624 F2d 65 United States v. Watkins

624 F.2d 65

UNITED STATES of America, Appellee,
v.
James Carroll WATKINS, Appellant.

No. 80-1053.

United States Court of Appeals,
Eighth Circuit.

Submitted June 13, 1980.
Decided July 9, 1980.

Daniel M. Scott, Federal Public Defender, Minneapolis, Minn., for appellant.

Thorwald H. Anderson, Jr., Asst. U. S. Atty. (argued), and Thomas K. Berg, U. S. Atty., Minneapolis, Minn., on brief, for appellee.

Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and HANSON,* Senior District Judge.

PER CURIAM.

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1

Defendant appeals from a conviction, by a jury, of bank robbery, in violation of 18 U.S.C. § 2113(a).1 We affirm the district court.2

2

While admitting that, through his attorney, he waived his right to a separate trial and consented to a trial with his co-defendant, defendant argues that the court had a sua sponte duty to declare a severance. Defendant has not demonstrated any "real prejudice" as a result of being tried with his codefendant. United States v. Boyd, 610 F.2d 521, 525-26 (8th Cir. 1979). He merely argues that the codefendant testified that defendant Watkins was using drugs, and concludes that "the prejudice (from such testimony) is obvious." Without a showing of clear prejudice and an abuse of discretion by the trial court, defendant cannot prevail with his argument. United States v. Jackson, 549 F.2d 517, 523 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977).

3

Defendant next argues that he was deprived of due process by the prosecutor's remarks about defendant's drug dealings and philandering. As the government points out, defendant testified on his own behalf and thus made his truthfulness an issue. The government's rebuttal argument was an effort to point out some parts of defendant's testimony that were not truthful. We reject defendant's argument that this was error.

4

The district court is affirmed.

*

The Honorable William C. Hanson, Senior United States District Judge for the Southern District of Iowa, sitting by designation

1

Defendant was sentenced to six years

2

The Honorable Donald D. Alsop, United States District Judge for the District of Minnesota