United States v. Richard Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10354

Plaintiff-Appellee,

D.C. No.

v. 2:12-cr-00097-

RCJ-VCF-1

RICHARD CARL BROWN,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted

September 9, 2014—San Francisco, California

Filed May 13, 2015

Before: Stephen Reinhardt, Ronald M. Gould,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

2 UNITED STATES V. BROWN

SUMMARY*

Criminal Law

The panel vacated convictions for advertising,

transporting, receiving, and possessing child pornography,

and remanded for a new trial, in a case in which the district

court denied the defendant’s motion to discharge his retained

counsel.

The panel reiterated the intertwined rules of United States

v. Rivera-Corona, 618 F.3d 976 (9th Cir. 2010): (1) A

defendant enjoys a constitutional right to discharge his

retained counsel for any reason “unless a contrary result is

compelled by the ‘purposes inherent in the fair, efficient and

orderly administration of justice,’” and (2) if the court allows

a defendant to discharge his retained counsel, and the

defendant is financially qualified, the court must appoint new

counsel for him under the Criminal Justice Act.

The panel held that the district court abused its discretion

in denying the defendant’s motion to discharge retained

counsel and in refusing to appoint new counsel, where neither

the reasons the district court offered after its own detailed

inquiry, the additional reasons the government has suggested

in its briefing, nor any reason the panel could infer from the

record, provide any ground necessary to the fair, efficient,

and orderly administration of justice to justify the denial of

the defendant’s motion to discharge retained counsel. The

panel therefore vacated the convictions.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BROWN 3

The panel rejected the defendant’s arguments that the

evidence presented at trial was insufficient to support his

transportation and advertising convictions, and therefore

remanded for a new trial. The panel held that a conviction for

transportation or advertising of child pornography does not

require evidence that the material actually crossed state lines.

The panel also held that a reasonable jury could conclude that

the actions taken by the defendant, the proprietor of a

computer business with substantial technical computer

knowledge – designating a non-default folder on his external

hard drive to be shared by a peer-to-peer file-sharing program

– are not materially different from those of a bulletin board

operator, which United States v. Mohrbacher, 182 F.3d 1041

(9th Cir. 1999), suggested could be charged with

transportation.

COUNSEL

Jason F. Carr, Assistant Federal Public Defender, Federal

Public Defender’s Office, Las Vegas, Nevada, for

Defendant-Appellant.

William Ramsey Reed (argued) and Elizabeth Olson White,

Assistant United States Attorneys, United States Attorney’s

Office, Reno, Nevada, for Plaintiff-Appellee.

4 UNITED STATES V. BROWN

OPINION

BERZON, Circuit Judge:

United States v. Rivera-Corona, 618 F.3d 976 (9th Cir.

2010), held that an indigent criminal defendant need not

establish a conflict with his attorney amounting to the

constructive denial of counsel as a prerequisite to substituting

appointed counsel for his retained attorney. The district court

in this case, like the parties, appears to have been unaware of

Rivera-Corona, and instead applied the conflict requirement

applicable to substitutions of appointed counsel for appointed

counsel. We now reiterate Rivera-Corona’s intertwined

rules: (1) A defendant enjoys a right to discharge his retained

counsel for any reason “unless a contrary result is compelled

by ‘purposes inherent in the fair, efficient and orderly

administration of justice,’” Rivera-Corona, 618 F.3d at 979

(quoting United States v. Ensign, 491 F.3d 1109, 1115 (9th

Cir. 2007)), and (2) if the court allows a defendant to

discharge his retained counsel, and the defendant is

financially qualified, the court must appoint new counsel for

him under the Criminal Justice Act (“CJA”), 18 U.S.C.

§ 3006A. Because no sufficient reason justified the district

court’s denial of Richard Carl Brown’s right to discharge his

retained lawyer or its refusal to appoint counsel, we vacate

Brown’s convictions and remand for a new trial. We also

reject Brown’s arguments that the evidence presented at trial

was insufficient.

I.

Nevada police detectives identified a computer that had

been sending and receiving child pornography through

FrostWire, a peer-to-peer file-sharing program, as associated

UNITED STATES V. BROWN 5

with an internet protocol address registered to Brown. After

the detectives downloaded from the computer a video

containing child pornography, they obtained a search warrant

for Brown’s home. Brown shared his home with two

roommates and ran a computer business from it. The search

yielded a computer in Brown’s bedroom, which forensic

investigation indicated was the source of the video. Also

found during the search were a disconnected external hard

drive containing: various photos of Brown, including intimate

photos; personal documents, such as Brown’s father’s death

certificate; a folder designated to be shared by FrostWire; and

hidden folders containing some 900 child pornography files.

Brown was charged with one count each of advertising child

pornography, 18 U.S.C. § 2251(d)(1)(A); transporting child

pornography, 18 U.S.C. § 2252A(a)(1); receiving child

pornography, 18 U.S.C. § 2252A(a)(2); and possessing child

pornography, 18 U.S.C. § 2252A(a)(5)(B).

Two and a half weeks before trial was to begin, Brown’s

retained counsel filed a motion to withdraw from the case and

substitute a public defender. Brown’s attorney cited

“strained” communications and an “actual conflict of

interest” with Brown. He advised the court that Brown

“desires counsel to withdraw from representing him,” and

attached an email in which Brown requested the withdrawal

and indicated he would seek appointed counsel. A week

later, counsel filed a motion to continue the trial regardless of

the court’s ruling on the motion to withdraw and substitute.

The district court held a hearing on the motion to

withdraw. Brown’s counsel began by informing the court of

the “extreme divergence of philosophical opinion as to how

the case should be carried on” between himself and Brown.

The court responded, “Actually, is it more based in failure for

6 UNITED STATES V. BROWN

him to be able to pay your fee?” The court emphasized that

counsel could not withdraw for failure to pay fees without

leave of court, and then continued:

Now, here we are, of course, on the eve of

trial. Trial has been scheduled. And just

because your client is disagreeing with you on

recommendations regarding plea or trial, that

is not the basis to permit withdrawal.

Counsel assured the court that Brown’s financial situation

“really has nothing to do with this,” but that the problem was

“trust.”

The court then ordered the hearing continued ex parte

because privileged information would be discussed.1 At that

point, counsel for the government, initially present, was

excluded. Before leaving the room, counsel indicated that the

government had no position on the motion to withdraw but

was opposed to a continuance. An attorney from the Federal

Public Defender’s Office, initially present as well, remained

in the courtroom during the ex parte portion of the hearing.

After counsel for the government left, the court inquired

whether Brown had any “objection to the motion to

withdraw.” Brown responded that he did not. The court laid

out the “problem,” as it saw it, to Brown’s attorney:

You know, this is scheduled for trial.

Obviously if I allow you to withdraw and

1

The transcript of the ex parte portion of the hearing was filed under

seal in the district court but included in Brown’s unsealed excerpts of

record before this court. We therefore order the transcript unsealed.

UNITED STATES V. BROWN 7

appoint now – because he would qualify, I

assume, for a public defender [–] and appoint

a public defender, that will mandate a

continuance of the trial so that person could

be brought up to speed.

So I find great fault with your late filing of

this motion, on the eve of trial, and what

appears to be simply because there’s a

disagreement over payment and your inability,

or unwillingness, to prepare for trial.

Your client has the right to insist upon

trial as opposed to plea. That’s the problem.

So you’ve got to overcome those concerns in

your argument.

Brown’s counsel responded that he understood, that the

dispute was not about money, and that he was prepared to

proceed to trial. However, he again informed the court that

“Mr. Brown has indicated to me that he would like us to

withdraw.”

The court then engaged Brown in the following colloquy:

THE COURT: . . . What is the disagreement,

sir, that causes you to want a different

attorney?

THE DEFENDANT: Your Honor, there’s

been – I guess we see things differently. . . .

THE COURT: Sure. What do you see

differently?

8 UNITED STATES V. BROWN

THE DEFENDANT: I have tried on many

occasions to talk to them about my defense,

and they have never talked about a defense.

They have always said hold on, this is how it

works, just keep waiting, keep waiting, keep

waiting –

THE COURT: You’re talking about

anticipating a potential plea?

THE DEFENDANT: Always. It was always

about a plea. Ever since we met.

THE COURT: . . . What do you see

differently from your attorney?

THE DEFENDANT: . . . [W]e never really

discussed anything about a defense. They

didn’t want to hear about why I was not

guilty. They didn’t want to hear about this.

I had witnesses and everything. We never

talked about that. The first time I was asked

about a list was after the first time I saw a

plea, which is in the beginning of –

THE COURT: So what I hear you saying, sir,

is you don’t feel they were diligent in

presenting defenses you wanted them to

present?

THE DEFENDANT: Not at all . . .

UNITED STATES V. BROWN 9

The court told Brown that his attorney was very experienced,

and that, within the limits of his ethical duties, his counsel

was required to present the case, including any defenses, as

Brown wished. Having sought to dispose of Brown’s basis

for dissatisfaction, the court indicated that it did not

“understand yet, other than a feeling that he has not diligently

pursued the defense, . . . any basis for a disagreement on the

defense.”

The discussion then turned to the topic of payment.

Brown told the court that his attorney had not contacted him

at all for the “first five or six months,” and in general only

“rarely contacted [him] except for payments.” Brown said

that he had “trouble getting the last payment” as he was

“completely out of money.” The court inquired how much

the attorney had charged and how much Brown had paid.

Brown responded, “$50,000,” pursuant to a payment plan,

and that “we’re a little late on the last . . . payment.” The

court responded, “And you got it in.” Brown did not directly

respond, but explained that it was “really hard to even get

that,” and that his attorney had not asked for any more.

Then Brown returned to the focus of his dissatisfaction,

his lawyer’s handling of the case. He stated that he was

“absolutely . . . not guilty” of the charges, and had witnesses

to establish that the computer at issue was not his but, rather,

belonged to a client of his business. He told the court,

presumably also referring to his relationship with counsel,

that additionally “[m]oney is an issue because it was always

an issue up until this point.”

Next, the district judge again addressed his attention to

Brown’s attorney. Emphasizing Brown’s control of the

defense, albeit constrained by counsel’s ethical duties, the

10 UNITED STATES V. BROWN

judge asked “So, again, why should I release you?” The

attorney cited a “breakdown in communication.” When the

attorney raised his concern about the prospect of “a 2255

somewhere down the road,” presumably in reference to a

potential ineffective assistance of counsel claim under

28 U.S.C. § 2255, the court responded, “You better not be, or

I’ll require you to refund the entire 50 grand.” Counsel

clarified that he was only emphasizing the level of “mistrust,”

and indicated that he could not “make [Brown] feel more

comfortable with [the] representation.”

At that point the court concluded the hearing, stating “I’ve

got it. I’m denying the motion, sir.” The court informed

Brown that his attorney was “very reputable [and] qualified,”

that the case was prepared for trial, and, somewhat

contradictorily, that the court would “give him whatever time

he needs before we finally go to trial.” But, the court went

on, “he’s been paid $50,000.” And, the court assured Brown,

he would not receive nearly as good a defense were the court

to appoint a public defender. The court agreed, however, to

“honor any appropriate request for a continuance.” Trial was

continued for nearly a month. Brown was convicted on all

counts.

After the conviction, Brown filed a motion for judgment

of acquittal or for a new trial, based in part on the court’s

denial of his attorney’s motion to withdraw. The court denied

the motion “mainly for the reasons set forth in the

government’s opposing brief,” summarily concluding that

there was no error and no prejudice. In actuality, the

government, in its brief, did not address Brown’s argument

regarding the motion to withdraw, beyond noting that the

government was “not a party” to the ex parte proceedings and

UNITED STATES V. BROWN 11

that, in its view, Brown’s attorney did “an excellent job” at

trial.

The district court sentenced Brown to concurrent 180-

month sentences on each of the advertising, transportation,

and receipt counts, and a concurrent 180-month suspended

sentence for the possession count. This appeal followed.

II.

As Rivera-Corona explained, “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.” 618 F.3d at 979 (quoting Daniels v. Lafler,

501 F.3d 735, 738 (6th Cir. 2007)) (internal quotation marks

omitted). At the outset, this case, like Rivera-Corona,

involves the latter right.

When the court has appointed an attorney for an indigent

defendant, the defendant, like all criminal defendants, has “a

constitutional right to effective counsel.” Rivera-Corona,

618 F.3d at 979 (emphasis added). But he does not have the

right to the counsel of his choice; that is, “to have a specific

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

Thus, when an indigent defendant represented by appointed

counsel asks the court to discharge that lawyer and appoint a

different one, the governing question is whether the conflict

between client and counsel is so extreme as to constitute a

“constructive denial of counsel” altogether. Id. (quoting

Daniels v. Woodford, 428 F.3d 1181, 1198 (9th Cir. 2005))

(internal quotation marks omitted). To determine if the

conflict is severe enough to warrant substitution under those

circumstances, “we consider (1) the timeliness of the

substitution motion and the extent of resulting inconvenience

12 UNITED STATES V. BROWN

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.” Id. at 978 (citing United

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

2009)).

By contrast, a defendant who has hired his own attorney

“has a different right, independent and distinct from the right

to effective counsel, to be represented by the attorney of his

choice.” Id. at 979 (citing United States v. Gonzalez-Lopez,

548 U.S. 140, 147-48 (2006)). This “right to select counsel

of one’s choice” is “the root meaning of the constitutional

guarantee” found in the Sixth Amendment. Gonzalez-Lopez,

548 U.S. at 147-48. Accordingly, the denial of this right does

not depend on “the quality of the representation . . .

received.” Id. at 148. While the right to counsel of one’s

choice is not absolute, “[i]n 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 justice.’”

Rivera-Corona, 618 F.3d at 979 (quoting Ensign, 491 F.3d at

1115)).

Rivera-Corona addressed “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.” 618 F.3d at 979. We held

that, as a defendant’s request to substitute appointed counsel

in place of a retained attorney “implicate[s] the qualified right

to choice of counsel,” “the extent-of-conflict review is

inappropriate.” Id. at 981.

UNITED STATES V. BROWN 13

We note that it is not, strictly speaking, correct to say that

the defendant in Rivera-Corona, or the defendant in this case,

was entitled to, or seeking, counsel of choice. Had either

defendant’s motion been granted, he would have been entitled

to some appointed counsel, not an appointed lawyer of his

choosing. See Caplin & Drysdale, Chartered v. United

States, 491 U.S. 617, 624 (1989). Rather, in the context of

Rivera-Corona and of this case, the Sixth Amendment right

to counsel of choice means that a defendant has a right to

“fire his retained . . . lawyer . . . for any reason or [for] no

reason.” Rivera-Corona, 618 F.3d at 980 (emphasis added).

One constitutional right at issue in this context is, thus, a right

to discharge retained counsel.

The government contends in its supplemental briefing –

having previously overlooked Rivera-Corona – that

Rivera-Corona does not govern this case. The attorney in

Rivera-Corona, notes the government, had demanded an

additional $5,000 in legal fees. Rivera-Corona, 618 F.3d at

978; see also id. at 982. In this case, by contrast, Brown

apparently paid the full retainer amount, and there was no

additional fee due.2

Rivera-Corona’s constitutional holding, however, was not

limited to circumstances in which retained counsel demands

additional fees. Instead, it considered, in general, “the

standard for considering a criminal defendant’s motion to

discharge his privately retained counsel and to proceed with

2

The district court appears to have found that Brown paid the full

retainer. Although the record does not reflect that Brown ever clearly

stated as much, Brown does not challenge that conclusion, and it is not

clearly erroneous. See United States v. Adelzo-Gonzalez, 268 F.3d 772,

777 (9th Cir. 2001).

14 UNITED STATES V. BROWN

a different, court-appointed lawyer instead,” id. at 977, and

concluded that, under those circumstances, the defendant

enjoys a Sixth Amendment right to discharge his retained

counsel, id. at 981. That constitutional holding applies to this

case as well.

III.

Again like Rivera-Corona, this case implicates not only

the constitutional right to discharge retained counsel but also

the statutory right to appointment of counsel in his stead.

When a court denies a motion to substitute appointed for

retained counsel, as the district court did in this case, it is

really deciding two issues. The first, whether the defendant

may discharge the attorney whom he retained, implicates the

Sixth Amendment right to counsel of choice, as discussed

above. But the court ruling on such a motion is, at the same

time, also considering a request for appointment of counsel.

And, while a criminal defendant’s right to appointed counsel

of course does have a constitutional aspect, see Gideon v.

Wainwright, 372 U.S. 335 (1963), in federal court the

question whether counsel should be appointed is governed,

first and foremost, by the CJA, 18 U.S.C. § 3006A. Of

course, as a practical matter the two issues – discharge of

retained counsel and appointment of CJA counsel – are

intertwined, and the decisions as to them will ordinarily be

considered and announced together. However, the sequence

and manner in which the two issues are addressed may not

leave the defendant without any counsel at all, absent a

voluntary, knowing, and intelligent decision to proceed pro

se. See Faretta v. California, 422 U.S. 806, 835 (1975);

United States v. Gerritsen, 571 F.3d 1001, 1007 (9th Cir.

2009). The difficult issue, in an intertwined case of this

nature, occurs with respect to the first issue, the constitutional

UNITED STATES V. BROWN 15

issue, whether the defendant may discharge retained counsel.

If the answer is yes, the CJA provides that counsel shall be

appointed for the indigent defendant unless he wishes to

assert his Faretta rights.

In general, section 3006A(b) provides that, “[i]n every

case in which a person entitled to representation . . . appears

without counsel . . . the court, if satisfied after appropriate

inquiry that the person is financially unable to obtain counsel,

shall appoint counsel to represent him,” unless the right is

waived. 18 U.S.C. § 3006A(b) (emphasis added). An

indigent defendant who exercises his constitutional right to

discharge retained counsel is “without counsel,” so

§ 3006A(b) applies.3 Accordingly, the CJA requires the

appointment of counsel under the circumstances of this case.

3

We note that an indigent defendant who exercises his constitutional

right to discharge his retained counsel, and so is left without an attorney,

is thus very differently situated from an indigent defendant who can no

longer pay his retained lawyer but may have no objection to that lawyer’s

continued representation, and indeed may welcome it. Some courts have

pointed out that appointing a previously retained lawyer as CJA counsel

in the latter circumstance is not warranted simply to “bail . . . out” retained

counsel “who fails to make adequate arrangements before accepting

representation of a client,” Haas, 623 F.3d at 1221 (internal quotation

marks omitted), and expressed concern that “a defendant with some

means” could “in effect, select [his CJA] counsel,” while an initially

indigent defendant has no such opportunity. United States v. Thompson,

361 F. Supp. 879, 888 (D.D.C. 1973) (Bazelon, Ch. J., D.C. Cir.), vacated

in part on other grounds, affirmed in part without opinion, 489 F.2d 1273

(D.C. Cir. 1974), overruled in part on other grounds, United States v.

Hunter, 394 F. Supp. 997, 1001 (D.D.C. 1975) (Bazelon, Ch. J., D.C.

Cir.). On the other hand, a district court might choose, despite these

concerns, to appoint previously retained counsel, as doing so is likely to

save the court time and money as compared to appointing new counsel.

In any event, where, as here, the defendant is dissatisfied with his retained

counsel and therefore discharges him, these concerns related to the

appointment of the same previously retained lawyer are not implicated.

16 UNITED STATES V. BROWN

The government maintains that, in cases like this one, as

in Martel v. Clair, the factors relevant to the appointment of

counsel issue are “the timeliness of the motion; the adequacy

of the district court’s inquiry into the defendant’s complaint;

and the asserted cause for that complaint, including the extent

of the conflict or breakdown in communication between

lawyer and client (and the client’s own responsibility, if any,

for that conflict).” Martel v. Clair, 132 S. Ct. 1276, 1287

(2012).

The government’s proposed standard for appointment of

counsel once retained counsel is discharged is essentially

identical to the extent-of-conflict analysis applicable to

replacement of one appointed counsel by another. That is, the

government would have us hold that, notwithstanding

Brown’s constitutional right to discharge his lawyer, the

restrictive extent-of-conflict analysis governs whether a

replacement is appointed. We disagree. The appropriate

standard must reflect the Sixth Amendment right which

governs a particular case. Where, as here, the right to

retained counsel of choice is implicated, Rivera-Corona

specifically held that “the extent-of-conflict review is

inappropriate.” Rivera-Corona, 618 F.3d at 981.

Nor does Martel support the government’s position. It

concerned the substitution of one appointed counsel for

another, not the initial appointment of counsel for a

financially qualified individual after retained counsel is

discharged.

If anything, Martel points against the government’s

proposed standard. In Martel, the Supreme Court read an

interests-of-justice standard into 18 U.S.C. § 3599, which

provides for appointed counsel in capital habeas proceedings

UNITED STATES V. BROWN 17

but does not specify the standard applicable to requests for a

new appointed attorney. 132 S. Ct. at 1283–84. The Court

rejected California’s argument that, because habeas

petitioners have no Sixth Amendment right to counsel at all,

a more restrictive standard for appointment of a replacement

attorney is warranted in such cases than applies to defendants

in federal criminal prosecutions. “A statute need not draw the

same lines as the Constitution,” the Court observed. Id. at

1286. And the Court held that in § 3599 Congress

permissibly chose to provide greater access to counsel than

the Sixth Amendment required. Id. In this case, by contrast,

the government’s statutory interpretation would, in effect,

provide Brown with less access to counsel than that to which

he is constitutionally entitled, by potentially denying him any

counsel if he exercises his constitutional right to discharge

retained counsel.

As we have seen, there is a statutory right to appointed

counsel. Once a district court allows a financially qualified

defendant to exercise his right to fire his retained lawyer,

§ 3006A(b) requires, absent a voluntary, knowing, and

intelligent decision to proceed pro se, see Faretta, 422 U.S.

at 835, that the court appoint a new attorney in his place.

We note that in Rivera-Corona, which was in many

respects similar to the case before us, the dispute essentially

revolved around the defendant’s concern about financial

relationships between himself and his counsel. He was

concerned that his counsel would not perform properly

because he was unable to afford to make the necessary

payments. We treated this question as primarily covered by

subsection (c), which relates in part to persons financially

unable to pay retained counsel during the course of a case,

rather than the more general subsection (b), which is

18 UNITED STATES V. BROWN

applicable here. Rivera-Corona’s controlling principles

relate essentially to the constitutional question of how and

when a defendant may discharge a retained attorney and

substitute an appointed one. Rivera-Corona’s answer to that

constitutional question was “for any reason,” subject to only

the orderly administration of justice qualification. Having

applied Rivera-Corona’s constitutional rule in Brown’s favor,

our final step is to apply the appropriate statutory rule for the

appointment of counsel to an indigent defendant, § 3006A(b).

IV.

Applying Rivera-Corona’s principles to this case, we hold

that the district court abused its discretion in denying

Brown’s motion to discharge retained counsel. The district

court prevented Brown from discharging his retained lawyer

and so refused to appoint counsel. As discussed above, each

of those decisions was erroneous unless the denial of the

motion to discharge retained counsel was “compelled by

‘purposes inherent in the fair, efficient and orderly

administration of justice.’” Id. Here, neither the reasons the

district court offered after its own detailed inquiry, the

additional reasons the government has suggested in its

briefing, nor any reason we can infer from the record, provide

any ground necessary to the fair, efficient, and orderly

administration of justice to justify the denial of Brown’s

motion.

A.

We note at the outset that the district court did not

explicitly discuss either the constitutional right to retained

counsel of choice or the extent-of-conflict analysis. Nor,

indeed, did it ever discuss how, if at all, it believed Brown’s

UNITED STATES V. BROWN 19

Sixth Amendment rights were implicated. But, to the extent

that the court did implicitly consider a Sixth Amendment

right, it focused on considerations pertinent to the right to

constitutionally adequate counsel, rather than to the right to

choice of counsel Brown actually enjoyed. Reflecting the

district court’s misunderstanding of the right at issue, the

reasons the district court gave for denying the motion are

inadequate to preclude the discharge of retained counsel and

thus the initial appointment of counsel, the questions actually

before it, and before this court.

To some extent, the district court’s attention was focused

on the attorney’s reasons for moving to withdraw. From the

outset, the court was concerned that counsel was seeking to

withdraw from the case because Brown had not paid his legal

fees, although eventually the court accepted that Brown had

paid his fees in full. The court was, however, still very

concerned about the prospect that Brown’s attorney was

proposing to walk away from the case after being paid

$50,000; when counsel raised the possibility of an ineffective

assistance of counsel claim, the court responded by

threatening to order a refund of the entire retainer amount.

Finally, the court reiterated several times that, within his

ethical obligations, counsel was required to defer to Brown’s

wishes regarding the conduct of his case, and that

disagreements on that issue would not be grounds to

withdraw.

But this motion was not primarily about Brown’s lawyer

trying to withdraw from the case. Rather, Brown was trying

to fire his lawyer. Brown and his attorney made that impetus

for the motion abundantly clear in an email attached to the

original motion to withdraw and in several statements each

made during the hearing. That being the case, the district

20 UNITED STATES V. BROWN

court’s primary responsibility was not to ensure a fair

attorney-client relationship or to supervise the conduct of the

lawyer. Those are relevant and important considerations

when a court considers a lawyer’s motion to withdraw. See,

e.g., Brandon v. Blech, 560 F.3d 536, 537–39 (6th Cir. 2009).

But where, as here, it is apparent that the defendant, not the

attorney, instigated the withdrawal motion, the defendant’s

Sixth Amendment rights should trump whatever concerns the

court has about the lawyer’s motives.

When the district court did turn its attention to the

defendant’s reasons for wishing to switch lawyers, it became

clear that Brown’s complaints were threefold. First and

foremost, Brown was unsatisfied with his lawyer’s conduct

of the case. Underscoring his attorney’s assessment of an

“extreme divergence of philosophical opinion as to how the

case should be carried on,” and a great deal of “mistrust,”

Brown made it perfectly clear that he believed himself to be

innocent of the charges, but that his attorney had “never

talked about a defense” but “always about a plea . . . since

[they] met.” Second, Brown agreed with his counsel that he

and his lawyer had been in infrequent contact, although each

blamed the other for the lack of communication. Third, while

Brown indicated that he had paid the entire $50,000 retainer,

he implied that financial tensions had contributed to souring

the relationship with his lawyer: He had “trouble getting the

last payment,” and money was “always an issue up until

[that] point.”

In the context of the constitutional right to discharge a

retained lawyer, any of these concerns was more than

sufficient. Brown’s reasons for wanting to discharge his

retained lawyer were not properly the court’s concern at all.

He had the right to “fire his retained . . . lawyer . . . for any

UNITED STATES V. BROWN 21

reason or [for] no reason.” Rivera-Corona, 618 F.3d at 980

(emphasis added). Only affirmative interference with the

“fair, efficient and orderly administration of justice,” id. at

979 (internal quotation marks omitted), could have justified

an order that Brown could not discharge his lawyer.

Yet, in rejecting the request despite Brown’s serious

concerns about his attorney, the court cited only the

qualifications of Brown’s current attorney; the supposedly

inferior representation Brown would receive if the Federal

Public Defender’s Office substituted into the case; the

attorney’s ethical obligation to allow Brown to control the

defense; the lawyer’s representation that he was prepared for

trial, as well as the court’s offer of a continuance for

“whatever time he need[ed]” to finish preparing; and the fact

that the lawyer had already been paid $50,000. All of these

reasons – except, perhaps, the last – bear on the district

court’s perception that the retained attorney would provide an

adequate defense and that Brown’s complaints did not

establish a conflict sufficient to constitute a constructive

denial of counsel, neither of which were, in themselves,

pertinent considerations.4

Again, given Brown’s right to discharge his retained

attorney if he chose to do so, it did not matter whether the

court considered Brown’s current lawyer well qualified, or

prepared for trial, or – most dubiously of all, given the very

high quality of federal public defenders in general – better

4

The fact that the lawyer had already been paid $50,000 was relevant

only to the notion that allowing the lawyer to walk away from the case

would be unfair to Brown. This concern, too, was not a pertinent

consideration, as Brown, not the lawyer, was instigating the withdrawal.

22 UNITED STATES V. BROWN

than the alternative.5 See Gonzalez-Lopez, 548 U.S. at 148

(the right to counsel of choice is “the right to a particular

lawyer regardless of comparative effectiveness” (emphasis

added)). All of the court’s articulated reasons were, simply

put, not relevant under these circumstances.

B.

One possible reason for the district court’s rulings

warrants separate analysis. The government suggests in its

briefing that the district court denied Brown’s motions

because of the expectation of delay associated with allowing

Brown to discharge his lawyer and obtain the appointment of

new counsel. This reason is best understood as addressing

question one – whether the district court should permit a

defendant to discharge retained counsel or whether “a

contrary result is compelled by ‘the purposes inherent in the

fair, efficient and orderly administration of justice.’” Rivera-

Corona, 618 F.3d at 979 (quoting Ensing, 491 F.3d at 1115).

5

Indeed, we completely disagree with the district court’s assessment of

federal public defenders, who, in our experience, typically provide the

highest quality representation, very often superior to that provided by

members of the private criminal defense bar. Nor are we alone in that

opinion: A survey of 457 federal district and appellate judges, published

as part of an article co-authored by Judge Posner of the Seventh Circuit,

rated advocacy by public defenders in federal court significantly higher

than that provided by privately retained attorneys, court-appointed

attorneys, and even prosecutors. Richard A. Posner & Albert H. Yoon,

What Judges Think of the Quality of Legal Representation, 63 Stan. L.

Rev. 317, 322, 327 (2011); see also id. at 341-42 (reviewing research

suggesting that “a majority of indigent federal criminal defendants may be

serving longer sentences by virtue of not having been represented by a

federal public defender”).

UNITED STATES V. BROWN 23

The district court in this case did initially express concern

with the timing of the request, which was filed two and a half

weeks before trial was originally set to begin. And the

district court has “wide latitude in balancing the right” to

discharge retained counsel against “the demands of its

calendar.” Gonzalez-Lopez, 548 U.S. at 152. We conclude,

however, that the district court in this case did not, in fact,

deny the motion because of “the demands of its calendar,” id.,

nor, on this record, would that concern suffice as an

administration-of-justice basis for denial of the constitutional

right to discharge retained counsel.

First, the court never said that concern for its calendar

was its reason for denying the motion. Rather, the court cited

various factors that related principally to its perception that

Brown’s lawyer would provide effective assistance of

counsel. The court did not cite possible delay when it ruled

on the motion.

Second, the court’s willingness to continue the case belies

the suggestion that it denied the motion to avoid delay. The

court repeatedly offered to continue the case, indicating, at

one point, that it would allow Brown’s lawyer “whatever time

he need[ed] before we finally go to trial.” And, in fact, the

trial was continued, by a month, after the hearing, and so took

place some six and a half weeks after the motion to substitute

was filed.

Third, the court made no effort to ascertain how long the

newly appointed attorney would likely need to prepare for

trial. The court stated that such an appointment would

require a “continuance of the trial so that person could be

brought up to speed.” But, even though an attorney from the

Federal Public Defender’s Office was present throughout the

24 UNITED STATES V. BROWN

hearing, indicating that the office was acquainted with the

circumstances and was willing to take over the case

immediately, the court never asked how long a continuance

would be necessary should it do so.

In light of these circumstances, we cannot conclude that

the district court denied Brown’s request to discharge his

retained counsel because of concern for its calendar, or that

the federal public defender would have needed any more time

than retained counsel requested and was granted. Indeed, it

appears that the retained attorney had concentrated

theretofore on trying to obtain a plea bargain, and, in fact,

shortly before the hearing on the motion to withdraw, filed a

motion to continue the trial regardless of the outcome of the

hearing, citing the need to repair his relationship with Brown,

investigate, research, and prepare for trial.

Aside from timing, the government suggests no reason

why the “purposes inherent in the fair, efficient and orderly

administration of justice,” Rivera-Corona, 618 F.3d at 979

(quoting Ensign, 491 F.3d at 1115) (internal quotation marks

omitted), could justify the district court’s ruling, nor, having

independently reviewed the entire record, can we conceive of

any.

The district court fully explored all the possible reasons

for granting or denying Brown’s motion and set forth those it

considered relevant. Despite its extensive inquiry, at no point

did it indicate that granting the motion would pose any

impediment to the “fair, efficient and orderly administration

of justice,” id. (internal quotation marks omitted), which

surely it would have had it concluded that such an

impediment supported the denial of Brown’s motion. Having

carefully reviewed the record in light of the constitutional and

UNITED STATES V. BROWN 25

statutory requirements, we conclude that no such reason

exists, and so Brown’s motion to discharge his retained

lawyer should have been granted. As Brown met the

financial requirements for an appointed lawyer, he was

entitled to one – such as the federal public defender waiting

in the courtroom.

V.

We turn to the question of remedy. The denial of a

defendant’s right to counsel of choice is a structural error,

requiring that convictions be vacated even without a showing

of prejudice. Gonzalez-Lopez, 548 U.S. at 150. Accordingly,

because Brown’s motion to substitute counsel should have

been granted, Brown was denied his right to counsel of

choice and we must vacate his convictions.6

6

The remedy we adopt (vacating Brown’s convictions) is not

inconsistent with Martel, 132 S. Ct. at 1289 n.4. The alleged abuse of

discretion considered in Martel’s footnote 4 was a purely procedural one:

According to this court, the district court in Martel had erred in “denying

Clair’s substitution motion without inquiry.” Id. (emphasis added). In this

case, in contrast, the district court’s error was substantive: Unlike the

standards applicable to replacing appointed counsel, at issue in Martel, the

standards applicable to denial of the constitutional right to counsel of

choice centrally at issue here allows the district court only limited

discretion to deny the defendant’s choice when required by the “fair,

efficient and orderly administration of justice.” Rivera-Corona, 618 F.3d

at 979 (internal quotation marks omitted); see also Cassel, 408 F.3d at 637

(“The trial court’s discretion must be exercised . . . within the limitations

of the Sixth Amendment . . . .”) (internal quotation marks omitted). Under

the correct standard, there was no adequate reason to deny Brown’s

motion, and so it should have been granted.

26 UNITED STATES V. BROWN

VI.

We next consider Brown’s arguments that the evidence at

trial was insufficient to establish guilt, as those arguments, if

correct, would foreclose retrial. See McDaniel v. Brown,

558 U.S. 120, 131 (2010) (citing Burks v. United States,

437 U.S. 1, 18 (1978)); United States v. Rylander, 714 F.2d

996, 1001, 1003, 1004–05 (9th Cir. 1983). We review

sufficiency of the evidence de novo, determining whether,

“after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Fasthorse, 639 F.3d 1182, 1183-84 (9th Cir.

2011) (quoting United States v. Nevils, 598 F.3d 1158,

1163–64 (9th Cir. 2010) (en banc)) (emphasis and internal

quotation marks omitted).

Brown argues, first, that the transportation and advertising

convictions required evidence that “the material itself . . .

cross[ed] state lines.” United States v. Wright, 625 F.3d 583,

594 (9th Cir. 2010). Wright was specifically predicated,

however, on the wording of § 2252A(a)(1) “[a]s it existed at

the time of Wright’s offense in 2003.” Id. at 590. At that

time, the statute criminalized transportation “in interstate . . .

commerce.” Id. (internal quotation marks omitted). As

Wright noted, the statute was amended in 2008, and now bars

transportation “using any means or facility of interstate . . .

commerce or in or affecting interstate . . . commerce.”

18 U.S.C. § 2252A(a)(1); see also Wright, 625 F.3d at

599–600. The advertising statute was also amended to

include essentially identical language. See 18 U.S.C.

§ 2251(d)(2)(A)–(B); Pub.L. No. 110–358, 122 Stat. 4001.

UNITED STATES V. BROWN 27

This amendment “effected a substantial change”: While

the former wording was selected “to afford the statute a more

limited jurisdictional reach,” in 2008 “Congress chose to

regulate to the outer limits of its Commerce Clause authority

by inserting the ‘affecting interstate commerce’ language.”

Wright, 625 F.3d at 600; see also United States v. Walls, No.

13-30223, 2015 WL 1783041, at *2–3 (9th Cir. Apr. 21,

2015). Congress has the constitutional authority to

“criminalize [the] intrastate possession” of child

pornography. United States v. Sullivan, 753 F.3d 845, 854

(9th Cir. 2014) (citing United States v. Gallenardo, 579 F.3d

1076, 1081 (9th Cir. 2009)); see also 18 U.S.C.

§ 2252A(a)(5)(B). We see no reason why it would have less

authority to criminalize intrastate transportation and

advertising of such materials. Accordingly, we hold that a

conviction for transportation or advertising of child

pornography does not require evidence that the material

actually crossed state lines.

Second, Brown asserts that the government’s theory of

the case, namely that “by knowingly allowing files to remain

in FrostWire’s shared folder, Brown ‘transported’ the files,”

does not in fact establish a violation of 18 U.S.C.

§ 2252A(a)(1). Brown’s argument is not without persuasive

force. If, for example, the owner of an apple tree hangs a sign

inviting passersby to help themselves, he has surely possessed

and advertised the apples, and, if someone picks one, can

fairly be said to have distributed it by making it freely

available. See United States v. Budziak, 697 F.3d 1105, 1109

(9th Cir. 2012). But has he “transported” the apples?

The slate on this issue is not blank. In United States v.

Mohrbacher, 182 F.3d 1041 (9th Cir. 1999), the defendant

was charged with the closely related crime of transporting

28 UNITED STATES V. BROWN

visual depictions of minors engaged in sexually explicit

conduct, 18 U.S.C. § 2252(a)(1), for having “download[ed]

images of child pornography from [an] . . . electronic bulletin

board.” 182 F.3d at 1043. The electronic bulletin board was

an automated system that allowed users to select and

download images. Id. at 1045. Mohrbacher held that the

defendant in that case could not be convicted of

transportation, as “[a]n individual who downloads images

from a computer bulletin board takes an action that is more

analogous to ordering materials over the phone and receiving

materials through the mail than to sending or shipping such

materials.” Id. at 1050.

Mohrbacher contrasted the defendant’s role in that case

to that of the operators of the bulletin board: Despite the

automated nature of the system, “[t]hose who are responsible

for providing the images to a customer, by making them

available on a computer bulletin board . . . , are properly

charged with and convicted of shipping or transporting

images under § 2252(a)(1).” Id. (emphasis omitted). The

point was further underscored in a footnote: It was “difficult

to claim that Mohrbacher himself caused the images to be

transported when one considers that the bulletin board

operator is in reality the individual who is primarily

responsible for the images moving from the bulletin board to

individuals’ computers.” Id. at 1049 n.9. Thus, contrary to

the government’s position in that case, the court indicated

that “[t]he action of the bulletin board operator,” rather than

Mohrbacher’s, could be prosecuted as an instance of

“transporting.” Id.

To be sure, Mohrbacher involved a slightly different

statute. Further, the defendant in Mohrbacher was analogous

not to Brown but to individuals who downloaded child

UNITED STATES V. BROWN 29

pornography from Brown’s computer. The criminal liability

of the uncharged operator, which Mohrbacher suggested

could be charged with transportation, was not directly at issue

in Mohrbacher. Nonetheless, Mohrbacher’s holding, that

Mohrbacher was not guilty of transportation, stood squarely

on the understanding that the bulletin board operator was

guilty of that crime. Thus, to the extent Brown’s role is

materially the same as that of the bulletin board operator,

Mohrbacher forecloses his argument.

To resolve this case, however, we need not decide

whether any user of a peer-to-peer service who makes his

files available for other users to download is categorically

equivalent to the operator of the bulletin board discussed in

Mohrbacher. The evidence at trial showed that Brown, the

proprietor of a computer business with substantial technical

computer knowledge, had designated a non-default folder on

his external hard drive to be shared by FrostWire. In light of

this evidence, a reasonable jury could conclude that the

actions Brown took are not materially different from those the

operator took in setting up the bulletin board system in

Mohrbacher. The evidence was therefore sufficient as to the

transportation charge.7

7

In light of our decision to vacate Brown’s convictions, we do not reach

his other arguments. We note that the government conceded on appeal

that Brown’s conviction for possession of child pornography is a lesser

included offense of his conviction for receipt of child pornography. If, on

retrial, Brown is again convicted of both offenses, the district court should

vacate one of the convictions, rather than suspending one of the sentences.

See United States v. Brobst, 558 F.3d 982, 1000 (9th Cir. 2009).

30 UNITED STATES V. BROWN

VII.

Because Brown was denied his constitutional right to

discharge his retained lawyer and his statutory right to have

counsel appointed in that lawyer’s place, we vacate Brown’s

convictions and remand for a new trial.

VACATED AND REMANDED.