(dissenting).
After co-defendant Smith pled guilty, he could no longer claim the privilege against self-incrimination and was available for Simmons to cross-examine as a hostile witness. Therefore, Simmons was not deprived of his right to confront the witness against him under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. As noted in California v. Greene, 399 U.S. 149, 162, 163, 90 S.Ct. 1930, 1937, 26 L.Ed.2d 489:
“For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem. * * * [N]o confrontation would have existed if Bruton had been able to cross-examine his co-defendant.”
We have previously applied this rationale in United States v. Marine, 413 F.2d 214, 217 (7th Cir. 1969), certiorari denied, 396 U.S. 1001, 90 S.Ct. 550, 24 L.Ed.2d 493, and Trigg v. United States, 430 F.2d 372, 374-375 (7th Cir. 1970), certiorari denied, 400 U.S. 966, 91 S.Ct. 379, 27 L.Ed.2d 387. In Trigg, the fact that Trigg’s co-defendant had already taken the stand was not the distinguishing element (cf. p. 891, supra). Rather, we found Bruton inapplicable because of the availability of the co-defendant for cross-examination after the Government’s rebuttal testimony:
“Petitioner’s failure to examine his co-defendant was the product of his own inaction and not the result of governmental improprieties.” 430 F.2d at p. 375.
We should adhere to those rulings. The judgment should be affirmed.