Robert Switaj v. United States

289 F.2d 489, 1961 U.S. App. LEXIS 4663

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 28, 1961
• Docket: 14329
• Status: Published

Opinion

ORDER.

Following trial by jury, appellant was found guilty of bank robbery in the course of which he put in jeopardy the life of a person by the use of a dangerous weapon, in violation of Section 2113(d), Title 18 U.S.Code. He received a sentence of 15 years imprisonment.

On this appeal it is contended that appellant was deprived of a fair and impartial trial because of the failure of his trial attorney (1) to move for a change of venue, and (2) to use as a witness another defendant who had pleaded guilty to the indictment and who, it is claimed, had given the trial attorney a written statement that appellant was in no way a participant in the robbery.

We find no evidence whatsoever to support appellant’s contention that he was entitled to a change of venue, or that his attorney would have been justified in making such a motion. There is no merit in this contention.

The written statement of the other defendant was not made a part of the record, but even assuming that appellant’s trial attorney had in his possession such a statement, the, decision of the trial attorney not to use. such a witness, without more, does not constitute lack of due process of law or sustain appellant’s contention that he was deprived of a fair and impartial trial. O’Malley v. United States, 6 Cir., 285 F.2d 733.

It is ordered that the judgment be affirmed.