turner, 437 F.2d 207, 209 (10th Cir. 1971); United States ex rel. Duff v. Zelker, 452 F.2d 1009, 1010 (2nd Cir. 1971); United States v. Fountain, 449 F.2d 629, 633 (8th Cir. 1971).
There is no merit in Spinks' claim that he was prejudiced by denial of the right to cross-examine Turner. It would be ludicrous to have Spinks trying to break down Turner's confession which implicated Spinks, while Spinks' own confession remained unchallenged. And even if Turner's confession had been excluded from evidence -- or even if Spinks' ...