U.S. v. Henkel, 85-2008
| Decision Date | 26 August 1986 |
| Docket Number | No. 85-2008,85-2008 |
| Citation | 799 F.2d 369 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Allen HENKEL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David P. Lowe, Milwaukee, Wis., for defendant-appellant.
Jan E. Kearny, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Before BAUER, POSNER and FLAUM, Circuit Judges.
The defendant, Allen Henkel, appeals from a jury conviction for violation of 18 U.S.C. Sec. 1341 (mail fraud). Henkel was sentenced to a term of five years. He claims that he was denied his right to counsel under the Criminal Justice Act, 18 U.S.C. Sec. 3006A, and denied both due process and his Sixth Amendment right to counsel. We affirm his conviction.
The problem arose when Henkel's attorney attempted to avoid assisting in the presentation of perjured testimony while not explicitly informing the court of that fact. The duty of counsel faced with this dilemma was not as clearly described at the time of this confrontation as it is today. Since then, the Supreme Court in Nix v. Whiteside, --- U.S. ----, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) re-affirmed the duty of counsel not to participate in perjury and also approved an explicit statement to the court of the fact that perjury is about to be committed.
In short, the duty of attorney-client privilege silence is relieved when such silence would result in false testimony being presented. The approval of explicitly revealing proposed perjury is without doubt a tacit recognition that all more subtle methods of conveying the reasons for an attorney's request to be relieved of further duty when the client elects to testify have failed to keep the reason a secret. That was certainly true in the present case.
Here counsel had a relatively long standing knowledge of the defendant. He had represented Henkel in the course of three prior trials; two trials ended in acquittals and the last ended in a hung jury. This case is the re-trial of that mistrial.
The trial proceeded without noticeable problems until after both sides had rested and were about to begin closing argument. At that time, counsel for the defense informed the court that Henkel, against his advice, wished to take the stand and testify. The court granted leave to re-open at which time counsel moved to withdraw saying he could not "professionally ... proceed."
Coming at the time and manner in which it did, the motion to withdraw had only one reasonable predicate. Indeed, an attorney's motion to withdraw at such a tell-tale juncture has been found to be alone enough to inform the finder of fact that the defendant intends...
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State Of Conn. v. Chambers
...circumstances, there was no need for the trial court to delve further into the basis for that determination.19 See United States v. Henkel, 799 F.2d 369, 370 (7th Cir.1986) (defendant's failure to contradict counsel's representations, or court's assessment of ethical dilemma, confirms that ......
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State v. Chambers, (SC 18490) (Conn. 5/25/2010)
...circumstances, there was no need for the trial court to delve further into the basis for that determination.19 See United States v. Henkel, 799 F.2d 369, 370 (7th Cir. 1986) (defendant's failure to contradict counsel's representations, or court's assessment of ethical dilemma, confirms that......
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Gire v. United States
... ... Amendment right to counsel); United States v ... Henkel , 799 F.2d 369, 370 (7th Cir.1986) (recognizing ... Nix rule that a defendant is entitled ... ...
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A Sealed Case, s. 89-2726
...led the defendant to retreat from his plan to lie, did not deprive the defendant of his right to counsel. See also United States v. Henkel, 799 F.2d 369 (7th Cir.1987). Parties in civil cases have no equivalent right to counsel at the expense of another--whether of the public or of an unwil......
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Representing a Criminal Defendant Who Intends to Commit Perjury at Trial: Caught Between a Rock v. Arkansas and a Hard Place
...against ABA Defense Function Standards which required withdrawal, "if that is feasible[.]" Id. at 730, fn. 3. 61. United States v. Henkel, 799 F.2d 369 (7th Cir. 1986) (motion to withdraw coming after both parties had rested at trial and after defense counsel advised court that defendant, a......
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Client perjury: should a lawyer defend the system or the client?
...v. Flores, 538 N.E.2d 481 (Ill. 1989); Illinois v. Bartee, 566 N.E.2d 855 (Ill.App. 1991). (33.) See, e.g., United States v. Henkel, 799 F.2d 369 (7th Cir. 1986); United States v. Litchfield, 959 F.2d 1514 (10th Cir. (34.) Lefstein, supra note 26, at 537-39. See United States v. Scott, 909 ......