United States v. Yepiz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 07-50051

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-7

MANUEL YEPIZ, AKA Martin

Sanchez, Seal G and Pony;

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50062

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-37

JOSE LUIS MEJIA, AKA Jose Luiz

Mejia, Jose Nernedes, Juan

Martinez, Jose Mejia, Check Mejia,

Jose Al Mejia, Joe Morin, Jose L.

Mejia, “Checho”, “Joe” and

“Cheech”,

Defendant-Appellant.

2 UNITED STATES V. YEPIZ

UNITED STATES OF AMERICA, No. 07-50063

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-35

FRANCISCO ZAMBRANO, AKA

Franky Boy and “Franky”,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50067

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-21

JESUS CONTRERAS, AKA Jessie

Contreras, Yuck,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50070

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-44

MARIANO MEZA,

Defendant-Appellant.

UNITED STATES V. YEPIZ 3

UNITED STATES OF AMERICA, No. 07-50098

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-36

SERGIO MEJIA, AKA Robert Mesa,

Seal JJ, Jaws,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50133

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-22

GILBERTO CARRASCO, AKA Gilberto

Carrasco, Jr., Gil Carrasco, Robert

Carrasco, Gilberto Carrosco,

Gilberto Corrosco, Julio Gonazalez,

Vicente Hernandez, Vincente

Hernandez, Vincente NMN

Hernandez, Sergio Renteria, Juan

Rosas, Beto, Betillo, Red and Cejas,

Defendant-Appellant.

4 UNITED STATES V. YEPIZ

UNITED STATES OF AMERICA, No. 07-50142

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-31

ERNESTO OROZCO MENDEZ, AKA

“Gordo”, “El Gordo”, Ernesto

Mijares, Ernesto Mendoza Mijares,

Ernesto Mendoza Orozco (Birth

Name),

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50264

Plaintiff-Appellee,

D.C. No.

v. CR-05-00578-

JFW-1

RAFAEL YEPIZ,

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted December 7, 2015

Pasadena, California

Filed December 20, 2016

UNITED STATES V. YEPIZ 5

Before: Stephen Reinhardt, John T. Noonan,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Noonan;

Dissent by Judge Nguyen

SUMMARY *

Criminal Law

In appeals by nine defendants convicted of crimes arising

out of their alleged membership or association with a

Southern California gang, the panel remanded for fact-

finding in connection with the defendants’ joint

Brady claims, vacated Manuel Yepiz’s conviction due to

defects in the district court’s handling of his requests for

substitution of counsel, and remanded for a new trial in

Yepiz’s case.

On the joint claim that the government violated Brady v.

Maryland by failing to disclose the full extent of the benefits

a cooperating witness received at trial, the panel rejected the

government’s arguments that the defendants waived this

claim, that the allegedly withheld information would have

been cumulative, and that the record conclusively shows that

the benefits were all earned after the trial. In light of

disputed facts surrounding the Brady claim, the panel

remanded to the district court so that it may engage in the

necessary fact-finding to ascertain whether the witness

received benefits that were undisclosed to the defendants at

*

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

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

6 UNITED STATES V. YEPIZ

the time at trial, and if so, whether Brady was violated as to

each convicted count.

The panel held that the district court abused its discretion

when it arbitrarily and without explanation rejected Manuel

Yepiz’s pro se April 9, 2006 letter seeking to replace his

retained counsel with court-appointed counsel. The panel

wrote that Yepiz’s failure to submit his letter through the

very counsel he was hoping to discharge does not negate the

court’s duty to inquire into the problems between Yepiz and

counsel when they were first raised. The panel held that

Yepiz did not waive his motion to substitute counsel by

failing to reassert it at a May suppression hearing. The panel

held that the record is sufficiently clear to determine, without

remanding, that replacing counsel would not have caused

significant delay or impeded the fair, efficient, and orderly

administration of justice. The panel concluded that Yepiz

was therefore entitled to discharge retained counsel “for any

or no reason,” and that if he still qualified as an indigent

defendant at the time he sent his pro se letter requesting

substitution, he was also statutorily entitled to appointed

counsel under the Criminal Justice Act.

The panel addressed other issues in a concurrently filed

memorandum disposition.

Judge Nguyen dissented in part. She wrote that the

majority’s holding that the district court’s failure to consider

Yepiz’s letter is structural error requiring automatic reversal

(1) invalidates well-established local rules prohibiting

represented parties from communicating with the court pro

se, and (2) by refusing to engage in harmless error analysis,

brings this court seriously out of step with the Supreme

Court’s Sixth Amendment jurisprudence.

UNITED STATES V. YEPIZ 7

COUNSEL

Verna Wefald (argued), Pasadena, California, for

Defendant-Appellant Manuel Yepiz.

Phillip A. Treviño, Los Angeles, California, for Defendant-

Appellant Jose Luis Mejia.

Shawn Perez, Las Vegas, Nevada, for Defendant-Appellant

Francisco Zambrano.

Phillip Deitch, Santa Monica, California, for Defendant-

Appellant Jesus Contreras.

Donald C. Randolph (argued) and Ann-Marissa Cook,

Randolph & Associates, Santa Monica, California, for

Defendant-Appellant Mariano Meza.

Diane Berley, West Hills, California, for Defendant-

Appellant Sergio Mejia.

Adam Axelrad, Los Angeles, California, for Defendant-

Appellant Gilberto Carrasco.

Gary P. Burcham, Burcham & Zugman, San Diego,

California, for Defendant-Appellant Ernesto Orozco

Mendez.

Katherine Kimball Windsor (argued), Law Office of

Katherine Kimball Windsor, Pasadena, California, for

Defendant-Appellant Rafael Yepiz.

L. Ashley Aull (argued) and David Kowal, Assistant United

States Attorneys; Robert E. Dugdale, Chief, Criminal

8 UNITED STATES V. YEPIZ

Division; United States Attorney’s Office, Los Angeles,

California; for Plaintiff-Appellee United States.

OPINION

NOONAN, Circuit Judge:

Appellants are all alleged to be members or associates of

the Vineland Boys (“VBS”), a gang located in Southern

California. On November 30, 2005, a grand jury returned a

78-count first superseding indictment charging appellants

and approximately forty other individuals with crimes

arising out of their membership or association with VBS.

Seven of the nine appellants were charged with violating the

Racketeer Influenced and Corrupt Organizations Act

(“RICO”), and with RICO conspiracy (Counts 1 and 2,

respectively), and all appellants were charged with

distribution of narcotics (Count 3). Other charged counts

included violent crimes in aid of racketeering (“VICAR”),

attempted murder, and possession with intent to distribute

cocaine, methamphetamine, and marijuana.

Trial commenced on August 9, 2006. On October 26,

2008, the jury returned a verdict of not guilty as to five

counts, a mistrial as to one count, and a verdict of guilty as

to the remaining counts. Appellants’ subsequent motions for

judgments of acquittal and new trials were denied by the

district court. Appellants—Manuel Yepiz, Jose Luis Mejia,

Francisco Zambrano, Jesus Contreras, Mariano Meza,

Sergio Mejia, Gilberto Carrasco, Rafael Yepiz, and Ernesto

Mendez—timely appealed their convictions and sentences.

We note at the outset that this case was vigorously

litigated over the course of two-and-a-half months. It

UNITED STATES V. YEPIZ 9

presented the district court with a gauntlet of complex legal

questions, and required it to grapple with unique concerns to

courtroom safety and logistics. We are now presented with

nearly three dozen distinct legal questions on appeal. These

questions have been met by the district court promptly and

persuasively.

In this opinion we resolve (1) appellants’ joint Brady

claims, and (2) Manuel Yepiz’s Sixth Amendment Right to

Counsel claim. We address the remaining issues in a

concurrently filed memorandum disposition.

I. DEFENDANTS’ JOINT BRADY CLAIMS

BACKGROUND

At trial, one of the government’s cooperating witnesses

was Victor Bulgarian. In September of 2006, on direct

examination, Bulgarian testified that he was previously

arrested for possession and sale of methamphetamine in an

unrelated case, and agreed to cooperate with law

enforcement in exchange for a lesser sentence, and a grant

of immunity for his testimony as a government witness.

Bulgarian testified to having received no benefits from the

government in exchange for his testimony. However, on

cross-examination, Bulgarian testified to having received

$5,000 in cash from the government after he testified to the

grand jury in this case. Defendants noted that this testimony

directly contravened a letter the government sent to them

asserting that no witnesses received any benefits from the

government in exchange for their testimony. The

government acknowledged that it was “a glaring mistake,”

but argued that the error was cured because defendants had

ample opportunity to cross examine Bulgarian on the subject

of the $5,000 payment. Defendants did not raise the issue

again either at trial or in a post-trial motion.

10 UNITED STATES V. YEPIZ

Approximately three years later, on August 20, 2009,

Bulgarian testified in the trial of Horacio Yepiz. 1 On direct

examination, Bulgarian once again testified to having

received no benefit from the government in return for his

testimony. On cross examination, Bulgarian testified that

since his arrest for drug-related crimes in 2004, he had

received roughly $100,000 to $200,000 in cash from five

different law enforcement agencies, although he was unable

to give an exact figure. He explained that he was able to

solicit paid work from these agencies whenever he wanted

(“I decide when I want to work, and when I work, I get

paid.”). Indeed, he testified to having received $800 for three

hours of work the week prior. Appellants now argue that the

government violated Brady by failing to disclose the full

extent of the benefits Bulgarian received at trial.

STANDARD OF REVIEW

“[T]he suppression by the prosecution of evidence

favorable to an accused upon request violates due process

where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).

To prevail on a Brady claim, the defendant must show that

the evidence was material. Materiality is satisfied when

“there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the

outcome.” United States v. Bagley, 473 U.S. 667, 682

(1985). This Court reviews alleged Brady violations de

novo. United States v. Baker, 658 F.3d 1050, 1053 (9th Cir.

1

Horacio Yepiz was originally joined as a co-defendant of

appellants, but was later deemed incompetent and tried separately.

UNITED STATES V. YEPIZ 11

2011), overruled on other grounds by United States v. King,

687 F.3d 1189 (9th Cir. 2012).

DISCUSSION

The government makes three arguments in support of its

contention that it did not violate Brady: (1) defendants

waived any Brady claim by failing to raise it at trial; (2) the

allegedly withheld information would have been cumulative

in light of other impeachment material provided to

defendants; and (3) the record demonstrates that Bulgarian

received these payments only after the trial in this case.

The government argues that defendants have waived

their Brady claim by failing to raise it in the trial court.

However, this Court has previously rejected this precise

argument. In United States v. Bracy, undisclosed

impeachment evidence of a government witness was

uncovered for the first time in a later trial of a severed group

of defendants. 67 F.3d 1421, 1428 (9th Cir. 1995). The

information came to light only after the defendant had filed

his notice of appeal, thereby divesting the trial court of

jurisdiction over his case. See generally Griggs v. Provident

Consumer Discount Co., 459 U.S. 56, 58 (1982). This Court

concluded that “[i]t defies logic to suggest that [the

defendant] waived a claim by not raising it before a court

that lacked jurisdiction to consider it.” Bracy, 67 F.3d at

1428. This reasoning applies with equal force here given that

defendants appealed their case in early 2007, roughly two-

and-a-half years before the new evidence was revealed.

Next, the government presents a litany of impeachment

evidence that it produced to defendants, and argues that

“additional payments information could hardly have caused

the jury to view Bulgarian or his relationship with the

government differently or with greater caution.” To the

12 UNITED STATES V. YEPIZ

extent that the government argues that its duties under Brady

only encompass disclosure of non-cumulative evidence, this

Court has previously found this line of reasoning unavailing.

Carriger v. Stewart, 132 F.3d 463, 481 (9th Cir. 1997) (“We

have held that the government cannot satisfy its Brady

obligation to disclose exculpatory evidence by making some

evidence available and claiming the rest would be

cumulative.”) (internal citations omitted). Moreover, failure

to produce evidence (1) that Bulgarian made hundreds of

thousands of dollars assisting law enforcement, and

(2) enjoyed a relationship that allowed him to earn benefits

whenever he chose, was material despite the effect of other

impeachment evidence provided by the government. Indeed

this evidence could very well have resulted in the jury

disbelieving all of Bulgarian’s testimony, which played an

important role in the government’s case. Cf. Benn v.

Lambert, 283 F.3d 1040, 1058 (9th Cir. 2002) (“The

undisclosed benefits that Patrick received added

significantly to the benefits that were disclosed and certainly

would have ‘cast a shadow’ on Patrick’s credibility. Thus,

their suppression was material.”).

The government’s attempts to minimize the significance

of Bulgarian’s testimony are not persuasive in light of the

record. While some of Bulgarian’s testimony was

independently corroborated, it nonetheless played a

substantial role in the government’s case-in-chief. In

particular, Bulgarian’s testimony was relied upon heavily by

the government to show that VBS was a “criminal

enterprise” under RICO. Therefore, had the alleged Brady

materials been made available to appellants at trial, there is

a “reasonable probability” that the result of the proceeding

would have been altered.

UNITED STATES V. YEPIZ 13

Finally, the government argues that the record

conclusively shows that the benefits Bulgarian testified to

receiving were all earned after appellants’ trial, and

therefore could not serve as the basis of a Brady violation.

The government points to a discovery letter sent to Horacio

Yepiz in August of 2009, informing him that since

Bulgarian’s testimony in this case in 2006, he had received

an additional $80,000 to $90,000 from the government.

However, Bulgarian testified that he may have received as

much as $200,000 between 2004 and 2009; therefore a letter

stating that he received roughly half that sum after

appellants’ trial in 2006 does not foreclose appellants’ Brady

claim.

The government concedes that the facts surrounding

benefits paid to Bulgarian are “in dispute.” Likewise,

defendants admit that “there are fact-finding gaps in the

record with regard to how much Bulgarian was paid, when

he received payments, and the purpose of the payments.”

Defendants attempt to bridge these “gaps” by requesting that

the court simply take judicial notice of Bulgarian’s 2009

testimony at the trial of Horacio Yepiz. However courts may

only take judicial notice of facts “not subject to reasonable

dispute;” therefore the court DENIES defendants’ motion.

Fed. R. Evid. 201; see also Lee v. City of L.A., 250 F.3d 668,

690 (9th Cir. 2001). 2

2

Defendants also request that this court take judicial notice of a

complaint, verdict, and judgment in a state civil negligence case.

Defendants have failed to adequately explain how these documents relate

to any of their arguments on appeal, and how they meet the standard for

judicial notice. MJN at 5 (citing JOB at 76–77). The Court therefore

14 UNITED STATES V. YEPIZ

In light of the disputed facts surrounding defendants’

Brady claim, we REMAND to the district court so that it

may engage in the necessary fact-finding to ascertain

whether Bulgarian received benefits that were undisclosed

to appellants at the time of trial, and if so, whether Brady

was violated as to each convicted count. 3

II. MANUEL YEPIZ’S SUBSTITUTION OF COUNSEL CLAIM

BACKGROUND

Following Manuel Yepiz’s (“Yepiz”) arrest in June

2005, an attorney named Bernard Rosen was appointed to

represent him. In November 2005, Yepiz retained Nicolas

Estrada to replace Rosen. On April 9, 2006, Yepiz wrote a

letter addressed “to the Honorable Judge Walters,” which the

court received on April 11, 2006. In the letter, Yepiz

expressed “great concern” about “financial differences” he

was having with Estrada. He stated that Estrada had asked

him for $200,000 to proceed to trial, despite having told

Yepiz and his family he would only charge an additional

$25,000 to $35,000 for trial. He stated that if Estrada “would

DENIES defendants’ motion for judicial notice as to these documents as

well.

3

At oral argument, the government conceded that defendants should

have an opportunity to litigate their Brady claims by collaterally

attacking their conviction under 28 U.S.C. § 2255. However, the

government points to no opinion of this Court holding that a post-

conviction motion under § 2255 is preferable to a remand. Indeed, the

government stated at oral argument that “it doesn’t make much

difference” what mechanism is used. Moreover, defendants would not

enjoy the benefit of counsel in a § 2255 proceeding. Given that counsel

for defendants are already familiar with the facts surrounding the Brady

issue, the interests of justice and judicial efficiency militate in favor of

remanding to the district court.

UNITED STATES V. YEPIZ 15

have been more truthful from the start, [he] would have

never hired [Estrada],” because his family could not afford

him. Finally, Yepiz noted that he did not want to “waste

everybodys [sic] time by waiting [until] the last minute to

ask for a new attorney,” that he had only recently been

informed of Estrada’s prices, and that he was thus requesting

a “panel attorney” now, so that he or she could “prepare for

trial and [have] everything [go] as schedule[d].”

The court did not accept Yepiz’s letter, and instead

ordered the letter “returned to counsel” along with a Notice

of Document Discrepancies (NDD). A checked box at the

bottom of the NDD stated that Yepiz’s letter was “NOT to

be filed, but instead REJECTED.” The NDD did not

indicate the basis for the court’s rejection, and the docket

description of the document only indicated that the denial

was based on the fact that “[p]arties should not write letter[s]

to Judge.” Yepiz and Estrada subsequently appeared before

the court on May 9, 2006 for a hearing on a motion to

suppress evidence, though neither Yepiz nor Estrada

reasserted Yepiz’s motion for substitution of counsel.

On July 25 and 31, Yepiz wrote two additional letters

addressed to Judge Walter asking for an “in camera hearing”

to “request the Court to appoint new counsel” on his behalf.

He raised several concerns in his letters regarding Estrada’s

representation, and the court scheduled a hearing for August

4, 2006 to address them. At the hearing, the court stated that

it had received “two letters from the defendant,” referring to

those letters dated July 25 and July 31. It did not reference

Yepiz’s April 9 letter. After discussing several of Yepiz’s

concerns, the following exchange took place between Yepiz

and Judge Walter:

Yepiz: Okay, Your Honor. And then another

thing. I addressed the Court—I wrote this

16 UNITED STATES V. YEPIZ

letter on April 9th—yes, I believe April 9th.

I have it right here. It was returned, it was

signed by, I believe, you and returned. 4 Right

here I’m asking for a lawyer because I’m

already having problems with [Estrada] as of

April 9th. This is not something that

happened last week or a few weeks ago,

[Y]our Honor, this has been going on. . . .

This is a whole letter right here signed by

you, yourself, [Y]our Honor, I have it right

here in front of me.

The Court: Well, I didn’t sign any letter.

Yepiz: Well, it’s right here.

The Court: I didn’t sign your letter.

Yepiz: You didn’t sign—oh, you signed the

copy of it.

The Court: Your letter that you’re saying

that I signed.

Yepiz: My letter, I apologize, you know, I’m

not the brightest car in the lot.

The Court: All right. Anything else?

4

While the NDD stipulated that the letter should be returned to

counsel, based on Yepiz’s statements, he was aware that the letter had

been returned, either because it had been returned directly to him, or

because Estrada informed him that it had been returned.

UNITED STATES V. YEPIZ 17

The court then briefly questioned Yepiz about his July 25

letter, but never again acknowledged Yepiz’s April 9 letter.

The court held that “the issues raised ha[d] been adequately

addressed by counsel” and that Yepiz’s requests for

substitution were “untimely, as [they had been] filed on the

eve of trial.” The court further stated that because it had

received four or five letters from several of Yepiz’s co-

defendants who were “all housed together at [a correctional

facility],” they amounted to “nothing more than a strategic

attempt to delay the trial.” Because it found that a

substitution “would necessitate a continuance” of the trial,

the court denied Yepiz’s request.

On September 20, 2006—the 23rd day of trial—Yepiz

sent a fourth letter to the court that was addressed to Judge

Walter. The letter raised several “concerns as to [Yepiz’s]

attorney and his representation.” Among other things, it

stated that Estrada would not spend $60 to copy a videotape

of Yepiz’s arrest and that he feared Estrada had “lost interest

to defend [him]” because he had “run out of money.” He

stated that Estrada was “constantly harass[ing]” him for

money and his family was “selling their house to pay him,”

but that Estrada’s response was “no money [no] defense.”

Interpreting Yepiz’s letter as a request for substitution of

counsel, the court scheduled a hearing for three days later,

where Yepiz clarified that the letter was actually “just a

request to get the video” from Estrada, and Estrada agreed to

produce it.

STANDARD OF REVIEW

“We review a district court’s denial of a motion for

substitution of counsel for abuse of discretion.” United

States v. Rivera-Corona, 618 F.3d 976, 978 (9th Cir. 2010).

Unlike “most substitution cases” that “arise when an

indigent defendant requests new court-appointed counsel in

18 UNITED STATES V. YEPIZ

place of an existing appointed attorney,” the present appeal

concerns a defendant’s request to replace retained counsel

with appointed counsel. Id.

The Sixth Amendment provides that, [i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.” U.S. Const.

amend. VI. This right “encompasses two distinct rights: a

right to adequate representation” for all defendants and, for

defendants who have retained their own attorney, the right

“to be represented by the attorney of [their] choice.” Rivera-

Corona, 618 F.3d at 979 (emphasis omitted). The right to

counsel of choice includes the constitutional “right to

discharge retained counsel,” and a defendant may generally

do so “for any reason or no reason” so long as “the

substitution would [not] cause significant delay or

inefficiency or run afoul of . . . other considerations,” such

as the “fair, efficient and orderly administration of justice.”

United States v. Brown, 785 F.3d 1337, 1340, 1344, 1345,

1346 (2015); Rivera-Corona, 618 F.3d at 980–81. “[D]enial

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

error, requiring that convictions be vacated even without a

showing of prejudice.” Brown, 785 F.3d at 1350. Where a

“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), at any stage of the proceedings. Id. at 1340;

18 U.S.C. § 3006A.

DISCUSSION

Yepiz claims the district court abused its discretion when

it failed to inquire into his April letter seeking to replace

Estrada with court-appointed counsel. We agree. Under this

court’s precedent, “the trial judge had a duty to inquire into

the problems between” Yepiz and Estrada “when they were

UNITED STATES V. YEPIZ 19

first raised.” Blacketter, 525 F.3d at 896. The court here

failed to conduct any inquiry with regard to Yepiz’s April

letter, though it clearly understood it was bound by such a

duty given the speed with which it scheduled hearings

regarding Yepiz’s July and September letters, each of which

were similarly addressed directly to Judge Walter. Yepiz’s

failure to submit his letter through the very counsel he was

hoping to discharge, does not negate the court’s duty.

As an initial matter, the government argues that the court

need not have addressed Yepiz’s request because it was not

properly filed. According to the government, Yepiz’s letter

was rejected and not filed because it did not comply with

Local Rules 83-2.9.1 and 83-2.11. Those rules prohibit

parties who are represented by counsel from acting pro se

and from communicating with the judge via letters or phone

calls. See C.D. Cal. Civ. L-R 83-2.9.1 & 83-2.11. The NDD

rejecting Yepiz’s letter, however, made no mention of these

local rules. Indeed, no reason for the rejection was provided

on that form. It was only on the electronic version of the

docket that any explanation was provided: “[p]arties should

not write letter [sic] to Judge.” Thus, no clear explanation

as to why Yepiz’s letter was rejected was ever presented to

Yepiz’s counsel, and because the letter and NDD were sent

to Yepiz’s counsel and not to Yepiz, Yepiz was given no

explanation at all.

Had such an explanation been given to Yepiz, he would

have been in a position to properly comply with the local

rules: he could have requested that his counsel file a motion

asking to withdraw, a motion which his counsel would have

been ethically obligated to file. Alternatively, Yepiz could

have filed another letter explaining why he was unable to

comply with the rules—perhaps his counsel was unwilling

or unable to comply with his ethical obligations to file a

20 UNITED STATES V. YEPIZ

motion to withdraw, or perhaps Yepiz was unable to contact

his counsel at all. Because no explanation was provided,

Yepiz was not given notice as to how he could properly

present his request for new counsel, and as such, the local

rules served to arbitrarily deny Yepiz’s constitutional rights.

Under the circumstances of this case, therefore, we reject the

government’s argument that the court was excused from its

duty to inquire into Yepiz’s request because of Yepiz’s

failure to comply with any local rule of procedure.

The government also argues that Yepiz waived his Sixth

Amendment right to counsel when he failed to reassert his

substitution motion at the May suppression hearing. See

United States v. Taglia, 922 F.2d 413, 416 (7th Cir. 1991)

(stating that “[i]f a motion is not acted upon, a litigant had

better renew it. He may not lull the judge into thinking that

it has been abandoned and then, after he has lost, pull a rabbit

out of his pocket in the form of the forgotten motion.”).

However, the record does not support the government’s

claim of waiver.

A constitutional right may generally only be waived “if

it can be established by clear and convincing evidence that

the waiver is voluntary, knowing, and intelligent,” and we

must “indulge every reasonable presumption against waiver

of fundamental constitutional rights.” Schell v. Witek, F.3d

1017, 1024 (9th Cir. 2000). In Schell, we held that the

defendant did not voluntarily, knowingly, and intelligently

waive his right to counsel when he failed to reassert a request

for substitution that the court had overlooked. Id. Instead,

we found that because Schell’s attorney had advised him that

his motion “must have been denied” and there was “nothing

in the record to suggest that Schell knew of the court’s

inadvertent error,” he could not have waived the request. Id.

While this case presents a slightly different scenario in that

UNITED STATES V. YEPIZ 21

we do not know why Yepiz failed to reassert his motion at

the May hearing, our conclusion is the same.

In this case, Yepiz sent his first letter to the court in April

2006, which the court rejected. He then sent two additional

letters addressed to Judge Walter requesting substitution of

counsel in July 2006. At a hearing to address the July letters,

Yepiz stated that the issues he was having with Estrada were

“not something that had just happened last week,” but had

instead “been going on” since April. In his September letter,

Yepiz stated that “[d]uring a conversation in April 2006, I

explained I had no more money . . . [and] [w]e agreed that

[Estrada] would withdraw from the case. However, he still

remains and I am being repeatedly harassed for money.”

Yepiz’s consistent statements that his issues with Estrada

had not been resolved suggest that Yepiz did not voluntarily,

knowingly, or intentionally waive his motion.

This conclusion is supported by the fact that the NDD

failed to put Yepiz on notice that the letter was rejected or

how he might rectify the deficiency. For all he knew, as in

Schell, the motion “must have been denied.” Schell,

218 F.3d at 1024. We therefore hold that Yepiz did not

waive his motion.

While it may sometimes be necessary to remand a case

such as this to the district court in order to determine whether

substitution of counsel would have “caused significant

delay” or impeded the “fair, efficient and orderly

administration of justice,” the record here is sufficiently

clear to determine, without remanding, that replacing

Estrada would not have implicated these concerns.

Blacketter, 525 F.3d at 896. The court received Yepiz’s

April 2006 letter four months prior to the start of trial. In the

letter, Yepiz stated specifically that he “did not want to delay

the trial,” and merely wanted to “have the time to get a new

22 UNITED STATES V. YEPIZ

lawyer to defend [him] properly,” as provided by the

Constitution. Id. The district court later suggested that “five

weeks would have been sufficient time” for a substitute

attorney to prepare a defense for a different defendant joined

in Yepiz’s case, and any counsel appointed to represent

Yepiz would have had months to prepare for trial. Because

the substitution would not have affected the court’s calendar,

Yepiz was entitled to discharge Estrada “for any reason or

no reason.” Blacketter, 525 F.3d at 896. If Yepiz still

qualified as an indigent defendant at the time he sent his

April letter, he was also statutorily entitled to appointed

counsel under the CJA. Brown, 785 F.3d at 1346.

We therefore find that the district court abused its

discretion when it arbitrarily and without explanation

rejected Yepiz’s April 2006 letter. Given the defects in the

district court’s handling of Yepiz’s requests, we VACATE

Yepiz’s conviction and REMAND for a new trial. Brown,

785 F.3d at 1350.

NGUYEN, Circuit Judge, dissenting in part:

While represented by competent retained counsel,

Manuel Yepiz sent a pro se letter to the district court.

Because the court’s local rules prohibit, among other things,

represented parties from communicating with the court pro

se, his letter was not filed. Instead, the court returned the

letter to Yepiz’s counsel along with notice of the reason for

the rejection. Importantly, Yepiz’s letter doesn’t suggest any

dissatisfaction with his attorney’s representation, only with

its cost. Yet the majority holds that the court’s failure to

consider the letter is structural error requiring automatic

reversal of Yepiz’s conviction. I respectfully dissent.

UNITED STATES V. YEPIZ 23

The majority’s ruling invalidates not only well-

established local rules in the Central District of California,

but similar rules in every district in the Ninth Circuit. More

troubling, however, is the majority’s refusal to engage in

harmless error analysis. A request for appointed counsel

implicates the Sixth Amendment’s guarantee of effective

assistance, not choice, of counsel, regardless of whether the

attorney whom the criminal defendant seeks to replace was

retained or appointed. Consistent with other effective-

assistance cases, Yepiz’s conviction should be affirmed

unless he can show prejudice. There was no such showing

here. Indeed, counsel continued to represent Yepiz

competently throughout the extensive proceedings in this

case, including pretrial hearings, trial, and sentencing. By

finding structural error and vacating the conviction, the

majority brings us seriously out of step with the Supreme

Court’s Sixth Amendment jurisprudence.

I.

I agree with the majority that the Sixth Amendment

claim turns on Yepiz’s April 2006 handwritten letter to the

district court regarding his retained attorney, Nicolas

Estrada. 1 In the letter, Yepiz did not express concern about

Estrada’s competence or any other aspect of his

performance. To the contrary, the letter was premised

1

Yepiz sent four letters to the court regarding Estrada. The first, at

issue here, was sent in April 2006. Yepiz followed up with two more in

July, and a fourth letter in September after trial had begun. I agree with

the majority that the denial of the July and September requests for

substitution of counsel were justified. See, e.g., United States v. Garcia,

924 F.2d 925, 926 (9th Cir. 1991) (“We have consistently held that a

district court has broad discretion to deny a motion for substitution made

on the eve of trial if the substitution would require a continuance.” (citing

United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986))).

24 UNITED STATES V. YEPIZ

entirely on “financial differences” that developed between

Yepiz and Estrada. Yepiz wrote that he “need[ed] a Panel

attorney” because Estrada had only recently informed him of

the representation’s “financial cost.”

The court “rejected” the letter for filing and returned it

to counsel for failure to comply with the district court’s local

rules. Those rules prohibit a party from “writing letters

to . . . or otherwise communicating with a judge in a pending

matter unless opposing counsel is present” and require “[a]ll

matters [to] be called to a judge’s attention by appropriate

application or motion.” C.D. Cal. L.R. 83-2.11 (2006). The

rules also prohibit a represented party from acting pro se.

C.D. Cal. L.R. 83-2.9.1 (2006). It appears that the letter may

have been bounced by court staff without the judge’s

involvement. 2 At a later hearing in which Yepiz recounted

the letter, the district judge gave no indication that he had

seen it.

The district court sent a notice of discrepancy to Estrada

informing him that filing was rejected, along with a copy of

the letter. The electronic docket entry noted the reason for

the rejection as “[p]arties should not write letter [sic] to

2

Federal Rule of Civil Procedure 5(d)(4) prohibits the clerk from

refusing to file a paper solely for noncompliance with a local rule, but

such orders can be entered at the direction of a judicial officer. E.g.,

Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002); see Fed.

R. Civ. P. 5(e) advisory committee’s note to 1991 amendment (“The

enforcement of these rules and of the local rules is a role for a judicial

officer.”). It’s unclear whether Judge Walter saw the letter and rejected

the filing, he delegated that duty, or, if his usual practice was to set a

hearing, a clerk inadvertently failed to comply. That Judge Walter’s

signature is on the notice of discrepancy doesn’t definitively tell us the

answer as most judges have signature stamps for their courtroom

deputy’s use.

UNITED STATES V. YEPIZ 25

judge.” In short, the district court promptly alerted Estrada

that the letter was not filed and gave him a copy of it so that

he would know the exact nature of his client’s complaint. It

appears that Estrada discussed the matter with his client

because, at a subsequent hearing, Yepiz stated that he had a

copy of the “returned” letter “signed by” the court

(presumably referring to the notice of discrepancy).

Yet for three months after filing was rejected, neither

Yepiz nor defense counsel raised any concerns. Estrada

continued to represent Yepiz, filing a reply in support of his

motion to suppress wiretap evidence and appearing

alongside him at the hearing. Throughout that time Estrada

never filed a motion to withdraw or a request for

substitution.

II.

The majority acknowledges that the letter was neither

filed nor considered on the merits. It concludes, however,

that because the district court presented “no clear

explanation as to why Yepiz’s letter was rejected” to Yepiz

or to this attorney, the local rules “served to arbitrarily deny

Yepiz’s constitutional rights.” Slip Op. at 19–20. I disagree.

For one thing, the docket entry plainly states that the

letter was rejected “based on: [p]arties should not write

letter [sic] to judge.” Estrada received this notice. See C.D.

Cal. L.R. 5-4.1.4(4). Moreover, because “familiarity with

[the] Local Rules [is] a prerequisite to admission to practice

in the Central District,” Moore v. La Habra Relocations,

Inc., 501 F. Supp. 2d 1278, 1279 (C.D. Cal. 2007) (citing

C.D. Cal. L.R. 83-2.2.2 (2006)), Estrada was expected to

know that those rules prohibited represented parties from

writing letters directly to the judge. He certainly would have

26 UNITED STATES V. YEPIZ

known that the Federal Rules of Civil Procedure require

motions to be served on opposing counsel. Fed. R. Civ. P.

5(a)(1)(D).

Once Estrada learned that his client might want to

discharge him, he had a duty to promptly discuss the issue

with Yepiz and, if Yepiz indeed had that intent, to honor it.

An attorney has an ethical obligation to seek substitution or

withdrawal if his client wants the representation to end. See,

e.g., Fracasse v. Brent, 6 Cal. 3d 784, 790 (1972) (“[T]he

client’s power to discharge an attorney, with or without

cause, is absolute.” (citation omitted)); see also Cal. Bus. &

Prof. Code § 6068(m) (requiring attorneys “to keep clients

reasonably informed of significant developments”); Cal. R.

of Prof’l Conduct, R. 3-500 (same).

“[T]he attorney is in the best position to determine when

a conflict exists and so ‘defense attorneys have the

obligation, upon discovering a conflict of interests, to advise

the court at once of the problem.’” United States v. Elliot,

463 F.3d 858, 866 (9th Cir. 2006) (quoting Holloway v.

Arkansas, 435 U.S. 475, 485–86 (1978)). Attorneys

routinely bring their clients’ requests to discharge counsel or

potential conflicts to the court’s attention, including in the

cases relied upon by Yepiz and the majority. E.g., United

States v. Brown, 785 F.3d 1337, 1341–42 (9th Cir. 2015)

(“[Defense counsel] advised the court [in a written motion]

that Brown ‘desire[d] counsel to withdraw from representing

him . . . .’”); United States v. Rivera-Corona, 618 F.3d 976,

977–78 (2010) (“[Retained counsel] moved to withdraw

[after his client expressed a loss of faith in him] and

requested that new counsel be appointed.”); Miller v.

Blacketter, 525 F.3d 890, 892 (9th Cir. 2008) (filing

withdrawal motion on the day after the defendant “left a

message on [counsel’s] home answering machine stating

UNITED STATES V. YEPIZ 27

that he was no longer comfortable with her representation

and . . . wanted a new lawyer”). There is no reason to think

Estrada would not have done the same thing here if Yepiz

remained intent on firing him.

For all we know, Yepiz and Estrada may have

temporarily resolved their financial differences after Yepiz’s

letter was rejected. If so, then we must “presume that

counsel [continued] to execute his professional and ethical

duty to zealously represent his client, notwithstanding the

fee dispute.” United States v. O’Neil, 118 F.3d 65, 71 (2d

Cir. 1997). We should assume that Estrada fulfilled his

duties given the “‘strong presumption’ that an attorney’s

conduct was professionally competent.” Frazer v. United

States, 18 F.3d 778, 786 (9th Cir. 1994) (quoting Strickland

v. Washington, 466 U.S. 668, 689 (1984)). Nothing in

Yepiz’s April 2006 letter suggested that Estrada was

unwilling to end the representation or that there was any

other conflict that might have warranted the district court’s

intrusion into the attorney-client relationship. In Yepiz’s

next two letters to the district court, written three months

later, he did not even mention the fee issue. By vacating

Yepiz’s conviction without knowing why he never renewed

his request as a formal substitution motion, the majority flips

the presumption that Estrada was competent on its head. 3

3

As stated, Yepiz knew that his letter was rejected. But the majority

appears to assume that Estrada failed to notify Yepiz in a timely manner

or refused to honor a request to withdraw. Even if true, Yepiz had a

remedy: he could allege ineffective assistance of counsel. Of course,

we usually do not consider such claims on direct appeal because the

record is inadequate to evaluate them. See, e.g., United States v.

Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). But that’s all the more

reason why we shouldn’t disturb the conviction in these proceedings.

28 UNITED STATES V. YEPIZ

Today’s decision will place tremendous strain on our

already overburdened district courts. The majority’s holding

means that district courts can’t enforce local rules

prohibiting represented parties from writing pro se letters to

the judge. Such rules exist in every district court throughout

the Ninth Circuit. See D. Alaska Civ. R. 11.1(a)(1)(3)[A];

D. Ariz. Civ. R. 83.3(c)(2); N.D. Cal. Civ. R. 11-4(c); S.D.

Cal. Civ. R. 83.9; D. Guam Gen. R. 19.1(a); D. Haw. R.

83.6(a); D. Idaho Civ. R. 83.6(a)(2); D. Nev. R. IA 11-6 (a);

D. N. Mar. I. Civ. R. 83.5(g)(1); D. Or. Civ. R. 83-9(b); E.D.

Wash. R. 83.2(d)(2); W.D. Wash. Civ. R. 83.2(b)(4). 4 In

fact, we enforce similar rules in our own court, see, e.g.,

United States v. Noriega-Perez, 467 F. App’x 698, 703 (9th

Cir. 2012); United States v. Ortiz-Martinez, 593 F. App’x

649, 650 (9th Cir.) (rejecting pro se filing seeking new

counsel), cert. denied, 135 S. Ct. 2912 (2015), as do other

circuits, see, e.g., United States v. Hunter, 770 F.3d 740, 746

(8th Cir. 2014) (“It has long been Eighth Circuit policy ‘that

when a party is represented by counsel, we will not accept

pro se briefs for filing.’” (quoting United States v. Payton,

918 F.2d 54, 56 n.2 (8th Cir. 1990))).

Until today, we have always afforded district courts great

discretion in enforcing these rules because “[a] criminal

defendant does not have an absolute right to both self-

representation and the assistance of counsel.” United States

4

The Eastern District of California does not have a specific rule

except for capital habeas petitioners, E.D. Cal. R. 191(c), but its rules

cite “letters to the Court not suitable for filing” as an example of

“received” documents that are “not . . . part of the official record in the

action,” E.D. Cal. R. 101. The District of Montana implies such a rule

for represented criminal defendants: “When the right to counsel no

longer applies in this court, pro se filings may not be dismissed or

stricken on the grounds that the filer was represented by counsel.” D.

Mont. Crim. R. 44.1.

UNITED STATES V. YEPIZ 29

v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). Of course,

district courts can’t turn a blind eye to conflicts between a

criminal defendant and defense counsel under the guise of

procedure. When the court is aware of a conflict that

potentially could affect a defense counsel’s representation, it

has a duty to inquire further. E.g., Garcia v. Bunnell, 33 F.3d

1193, 1199 (9th Cir. 1994). But “not every conflict or

disagreement between the defendant and counsel implicates

Sixth Amendment rights.” Schell v. Witek, 218 F.3d 1017,

1027 (9th Cir. 2000) (en banc) (citing Morris v. Slappy,

461 U.S. 1, 13–14 (1983) (rejecting “the claim that the Sixth

Amendment guarantees a ‘meaningful relationship’ between

an accused and his counsel”)).

Yepiz expressed no concern about Estrada’s

performance. He did not suggest that counsel’s

representation would suffer as a consequence of their

financial dispute. I agree that because he asked for

appointed counsel, the more prudent course would have been

for the district court to exercise its discretion and take up his

complaint. But the failure to do so under these

circumstances is not per se reversible error. By concluding

that structural error occurs when a district court fails to

inquire into a single pro se letter that is returned to counsel,

the majority effectively requires district judges to review and

entertain all pro se filings submitted by every single

represented criminal defendant. This is no small task. For

many of our district courts that handle massive criminal

dockets, receiving pro se letters is a routine matter. Some

defendants in custody are prolific letter writers and, without

counsel’s help, their messages may be prolix and inscrutable.

District courts, no longer safe to rely on the defense bar’s

professionalism in raising client concerns, will now be

pressed to hold hearings whenever criminal defendants write

30 UNITED STATES V. YEPIZ

to them on differences with their counsel, regardless of how

seemingly minor.

III.

The majority’s assignment of error to the district court’s

routine handling of a pro se communication wouldn’t be

nearly so pernicious if not for its failure to assess

harmlessness. Guided by our precedents—which I believe

were wrongly decided—the majority holds that when a

district court erroneously denies a motion to substitute

retained counsel with appointed counsel, it commits

structural error. The mistake in this approach stems from

confusion about the right at issue.

“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.” Rivera-Corona,

618 F.3d at 979 (quoting Daniels v. Lafler, 501 F.3d 735,

738 (6th Cir. 2007)). These rights are distinct because they

arise from different sources. The right to effective counsel

is derived from the Due Process Clause’s fair trial guarantee

and incorporated into the Sixth Amendment based on “our

perception that representation by counsel ‘is critical to the

ability of the adversarial system to produce just results.’”

United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006)

(quoting Strickland, 466 U.S. at 685). Because the limits of

this right are also derived from the goal of a fair—“not

mistake-free”—trial, “a violation of the Sixth Amendment

right to effective representation is not ‘complete’ until the

defendant is prejudiced.” Id. (citing Strickland, 466 U.S. at

685).

“The right to select counsel of one’s choice, by contrast,

has never been derived from the Sixth Amendment’s

UNITED STATES V. YEPIZ 31

purpose of ensuring a fair trial. It has been regarded as the

root meaning of the constitutional guarantee.” Id. at 147–48

(footnote and citations omitted). “Deprivation of the right is

‘complete’ when the defendant is erroneously prevented

from being represented by the lawyer he wants, regardless of

the quality of the representation he received.” Id. at 148.

Although the right to choice of counsel is subject to

qualifications, see Wheat v. United States, 486 U.S. 153, 159

(1988), the improper denial of that right, including the right

not to have counsel, see Faretta v. California, 422 U.S. 806,

821 (1975), is structural error subject to automatic reversal.

Gonzalez-Lopez, 548 U.S. at 152; Frantz v. Hazey, 533 F.3d

724, 734 (9th Cir. 2008).

Here, Yepiz did not seek to retain a particular lawyer or

proceed pro se. He asked the district court to appoint

counsel. His request was grounded not in the Sixth

Amendment’s right to counsel of choice but rather in its

“right to the effective assistance of counsel, the violation of

which generally requires a defendant to establish prejudice.”

Gonzalez-Lopez, 548 U.S. at 146; see Wheat, 486 U.S. at 159

(“[W]hile the right to select and be represented by one’s

preferred attorney is comprehended by the Sixth

Amendment, the essential aim of the Amendment is to

guarantee an effective advocate for each criminal defendant

rather than to ensure that a defendant will inexorably be

represented by the lawyer whom he prefers.”). The Supreme

Court has cautioned us not “to confuse the right to counsel

of choice—which is the right to a particular lawyer

regardless of comparative effectiveness—with the right to

effective counsel—which imposes a baseline requirement of

competence on whatever lawyer is chosen or appointed.”

Gonzalez-Lopez, 548 U.S. at 148.

32 UNITED STATES V. YEPIZ

In Rivera-Corona, the panel cited Bland v. California

Department of Corrections, 20 F.3d 1469, 1479 (9th Cir.

1994), overruled on other grounds by Schell v. Witek,

218 F.3d 1017, 1024–25 (9th Cir. 2000) (en banc), for the

proposition that a defendant’s request to substitute appointed

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

qualified right to choice of counsel.” 618 F.3d at 981. I

don’t read Bland as holding that, let alone “unequivocally”

so. Rivera-Corona, 618 F.3d at 981. At issue was the “right

to discharge counsel,” Bland, 20 F.3d at 1472 (emphasis

added), not the right to have new counsel appointed. Bland’s

retained attorney moved unsuccessfully “to be relieved as

counsel.” Id. at 1475 (emphasis omitted). We affirmed

habeas relief based on the trial court’s denial of that motion.

Id. at 1472. Although Bland’s retained attorney also

expressed his client’s wish to have new counsel appointed,

id. at 1475, that request wasn’t at issue because the trial court

ultimately appointed counsel when the retained attorney

failed to appear at sentencing. Id.

Admittedly, we inconsistently framed the issue as both

the right to choice of counsel (which wouldn’t require a

showing of prejudice) and the right to effective assistance

(which would). But it made no difference how Bland’s right

was characterized because he “established the requisite

prejudice” in any event. Id. at 1479. In pointing out that

“the Sixth Amendment . . . protects [Bland’s] qualified right

to obtain retained counsel of his choice,” we “assume[d]

Bland was not indigent.” Id. at 1477 (emphasis added).

As we explained in Schell, the right to choice of counsel

is not implicated by an indigent defendant’s request for

appointed counsel: “The qualified right of choice of counsel

applies only to persons who can afford to retain counsel.”

218 F.3d at 1025 (emphasis added). In Gonzalez-Lopez, the

UNITED STATES V. YEPIZ 33

Supreme Court echoed this principle, stating that “the right

to counsel of choice does not extend to defendants who

require counsel to be appointed for them.” 548 U.S. at 151.

The error in Rivera-Corona was compounded in Brown,

which held that the erroneous denial of a motion to substitute

retained counsel with appointed counsel “is a structural

error, requiring that convictions be vacated even without a

showing of prejudice.” 785 F.3d at 1350 (citing Gonzalez-

Lopez, 548 U.S. at 150). The panel acknowledged “that it is

not, strictly speaking, correct to say that the defendant in

Rivera-Corona, or [Brown], was entitled to, or seeking,

counsel of choice.” Id. at 1344. Nevertheless, the panel

concluded that the district courts were “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 . . . . [A]t the same time, [the

courts were] also considering a request for appointment of

counsel.” Id. at 1344–45. Since the first issue involves a

right that if violated requires automatic reversal, Brown

concluded that the ultimate decision was also subject to

automatic reversal if erroneous. Id. at 1350.

Whatever the logic of that proposition in general, it

makes no sense to apply it when the substitution request is

for purely financial reasons. The defendant doesn’t want to

fire his retained counsel independently of having new

counsel appointed. The former is incidental to the latter. See

United States v. Mota-Santana, 391 F.3d 42, 47 (1st Cir.

2004) (“[T]he two [analyses] merge, since defendant and his

family ran out of funds to retain other private counsel and

defendant sought court appointed counsel.”). Here, had the

district court found Yepiz indigent and appointed Estrada to

continue representing him at public expense, the majority

presumably would find no error. See C.D. Cal. Gen. Order

34 UNITED STATES V. YEPIZ

13-09 (allowing for appointment of counsel not on Criminal

Justice Act Panel to ensure continuity of representation and

preserve the interests of economy). Then why find per se

reversible error when the consequence of the court’s

purported error was the continued representation by Estrada?

The majority doesn’t say.

Before Rivera-Corona and Brown led us astray, we

treated motions to substitute retained counsel with appointed

counsel under the standard for appointing new counsel

because that was the crux of the request. Bland held that

“[w]hen reviewing the denial of a motion to substitute

[retained with appointed] counsel for abuse of discretion, we

consider . . . three factors: ‘(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 adequate

defense.’” 20 F.3d at 1475 (quoting United States v. Walker,

915 F.2d 480, 482 (9th Cir. 1990)). Schell, though

overruling Bland’s application in habeas cases as

insufficiently deferential, confirmed that the standard

applied in Bland “is the correct methodology for reviewing

federal cases on direct appeal.” 218 F.3d at 1025 (citing

Walker). Yet Rivera-Corona wrongly held that “the extent-

of-conflict review is inappropriate” when a defendant seeks

to replace retained with appointed counsel. 618 F.3d at 981.

But see Martel v. Clair, 132 S. Ct. 1276, 1287 (2012)

(explaining that review of substitution motions “generally

include[s]” factors such as “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)”). See generally

UNITED STATES V. YEPIZ 35

Rivera-Corona, 618 F.3d at 983–87 (Fisher, J., disagreeing

that Bland and Schell were not controlling but concurring in

the result). By wholly conflating two distinct rights—the

right to counsel of choice and the right to effective counsel—

Rivera-Corona and Brown forged structural error from

harmless mistake.

IV.

This case illustrates why a conviction shouldn’t be set

aside when the district court erroneously denies a request to

substitute retained with appointed counsel absent a showing

of prejudice. Midway through trial, the district court held a

hearing to discuss Yepiz’s most recent complaints about

Estrada. The court made specific findings that Estrada had

continued throughout the proceedings to competently

represent Yepiz, that he had “participated in the trial,” “made

objections . . . at the appropriate time,” and “properly cross-

examined witnesses that ha[d] anything to say that relate[d]

to [Yepiz].” Critically, the court found that Yepiz and

Estrada “[could] continue to work out” defense strategy.

None of these findings is consistent with “the conflict

between the defendant and his attorney [being] so great that

it resulted in a total lack of communication preventing an

adequate defense.” Bland, 20 F.3d at 1475. In other words,

there is no evidence of prejudice.

I respectfully dissent.