admitted into evidence. Similar statements, made by Brown relating to Smith, were also admitted. Petitioners' counsel made timely objections.

Upon an independent examination of the record, we agree with the Court of Appeals that the Bruton errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. In this case, as in Harrington v. California, 395 U. S. 250 (1969), the independent evidence "is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this... conviction undisturbed," id., at 254. We reject the notion that a Bruton error can never be harmless. "[A] defendant is entitled to a fair trial but not a perfect one,"

proached him and asked him to help steal merchandise from Central Jobbing Company and help him transport this merchandise to Manchester, Kentucky. He advised me that during June of 1970, he and Joe Brown made two trips to Manchester, Kentucky, with merchandise consisting of household goods and clothing which they had stolen from Central Jobbing Company. He recalled that to the best of his knowledge . . . these dates were June 5th and 29th, 1970. He said that he and Mr. Brown had received approximately one-half the value of the stolen merchandise from the owners of the Knuckles Discount Store in Manchester, Kentucky, and that the owners of the Discount Store knew that the merchandise was stolen. Mr. Smith stated further that he had received approximately $2,500.00 as his share of the money which they had received from the stolen merchandise."

Another witness, a Detective Hulgin from the County Sheriff's Patrol, had also testified to similar statements by Smith, adding that Smith had stated that the list, which was found by West at the warehouse, had been prepared and shown to him by Brown, and that the total price of $2,200 shown on the list was the amount of money that petitioners were to receive for that particular shipment to Knuckles. Hulgin also testified that he was told by Brown that Smith had accompanied Brown on two previous occasions when Brown delivered stolen goods to Knuckles.

for there are no perfect trials. Bruton v. United States, 391 U. S., at 135, quoting Lutwak v. United States, 344 U. S. 604, 619 (1953). See Schneble v. Florida, 405 U. S. 427, 432 (1972); Chapman v. California, 386 U. S. 18, 23-24 (1967).

Affirmed.

Syllabus

DAVIS v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 71-6481. Argued February 20, 1973-Decided April 17, 1973

Three years after his conviction for a federal crime, petitioner brought this collateral attack on the ground of unconstitutional discrimination in the composition of the grand jury that indicted him. The District Court found that, though petitioner could have done so, he at no stage of the proceedings attacked the grand jury's composition, and it concluded that under Fed. Rule Crim. Proc. 12 (b) (2) he had waived his right to do so. The court also determined that since the challenged jury-selection method had long obtained, the grand jury that indicted petitioner indicted his two white accomplices, and the case against petitioner was "a strong one," there was no "cause shown" under the rule to grant relief from the waiver. The Court of Appeals affirmed. Held:

1. The waiver standard set forth in Fed. Rule Crim. Proc. 12 (b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding but also later on collateral review. Shotwell Mfg. Co. v. United States, 371 U. S. 341, followed; Kaufman v. United States, 394 U. S. 217, distinguished. Pp. 236-243.

2. The District Court, in the light of the record in this case, did not abuse its discretion in denying petitioner relief from the application of the waiver provision. Pp. 243-245.

455 F. 2d 919, affirmed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 245.

Melvin L. Wulf argued the cause and filed briefs for petitioner.

Edward R. Korman argued the cause for the United States. With him on the brief were Solicitor General

Griswold, Assistant Attorney General Petersen, and Sidney M. Glazer.*

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

We are called upon to determine the effect of Rule 12 (b)(2) of the Federal Rules of Criminal Procedure on a post-conviction motion for relief which raises for the first time a claim of unconstitutional discrimination in the composition of a grand jury. An indictment was returned in the District Court charging petitioner Davis, a Negro, and two white men with entry into a federally insured bank with intent to commit larceny in violation of 18 U. S. C. §§ 2 and 2113 (a). Represented by appointed counsel,' petitioner entered a not-guilty plea at his arraignment and was given 30 days within which to file pretrial motions. He timely moved to quash his indictment on the ground that it was the result of an illegal arrest, but made no other pretrial motions relating to the indictment.

On the opening day of the trial, following voir dire of the jury, the District Judge ruled on petitioner's pretrial motions in chambers and ordered that the motion to quash on the illegal arrest ground be carried with the case. He then asked twice if there were anything else before commencing trial. Petitioner was convicted and

*Jack Greenberg, James M. Nabrit III, and Charles Stephen Ralston filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.

1 Petitioner was represented throughout the trial by competent, court-appointed counsel, whose advocacy prompted the Court of Appeals to compliment him saying:

"We have rarely witnessed a more thorough or more unstinted expenditure of effort by able counsel on behalf of a client.". 409 F. 2d 1095, 1101 (CA5 1969).

sentenced to 14 years' imprisonment. His conviction was affirmed on appeal. 409 F. 2d 1095 (CA5 1969).

Post-conviction motions were thereafter filed and denied, but none dealt with the issue presented in this case. Almost three years after his conviction, petitioner filed the instant motion to dismiss the indictment, pursuant to 28 U. S. C. § 2255, alleging that the District Court had acquiesced in the systematic exclusion of qualified Negro jurymen by reason of the use of a "key man" system of selection, an asserted violation of the "mandatory requirement of the statute laws set forth. . . in title 28, U. S. C. A. Section 1861, 1863, 1864, and the 5th amendment of the United States Constitution." His challenge only went to the composition of the grand jury and did not include the petit jury which found him guilty. The District Court, though it took no evidence on the motion, invited additional briefs on the issue of waiver. It then denied the motion. In its memorandum opinion it relied on Shotwell Mfg. Co. v. United States, 371 U. S. 341 (1963), and concluded that petitioner had waived his right to object to the composition of the grand jury because such a contention is waived under Rule 12 (b)(2) unless raised by motion prior to trial. Also, since the "key man" method of selecting grand jurors had been openly followed for many years prior to petitioner's indictment; since the same grand jury that indicted petitioner indicted his two white accomplices; and since the

2 The use of the "key man" system was approved in Scales v. United States, 367 U. S. 203, 259 (1961), affirming 260 F. 2d 21, 44-46 (CA4 1958). The adoption of the Jury Selection and Service Act of 1968, 28 U. S. C. §§ 1861-1869, has precluded its further use.

3 Petitioner also alleged that a timely oral motion in open court prior to trial was made preserving for him the right to contest the grand jury array, and that a law student who was researching the grand jury array was stopped from seeing him.