UNITED STATES OF AMERICA v. CHARLES J. SENKE, Appellant
No. 19-1287
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 25, 2021
PRECEDENTIAL
Argued July 8, 2020
On Appeal from the United States District Court for the Middle District of Pennsylvania
(District Court No.: 3:16-cr-00373-001)
District Judge: Hon. James M. Munley
Before: McKEE, BIBAS, and FUENTES, Circuit Judges.
Robert Epstein [Argued]
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Michelle L. Olshefski [Argued]
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
FUENTES, Circuit Judge.
Appellant Charles Senke challenges his conviction for attempted sex offenses involving
While the District Court‘s failure to address Senke‘s complaints regarding his counsel was an abuse of discretion under our precedent in United States v. Diaz, 951 F.3d 148 (3d Cir. 2020),1 we decline to review this error for prejudice on direct appeal in the first instance. We also conclude that Senke was not prejudiced by the District Court‘s failure to verify on the record that Senke and his attorney discussed the presentence report before imposing sentence. Finally, because the special conditions of supervised release banning Senke‘s computer and internet use run afoul of our precedent in United States v. Holena, 906 F.3d 288 (3d Cir. 2018),2 and because the Government concedes that the imposition of these conditions and a special assessment fee was plain error, we will remand for further proceedings on these issues. Accordingly, we will affirm in part and vacate and remand for further proceedings in part.
I. BACKGROUND
A. Offense Conduct
Appellant Charles Senke was arrested after striking up an online conversation on a popular social networking site with an undercover detective posing as an underage boy. In the course of that correspоndence, Senke requested naked photographs of the underage boy, asked about the boy‘s sexual experiences, transmitted graphic photographs of himself and others, and offered to buy the boy gifts. During these exchanges, Senke was reminded multiple times that he was purportedly conversing with a minor.
The pair eventually made plans to meet. Senke agreed to travel to a mall near where he believed the boy lived. On the day of the planned meeting, Senke‘s vehicle was spotted by undercover detectives and followed into the mall parking lot. As Senke pulled into a parking spot, the detectives stopped the vehicle and took Senke into custody. Detectives found a cell phone, condoms, personal lubricant, a laptop computer, a memory card and other personal items in Senke‘s car.
B. Procedural History
Senke was charged in a three-сount Superseding Indictment by a federal grand jury in Scranton, Pennsylvania for his attempts to engage in illicit sexual conduct with a minor.3
He appeared before the District Court and pleaded not guilty. He was then appointed a federal public defender to represent him. Less than two months later, the federal public defender filed a motion to withdraw as counsel, citing irreconcilable differences regarding case strategy. The District Court held a hearing on the matter, at which time Senke indicated that he wished to proceed pro se. After interviewing Senke, the District Court permitted him to proceed pro se, with the public defender as standby counsel.
Acting in a pro se capacity thereafter, Senke filed a plethora of pretrial motions,
Following a conversation at a subsequent detention hearing, the District Court indicated that Senke agreed to acсept appointed counsel. The District Court appointed a Criminal Justice Act attorney, Matthew T. Comerford, to represent Senke going forward.
i. Pretrial Complaints about Comerford
In April 2018, Senke filed a pro se motion titled, “Pro Se Omnibus Pre-Trial Motion” and “Inadequate Representation.”4 In that motion, Senke asserted that Comerford, inter alia, (i) tried to pressure him to take a plea deal, (ii) did not take or return phone calls, (iii) refused to go over evidence, calling it “to[o] disgusting,”5 (iv) failed to turn over discovery to Senke, and (v) was not preparing a defense strategy for trial. Senke also asserted that with Comerford as counsel, he “cannot get a fair and just trial.”6 Senke did not, however, specifically request the appointment of new counsel.
The District Court took no action on this motion. Instead, Comerford filed a motion in July 2018, requesting that co-counsel be added to Senke‘s defense team. The District Court granted the motion, appointing Comerford‘s associate, Curt M. Parkins, to assist at trial.
A pretriаl conference was held in August 2018. The conference was attended by Comerford and Parkins, and the prosecutor, but not Senke. At the conference, Comerford indicated that Senke was giving him “a hard time” about filing additional pretrial motions.7 Comerford stated, “I‘m just letting you know he‘s not happy with me that I am not filing more motions.”8 The District Court responded, “[h]e doesn‘t have much of a chance of losing you, right. You‘re the second or third guy on this deal.”9
In apparent reference to Senke‘s pretrial letter regarding counsel, Comerford stated, “[Senke is] putting in writing that I am not doing things.”10 This conversation prompted the prosecutor to ask, “He‘s not trying to fire you, is he?”11 Comerford responded, “[n]ot that I know of,” and Parkins stated, “[j]ust difficult.”12 The hearing concluded without any further mention of Senke‘s letter.
In the months leading up to trial, Senke did not submit any additional requests or communications to the District Court regarding his defense teаm. Trial commenced on October 2, 2018 with Comerford and Parkins representing Senke. Defense counsel did not present any evidence, and relied solely on a defense of entrapment. The next day, the jury returned a guilty verdict on all counts.
ii. Post-trial Complaints about Comerford
While awaiting sentencing, Senke filed three pro se motions regarding counsel. The first motion, requested that Comerford be substituted for “an appealant [sic] attorney.”13 The second motion, informed
The District Court denied the first and third motions in written orders. In denying the first motion, the District Court footnoted its understanding of Senke‘s request for an “appealant [sic]” attorney as follows:
The deadline for defendant filing an appeal runs from the entry of judgment.
Fed. R. App. P. 4(b)(1) (“In a criminal case, a defendant‘s notice of appeal must be filed in thе district court within 14 days after the later of ... the entry of either the judgment or order being appealed; or ... the filing of the government‘s appeal.“) The judgment will be entered after defendant is sentenced. Upon appeal, the Third Circuit Court of Appeals has authority to appoint counsel for the defendant.16
In denying the third motion, the District Court stated that Senke‘s ”pro se motion to substitute counsel for appellate reasons” was denied because “[t]he appeals court will deal with appointing defendant counsel for appeal purposes.”17 The District Court did not separately respond to the second motion.
iii. Sentencing
After the jury verdict, the District Court ordered a presentence investigation report (the “PSR“) to be filed. Senke submitted his own objections to the draft PSR, and Comerford filed a sentencing memorandum on Senke‘s behalf. The final PSR was filed, and an addendum was concurrently filed addressing Senke‘s objections. As relevant on appeal, the District Court did not confirm at sentencing that Senke and Comerford had an opportunity to discuss the PSR together.
Sentencing was held on January 29, 2019. The final PSR provided a Guidelines imprisonment range of 168 to 210 months. Prior to imposing the sentence, the District Court sustained an objection with respect to a five-level enhancement under
- You must submit to substance abuse testing to determine if you have used a prohibited substance;
- You must not have direct contact with any child you know or reasonably should know to be under the age of 18, including your own children, without the permission of the probation officer;
- You must not go to, or remain at, any place where you know children under the age of 18 are likely to be, including parks, schools, playgrounds, and childcare facilities;
- You must not go to, or remain at, a place for the primary purpose of observing or contacting children under the age of [18];
- You must submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure
that you are in compliance with the requirements of your supervision or treatment program; - You must not possess and/or use computers . . . or other electronic communications or data storage devices or media;
- You must not access the Internet except for reasons approved in аdvance by the probation officer;
- You must allow the probation officer to install computer monitoring software on any computer . . . you use;
- To ensure compliance with the computer monitoring condition, you must allow the probation officer to conduct initial and periodic unannounced searches of any computers . . . subject to computer monitoring;
- You must submit your person, property, house, residence, vehicle, papers, computers . . . other electronic communications or data storage devices or media, or office, to a search conducted by a United States probation officer.18
Senke was also ordered to pay a special assessment fee of $10,000 under the Justice for Victims of Trafficking Act of 2015 (the “JVTA“).19 This appeal followed.
II. JURISDICTION
The District Court had subject matter jurisdiction over this criminal case pursuant to
III. DISCUSSION
Senke raises four issues on appeal: (1) the District Court‘s failure to inquire into his motions regarding counsel; (2) the District Court‘s failure to verify that he and his attorney discussed the PSR before sentencing; (3) the imposition of contradictory, vague, excessively delegative, or overbroad conditions of supervised release; and (4) the imposition of a special assessment fee pursuant to a statute enacted after the offense conduct. We address each in turn.
A. The Failure to Inquire
Senke‘s primary argument is that the District Court erred in not inquiring into his motions regarding counsel. We review a district court‘s decision on a motion for appointment of counsel for abuse of discretion.20 The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”21 As relevant herе, indigent defendants are permitted to request the appointment of new counsel, or to proceed pro se, if they are unhappy with their current court-appointed attorney.22
If a defendant requests substitute counsel, the court must evaluate whether the defendant‘s justification for seeking new counsel is based on “good cause” to “justify a continuance of the trial in order to allow new counsel to be obtained.”23 We have explained that good cause can be “a conflict of interest, a complete breakdown of communication, or an
We recently addressed the issue of a court‘s failure to inquire into a motion for substitute counsel in United States v. Diaz.26 There, the indigent criminal defendant wrote to the District Court five times before trial regarding issues with appointed counsel. Despite not specifically requesting new counsel in the first two communications, the District Court ordered defendant‘s attorney to respond to the letters. The attorney did not do so. On the third attempt, defendant stated, “I am requesting that you consider appointing me new counsel.”27 The District Court took no action. Instead, one month later, defendant‘s attorney filed a motion for continuance in which he represented that all issues between counsel and defendant were resolved. Counsel and defendant then appeared together at a pretrial conference, and neither raised any issues involving representation. Nevertheless,
defendant wrote to the District Court two more times before trial raising similar concerns. But, defendant did not renew his request for new counsel in either of these letters. The case proceeded to trial without further inquiry.
In finding no abuse of discretion, we noted that “the District Court may not have been as attentive to [defendant‘s] complaints regarding his counsel as it should have been,” but that soon after defendant‘s request, the District Court “had good reason to believe [the attorney] was communicating with [defendant] such that [defendant‘s] request was withdrawn or moot.”28 We explained that the information the District Court received in the motion for continuance made it clear that the attorney was paying attention to defendant‘s requests, and intervention was unnecessary. Thus, Diaz presented “a unique circumstance,” and the “District Court‘s inaction would normally raise serious questions.”29
Turning to the case at hand, we are yet again presented with a claim of a district court‘s inaction. The Government argues that because Senke did not explicitly request substitute counsel in his pretrial mоtion, the District Court was under no obligation to act. This places an inappropriately strict requirement on pro se defendants to know the law and articulate the exact action they desire from the court.30 And
Diaz suggests that district courts should at least attempt to inquire further when made aware of a possible breakdown in communication.31 Moreover,
Similar to the defendant in Diaz, Senke submitted a communication to the District Court in which he complained about his attorney, but he stopped short of asking for substitute counsel. The communication raised serious issues, including that Comerford was not preparing for trial and had called the evidence “to[o] disgusting” to review with Senke.33 This alone gives us pause as to the District Court‘s inaction. But then at a pretrial conference, Comerford brought the strained relationship to the District Court‘s attention. Referencing Senke‘s pretrial motion, Comerford explained that the conflict stemmed from his refusal to file additional pretrial motions, and Senke‘s insistence that he do so. Of course, an attorney is not required to take every action that his client desires.34 But
this conversation, coupled with Senke‘s letter raising alarming concerns, should have indicated to the District Court that further inquiry was necessary.
In Diaz, we cautioned that “[a]lthough the requisite inquiry may consider a variety of sources and need not include a one-on-one colloquy with the defendant,” we must also consider “the importance of allowing the defendant, as well as counsel, the opportunity to be heard on the matter.”35 We further warned that “if a district court fails to make any on-the-record inquiry as to the reasons for the defendant‘s dissatisfaction with his existing attorney,” it abuses its discretion.36
Here, the District Court neither allowed Senke the opportunity to clarify his communication, nor made any searching inquiry on the record that would satisfy us that it had deduced the reasons for Senke‘s dissatisfaction. Indeed, at the pretrial conference, which Senke was not a part of, the only colloquy regarding the meaning of Senke‘s communication occurred between defense counsel and the prosecutor. Heeding our warnings in Diaz, we are not convinced that based on perfunctory exchanges at one pretrial conference where (i) the defendant was not present, and (ii) the District Court conducted no further inquiry, the District Court had “good reason to believe” that Comerford and Senke were communicating again before trial.37
to inquire into Senke‘s pretrial motion was an abuse of discretion.
Finding error, we must evaluate its impact and proper remedy.38 This analysis is contingent upon the right implicated
by Senke‘s claim. Senke asserts that the failure to inquire into a defendant‘s dissatisfaction with appointed counsel is structural error—meaning reversal is required regardless of whether the defendant can show prejudice or harm. But he is confusing his right to any counsel with his right to effective counsel. These rights are distinct, and so, too, is our analysis of each.
The cases Senke and the dissent rely on for thе assertion of structural error involved defendants that sought substitution of counsel on the eve of trial, had their request denied, and therefore were forced to choose between going to trial pro se or with counsel they were dissatisfied with.39 Where a defendant then elects to proceed pro se, he or she must knowingly and voluntarily waive the right to any counsel.40 This requires the district court to conduct an analytically distinct inquiry “guaranteeing that the defendant understands what he is giving up, that he is ‘made aware of the dangers and disadvantages
reversal, not an inadequate inquiry into the reasons for a defendant‘s dissatisfaction with counsel.42
To be certain, if Senke were asserting that his right to retained counsel of choice was violated, such deprivation would be structural error.43 The same would be true if he were
asserting that he was denied the right of self-representation.44 This is because a choice-of-counsel violation or a self-representation violation occurs at the moment the defendant‘s choice is wrongfully denied.45 But the Supreme Court has been careful to distinguish these rights from the right to effective assistance of counsel.
The right to effective counsel is derived from the guarantee of a fair trial in the Due Process Clause, and the elements of a fair trial are defined through the Sixth Amendment.46 The Sixth Amendment recognizes the right to effective assistance “because it envisions counsel‘s playing a role that is critical to the ability of the adversarial system to produce just results.”47 Accordingly, “[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.”48 A violation of the right to effective counsel requires a showing
of prejudice,
By contrast, the right to counsel—including, inter alia, the right to counsel of choice and the right to self-representation—“has never been derived from the Sixth Amendment‘s purpose of ensuring a fair trial.”50 Rather, such rights are “the root meaning of the constitutional guarantee.”51 The deprivation of these rights qualifies as structural error because, in part, the consequences “‘are necessarily unquantifiable and indeterminate.‘”52 The Supreme Court has expressed a reluctance to expand the narrow category of rights that qualify for per se reversal.53
Here, Senke‘s claim does not fall into one of the established categories of structural error. He has not asserted that he was deprived of his right to counsel of choice. Indeed, he cannot, because the right to choose one‘s own counsel does not extend to defendants who require appointed counsel.54 And he has not claimed that he was somehow deprived of his right to knowingly and intelligently represent himself.55 Nor has Senke claimed that Comerford had any conflict of interest,56 or that he was so “embroiled in irreconcilable conflict” with Comerford that he was deprived “of the effective assistance of any counsel whatsoever,” as some of our sister circuits have examined.57 Despite his earlier misgivings with counsel, Senke proceeded to trial with the assistance of Comerford. He therefore cannot also claim that he was denied the right to any counsel at all.
Instead, it is possible to examine the record for identifiable mistakes and assess whether those mistakes affected the outcome of his trial.58 Senke‘s claim is
As to Senke‘s post-trial motions for new counsel, we conclude that the District Court did not abuse its discretion by not appointing substitute counsel for sentencing purposes. Senke stated multiple times in his post-trial motions that he was requesting “appealant [sic]” counsel. The
B. The Failure to Verify
Senke next argues that the District Court failed to comply with
In interpreting
Here, the District Court did not verbally ask Senke if he rеad and discussed the PSR with his attorneys. The question, then, is whether the District Court could have independently determined that information before sentencing.
The Government asserts that “it is clear from the record that both [Comerford] and Senke had an opportunity to read the PSR as both filed specific objections.”67 That is true. Comerford submitted a sentencing memorandum to the District Court, wherein he successfully argued that the PSR improperly enhanced Senke‘s offense level. Separately, Senke submitted his own objections, which were addressed in an addendum to the PSR.
However, nowhere in the sentencing memorandum does it state that Comerford and Senke discussed the PSR together. Moreover, Comerford submitted his objection to the probation officer before receiving Senke‘s objections. At sentencing, Comerford only mentioned the objection made in the sentencing memorandum, and did not reference any of Senke‘s. While that may have been because Senke‘s objections lacked merit, we cannot conclude that Comerford‘s silence indicates he reviewed the objections or discussed them with Senke. Nor does the District Court‘s recitation of Senke‘s objections and the one made in the sentencing memorandum indicate that it determined Senke had the opportunity to discuss the PSR with counsel. Instead, these facts only confirm that Senke and Comerford read the PSR, but they suggest nothing about a meeting of the minds.
Finding plain error, we turn to the issue of Senke‘s substantial rights. For
Senke asserts that if the District Court had asked if he discussed the PSR with counsel, he could have challenged the recommendation of certain special conditions оf supervised release, and the recommendation of the $10,000 special assessment fee under the JVTA. These arguments are unconvincing. Neither of these matters could have affected Senke‘s criminal history category, nor the applicable Guidelines range.69 Moreover, Senke was sentenced to the statutory mandatory minimum; thus “there is no reasonable likelihood that the sentence would have been different,” had the District Court verified a PSR discussion took place.70 Accordingly, Senke‘s
C. The Special Conditions of Supervised Release
Next, Senke takes issue with several special conditions of supervised release imposed by the District Court. Because this challenge was unpreserved, Senke must show plain error.72
Each special condition must be reasonably related in a “tangible way,” to the defendant‘s crimes or something in his history, and it must involve no greater deprivation of liberty than is reasonably necessary to deter future crime, рrotect the public, or rehabilitate the defendant.73 “This is not an especially high standard.”74 But the sentencing court must set forth factual findings to justify the special conditions.75 If the court fails to do so, we may nevertheless affirm “if we can ascertain any viable basis” for the condition.76
i. Conditions on Computer and Internet Usage
Senke argues that the conditions relating to his internet and computer usage are contradictory and more restrictive than necessary. Specifically, he notes that Condition 11 instructs that he “must not possess and/or use computers . . . or other electronic communications or data storage devices or media.”77 Yet Conditions 12-15 require him to obtain permission from his probation officer to use the internet, have monitoring software installed on any computer he uses, and submit to searches of his computers, electronic communications, and data storage devices.78
The Government concedes that Conditions 11-15 are cоntradictory and require further clarification by the District Court. We agree. These conditions are indistinguishable from the conditions we struck down in United States v. Holena, 906 F.3d 288 (3d Cir. 2018).79 There, we
On remand, the District Court must “make findings to support any restrictions it chooses to impose on [Senke‘s] internet аnd computer use.”83 Undoubtedly, there is a strong need to protect the public, and the District Court may still find it appropriate to limit Senke‘s internet and computer use.84 But any limitations must be supported by facts, tailored to Senke‘s conduct, and “aim to deter future crimes, protect the public, or rehabilitate [Senke].”85
ii. Conditions on Contact with Minors
Senke also contends that Conditions 6 and 7, regulating his contact with minors, are contradictory. Condition 7 bans Senke from going to or remaining at any place where children “are likely to be.”86 Yet Condition 6 requires him to obtain permission from the probation officer in order to have direct contact with children.87 He also argues that Condition 7 is overbroad and unnecessary in light of Condition 6, when the record shows that he was not seeking out children and had no prior sexual interest in children.
The Government responds that Condition 6 prohibits “direct” contact with minors without prior permission from a probation officer, while Condition 7 prohibits intentional travel to and/or remaining at places where minors frequent and are likely to congregate.
We agree with the Government‘s reasoning; Conditions 6 and 7 are not contradictory or overbroad. As the Government explains, Condition 6 requires Senke to receive permission from a probation officer before having direct contact with a minor, regardless of location. Condition 7 prevents him from traveling to places where minors are likely to be, even if he does not intend to have direct contact with any minors. For additional clarity, Condition 7 provides examples on the types of places it encompasses. These conditions are appropriately tailored to Senke‘s crime, and are
Senke also complains that Conditions 7 and 8 are unconstitutionally vague. He argues that reasonable people could disagree about whether children are “likely to be” at a variety of places, and there is no guidance as to how he or his probation officer should determine his “primary purpose” for going to a particular location.89
We previously upheld an arguably stricter condition that restricted any unsupervised contact with minors in a case where the defendant was convicted solely of possessing child pornography.90 In doing so, we determined that the prohibition against unsupervised contact was not unconstitutionally vague because it did not foreclose accidental contact.91 Similarly, the Second and Fifth Circuits have routinely upheld special conditions that banned defendants from areas where children “frequent” or “congregate.”92 The same is true of provisions that include anti-loitering language similar to that of Condition 8.93
Here, neither Conditions 7 nor 8 bar accidental contact that could occur during ordinary activities in public places. These conditions are tangibly related to Senke‘s conviction, where he attempted to entice a minor to meet him in a public place for the purposes of sexual contact. Moreover, their wording is not so vague that “men of common intelligence must necessarily guess at [their] meaning and differ as to [their] application.”94
iii. Conditions Relating to Testing
Senke contends that Conditions 1 and 10 delegate excessive authority to his probation officer by requiring him to take an unlimited number of drug and polygraph tests.
District courts may not delegate to probation officers the power to “decide the nature or extent” of supervised release
Here, the probation officer was instructed by the District Court to subject Senke to drug and polygraph testing. While the probation officer may decide the time, place and frequency of such testing, the testing is not optional. Senke is required to participate in order to comply with the District Court‘s conditions. Because the District Court has merely delegated to the probation officer the details with respect to “selection and schedule” of the testing, such delegation is proрer.98
D. The JVTA Special Assessment Fee
Lastly, Senke argues that the District Court erred by imposing a $10,000 special assessment under the JVTA.99 He contends that because the JVTA was enacted on May 29, 2015, and he was charged with offenses committed between September 2014 and February 2015, this assessment violates the Ex Post Facto Clause. The Government concedes that the fee imposition was plain error. We agree and will vacate the fee.
IV. CONCLUSION
For the foregoing reasons, we will vacate the District Court‘s judgment as to its imposition of special Conditions 11-15 regarding Senke‘s internet and computer use and a special assessment fee under the JVTA and remand for further proceedings. We will otherwise affirm the District Court‘s judgment as to Senke‘s conviction and sentence.
Notes
Id. at 46. Likewise supporting a showing of prejudice, the Second Circuit observed in United States v. Doe #1, 272 F.3d 116, 123 (2d Cir. 2001), that “if the reasons proffered [in a substitution motion] are insubstantial and the defendant receives competent representation from counsel, a court‘s failure to inquire sufficiently or to inquire at all constitutes harmless error.” Cf. United States v. Morrissey, 461 F.2d 666, 670 (2d Cir. 1972) (indicating a reluctance to reverse even where defendant raised serious issues with counsel, and ultimately affirming because defеndant‘s contentions were incorrect or subsequently cured, but noting that “[w]ithout more, [the trial judge‘s] failure to inquire, in our view, would constitute error sufficient for reversal of the judgment of conviction.“). Similar to the holding in United States v. Doe #1, the Eighth Circuit in United States v. Jones, 795 F.3d 791, 797 (8th Cir. 2015), found no abuse of discretion where the magistrate judge denied defendant‘s substitution motion without inquiry because the motion contained all of the information the court needed to make a ruling. In so finding, the Eighth Circuit explained that even if a trial court abuses its discretion, “the Sixth Amendment does not require an automatic reversal of the conviction.” Id. at 796 (citing Martel, 565 U.S. at 666 n.4 (reviewing renewed motion for substitution of appointed counsel in federal habeas corpus proceeding, and noting that the Ninth Circuit ordered the wrong remedy even if the district court abused its discretion because “[t]he way to cure that error would have been to remand to the District Court to decide whether substitution was appropriate аt the time of [defendant]‘s letter.“)). Even the Ninth Circuit, though previously supporting automatic reversal, see Craven, 424 F.2d at 1170, has reinforced that unless there is a constructive denial of counsel, defendant must show prejudice. Schell v. Witek, 218 F.3d 1017, 1026-28 (9th Cir. 2000) (en banc) (reversing, in part, district court‘s denial of defendant‘s petition for a writ of habeas corpus and remanding for evidentiary hearing to determine the nature and extent of the conflict between defendant and his attorney and whether that conflict deprived defendant of adequate representation); see United States v. Musa, 220 F.3d 1096, 1102-03 (9th Cir. 2000) (vacating sentence and remanding for a hearing on the nature of the conflict between defendant and his attorney, and instructing that “[i]f, after a thorough inquiry, the district court finds no breakdown in communication that prevented an adequate defense, it may reinstate the sentence.“).[w]ere disagreements between attorney and client to be treated in the same manner as [conflict of interest cases]—with resulting possible per se reversal without the necessity of proving prejudice—the nature of appeals in criminal cases would be dramatically altered. The odds are that many an unsuccessful defendant would be found nursing some disagreement with counsel.