449 F2d 785 United States v. D Wheeler

449 F.2d 785

UNITED STATES of America, Appellee,
Carl D. WHEELER, Appellant.

No. 71-1155.

United States Court of Appeals,
Eighth Circuit.

Oct. 15, 1971.

Carl F. Martillaro, Carson City, Nev., for appellant.

Richard A. Dier, U. S. Atty., Omaha, Neb., and William K. Schaphorst, Asst. U. S. Atty., for appellee.

Before MATTHES, Chief Judge and BRIGHT and STEPHENSON, Circuit Judges.


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Petitioner, Carl D. Wheeler, was convicted of unlawful entry into a bank insured by the Federal Deposit Insurance Corporation. We affirmed his conviction in Golliher v. United States, 362 F.2d 594 (8th Cir. 1966). Wheeler then sought post-conviction relief under 28 U.S.C. Sec. 2255. The district court, Judge Van Pelt, denied Wheeler's motion to vacate his conviction and ten-year sentence. In this appeal, Wheeler argues that his conviction cannot stand because at the trial the government introduced an extra-judicial confession of his co-defendant Holmes contrary to the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).1 We affirm.


At Wheeler's trial, two FBI agents recounted a conversation they had with one of Wheeler's co-defendants, Holmes. The testimony pertaining to this conversation served to implicate Wheeler in the crime by name. Holmes did not testify.


In denying relief under Sec. 2255, Judge Van Pelt noted that he had presided at Wheeler's first trial, which was declared a mistrial because of prejudicial publicity, and at his second trial, in which the guilty verdict was returned. Judge Van Pelt again reviewed the evidence and concluded:


[T]he admission of the confession did constitute a violation of Wheeler's sixth amendment right of confrontation under the Bruton rule, but * * * the case against Wheeler was so overwhelming that this violation of Bruton was harmless error beyond a reasonable doubt.


We have reviewed the evidence presented at Wheeler's trial. Our review convinces us that the Bruton error was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Accordingly, we affirm for reasons enunciated by Judge Van Pelt in his unreported opinion.




The Bruton rule applies retroactively. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968)