Robert Switaj v. United States of America, 289 F.2d 489 (6th Cir. 1961)

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US Court of Appeals for the Sixth Circuit - 289 F.2d 489 (6th Cir. 1961) April 28, 1961

William Cohen, Detroit, Mich., for appellant.

Herbert M. August, Asst. U. S. Atty., Detroit, Mich., Lawrence Gubow, U. S. Atty., Detroit, Mich., on brief, for appellee.

Before MILLER, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.

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.