United States v. Rivera-Corona

12(f) hold that Rule of the Federal Rules of Civil Procedure does not author-

ize a district court to dismiss a claim for

damages precluded it is on the basis Therefore,

matter of we remand this law. specific

case back to the district court with

instructions to not dismiss Whittlestone’s profits consequential

claim for lost 12(f)

damages under a Rule motion. AND REMANDED.

REVERSED America,

UNITED STATES

Plaintiff-Appellee, RIVERA-CORONA,

Trinidad aka Trino

Rivera-Corona, Defendant-

Appellant.

No. 08-30286. Appeals, States Court of

Ninth Circuit.

Argued and Submitted March Aug.

Filed different, proceed

counsel and to with a lawyer instead. guilty pleaded Trinidad Rivera-Corona carrying drug a firearm in relation to a crime, in trafficking violation of 18 U.S.C. 924(c)(1)(A). During plea colloquy, stated that he understood Rivera-Corona plea of the that agreement; the terms Marchi, attorney, an- Nicholas questions all of his swered about it; signed he agreement before and he representation. was satisfied with Marchi’s nobody Rivera-Corona also testified that plea. forced The had enter not, however, court did district advise Riv- “right of his represented era-Corona to be if necessary counsel—and have the appoint counsel—at trial and at ev- ery stage as re- proceeding,” quired by Federal Rule Proce- of Criminal 11(b)(1)(D). dure sentencing, Before Marchi moved to requested withdraw and that new counsel He appointed. supported be his motion Partovi, WA, Spokane, R. for David stating: affidavit defendant-appellant. I was retained the defendant. The Kirk, At- Assistant Jane requested hea[r]ing has Defendant WA, Yakima, plaintiff-ap- torney, attorney. main- apparently a new He pellee. longer that he can no tains work me. He has claimed that I have been justice In the ineffective. interest to allow defendant new [in] apparently he would have more whom faith, request I would the Court appoint new counsel and allow me to TASHIMA, A. Before: WALLACE withdraw. RAYMOND C. FISHER and MARSHA S. hearing, Marchi Riv- explained At

BERZON, Judges. Circuit era-Corona had called his office about change hearing after the plea week BERZON; by Judge Opinion communicated, words, that “I Marchi’s by Judge Concurrence FISHER. him or either scared he was afraid me BERZON, Judge: Circuit job.” my or I do court asked didn’t us he requires clarify This case the stan- Marchi whether had been retained Rivera-Corona, considering represent dard for criminal defendant’s to which Marchi discharge that he had been retained privately responded motion to case, court, quoted, interpreting that he had Riv the entire but “exhausted long, long ago.” request time [the retainer] era-Corona’s to include both a mo court then invited Rivera-Corona to ex- plea tion guilty to withdraw his and a seeking reasons for plain his substitution both, request rely for new denied counsel, prompting following ex- ing during on Rivera-Corona’s statement change: plea colloquy his that he was satisfied with representation. his I

RIVERA-CORONA: would like to you judge told Rivera-Corona that he had appoint if can another know attor- I ney, get along right because don’t with this to hire new that “absent but attorney. complete and utter breakdown” attorney-client relationship he saw no THE COURT: What are the reasons grounds “have counsel your getting along with this at- public expense, particularly since the last torney? remaining item was] sentenc before[him Well, I RIVERA-CORONA: how could ing.” responded Rivera-Corona that he say? jury He said if we with a he went money lawyer. had no to hire a new Mar- $5,000 more, why. wanted and that’s chi represented at his Rivera-Corona sen Otherwise, to, like, going prose- he was tencing hearing. appeal This followed.1 my family, why cute I got and that’s scared. review a district court’s deni THE anything COURT: Is there addi- al of a motion for substitution tional? for abuse of discretion. United States v. Iwhy RIVERA-CORONA: And that’s Adelzo-Gonzalez, (9th 772, F.3d if you give want to know can me another Cir.2001). Most attorney substitution my fighting chance continue case. cases when an indigent arise THE COURT: there any Are requests court-appointed new I facts that should consider? place existing of an appointed attorney. now, For RIVERA-CORONA: that’s (1) context, In that we consider the timeli

what saying, I’m and that’s all. ness of the substitution motion and the you THE given COURT: Have all of extent of resulting delay; inconvenience or the information you believe sup- (2) adequacy of the district court’s ports your request for different counsel? inquiry into the complaint; defendant’s Well, I RIVERA-CORONA: if wonder (3) whether the conflict between the you just provide can me with another defendant and his attorney great was so I attorney so can continue—-how would adequate prevented defense. say? fighting my [J]ust continue case. Mendez-Sanchez, See United States v. (9th Cir.2009). The district court not ask This did Marchi stan allegations whether dard is the one the seemingly were district court not, inquire purported apply, true and did not into Rivera-Coro but it is as we now na’s eligibility explain, financial applicable the standard to Rivera- Instead, right colloquy after the Corona’s motion. Pena, plea guilty Rivera-Corona's included a States v. 1154 n. 1 right appeal, event, Cir.2003). waiver of but his conten- government In does plea involuntary tion raises the plea agreement not contend that the bars this possibility appeal that the waiver was invol- appeal. untary and so not enforceable. See United representation,” conflict-free and the Su-

“The Amendment’s Sixth “recognized has a trial rights: preme Court encompasses two distinct balancing wide latitude in and a adequate representation against to counsel of choice the needs of one’s own counsel. The to choose against fairness demands its right applies adequate-representation Gonzalez-Lopez, calendar.” 548 U.S. at and ‘focuses on the adver all defendants (citing 126 S.Ct. 2557 Wheat v. United not on the accused’s rela process, sarial ” States, 159-60, 486 U.S. lawyer as such.’ Daniels tionship with his (1988)). general, 100 L.Ed.2d 140 (6th Cir.2007) 735, 738 Lafler, can a defendant who afford to hire counsel Cronic, v. 466 U.S. (quoting United States may have his a the counsel of choice unless 648, 21, 2039, n. 104 80 L.Ed.2d 657 S.Ct. contrary compelled by “purposes result is (1984)). Indigent defendants have a 657 fair, in orderly inherent efficient and counsel, right to effective constitutional justice.” of administration United States specific lawyer appointed a but not to have (9th 1109, Ensign, v. 491 F.3d 1115 Cir. paid public. by the court 2007). not have the means to who do “[T]hose cognizable have no lawyers hire their own The district court this case to long they adequately so are complaint degree recognized right some this distinct by attorneys appointed by the represented to choose retained counsel. The court told Drysdale v. Caplin courts.” & “you Rivera-Corona that have the if right, States, 617, 624, 2646, 491 U.S. S.Ct. wish, you you to hire counsel ... if have (1989). three-part 105 L.Ed.2d 528 The to replace supple the funds do so” to or at inquiry applicable extent-of-conflict Marchi, ment and did not indicate that one tempts substitute any there extent-of-conflict limitation designed for another is to determine right. on that But the district court treat attorney-client conflict

whether the is such fundamentally question ed as different the impedes adequate representa it replace whether Rivera-Corona could re guarantees tion the Sixth tained counsel with defendants, including to all those who can Remarkably, we have no presently bind- attorneys. not afford to hire their own See ing dictating appli- case law the standards Woodford, Daniels v. 428 F.3d cable the situation which a district (9th Cir.2005) (characterizing the extent- a court considers defendant’s motion to “constructive of-conflict as the de discharge his rep- retained counsel and be doctrine”). nial of counsel court-appointed attorney. resented do, though, controlling case law A defendant who can hire his in the obverse situation —where a defen- attorney own has a different inde right, replace appointed dant seeks to with re- pendent right and distinct from the tained counsel. counsel, represented by effective to be choice. See United States Because an additional constitutional 140, 147-48, stake, Gonzalez-Lopez, 548 U.S. such have never motions (2006). governed by three-part 165 L.Ed.2d 409 been extent-of- analysis to retained counsel of one’s conflict to defendants applicable may seeking court-appointed choice is not absolute: A defendant new counsel. Un- representation by person signifi- not “insist on less the substitution would cause bar, delay inefficiency run afoul who is not a member of the or de cant or have men- mand that a court honor his waiver of the other considerations we tioned, a fire his not so implicate defendant can munication is severe as to counsel, appointed lawyer and retain a new attor- provide still ney or no reason reason. justification See reasonable a substitution Blacketter, counsel.”). Miller v. 525 F.3d of retained Cir.2008) (in a in which the only published case in circuit this sought at- posture, arose in the current in which torney evaluating with retained defendant seeks substitute judge’s “whether the trial decision anwas for retained is Bland v. California unreasonable exercise its discretion Corrections, Department to his chosen balance Miller’s (9th Cir.1994). Bland, we used against concerns of fairness and schedul- the extent-of-conflict standard to evaluate ing”); Bradley Henry, petition habeas trial challenging the (9th Cir.2007) (en banc) (holding 1096-98 permit refusal to to substitute the state court’s denial of a motion to a court-appointed attorney for his retained counsel for appointed counsel, although we did not our explain application be an unreasonable use of that standard. Id. at 1475. Bland Gonzalez-Lopez, jus- of because was not respect by was overruled in this v. Schell delay tified undue and the trial court (9th Cir.2000) Witek, (en 218 1017 F.3d assumed, wrongly questioning without the banc), which petitioner concerned habeas defendant, that could not pay she afford to sought who new counsel to re- counsel).2 retained Conflict the between place existing appointed counsel. heldWe attorney defendant and his enters the inquiry the in- generally extent-of-conflict analysis only required if the court is applicable review, on habeas the because balance the defendant’s reason for re trial inquire court’s failure to into the de- questing against substitution the schedul- seeking fendant’s reasons for substitution ing demands of court. the See United would not always render his un- conviction v. Torres-Rodriguez, Rather, constitutional. the in- appropriate (9th Cir.1991) 1380 n. 2 (explaining quiry was whether the conflict defendant’s absent delay, where a defendant seeks attorney with his actually deprived .of replace a court-appointed attorney with the effective assistance counsel. Id. at private one, deny is no “there reason to 1025, 1027. substitution whether not the defendant complaints has against, or irrevocable Schell thus overruled unex Bland’s with, counsel”) conflict plained over- application the extent-of-conflict ruled on grounds by Bailey standard, grounds v. Unit- on applicable albeit States, 516 ed U.S. 133 here. As Schell concerned motion (1995); L.Ed.2d 472 accord United States counsel on habeas re (2d Brumer, 157, 161 Cir.2008); v. 528 implicate view and did not the constitution Jess, choice, Carlson al right to counsel of it did not Cir.2008) (“[E]ven aif breakdown in of analysis com- establish a rule applicable majority joined (Clifton, opinion Bradley, was five of See F.3d at 1099-1100 judges panel, the eleven on en banc but concurring judgment) (holding J. in the four additional of the en members banc court Bradley’s right trial court violated to counsel agreed permit that the trial court’s refusal to of choice because none of the iden- conditions Bradley to substitute overriding tified in Wheat as her counsel violated her present). were counsel of choice Sixth to counsel of choice. expressly provides ap- nal Act motion.3 Justice substitution Rivera-Corona’s any stage at pointment “[i]f that did not of counsel of Bland Schell portion however, that disturb, proceedings us to conclude the ... the court finds compels inap financially pay is unable to review the [defendant] that the extent-of-conflict whom he had retained.” here. propriate 3006A(c); Doherty § see also U.S.C.A. that the rejecting Schell’s contention States, 28, 29, 92 404 U.S. S.Ct. denying of discretion trial court’s abuse (1971). Thus, L.Ed.2d 209 writ, required grant us to his motion summarily rejecting court erred in qualified right that emphasized we Schell’s request counsel was not at to choice of retained simply counsel to issue, distinguished ground and on that expense stage because of the and the holding that denial of the substitu- Bland’s proceedings.4 at per prejudicial. se Id. tion motion unequivocally held 1025-26. Bland As to the nature request the denial of the defendant’s made, agree we should have been counsel with a court- replace his retained Circuit’s articulation: Second attorney implicated qualified Reviewing a district court’s determina- counsel. 20 F.3d right to choice of eligibility financial for mid-case tion of rejected as irrelevant holding, In so Bland 3006A(e) appointment under re- the defendant argument the state’s quires three-fold determination. his financial clearly had not established First, did the district conduct counsel. Id. at eligibility appointed for “appropriate inquiry” into the defen- Second, if eligibility? dant’s financial appropri- the district court conducted an inquired court here never The district inquiry, for ate was the court correct its eligibility ap- into Rivera-Corona’s eligibili- ultimate conclusion of financial finding grounds no “to pointed Third, if conduct- ty? the district court appointed public expense, at have counsel remaining appropriate inquiry ed an and defendant particularly since the last item financially eligible ap- for mid-case sentencing.” me is But the Crimi- before proper applicable here: If 18 that the extent-of-conflict to the standard 3. Schell’s statement 3006A(c) applies, § "of course ... the correct meth standard was U.S.C. "the district court odology reviewing for federal cases on direct 'appropriate inqui- have conducted an should appeal,” 218 F.3d at does not control eligibility ry’ Rivera-Corona's financial into current circumstances. In addition to appointment of counsel and an for mid-case dicta, obviously being referred this statement analysis adequate of whether counsel should appointed of as was to substitution jus- appointed in the 'interests of have been Walker, ” v. followed citation to United.States Although tice.' Concurrence at 12169. 1990), Cir. 915 F.2d 480 may Judge suggests Rivera-Corona not Fisher course, case, also, counsel which adequately invoked 18 U.S.C. Moreover, primary “[o]ur context of Schell. 3006A(c), § Concurrence for ... en banc review was to correct reason 3006A(c) gov- simply provides § the standard using review we been to ha[d] the standard of may appoint erning when a court counsel constitutionality of a state court’s examine mid-proceedings person requests and if a so handling a motion to substitute financially pay that he is unable to asserts allegations on an irreconcil- counsel based So we can see no reason counsel. added). (emphasis Id. at 1024 able conflict." required invoke this Rivera-Corona was to ap- provision independently request for of his Judge Fisher in his concur- 4. We note that agrees pointed essentially with us in the end as rence litigation by expressing the district court err dant’s choices pointment, did from relatives or justice”? intention to seek fees weighing its of the “interests friends, or from the defendant should he Parker, 92- United States system provid later obtain funds. Our for (2d Cir.2006). Here, the compensated lawyers where the defen ing apply apparent failure to 3006A is at the compensate dant cannot afford to no step. given Rivera-Corona was first opportunity himself eliminates the for such as he assert- opportunity establish criminal proceedi extraneous influences on ed, Marchi and pay he was unable ngs.5 eligible therefore Nor was the district court entitled to publicly representation. financed Just as rely during on Rivera-Corona’s statement process judge not permit does “[d]ue plea colloquy he was satisfied can decide the defendant afford [whether representation. According Marchi’s existing to retain counsel Rivera-Corona, money Marchi demanded the af- hearing without counsel] presumably that his client did not have as party,” Bradley, fected 510 F.3d at trial, going pre- a condition of and was summarily that a judge decide pared “prosecute” presumably sue— eligible is not — family pay if he didn’t it. merely previously he has because true, support If these facts could a motion attorney. retained an plea, to set aside his as Rivera-Corona’s requiring We note retained coun- statement of satisfaction with Marchi at represent sel to continue to the defendant colloquy explained by could be pay even if the him and defendant cannot same facts. See United States Gonza- him, what longer no wants which is seem- (9th Cir.1997) lez, here, ingly happened is no substitute for (holding that the trial court abused its paid public funds in denying discretion a motion to substi- more, not, and so could without be in the strength tute counsel “on the of Gonzalez’s justice.” “interests of an unpaid Such law- responses plea-taking sworn at the that no yer likely, consciously subconsciously, is or him threatening forcing one was or him to agree- to resent the transformation of an plead” “alleged where the defendant that represent pay ment to a defendant for into attorney plead guilty his forced him to involuntary pro arrangement, bono and threatened if he did not take the representation therefore to seek to end the plea”). indeed, That, expeditiously possible. as as precisely alleged implication is what Rivera-Corona The Rivera-Corona’s re- regarding why here to happened respect sought appointed Marchi’s marks he plead guilty. suggested advice whether to More- counsel is that Marchi never alleged over—as also here —an involuntari- that that appointed he be new, ly unpaid lawyer may influence the defen- Rivera-Corona seek coun- right appointment, 5. We also note that a to CJA the defendant's court still duty appoint counsel under Federal Rule of under Rule 44 to a new him, Criminal Procedure 44 includes “defendants if were Rivera-Corona unable to to unable obtain counsel for reasons other retain substitute counsel in Marchi's stead. Hamlin, circumstances, Argersinger than financial.” 407 We need not examine these however, U.S. 37 n. 32 L.Ed.2d because there is no indication in the and, (1972) (quoting Advisory pertain Comm. record that such circumstances if 44). Thus, arise, they they Note Fed.R.Crim.P. were be to even as- to should addressed suming ineligible that Rivera-Corona is for a the district court in the first instance. sel, family gations concerning his could the circumstances un- if Rivera-Corona and in Particularly a trial. pay derlying guilty plea Marchi for his if there is a formal during the Rule light of the failure court’s motion to set aside plea. the Rivera-Corona that colloquy notify VACATED and REMANDED. at trial was entitled to counsel he for him if nec- could be counsel

essary, may have believed Rivera-Corona FISHER, Judge, RAYMOND C. Circuit that he plea the time of his had no at concurring; guilty other than pleading alternative to I in but result, disagree concur the an attorney to trial without

proceeding of the reasoning some offered ma- financial if exposing family his threats opinion. jority Moreover, pay he was unable to Marchi.6 request if to with- even Rivera-Corona’s denied, plea properly his

draw Right I. Sixth Amendment to Counsel right fully ap to counsel is constitutional I agree majority’s with the assessment sentencing. Igna Robinson v. plicable cio, the Sixth 1044, 1055 Cir.2004); see 44(a) (“A actually encompasses rights, Fed.R.Crim.P. who is several in- cluding unable to obtain counsel is entitled to have to choice of retained represent defen- to effective assistance of every proceeding stage dant from counsel and the right self-representa- appearance through appeal.”). initial however, part tion. company, with the majority’s conclusion that “we have no all Given these defects the district binding law presently dictating handling of Rivera-Corona’s re applicable standards situation in quest, we vacate Rivera-Corona’s sent a district remand, which court considers a defen- the district ence.7 On court discharge dant’s motion to appoint must if Rivera-Corona financially eligible, appropriate represented by and make counsel and be a court- attorney.” Maj. Op. factual into Rivera-Corona’s alle- inquiries government complaint. concedes the district into the defendant's during court failed to Rivera-Corona advise only cursory made this case plea colloquy that he had the inquiries following allega- proceed to trial and to have against allegations tions Marchi. The raised necessary, counsel if but contends that the conflict, possibility of an irreconcilable error was harmless because Rivera-Corona trust, potential loss of a financial or conflict of during right was informed of this his initial court, however, interest. The district asked appearance arraignments. and at both only anything if “there additional?” [was] and government’s reliance on United v. States if “there facts [were] [to] consider?" Vonn, Cir.2002) (9th inappo- 294 F.3d 1093 is The court failed to seek further clarification applied site. Vonn error review a harmless to Rivera-Corona, from did it ask nor Marchi to defendant's motion to set aside his conviction confirm, deny, explain allegations. or violation; based aon Rule 11 it does not Consequently, in this court's suggest may rely that a district court aon failed to “sufficient establish a basis for colloquy deny flawed Rule 11 to a motion to See, reaching e.g., an informed decision.” substitute counsel. Adelzo-Gonzalez, United States v. 268 F.3d 772, (9th Cir.2001) (“[I]n 777-78 most cir- We note that Rivera-Corona would be enti- only cumstances a court can ascertain the tled to remand even under Mendez-San- requires extent of a communication standard. That consider- breakdown in test chez asking specific questions.”). adequacy targeted ation of the of the district court's 984 delay in an of the tution “will result undue Appointed to Substitution.

Appointed purposes proceedings”). held long Amendment, of a defen- denial the Sixth dichotomy This exists because the defen- replace appointed to dant’s motion seeking replace appointed dant to governed by a appointed counsel is counsel and the defendant showing a requiring three-part standard seeking replace existing counsel with See, e.g., United States v. good cause. relying retained counsel are on different (9th Cir.1990) Walker, 480, 482 915 aspects right of the Sixth Amendment (“We consider three factors ‘when review- A defendant who moves re- a ing the denial of motion counsel with place appointed (1) (2) motion; counsel: timeliness rely Amend- counsel must on her Sixth inquiry into the adequacy of the court’s ment to effective assistance of coun- right (3) complaint; and whether defendant’s sel, requires showing good which the defendant and his the conflict between cause—the constructive denial of counsel. that it in a great was so resulted See, Moore, e.g., v. 159 F.3d United States preventing communication an total lack of (9th Cir.1998) 1154, 1158 (“[I]f the relation ”) (quoting adequate defense.’ United ship lawyer completely between and client Rogers, v. 769 F.2d 1423 collapses, the refusal substitute new Cir.1985)), grounds by overruled on other [the counsel violates Sixth defendant’s Nordby, United States right effective assistance (9th Cir.2000); Wayne 1059 see 3 R. La counsel.”). al., 11.4(b), Procedure Fave et Criminal hand, On the other a defendant who (3d 2007) (“The ed. defendant has a moves to replace existing counsel with re- only upon establishing to substitution may rely tained counsel on either her cause, interest, ‘good such as a conflict of to choice of or communication, her to effec- complete breakdown of tive assistance of counsel. there conflict which lead “When [could] irreconcilable ”) unjust delay ... apparently proceedings,” to an verdict.’ no threat of Harris, (quoting may, McKee v. she consistent with her (2d Cir.1981)) (alterations in original). freely choice of substitute one re- another, tained counsel for without show- Appointed/Retained to Retained Substi- ing that “the conflict between the defen- contrast, By tution. when great dant and his counsel was so that it replace existing seeks to counsel—whether resulted in a total lack of communication —with preventing adequate defense.” Torres- ordinarily she need establish 2; Rodriguez, 930 F.2d at & n. see See, e.g., cause. United States (“If defendant, also id. at 1380 n. much 1375, 1380 2 Torres-Rodriguez, 930 F.2d n. trial, in advance of wishes to substitute (9th Cir.1991), abrogated grounds on other one, an appointed retained counsel for States, by Bailey v. U.S. result, delay no in trial will there is no (1995); 133 L.Ed.2d 472 see deny Blacketter, 890, reason to substitution whether or not also Miller v. 525 F.3d 895 (9th Cir.2008) (no complaints against, the defendant has prejudice); need to show with, 1093, appointed an irrevocable conflict his Bradley Henry, 510 F.3d 1099- counsel.”). (9th Cir.2007) (en banc) (Clifton, J., Where substitution would re- 1100 delay, may replace sult in the concurring) (explaining that a defendant is counsel, but, generally replace existing free to counsel with re- counsel with retained tained counsel of choice the unless substi- consistent with her to effective assis-

985 (1st counsel, Santana, may only upon Cir.2004), tance of do so a 391 F.3d 42 exem- showing good plifies of cause. See id. 1380 & this view: 2; LaFave, 11.4(c), supra, n. see also 3 case, In the instant there are two actions (“As replacement appoint- at 716 in the of court at issue: its refusal to allow counsel, ed if the defendant can establish Sanchez[, counsel,] to withdraw that current counsel would not be able refusal to appoint its (as give competent representation only counsel. Were the issue that of the exists), where conflict of interest appropriateness of the court’s refusal to defendant’s constitutional to the ef- withdrawal, permit having Sanchez been fective assistance of counsel demands privately, might there be some granting necessary such continuance as is question. As we said in States counsel.”). to substitute new [retained] Woodard, (1st 95, 291 F.3d 107 Cir. 2002), a defendant ordinarily is not Appointed

Retained de- Substitution. pendent on the permission appointed-to-appointed Unlike and re- replace retained counsel. But here appointed-to-retained tained- scenarios above, merge, two actions question presented discussed since defendant and family applies here is what ran out of standard defen- funds to retain replace private dant’s motion to retained counsel counsel and defendant sought counsel. court appointed Some courts have held that governed by this scenario is 46-47; Id. at see also id. at 47 (requiring defendant’s to choice of such defendant, who had moved to freely discharge defendant can re- retained counsel with appointed tained counsel and obtain coun- “ show that ‘the conflict between the de- good sel without establishing cause. fendant and great his counsel was so Ortiz, 975, People v. 51 Cal.3d 275 Cal. it in a resulted total lack of communication 191, 547, Rptr. (1990), P.2d 553 ”) preventing an adequate (quot- defense’ example, Supreme the California Court Allen, ing United States v. 789 F.2d concluded that a trial court not “re- (1st Cir.1986)). quire indigent criminal defendant inadequate representation by slate, demonstrate writing Were we on a clean as the attorney, identify majority are, his retained or to believes we we would have to them, irreconcilable conflict between among be- make a choice approaches ex- fore it will approve timely emplified the defendant’s in Ortiz and Motar-Santana. not, discharge however, motion to his retained We are writing on clean and obtain already counsel.” Other slate. have pur- held courts, perhaps reflecting Amendment, the principle poses of the Sixth a motion to that “the to counsel of choice does substitute retained with appointed not extend to defendants require requires who a showing good cause. them,” Witek, counsel to be 1017, 1024-25 United See Schell v. (9th Cir.2000) (en v. Gonzalez-Lopez, banc); 548 U.S. Bland v. Cal. Corr., Dep’t S.Ct. 165 L.Ed.2d 409 (2006), rejected Cir.1994), Schell, Ortiz’s view and con- overruled in part that replacement cluded of retained coun- F.3d at 1025. opinions binding Those are us, require sel with counsel does a on majority’s is the refusal to showing recognize cause. The First them binding precedent Cir- in opinion cuit’s separately. States Mota- causes me to write Bland, than, appointed In we held that a motion to sel with counsel rather as appointed case, replace replace retained counsel in this a motion to governed by good the same appointed counsel is counsel with counsel. That sug- governs a motion to gestion, majority’s cause standard labeling as well as the appointed replace appointed counsel of the relevant discussion in Schell as “dic- Bland, (rely- at 1475 ta,” Schell, counsel. See point. misses the a case Walker, at ing appoint- on involving appointed-to-appointed substitu- case). ed-to-appointed tion, Bland, substitution We re- we went en banc to overrule cause, good quired the defendant to show involving retained-to-appointed sub- conflict,” such as an “irreconcilable to es- premised stitution. Schell is therefore on tablish substitution. Id. proposition that motions to substitute case, Although 1477. Bland was a habeas existing appointed counsel with counsel are subsequently Schell clarified that Bland governed by the regardless same standard methodology described the “correct for re- (as existing of whether counsel is retained viewing appeal.” Bland) (as federal cases on direct appointed in Schell and Schell, Walker). 218 F.3d at 1024-25. Taken to- A proposition necessary to the gether, Bland and Schell hold that a mo- See, holding e.g., City cannot be dicta. tion to substitute retained counsel with O’Neill, Sausalito v. 1203- appointed Cir.2004). federal district court If, majority sug- as the proceedings requires showing good gests, retained-to-appointed substitution cause. appointed-to-appointed and substitution standards, governed by are then persuaded by majority’s I am not different precedent Bland could not have served as First, attempts to avoid Bland and Schell. Schell, Schell would not have been af- majority’s suggestion contrary to the Bland, by fected would Schell have had no notwithstanding, Schell did not overrule cause to address Bland in en banc pro- in any respect Bland relevant here. See ceedings overruling and Schell’s of Bland Maj. Op. Although 980-81. Schell over- essentially advisory would have been review, ruled Bland applied to habeas opinion. Contrary to majority’s sug- expressly specifically Schell and confirmed gestion, necessarily both Bland and Schell good Bland’s applied cause standard as held that retained-to-appointed ap- “federal on appeal” cases direct issue —the pointed-to-appointed gov- substitutions are Schell, presented here. 218 F.3d at 1024- by i.e., erned legal the same standard — good cause. We are bound that holdi Second, majority’s conclusion that ng.1 Schell “does not control in the current circumstances” purposes because addressed “sub- For of the Sixth Amendment therefore, stitution of analysis, counsel” reflects a I would hold that we fundamental misunderstanding of Schell. are bound circuit precedent to review Maj. Op. n. majority apparently 3. The replace Rivera-Corona’s motion to re- nothing concludes that say Schell had to tained counsel with counsel un- could binding be here because Schell in- ap- der the same cause standard we volved a motion to ply coun- to motions to substitute one above, recognize standards, subject As noted legal Schell con- tution are to the same however, cerned distinguish habeas review rather than fed- direct does not between holding eral review. binding Schell’s that retained-to- two and therefore is on direct review appointed-to-appointed substi- as well. Applying proceeding progresses.” another. that stan counsel for In re Boston Herald, Inc., (1st here, agree majority with the dard I 321 F.3d Cir. 2003). court failed to conduct an ade the district inquiry response to Rivera-Coro quate explicitly Rivera-Corona did not raise Maj. I Op. na’s motion. See 983 n. 6.2 3006A(c) § in the district court or on ap-

would vacate and remand on that basis. peal. Assuming that Rivera-Corona none- emphasize apply good adequately I that I would the theless provision, invoked the I agree cause standard because I believe we are majority the the district required to do so the doctrine of stare court should have conducted an “appropri- See, e.g., Tippett, inquiry” decisis. In re 542 F.3d ate into Rivera-Corona’s financial Cir.2008); eligibility 691-92 Miller v. Gam appointment mid-case mie, (9th Cir.2003) (en adequate counsel and an analysis of wheth- bane). Ortiz, In the Supreme California er counsel should have been strong argu Court offered a number of justice.” “interests of 18 U.S.C. 3006A(b)-(c); § proposition replace ments for the see also United States v. Parker, (2d Cir.2006) ment of retained with 92-99 require showing should not of good (discussing the “appropriate inquiry” re- truly writing cause. Were we on a quirement, clean as well as the “interests of slate, arguments might prevail. justice” those well analysis). The justice interests of view, however, my In we are constrained appointment dictate mid-case of coun- (or precedent apply good cause stan sel when the defendant family) is no longer dard here. pay able to retained counsel. As majority out, points an unpaid such Statutory Rights II. under the Crimi- lawyer may, consciously subconsciously, nal Act Justice “resent the transformation of an agree- majority explains, As the represent Rivera-Corona ment to pay defendant for into may also a right to substitution of involuntary pro an arrangement, bono Act, counsel under Criminal Justice therefore seek representation to end the provides which in relevant “If part: any expeditiously possible.” as Maj. Op. stage proceedings, including ap- remand, therefore, 982. On the district peal, magistrate the United States judge court should also consider whether mid- person or the court finds that the is finan- appointment indepen- counsel is cially pay unable counsel whom he had dently appropriate 3006A(c), § under the retained, may appoint counsel ... assuming Rivera-Corona un- seeks relief ..., payment authorize as the interests of that provision. der justice may dictate.” 18 U.S.C. 3006A(c). provision “obliges This

judge continually conclude, reevaluate the part need To company with the underlying majority’s as the purposes conclusion remand, paying On the court’s cause continue his retained counsel estab- Ortiz, only should consider not whether there was lished basis for substitution. See ("We Cal.Rptr. irreconcilable conflict between Rivera-Co- justi- 800 P.2d at 553 are attorney fiably rona and his but also other evi- concerned about to effec- tending proceeding dence to establish that tive assistance of counsel when a defendant is with retained counsel would have proceeding resulted forced to choose between to trial particu- ineffective continuing assistance of counsel. without an to trial lar, here, attorney originally represent as relevant the district court should with an hired to inability longer pay.”). consider whether Rivera-Corona’s him but whom he no is able to Yaron; Shamir; Yair Yuval analysis, cause Giora

Sixth Scarlat; Abrams; apply does not to motions to sub- Pricewat standard Sharlene erhousecoopers Inc., Defendants-Ap retained counsel with stitute pellees, I we are bound Bland counsel. believe that standard here. apply and Schell to judgment, nonetheless concur be- to conduct an

cause the district failed Mercury Group, Pension Fund adequate inquiry, required Bland Third-party-plaintiff-Appellee. Schell, response No. 08-17372. motion to retained counsel with of Appeals, Court

Ninth Circuit. Argued and Submitted Dec. Aug. Filed In re MERCURY INTERACTIVE

CORP. SECURITIES

LITIGATION, Supporting

Archdiocese of Milwaukee

Fund, Inc.; Johnson; Dennis S. Karel

Munao; Singhal; Chandra Charter

Township of Clinton Fire Police System; City of Dearborn

Pension

Heights Police and Fire Retirement

System; City Sterling Heights Gen- Employees System;

eral Retirement

Longshoreman’s Association Pension

Fund; Steamship Trade Association

International; Mercury Pension Fund

Group, Plaintiffs-Appellees,

New York State Teachers’ Retirement

System, Appellant, Trusts;

Connecticut Retirement Plans &

Bloomberg News; San Francisco

Chronicle; Recorder, Interve-

nors-Appellees,

Mercury Corporation; Interactive Am Landan; Douglas Smith;

non P. An

thony Zingale; Skaer; Susan J. Brad

Boston; Igal Kohavi; Clyde Oslter;

Case Details

Case Name: United States v. Rivera-Corona

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 18, 2010

Citation: 618 F.3d 976

Docket Number: 08-30286

Court Abbreviation: 9th Cir.