Nelson v. United States

• Decision Date: 29 June 1970
• Docket Number: No. 20411.,20411.
• Parties: Gary David NELSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.2d 188 (1970)

Gary David NELSON, Appellant, v. UNITED STATES of America, Appellee.

No. 20411.

United States Court of Appeals, Ninth Circuit.

March 26, 1970.

Certiorari Denied June 29, 1970.

Paul Briefer (argued), San Francisco, Cal., for appellant.

Gerald Uelmen (argued), Edward J. Wallin (argued), Asst. U. S. Attys., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, KOELSCH and TRASK, Circuit Judges.

Certiorari Denied June 29, 1970. See 90 S.Ct. 2270.

PER CURIAM:

On June 10, 1968, the Supreme Court, noting its decision earlier that day in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, vacated the judgment of this court, affirming Nelson's conviction of bank robbery Nelson v. United States, 375 F.2d 739 (9th Cir. 1967) and remanded the case for "further consideration in light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476." Nelson v. United States, 392 U.S. 303, 88 S.Ct. 2062, 20 L.Ed.2d 1109 (1968). Consistent with that direction this court referred the matter to the district court, which held a hearing and entered findings. The trial judge found that the confession of Wilder, Nelson's co-defendant, was rendered innocuous because the narrative statements neither mentioned Nelson's name nor served to earmark or single out any particular person as Wilder's associate. The judge concluded that the Bruton rule was inapplicable and denied a new trial. This appeal is from that denial.

The record, in our opinion, supports the findings and conclusion, for the confession did little more than reveal that Wilder was aided and abetted by an accomplice, a fact about which there was no dispute.

However, even if the purported statements may or might have contained a suggestion of Nelson's identity and should not have been admitted, we nevertheless conclude that their introduction into evidence was harmless error.

The record, in our opinion, also discloses overwhelming proof, independent of the confession, that Nelson was the one who cooperated with Wilder in committing the robbery. In this view, we apply the principle announced in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); there the Court rejected petitioner's argument "that we must reverse if we can imagine a single juror whose mind might have been made up because of Cooper's and Bosby's confessions and who otherwise would have remained in doubt and unconvinced" and declared "Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the two confessions on the minds of an average jury." (p. 254, 89 S.Ct. p. 1728).¹

Nelson's remaining point concerns the ruling of the district court, denying his motion for severance made at the beginning of the trial. The issue was raised on the earlier appeal and decided against him. Nelson v. United States (supra). Our conclusion that Nelson was not prejudiced by the admission of Wilder's confession...