Case Information
*1 Before: GRABER and FRIEDLAND, Circuit Judges, and GUILFORD, [**] District Judge.
Brenda Mendoza-Bojorquez appeals her convictions for conspiracy with intent to distribute, possession with intent to distribute, conspiracy to import, and importation of methamphetamine. We affirm.
*2 The district court did not abuse its discretion in denying the motion for a new trial. Like the district court, we have reviewed the Government’s information about the confidential source in camera . Even if we assume that information that a district court had already reviewed in camera could count as newly discovered evidence for the purposes of a new trial motion, the source’s identity and potential testimony do not “indicate[] the defendant would probably be acquitted in a new trial.” See United States v. King , 735 F.3d 1098, 1108 (9th Cir. 2013) (quoting United States v. Berry , 624 F.3d 1031, 1042 (9th Cir. 2010)).
The district court also did not abuse its discretion in denying the motion to substitute counsel. The district court held a hearing in which it asked Mendoza- Bojorquez and her counsel questions targeted at understanding the source and extent of the alleged conflict between them. See United States v. Reyes-Bosque , 596 F.3d 1017, 1034 (9th Cir. 2010). Based on their answers, the court determined that, contrary to Mendoza-Bojorquez’s assertions, she and her counsel were able to communicate. The court also concluded that Mendoza-Bojorquez’s discomfort resulted more from her counsel’s tactical decisions and his legal assessment of her case than from a true breakdown in communications. See United States v. McKenna , 327 F.3d 830, 843-44 (9th Cir. 2003); United States v. Roston , 986 F.2d 1287, 1292-93 (9th Cir. 1993).
The district court also found the motion untimely. Mendoza-Bojorquez *3 made her request about ten days before trial. While this timing may in some cases be timely, see United States v. Velazquez , 855 F.3d 1021, 1036-37 (9th Cir. 2017), here, she testified that her concerns about her attorney were longstanding, and she did not offer any explanation for the delay in raising those concerns. In addition, a material witness had been paroled into the country and was in custody for the trial, meaning that a continuance would prolong the time he spent in custody. In these circumstances, the district court did not abuse its discretion by denying the motion to substitute counsel. [1]
“[T]he customary procedure in this Circuit for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255.” United States v. Hanoum , 33 F.3d 1128, 1131 (9th Cir. 1994) (quoting United States v. Schaflander , 743 F.2d 714, 717 (9th Cir. 1984) (per curiam)); see United States v. Rahman , 642 F.3d 1257, 1259-60 (9th Cir. 2011). We decline to depart from our custom to consider Mendoza- Bojorquez’s ineffective assistance of counsel claim on direct review.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Andrew J. Guilford, United States District Judge for the Central District of California, sitting by designation.
[1] At oral argument, counsel contended that the district court erred procedurally by failing to question Mendoza-Bojorquez outside the presence of her attorney. Mendoza-Bojorquez did not make this argument in her briefs, and thus she waived it. See Harger v. Dep’t of Labor , 569 F.3d 898, 904 n.9 (9th Cir. 2009) (argument raised for first time at oral argument is waived).
