GOVERNMENT OF the VIRGIN ISLANDS
v.
Jose Enrique RIVERA, David Felix Castillo.
Jose Enrique Rivera, Appellant.
No. 18818.
United States Court of Appeals, Third Circuit.
Argued January 28, 1971.
Decided March 1, 1971.
Russell B. Johnson, Christiansted, St. Croix, V. I., for appellant.
Robert M. Carney, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before KALODNER, STALEY and ADAMS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
This is an appeal from a conviction of second degree murder. Appellant contends, inter alia, that the use at trial of a statement made by his co-defendant was error under the rule of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). That case prohibited the use of a statement against a defendant which incriminated a co-defendant. The court recognized that an admonition by the judge will not erase from the minds of the jury those admissions of the declarant which implicate the non-declarant. In the instant case, however, the statement read to the jury contained nothing that implicated or incriminated appellant.
Bruton, supra, was grounded on the denial of a defendant's right to confront witnesses against him. If his co-defendant does not testify, there can be no attack made on the incriminating statements. In the instant case, the co-defendant did testify and thus was subject to cross-examination by appellant as to his pretrial statement. Appellant cannot be heard to argue that he was denied the right of confrontation. Wade v. Yeager, 415 F.2d 570 (C.A.3), cert. denied 396 U.S. 974, 90 S. Ct. 466, 24 L. Ed. 2d 443 (1969).
We have carefully considered each of the other arguments made by appellant and find them to be without merit. The judgment of the district court will, therefore, be affirmed.
