United States v. Heft

• Decision Date: 07 December 1970
• Docket Number: No. 18119.,18119.
• Citation: 435 F.2d 540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Edwin HEFT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

435 F.2d 540 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Edwin HEFT, Defendant-Appellant.

No. 18119.

United States Court of Appeals, Seventh Circuit.

December 7, 1970.

Gerald M. Werksman, Chicago, Ill., for defendant-appellant.

William C. Lee, U. S. Atty., John R. Wilks, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges.

KILEY, Circuit Judge.

This is the second appeal by defendant Heft from his conviction of robbing a federal bank and using a dangerous weapon in the robbery, in violation of 18 U.S.C. § 2113(d). In the first appeal we reversed, 413 F.2d 1027 (7th Cir. 1969), because in the government's proof a gun, among other things, was exhibited before the jury but was later excluded from evidence as fruit of an unlawful search in violation of Heft's Fourth Amendment right. We remanded for a new trial. His second trial resulted again in Heft's conviction, and this appeal followed.

Heft contends that his Sixth Amendment "right" to counsel of his own choice at the trial was violated. At the first trial in Fort Wayne, Indiana, Heft was represented by an attorney appointed by the district court from a panel of attorneys, in the District, to implement the Criminal Justice Act, 18 U.S.C. § 3006A. On appeal this court appointed a Chicago attorney to prosecute Heft's appeal. On remand, Heft wrote the district court requesting appointment of the Chicago attorney whom this court had appointed. The district court instead reappointed Heft's original trial attorney. On the appeal now before us, we again appointed the Chicago attorney appointed for Heft's first appeal.

We see no merit in Heft's contention that the failure of the district court to grant his request denied him effective representation.

Heft at no time, orally or in his written request, complained to the district court that his trial attorney was incompetent or ineffective. A claim was made in the first appeal that defendant's trial attorney was incompetent, but we saw no merit in the claim. This was indicated in footnote 2 of our opinion. 413 F. 2d 1027 (7th Cir. 1969). Heft did not object to the reappointment of his original attorney for the second trial. We saw nothing in the original record, and we see nothing in the instant record, to indicate incompetence or ineffectiveness of that attorney. Arguments which gratuitously assume his incompetence as trial counsel are of no avail.

Lee v. United States, 98 U.S.App.D.C. 272, 235 F.2d 219 (1956), relied on by Heft, is inapplicable. There Lee was dissatisfied with and had discharged his private attorney and retained another. The day of trial, the latter attorney withdrew. The court denied a second continuance to enable Lee to choose his own counsel, and appointed the discharged lawyer to represent Lee.

We do not know, of course, why the district court denied Heft's request and appointed the original trial attorney. The court may well have anticipated an awkward situation in appointment of a Chicago attorney for the Fort Wayne trial. Since Heft did not object to the appointment at trial, there was no reason why the court was required to...