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June 16, 1969

Michael Joseph CASTELLO, Petitioner

The opinion of the court was delivered by: BRUCHHAUSEN

BRUCHHAUSEN, District Judge.

 The petitioner, now in Federal custody, pursuant to 28 U.S.C. ยง 2255, presents an application to vacate and set aside the judgment of conviction entered against him on April 26, 1957 and for leave to proceed in forma pauperis.

 He and his co-defendants, Albert Henegan and Henry P. N. Caron, were found guilty after a jury trial on all three counts of an indictment charging them with conspiring to rob a bank, aiding and abetting in the commission of the robbery and putting the life of the bank teller in danger, during its commission.

 At the trial, the petitioner's motion for a severance was denied. The judgment of conviction was affirmed on appeal. See United States v. Caron and Castello, 2 Cir., 266 F.2d 49. It was therein held that the denial of the motion was in the sound discretion of the Court. See also Morgan v. United States, 9 Cir., 380 F.2d 686, certiorari denied in 390 U.S. 1008, 88 S. Ct. 1249, 20 L. Ed. 2d 110.

 The petitioner's principal claim for relief is that the trial court erred in admitting into evidence the post conviction confession of co-defendant, Henegan, implicating petitioner. Henegan did not testify. The petitioner relies upon the cases of Bruton v. United States, 391 U.S. 123, 128, 88 S. Ct. 1620, 20 L. Ed. 2d 476 and Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100. The judgment of conviction in Bruton was set aside. The Court held that the confession of one Evans, implicating Bruton was erroneously received in evidence in that it violated the latter's right of cross-examination, secured by the confrontation clause of the Sixth Amendment. In Roberts v. Russell, supra, it was held that the ruling in Bruton was retroactive.

 In Bruton, the only evidence implicating him was co-defendant Evans' confession, testified to by a postal inspector. In the case at bar, there was independent evidence of Castello's guilt.

 In Bruton, 391 U.S., at page 135, 88 S. Ct., at page 1627, the Court stated:

"Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions. * * * It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge's instructions to disregard such information."

 The Bruton exclusionary rule is not applicable to a case where guilt is established by evidence, other than the confession. In Harrington v. State of California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284, decided June 2, 1969, the Supreme Court said:

"Each of his [Harrington's] three co-defendants confessed and their confessions were introduced at the trial with limiting instructions that the jury was to consider each confession only against the confessor. * * *
"But apart from them [the confessions] the case against Harrington was so overwhelming that we conclude that this violation of Bruton was harmless beyond a reasonable doubt * * *."

 Upon the appeal of the subject judgment of conviction, reported as aforesaid in 266 F.2d 49, the Court of Appeals for this Circuit said:

"* * * on at least fifteen occasions during the trial, as well as in the court's charge, the jury was admonished that statements made by one defendant were inadmissible as evidence against the others."

 In United States ex rel. Catanzaro v. Mancusi, 2 Cir., 404 F.2d 296, the Court said:

"The reasoning of Hill [United States ex rel. Hill v. Deegan, D.C. 268 F. Supp. 580] and Bruton is not persuasive here. Both of those cases involved a defendant who did not confess and who was tried along with a defendant who did. In our case Catanzaro himself confessed and his confession interlocks with and supports the confession of McChesney."


 The transcript of the minutes of the trial comprises 520 pages. It seems appropriate to refer to and quote extracts therefrom.

 It is not disputed that on March 22, 1955, a robbery was committed at the Liberty Avenue Branch of the Bank of Manhattan Company, then located in Ozone Park, Queens County.

 The witness, Helen Schonfeld, a teller in the bank, identified co-defendant, Albert Henegan, as the lone gunman, who entered and robbed the bank (16-19).

 The witness, John Joseph Becker, identified the defendants Henegan, Caron and Castello (125-133).

 Becker testified, in part, viz:

"Q. Now, Mr. Becker, I direct your attention to March 22, 1955, and ask you if you can recall that day?
"A. Yes, sir.
* * *
"Q. After you did?
"A. I checked into the Y.M.C.A., Central Branch of Brooklyn.
* * *
"Q. Now, the next morning, the morning of the 23rd, did you have ...

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