U.S. v. Balaj, 96-10257

• Decision Date: 07 November 1997
• Docket Number: No. CR-95-20109-RMW,No. 96-10257,96-10257,CR-95-20109-RMW
• Citation: 141 F.3d 1180
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. United States of America, Plaintiff-Appellee, v. Besnik BALAJ, Defendant-Appellant. D.C.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1180

141 F.3d 1180

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

United States of America, Plaintiff-Appellee, v. Besnik BALAJ, Defendant-Appellant.

No. 96-10257.

D.C. No. CR-95-20109-RMW.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1997--San Francisco, California.

Decided Mar. 12, 1998.

Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding.

Before WIGGINS and KLEINFELD, Circuit Judges, DWYER ^**, District Judge.

MEMORANDUM ^*

Besnik Balaj appeals his conviction, following a jury trial, of bank burglary in violation of 18 U.S.C. § 2113(a). Balaj contends that the district court erred in denying his counsel's motion for leave to withdraw and in admitting hearsay evidence.

We review the district court's denial of defense counsel's motion for leave to withdraw for abuse of discretion. See United States v.. George, 85 F.3d 1433, 1439 (9th Cir.1996). Here, defense counsel moved during trial for leave to withdraw because she believed that Balaj and a co-defendant who had pleaded guilty were about to testify falsely. A lawyer may not "present known perjury." Nix v.. Whiteside, 475 U.S. 157, 171, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). The district court held an ex parte hearing on the motion, advised Balaj of the risks and consequences of alternative ways of proceeding, and arrived at a solution that preserved the defendant's rights to testify and to counsel while avoiding an ethical violation by the defense lawyer. This consisted of counsel's continuing to serve while Balaj and his witness testified to their version of the events at issue by the narrative method rather than the question and answer method. Balaj, having been fully advised by the court, agreed to the procedure. Defense counsel did not suggest to the jury in any way that she disbelieved her client's story. Cf. Lowery v. Cardwell, 575 F.2d 727 (9th Cir.1978). To the contrary, counsel provided thorough and able representation to Balaj at every stage. She brought pretrial motions to dismiss and to sever, sought subpoenas from the court for trial, obtained the presence of the co-defendant to testify in accordance with Balaj's wishes, asked introductory questions of her client on direct examination, interposed objections during the government's cross-examination,...