United States v. Rivera-Corona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30286

Plaintiff-Appellee,

D.C. No.

v.

 2:07-cr-02020-

TRINIDAD RIVERA-CORONA, AKA LRS-1

Trino Rivera-Corona,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, Chief District Judge, Presiding

Argued and Submitted

March 4, 2010—Seattle, Washington

Filed August 18, 2010

Before: A. Wallace Tashima, Raymond C. Fisher and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Fisher

12147

12150 UNITED STATES v. RIVERA-CORONA

COUNSEL

David R. Partovi, Spokane, Washington, for the defendant-

appellant.

Jane Kirk, Assistant United States Attorney, Yakima, Wash-

ington, for the plaintiff-appellee.

UNITED STATES v. RIVERA-CORONA 12151

OPINION

BERZON, Circuit Judge:

This case requires us to clarify the standard for considering

a criminal defendant’s motion to discharge his privately

retained counsel and to proceed with a different, court-

appointed lawyer instead.

Trinidad Rivera-Corona pleaded guilty to carrying a fire-

arm in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A). During the plea colloquy, Rivera-

Corona stated that he understood the terms of the plea agree-

ment; that his retained attorney, Nicholas Marchi, answered

all of his questions about the agreement before he signed it;

and that he was satisfied with Marchi’s representation.

Rivera-Corona also testified that nobody had forced him to

enter the plea. The district court did not, however, advise

Rivera-Corona of his “right to be represented by counsel—

and if necessary have the court appoint counsel—at trial and

at every other stage of the proceeding,” as required by Federal

Rule of Criminal Procedure 11(b)(1)(D).

Before sentencing, Marchi moved to withdraw and

requested that new counsel be appointed. He supported his

motion with an affidavit stating:

I was retained by the defendant. The Defendant has

requested a hea[r]ing for a new attorney. He appar-

ently maintains that he can no longer work with me.

He has claimed that I have been ineffective. In the

interest of justice and to allow defendant new coun-

sel, [in] whom he would apparently have more faith,

I would request that the Court appoint new counsel

and allow me to withdraw.

At a hearing, Marchi explained that Rivera-Corona had cal-

led his office about a week after the change of plea hearing

12152 UNITED STATES v. RIVERA-CORONA

and communicated, in Marchi’s words, that “I either scared

him or he was afraid of me or I didn’t do my job.” The court

asked Marchi whether he had been retained to represent

Rivera-Corona, to which Marchi responded that he had been

retained for the entire case, but that he had “exhausted [the

retainer] a long, long time ago.” The court then invited

Rivera-Corona to explain his reasons for seeking substitution

of counsel, prompting the following exchange:

RIVERA-CORONA: I would like to know if you

can appoint another attorney, because I don’t get

along with this attorney.

THE COURT: What are the reasons for your not

getting along with this attorney?

RIVERA-CORONA: Well, how could I say? He

said if we went with a jury he wanted $5,000 more,

and that’s why. Otherwise, he was going to, like,

prosecute my family, and that’s why I got scared.

THE COURT: Is there anything additional?

RIVERA-CORONA: And that’s why I want to

know if you can give me another chance to continue

fighting my case.

THE COURT: Are there any other facts that I

should consider?

RIVERA-CORONA: For now, that’s what I’m say-

ing, and that’s all.

THE COURT: Have you given all of the informa-

tion that you believe supports your request for differ-

ent counsel?

RIVERA-CORONA: Well, I wonder if you can just

provide me with another attorney so I can continue

UNITED STATES v. RIVERA-CORONA 12153

—how would I say? [J]ust continue fighting my

case.

The district court did not ask Marchi whether Rivera-

Corona’s allegations were true and did not inquire into

Rivera-Corona’s financial eligibility for court-appointed

counsel. Instead, right after the colloquy quoted, the district

court, interpreting Rivera-Corona’s request to include both a

motion to withdraw his guilty plea and a request for new

counsel, denied both, relying on Rivera-Corona’s statement

during his plea colloquy that he was satisfied with his repre-

sentation. The district court judge told Rivera-Corona that he

had the right to hire new counsel, but that “absent a complete

and utter breakdown” in the attorney-client relationship he

saw no grounds to “have counsel appointed at public expense,

particularly since the last remaining item before [him was]

sentencing.” Rivera-Corona responded that he had no money

to hire a new lawyer. Marchi represented Rivera-Corona at his

sentencing hearing. This appeal followed.1

We review a district court’s denial of a motion for substitu-

tion of counsel for abuse of discretion. United States v.

Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001). Most

attorney substitution cases arise when an indigent defendant

requests new court-appointed counsel in place of an existing

appointed attorney. In that context, we consider (1) the timeli-

ness of the substitution motion and the extent of resulting

inconvenience or delay; (2) the adequacy of the district

court’s inquiry into the defendant’s complaint; and (3)

whether the conflict between the defendant and his attorney

was so great that it prevented an adequate defense. See United

States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir. 2009).

1

Rivera-Corona’s guilty plea included a waiver of his right to appeal,

but his contention that his plea was involuntary raises the possibility that

the appeal waiver was involuntary and so not enforceable. See United

States v. Pena, 314 F.3d 1152, 1154 n.1 (9th Cir. 2003). In any event, the

government does not contend that the plea agreement bars this appeal.

12154 UNITED STATES v. RIVERA-CORONA

This standard is the one the district court seemingly purported

to apply, but it is not, as we now explain, the standard appli-

cable to Rivera-Corona’s motion.

[1] “The Sixth Amendment’s right to counsel encompasses

two distinct rights: a right to adequate representation and a

right to choose one’s own counsel. The adequate-

representation right applies to all defendants and ‘focuses on

the adversarial process, not on the accused’s relationship with

his lawyer as such.’ ” Daniels v. Lafler, 501 F.3d 735, 738

(6th Cir. 2007) (quoting United States v. Cronic, 466 U.S.

648, 657 n.21 (1984)). Indigent defendants have a constitu-

tional right to effective counsel, but not to have a specific

lawyer appointed by the court and paid for by the public.

“[T]hose who do not have the means to hire their own lawyers

have no cognizable complaint so long as they are adequately

represented by attorneys appointed by the courts.” Caplin &

Drysdale v. United States, 491 U.S. 617, 624 (1989). The

three-part extent-of-conflict inquiry applicable to attempts to

substitute one appointed counsel for another is designed to

determine whether the attorney-client conflict is such that it

impedes the adequate representation that the Sixth Amend-

ment guarantees to all defendants, including those who cannot

afford to hire their own attorneys. See Daniels v. Woodford,

428 F.3d 1181, 1198 (9th Cir. 2005) (characterizing the

extent-of-conflict inquiry as the “constructive denial of coun-

sel doctrine”).

[2] A defendant who can hire his own attorney has a differ-

ent right, independent and distinct from the right to effective

counsel, to be represented by the attorney of his choice. See

United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48

(2006). The right to retained counsel of one’s choice is not

absolute: A defendant may not “insist on representation by a

person who is not a member of the bar, or demand that a court

honor his waiver of conflict-free representation,” and the

Supreme Court has “recognized a trial court’s wide latitude in

balancing the right to counsel of choice against the needs of

UNITED STATES v. RIVERA-CORONA 12155

fairness . . . and against the demands of its calendar.”

Gonzalez-Lopez, 548 U.S. at 152 (citing Wheat v. United

States, 486 U.S. 153, 159-60 (1988)). In general, a defendant

who can afford to hire counsel may have the counsel of his

choice unless a contrary result is compelled by “purposes

inherent in the fair, efficient and orderly administration of jus-

tice.” United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir.

2007).

The district court in this case to some degree recognized

this distinct right to choose retained counsel. The court told

Rivera-Corona that “you have the right, if you wish, to hire

counsel . . . if you have the funds to do so” to replace or sup-

plement Marchi, and did not indicate that there was any

extent-of-conflict limitation on that right. But the district

court treated as fundamentally different the question whether

Rivera-Corona could replace retained counsel with appointed

counsel.

Remarkably, we have no presently binding case law dictat-

ing the standards applicable in the situation in which a district

court considers a defendant’s motion to discharge his retained

counsel and be represented by a court-appointed attorney. We

do, though, have controlling case law in the obverse situation

—where a defendant seeks to replace appointed with retained

counsel.

[3] Because an additional constitutional right is at stake,

such motions have never been governed by the three-part

extent-of-conflict analysis applicable to defendants seeking

new court-appointed counsel. Unless the substitution would

cause significant delay or inefficiency or run afoul of the

other considerations we have mentioned, a defendant can fire

his retained or appointed lawyer and retain a new attorney for

any reason or no reason. See Miller v. Blacketter, 525 F.3d

890, 896 (9th Cir. 2008) (in a case in which the defendant

sought to replace his court-appointed attorney with retained

counsel, evaluating “whether the trial judge’s decision was an

12156 UNITED STATES v. RIVERA-CORONA

unreasonable exercise of its discretion to balance Miller’s

right to his chosen counsel against concerns of fairness and

scheduling”); Bradley v. Henry, 510 F.3d 1093, 1096-98 (9th

Cir. 2007) (en banc) (holding the state court’s denial of a

motion to substitute retained counsel for appointed counsel to

be an unreasonable application of Gonzalez-Lopez, because it

was not justified by undue delay and the trial court wrongly

assumed, without questioning the defendant, that she could

not afford to pay retained counsel).2 Conflict between the

defendant and his attorney enters the analysis only if the court

is required to balance the defendant’s reason for requesting

substitution against the scheduling demands of the court. See

United States v. Torres-Rodriguez, 930 F.2d 1375, 1380 n.2

(9th Cir. 1991) (explaining that, absent any delay, where a

defendant seeks to replace a court-appointed attorney with a

private one, “there is no reason to deny substitution whether

or not the defendant has complaints against, or an irrevocable

conflict with, his appointed counsel”) overruled on other

grounds by Bailey v. United States, 516 U.S. 137 (1995);

accord United States v. Brumer, 528 F.3d 157, 161 (2d Cir.

2008); Carlson v. Jess, 526 F.3d 1018, 1027 (7th Cir. 2008)

(“[E]ven if a breakdown in communication is not so severe as

to implicate the right to counsel, it may still provide a reason-

able justification for a substitution of retained counsel.”).

The only published case in this circuit that arose in the cur-

rent posture, in which a defendant seeks to substitute

appointed for retained counsel, is Bland v. California Depart-

ment of Corrections, 20 F.3d 1469, 1475 (9th Cir. 1994). In

Bland, we used the extent-of-conflict standard to evaluate a

2

The majority opinion was joined by five of the eleven judges on the en

banc panel, but four additional members of the en banc court agreed that

the trial court’s refusal to permit Bradley to substitute a retained attorney

for her court-appointed counsel violated her Sixth Amendment right to

counsel of choice. See Bradley, 510 F.3d at 1099-1100 (Clifton, J. concur-

ring in the judgment) (holding the trial court violated Bradley’s right to

counsel of choice because none of the conditions identified in Wheat as

overriding the right to counsel of choice were present).

UNITED STATES v. RIVERA-CORONA 12157

habeas petition challenging the trial court’s refusal to permit

him to substitute a court-appointed attorney for his retained

counsel, although we did not explain our use of that standard.

Id. at 1475. Bland was overruled in this respect by Schell v.

Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc), which con-

cerned a habeas petitioner who sought new appointed counsel

to replace existing appointed counsel. We held the extent-of-

conflict inquiry generally inapplicable on habeas review,

because the trial court’s failure to inquire into the defendant’s

reasons for seeking substitution would not always render his

conviction unconstitutional. Rather, the appropriate inquiry

was whether the defendant’s conflict with his attorney actu-

ally deprived him of the effective assistance of counsel. Id. at

1025, 1027.

Schell thus overruled Bland’s unexplained application of

the extent-of-conflict standard, albeit on grounds not applica-

ble here. As Schell concerned a motion to substitute appointed

counsel on habeas review and did not implicate the constitu-

tional right to counsel of choice, it did not establish a rule of

analysis applicable to Rivera-Corona’s substitution motion.3

The portion of Bland that Schell did not disturb, however,

compels us to conclude that the extent-of-conflict review is

inappropriate here.

In rejecting Schell’s contention that the trial court’s abuse

of discretion in denying his motion required us to grant his

3

Schell’s statement that the extent-of-conflict standard was “of course

. . . the correct methodology for reviewing federal cases on direct appeal,”

218 F.3d at 1025, does not control in the current circumstances. In addi-

tion to being dicta, this statement obviously referred to substitution of

appointed counsel, as it was followed by citation to United States v.

Walker, 915 F.2d 480 (9th Cir. 1990), an appointed counsel case, which

was also, of course, the context of Schell. Moreover, “[o]ur primary reason

for . . . en banc review was to correct the standard of review we ha[d] been

using to examine the constitutionality of a state court’s handling of a

motion to substitute appointed counsel based on allegations of an irrecon-

cilable conflict.” Id. at 1024 (emphasis added).

12158 UNITED STATES v. RIVERA-CORONA

writ, we emphasized that Schell’s qualified right to choice of

retained counsel was not at issue, and on that ground distin-

guished Bland’s holding that denial of the substitution motion

was per se prejudicial. Id. at 1025-26. Bland unequivocally

held that the denial of the defendant’s request to replace his

retained counsel with a court-appointed attorney implicated

the qualified right to choice of counsel. 20 F.3d at 1479. In

so holding, Bland rejected as irrelevant the state’s argument

that the defendant had not clearly established his financial eli-

gibility for appointed counsel. Id. at 1477.

[4] The district court here never inquired into Rivera-

Corona’s eligibility for appointed counsel, finding no grounds

“to have counsel appointed at public expense, particularly

since the last remaining item before me is sentencing.” But

the Criminal Justice Act expressly provides for appointment

of counsel “[i]f at any stage of the proceedings . . . the court

finds that the [defendant] is financially unable to pay counsel

whom he had retained.” 18 U.S.C.A. § 3006A(c); see also

Doherty v. United States, 404 U.S. 28, 29 (1971). Thus, the

district court erred in summarily rejecting Rivera-Corona’s

request for appointed counsel to replace retained counsel sim-

ply because of the expense and the stage of the proceedings.4

[5] As to the nature of the inquiry that should have been

made, we agree with the Second Circuit’s articulation:

4

We note that Judge Fisher in his concurrence essentially agrees with

us in the end as to the proper standard applicable here: If 18 U.S.C.

§ 3006A(c) applies, “the district court should have conducted an ‘appro-

priate inquiry’ into Rivera-Corona’s financial eligibility for mid-case

appointment of counsel and an adequate analysis of whether counsel

should have been appointed in the ‘interests of justice.’ ” Concurrence at

12169. Although Judge Fisher suggests Rivera-Corona may not have ade-

quately invoked 18 U.S.C. § 3006A(c), Concurrence at 12169, § 3006A(c)

simply provides the standard governing when a court may appoint counsel

mid-proceedings if a person so requests and asserts that he is financially

unable to pay retained counsel. So we can see no reason Rivera-Corona

was required to invoke this provision independently of his request for

appointed counsel.

UNITED STATES v. RIVERA-CORONA 12159

Reviewing a district court’s determination of finan-

cial eligibility for mid-case appointment under

§ 3006A(c) . . . requires a three-fold determination.

First, did the district court conduct an “appropriate

inquiry” into the defendant’s financial eligibility?

Second, if the district court conducted an appropriate

inquiry, was the court correct in its ultimate conclu-

sion of financial eligibility? Third, if the district

court conducted an appropriate inquiry and defen-

dant is financially eligible for mid-case appointment,

did the district court err in its weighing of the “inter-

ests of justice”?

United States v. Parker, 439 F.3d 81, 92-93 (2d Cir. 2006).

Here, the district court’s failure to apply § 3006A is apparent

at the first step. Rivera-Corona was given no opportunity to

establish that, as he asserted, he was unable to pay Marchi and

therefore eligible for court-appointed and publicly financed

representation. Just as “[d]ue process does not permit a judge

to decide [whether the defendant can afford to retain counsel

to substitute for existing appointed counsel] without hearing

the affected party,” Bradley, 510 F.3d at 1098, a judge may

not summarily decide that a defendant is not eligible for

appointed counsel merely because he has previously retained

an attorney.

We note that requiring a retained counsel to continue to

represent the defendant even if the defendant cannot pay him

and no longer wants him, which is what seemingly happened

here, is no substitute for appointed counsel paid with public

funds and so could not, without more, be in the “interests of

justice.” Such an unpaid lawyer is likely, consciously or sub-

consciously, to resent the transformation of an agreement to

represent a defendant for pay into an involuntary pro bono

arrangement, and therefore to seek to end the representation

as expeditiously as possible. That, indeed, is precisely what

Rivera-Corona alleged happened here with respect to Mar-

chi’s advice whether to plead guilty. Moreover—as also

12160 UNITED STATES v. RIVERA-CORONA

alleged here—an involuntarily unpaid lawyer may influence

the defendant’s litigation choices by expressing an intention

to seek fees from relatives or friends, or from the defendant

should he later obtain funds. Our system for providing com-

pensated lawyers where the defendant cannot afford to com-

pensate counsel himself eliminates the opportunity for such

extraneous influences on criminal proceedings.5

Nor was the district court entitled to rely on Rivera-

Corona’s statement during his plea colloquy that he was satis-

fied with Marchi’s representation. According to Rivera-

Corona, Marchi demanded money that his client presumably

did not have as a condition of going to trial, and was prepared

to “prosecute”—presumably sue—Rivera-Corona’s family if

he didn’t pay it. If true, these facts could support a motion to

set aside his plea, as Rivera-Corona’s statement of satisfaction

with Marchi at the colloquy could be explained by the same

facts. See United States v. Gonzalez, 113 F.3d 1026, 1028 (9th

Cir. 1997) (holding that the trial court abused its discretion in

denying a motion to substitute counsel “on the strength of

Gonzalez’s sworn responses at the plea-taking that no one

was threatening him or forcing him to plead” where the defen-

dant “alleged that his attorney forced him to plead guilty . . .

and threatened him if he did not take the plea”).

The implication of Rivera-Corona’s remarks regarding why

he sought appointed counsel is that Marchi never suggested

5

We also note that a defendant’s right to appointed counsel under Fed-

eral Rule of Criminal Procedure 44 includes “defendants unable to obtain

counsel for reasons other than financial.” Argersinger v. Hamlin, 407 U.S.

25, 37 n.5 (1972) (quoting 1966 Advisory Comm. Note to Fed. R. Crim.

P. 44). Thus, even assuming that Rivera-Corona is ineligible for a CJA

appointment, the court may still have a duty under Rule 44 to appoint a

new attorney for him, if Rivera-Corona were unable to retain substitute

counsel in Marchi’s stead. We need not examine these circumstances,

however, because there is no indication in the record that such circum-

stances pertain and, if they were to arise, they should be addressed by the

district court in the first instance.

UNITED STATES v. RIVERA-CORONA 12161

that he be appointed as counsel, or that Rivera-Corona seek

new, appointed counsel, if Rivera-Corona and his family

could not pay Marchi for a trial. Particularly in light of the

court’s failure during the Rule 11 colloquy to notify Rivera-

Corona that he was entitled to counsel at trial and that counsel

could be appointed for him if necessary, Rivera-Corona may

have believed at the time of his plea that he had no alternative

to pleading guilty other than proceeding to trial without an

attorney or exposing his family to financial threats if he was

unable to pay Marchi.6 Moreover, even if Rivera-Corona’s

request to withdraw his plea was properly denied, the consti-

tutional right to counsel is fully applicable to sentencing. Rob-

inson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); see

Fed. R. Crim. P. 44(a) (“A defendant who is unable to obtain

counsel is entitled to have counsel appointed to represent the

defendant at every stage of the proceeding from initial appear-

ance through appeal.”).

[6] Given all these defects in the district court’s handling

of Rivera-Corona’s request, we vacate Rivera-Corona’s sen-

tence.7 On remand, the district court must appoint counsel if

6

The government concedes that the district court failed to advise Rivera-

Corona during his plea colloquy that he had the right to proceed to trial

and to have court-appointed counsel if necessary, but contends that the

error was harmless because Rivera-Corona was informed of this right dur-

ing his initial appearance and at both arraignments. The government’s reli-

ance on United States v. Vonn, 294 F.3d 1093 (9th Cir. 2002) is

inapposite. Vonn applied harmless error review to a defendant’s motion to

set aside his conviction based on a Rule 11 violation; it does not suggest

that a district court may rely on a flawed Rule 11 colloquy to deny a

motion to substitute counsel.

7

We note that Rivera-Corona would be entitled to remand even under

the Mendez-Sanchez standard. That test requires consideration of the ade-

quacy of the district court’s inquiry into the defendant’s complaint. The

district court in this case made only cursory inquiries following Rivera-

Corona’s allegations against Marchi. The allegations raised the possibility

of an irreconcilable conflict, loss of trust, or a potential financial conflict

of interest. The district court, however, asked only if “there [was] anything

additional?” and if “there [were] any other facts [to] consider?” The court

12162 UNITED STATES v. RIVERA-CORONA

Rivera-Corona is financially eligible, and make appropriate

factual inquiries into Rivera-Corona’s allegations concerning

the circumstances underlying his guilty plea if there is a for-

mal motion to set aside the plea.

VACATED and REMANDED.

RAYMOND C. FISHER, Circuit Judge, concurring:

I concur in the result, but disagree with some of the reason-

ing offered by the majority opinion.

I. Sixth Amendment Right to Counsel

I agree with the majority’s assessment that the Sixth

Amendment right to counsel actually encompasses several

rights, including the right to choice of retained counsel, the

right to effective assistance of counsel and the right to self-

representation. I part company, however, with the majority’s

conclusion that “we have no presently binding case law dic-

tating the standards applicable in the situation in which a dis-

trict court considers a defendant’s motion to discharge his

retained counsel and be represented by a court-appointed

attorney.” Maj. Op. 12155.

Appointed to Appointed Substitution. We have long held

that, for purposes of the Sixth Amendment, denial of a defen-

dant’s motion to replace appointed counsel with appointed

failed to seek further clarification from Rivera-Corona, nor did it ask Mar-

chi to confirm, deny, or explain the allegations. Consequently, the court’s

inquiry in this case failed to establish a “sufficient basis for reaching an

informed decision.” See, e.g., United States v. Adelzo-Gonzalez, 268 F.3d

772, 777-78 (9th Cir. 2001) (“[I]n most circumstances a court can only

ascertain the extent of a breakdown in communication by asking specific

and targeted questions.”).

UNITED STATES v. RIVERA-CORONA 12163

counsel is governed by a three-part standard requiring a show-

ing of good cause. See, e.g., United States v. Walker, 915 F.2d

480, 482 (9th Cir. 1990) (“We consider three factors ‘when

reviewing the denial of a motion to substitute counsel: (1)

timeliness of the motion; (2) adequacy of the court’s inquiry

into the defendant’s complaint; and (3) whether the conflict

between the defendant and his attorney was so great that it

resulted in a total lack of communication preventing an ade-

quate defense.’ ”) (quoting United States v. Rogers, 769 F.2d

1418, 1423 (9th Cir. 1985)), overruled on other grounds by

United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000);

see 3 Wayne R. LaFave et al., Criminal Procedure § 11.4(b),

at 703 (3d ed. 2007) (“The defendant has a right to substitu-

tion only upon establishing ‘good cause, such as a conflict of

interest, a complete breakdown of communication, or an irrec-

oncilable conflict which [could] lead . . . to an apparently

unjust verdict.’ ”) (quoting McKee v. Harris, 649 F.2d 927,

931 (2d Cir. 1981)) (alterations in original).

Appointed/Retained to Retained Substitution. By contrast,

when a defendant seeks to replace existing counsel —

whether retained or appointed — with retained counsel, she

ordinarily need not establish good cause. See, e.g., United

States v. Torres-Rodriguez, 930 F.2d 1375, 1380 n.2 (9th Cir.

1991), abrogated on other grounds by Bailey v. United States,

516 U.S. 137 (1995); see also Miller v. Blacketter, 525 F.3d

890, 895 (9th Cir. 2008) (no need to show prejudice); Bradley

v. Henry, 510 F.3d 1093, 1099-1100 (9th Cir. 2007) (en banc)

(Clifton, J., concurring) (explaining that a defendant is gener-

ally free to replace counsel with retained counsel of choice

unless the substitution “will result in an undue delay of the

proceedings”).

This dichotomy exists because the defendant seeking to

replace appointed counsel with appointed counsel and the

defendant seeking to replace existing counsel with retained

counsel are relying on different aspects of the Sixth Amend-

ment right to counsel. A defendant who moves to replace

12164 UNITED STATES v. RIVERA-CORONA

appointed counsel with appointed counsel must rely on her

Sixth Amendment right to effective assistance of counsel,

which requires a showing of good cause — the constructive

denial of counsel. See, e.g., United States v. Moore, 159 F.3d

1154, 1158 (9th Cir. 1998) (“[I]f the relationship between

lawyer and client completely collapses, the refusal to substi-

tute new counsel violates [the defendant]’s Sixth Amendment

right to effective assistance of counsel.”).

On the other hand, a defendant who moves to replace exist-

ing counsel with retained counsel may rely on either her right

to choice of counsel or her right to effective assistance of

counsel. “When there is no threat of a delay in the proceed-

ings,” she may, consistent with her right to choice of counsel,

freely substitute one retained counsel for another, without

showing that “the conflict between the defendant and his

counsel was so great that it resulted in a total lack of commu-

nication preventing an adequate defense.” Torres-Rodriguez,

930 F.2d at 1380 & n.2; see also id. at 1380 n.2 (“If a defen-

dant, much in advance of trial, wishes to substitute retained

counsel for an appointed one, and no delay in trial will result,

. . . there is no reason to deny substitution whether or not the

defendant has complaints against, or an irrevocable conflict

with, his appointed counsel.”). Where substitution would

result in delay, the defendant may replace existing counsel

with retained counsel, but, consistent with her right to effec-

tive assistance of counsel, may do so only upon a showing of

good cause. See id. at 1380 & n.2; see also 3 LaFave, supra,

§ 11.4(c), at 716 (“As in the replacement of appointed coun-

sel, if the defendant can establish that his current counsel

would not be able to give him competent representation (as

where a conflict of interest exists), the defendant’s constitu-

tional right to the effective assistance of counsel demands

granting such continuance as is necessary to substitute new

[retained] counsel.”).

Retained to Appointed Substitution. Unlike the appointed-

to-appointed and retained- or appointed-to-retained scenarios

UNITED STATES v. RIVERA-CORONA 12165

discussed above, the question presented here is what standard

applies to a defendant’s motion to replace retained counsel

with appointed counsel. Some courts have held that this sce-

nario is governed by a defendant’s right to choice of counsel,

such that a defendant can freely discharge retained counsel

and obtain appointed counsel without establishing good cause.

In People v. Ortiz, 800 P.2d 547, 553 (Cal. 1990), for exam-

ple, the California Supreme Court concluded that a trial court

may not “require an indigent criminal defendant to demon-

strate inadequate representation by his retained attorney, or to

identify an irreconcilable conflict between them, before it will

approve the defendant’s timely motion to discharge his

retained attorney and obtain appointed counsel.” Other courts,

perhaps reflecting the principle that “the right to counsel of

choice does not extend to defendants who require counsel to

be appointed for them,” United States v. Gonzalez-Lopez, 548

U.S. 140, 151 (2006), have rejected Ortiz’s view and con-

cluded that replacement of retained counsel with appointed

counsel does require a showing of good cause. The First Cir-

cuit’s opinion in United States v. Mota-Santana, 391 F.3d 42

(1st Cir. 2004), exemplifies this view:

In the instant case, there are two actions of the court

at issue: its refusal to allow Sanchez[, retained coun-

sel,] to withdraw and its refusal to appoint substitute

counsel. Were the only issue that of the appropriate-

ness of the court’s refusal to permit withdrawal, San-

chez having been retained privately, there might be

some question. As we said in United States v. Woo-

dard, 291 F.3d 95, 107 (1st Cir. 2002), a defendant

is not ordinarily dependent on the court’s permission

to replace retained counsel. But here the two actions

merge, since defendant and his family ran out of

funds to retain other private counsel and defendant

sought court appointed counsel.

Id. at 46-47; see also id. at 47 (requiring the defendant, who

had moved to replace retained counsel with appointed coun-

12166 UNITED STATES v. RIVERA-CORONA

sel, to show that “ ‘the conflict between the defendant and his

counsel was so great that it resulted in a total lack of commu-

nication preventing an adequate defense’ ”) (quoting United

States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986)).

Were we writing on a clean slate, as the majority believes

we are, we would have to make a choice among the

approaches exemplified in Ortiz and Mota-Santana. We are

not, however, writing on a clean slate. We have already held

that, for purposes of the Sixth Amendment, a motion to sub-

stitute retained counsel with appointed counsel requires a

showing of good cause. See Schell v. Witek, 218 F.3d 1017,

1024-25 (9th Cir. 2000) (en banc); Bland v. Cal. Dep’t of

Corr., 20 F.3d 1469, 1475 (9th Cir. 1994), overruled in part

by Schell, 218 F.3d at 1025. Those opinions are binding on us,

and it is the majority’s refusal to recognize them as binding

precedent that causes me to write separately.

In Bland, we held that a motion to replace retained counsel

with appointed counsel is governed by the same good cause

standard that governs a motion to replace appointed counsel

with appointed counsel. See Bland, 20 F.3d at 1475 (relying

on Walker, 915 F.2d at 482, an appointed-to-appointed substi-

tution case). We required the defendant to show good cause,

such as an “irreconcilable conflict,” to establish a right to sub-

stitution. Id. at 1475, 1477. Although Bland was a habeas

case, Schell subsequently clarified that Bland described the

“correct methodology for reviewing federal cases on direct

appeal.” Schell, 218 F.3d at 1024-25. Taken together, Bland

and Schell hold that a motion to substitute retained counsel

with appointed counsel in federal district court proceedings

requires a showing of good cause.

I am not persuaded by the majority’s attempts to avoid

Bland and Schell. First, the majority’s suggestion to the con-

trary notwithstanding, Schell did not overrule Bland in any

respect relevant here. See Maj. Op. 12157. Although Schell

overruled Bland as applied to habeas review, Schell expressly

UNITED STATES v. RIVERA-CORONA 12167

and specifically confirmed Bland’s good cause standard as

applied to “federal cases on direct appeal” — the issue pres-

ented here. Schell, 218 F.3d at 1024-25.

Second, the majority’s conclusion that Schell “does not

control in the current circumstances” because it addressed

“substitution of appointed counsel” reflects a fundamental

misunderstanding of Schell. Maj. Op. 12157 n.3. The majority

apparently concludes that nothing Schell had to say could be

binding here because Schell involved a motion to replace

appointed counsel with appointed counsel rather than, as in

this case, a motion to replace retained counsel with appointed

counsel. That suggestion, as well as the majority’s labeling of

the relevant discussion in Schell as “dicta,” misses the point.

In Schell, a case involving appointed-to-appointed substitu-

tion, we went en banc to overrule Bland, a case involving

retained-to-appointed substitution. Schell is therefore prem-

ised on the proposition that motions to substitute existing

counsel with appointed counsel are governed by the same

standard regardless of whether existing counsel is retained (as

in Bland) or appointed (as in Schell and Walker). A proposi-

tion necessary to the holding cannot be dicta. See, e.g., City

of Sausalito v. O’Neill, 386 F.3d 1186, 1203-04 (9th Cir.

2004). If, as the majority suggests, retained-to-appointed sub-

stitution and appointed-to-appointed substitution are governed

by different standards, then Bland could not have served as

precedent in Schell, Schell would not have been affected by

Bland, Schell would have had no cause to address Bland in en

banc proceedings and Schell’s overruling of Bland would

have been essentially an advisory opinion. Contrary to the

majority’s suggestion, both Bland and Schell necessarily held

that retained-to-appointed and appointed-to-appointed substi-

tutions are governed by the same legal standard — i.e., good

cause. We are bound by that holding.1

1

As noted above, I recognize that Schell concerned habeas review rather

than direct federal review. Schell’s holding that retained-to-appointed and

appointed-to-appointed substitution are subject to the same legal stan-

dards, however, does not distinguish between the two and therefore is

binding on direct review as well.

12168 UNITED STATES v. RIVERA-CORONA

For purposes of the Sixth Amendment analysis, therefore,

I would hold that we are bound by circuit precedent to review

Rivera-Corona’s motion to replace retained counsel with

appointed counsel under the same good cause standard we

apply to motions to substitute one appointed counsel for

another. Applying that standard here, I agree with the major-

ity that the district court failed to conduct an adequate inquiry

in response to Rivera-Corona’s motion. See Maj. Op. 12161

n.6.2 I would vacate and remand on that basis.

I emphasize that I would apply the good cause standard

because I believe we are required to do so by the doctrine of

stare decisis. See, e.g., In re Tippett, 542 F.3d 684, 691-92

(9th Cir. 2008); Miller v. Gammie, 335 F.3d 889, 899 (9th

Cir. 2003) (en banc). In Ortiz, the California Supreme Court

offered a number of strong arguments for the proposition that

the replacement of retained with appointed counsel should not

require a showing of good cause. Were we truly writing on a

clean slate, those arguments might well prevail. In my view,

however, we are constrained by precedent to apply the good

cause standard here.

II. Statutory Rights under the Criminal Justice Act

As the majority explains, Rivera-Corona may also have a

right to substitution of counsel under the Criminal Justice Act,

which provides in relevant part: “If at any stage of the pro-

2

On remand, the court’s good cause inquiry should consider not only

whether there was an irreconcilable conflict between Rivera-Corona and

his attorney but also any other evidence tending to establish that proceed-

ing with retained counsel would have resulted in ineffective assistance of

counsel. In particular, as relevant here, the district court should consider

whether Rivera-Corona’s inability to continue paying his retained counsel

established a basis for substitution. See Ortiz, 800 P.2d at 553 (“We are

justifiably concerned about the . . . right to effective assistance of counsel

when a defendant is forced to choose between proceeding to trial without

an attorney or continuing to trial with an attorney originally hired to repre-

sent him but whom he no longer is able to pay.”).

UNITED STATES v. RIVERA-CORONA 12169

ceedings, including an appeal, the United States magistrate

judge or the court finds that the person is financially unable

to pay counsel whom he had retained, it may appoint counsel

. . . and authorize payment . . . , as the interests of justice may

dictate.” 18 U.S.C. § 3006A(c). This provision “obliges the

judge to continually reevaluate the need for appointed counsel

as the underlying proceeding progresses.” In re Boston Her-

ald, Inc., 321 F.3d 174, 193 (1st Cir. 2003).

Rivera-Corona did not explicitly raise § 3006A(c) in the

district court or on appeal. Assuming that Rivera-Corona

nonetheless adequately invoked the provision, I agree with the

majority that the district court should have conducted an “ap-

propriate inquiry” into Rivera-Corona’s financial eligibility

for mid-case appointment of counsel and an adequate analysis

of whether counsel should have been appointed in the “inter-

ests of justice.” 18 U.S.C. § 3006A(b)-(c); see also United

States v. Parker, 439 F.3d 81, 92-99 (2d Cir. 2006) (discuss-

ing the “appropriate inquiry” requirement, as well as the “in-

terests of justice” analysis). The interests of justice may

dictate mid-case appointment of counsel when the defendant

(or his family) is no longer able to pay retained counsel. As

the majority points out, such an unpaid lawyer may, con-

sciously or subconsciously, “resent the transformation of an

agreement to represent a defendant for pay into an involuntary

pro bono arrangement, and therefore seek to end the represen-

tation as expeditiously as possible.” Maj. Op. 12159. On

remand, therefore, the district court should also consider

whether mid-case appointment of counsel is independently

appropriate under the § 3006A(c), assuming Rivera-Corona

seeks relief under that provision.

***

To conclude, I part company with the majority’s conclusion

that, for purposes of Sixth Amendment analysis, the good

cause standard does not apply to motions to substitute

retained counsel with appointed counsel. I believe we are

12170 UNITED STATES v. RIVERA-CORONA

bound by Bland and Schell to apply that standard here. I none-

theless concur in the judgment, because the district court

failed to conduct an adequate inquiry, as required by Bland

and Schell, in response to Rivera-Corona’s motion to replace

retained counsel with appointed counsel.