483 F.2d 76
UNITED STATES of America, Plaintiff-Appellee,v.William Marvin HOLT, Defendant-Appellant.
No. 73-1809 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Aug. 6, 1973.

Ralph E. Coleman, Birmingham, Ala., for defendant-appellant.
Wayman Sherrer, U. S. Atty., Albert C. Bowen, Jr., Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, DYER and SIMPSON, Circuit Judges.
PER CURIAM:


1
The question here is whether the trial court abused its rather broad discretion in denying Appellant's motion for severance.  Appellant contends that, though initial joinder may have been proper and in accord with F.R.Crim.P. 8(b),1 the Government's use of certain out-of-court admissions of his co-defendant, who did not take the stand and which tended to inculpate Appellant, amounted to violation of his Sixth Amendment right to confront the witness against him and should have compelled severance pursuant to that discretion vested in the Court under F.R. Crim.P. 14.2  We conclude that Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, supports the validity of Appellant's contention, and that, therefore, the judgment of the District Court must be reversed with directions to grant Appellant a new trial.


2
The Government argues that, if in fact the prosecution's use of the inculpating statements are to be construed as error, it has to fall under F.R.Crim.P. 52(a) as harmless error since no substantial rights of Appellant were prejudiced.  We cannot agree.


3
As this case developed, the defense counsel found himself in the unenviable position of having two clients, a father and a son, which conflicted.3  At the trial the Government put on the stand Special Agent Starr of the FBI and Pauline Yates, the sister of Appellant's father.  Both of these witnesses related damaging statements purportedly made by James Howard Holt, inculpating the Appellant, William Marvin Holt.  Defense counsel could not place James Howard Holt on the stand to deny or explain away the statements as his record would subject both his son and him to being placed in a bad light before the jury.  Neither could counsel attack the Defendant Howard Holt's veracity as he was representing him.  Here the Court should have known that this hearsay evidence could not be combatted by open confrontation.  Similarly to Bruton, the introduction of the co-defendant's statements "added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since [the co-defendant] did not take the stand."  Bruton v. United States, supra, 391 U.S. at 128, 88 S.Ct. at 1623, 20 L.Ed.2d at 480.  Thus, under Bruton, supra, Appellant was denied his constitutional right to cross-examination, secured by the confrontation clause of the Sixth Amendment.  Consequently, the judgment of the District Court must be reversed with directions to grant a new trial.  Gray v. United States, 5 Cir., 1969, 407 F.2d 830.


4
Reversed and remanded.



*
 Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I


1
 Rule 8(b) Federal Rulese of Criminal Procedure Joinder of Defendants.  Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.  Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count


2
 Rule 14 Federal Rules of Criminal Procedure: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.  In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.  As amended Feb. 28, 1966, eff.  July 1, 1966


3
 Appellant William Marvin Holt had initially filed a motion for severance pursuant to F.R.Crim.P. 8(b), the ground being that his co-defendant father, James Howard Holt, had a criminal record and to require him to stand trial jointly with his father would prejudice his case if the record of his father was brought out.  This motion was denied


