282 F.3d 758 (9th Cir. 2002), 00-30120, United States v. Smith

Docket Nº:00-30120
Citation:282 F.3d 758
Party Name:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. MICHAEL ANDREW SMITH, AKA THE BIRD, DEFENDANT-APPELLANT
Case Date:March 07, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 758

282 F.3d 758 (9th Cir. 2002)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

MICHAEL ANDREW SMITH, AKA THE BIRD, DEFENDANT-APPELLANT

No. 00-30120

United States Court of Appeals, Ninth Circuit

March 7, 2002

May 7, 2001

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Counsel: Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, Washington, for the defendant-appellant/appellee. Page 762

Annette L. Hayes, United States Attorney's Office, Seattle, Washington, for the plaintiff-appellee/appellant.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding D.C. No. CR-98-00355-07-Z

Before: Donald P. Lay1, Stephen S. Trott, and Marsha S. Berzon, Circuit Judges.

Trott, Circuit Judge

OPINION

Overview

Between 1996 and 1998, an extensive organization attempted to import into the United States three large loads of marijuana. Appellant Michael Smith was involved in the first two of those attempts. The organization initially attempted to import marijuana on a boat named the "OK Tedi. " When the U.S. Coast Guard intercepted the OK Tedi, the crew set fire to the vessel. Smith was not on board the OK Tedi, but he was found nearby on a small support craft.

A year later, the organization attempted to import marijuana from Cambodia. That attempt failed when Cambodian police caught members of the organization, including Smith, loading marijuana onto a boat at a Cambodian port.

The government charged Smith with four counts: Count 1 charged conspiracy to import marijuana; Count 2 charged attempted importation of marijuana with respect to the OK Tedi load; Count 3 also involved the OK Tedi load and charged aiding and abetting the possession of marijuana with intent to distribute on a vessel subject to U.S. jurisdiction; and Count 4 charged attempted importation of marijuana with respect to the Cambodian load. See 21 U.S.C. § § § § 952(a), 960(a)(1), 960(b)(1)(G), 963; 46 U.S.C. § § 1903; and 18 U.S.C. § § 2. A jury convicted Smith of all counts, and the court sentenced him to 145 months' imprisonment.

Smith raises several claims of error in his timely appeal. We have jurisdiction pursuant to 28 U.S.C. § § 1291, and for the reasons expressed below, we affirm.

I. Motions For Substitute Counsel

A. Smith's Second Pre-Trial Motion For Substitution of Counsel

1. Background

Initially, court-appointed attorney James Roe represented Smith. Smith, claiming a lack of meaningful communication with Roe, sought new appointed counsel. Out of an abundance of caution, the court granted Smith's request. Walter Palmer was then court-appointed to represent Smith.

Smith again sought new appointed counsel. On August 28, 1999, Smith sent a letter to Palmer and the court, instructing Palmer to withdraw as counsel, and cutting off all communication between them. On September 14, 1999, Smith filed a formal motion seeking "substitution of a new court appointed lawyer." After holding a status conference to discuss Smith's letter and motion, the district court rejected Smith's motion to substitute counsel.

2. Smith's August 28th Letter Was Not a Request to Proceed Pro Se

Smith first argues that his August 28th letter was a clear request to represent himself and that the district court Page 763

erred by denying that request. We disagree.

A defendant's request to proceed pro se must be explicit and unequivocal. See United States v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994). Smith's August 28th letter does not meet this standard. The letter never once mentions Smith's purported desire to represent himself. Instead, the letter simply instructs Palmer to withdraw as appointed counsel due to "irreconcilable differences." Moreover, before the court ever ruled on Smith's supposed request to represent himself, Smith filed a motion asking for substitute counsel, wherein he stated clearly, "I cannot go Pro Se . . . . I need a new laywer." At the status conference, Smith again asserted that he"wish[ed] to have a new court-appointed lawyer that will be effective." It is clear that all along, Smith was seeking substitute counsel, not to proceed pro se.

3. The Court Did Not Abuse Its Discretion in Denying Smith's Second Pre-Trial Motion to Substitute Counsel

Smith next argues that the district court abused its discretion in denying his motion to substitute. We review this question for an abuse of discretion, and should consider: (1) the timeliness of Smith's motion; (2) the adequacy of the court's inquiry; and (3) the extent of the conflict between the defendant and his counsel. United States v. Corona-Garcia, 210 F.3d 973, 976 (9th Cir. 2000). We conclude that the court appropriately exercised its discretion.

Timeliness: Smith sent his August 28th letter to Palmer and the court over thirty days before the scheduled trial date. He sent his formal motion thirteen days before trial. Generally, such requests would be timely, see United States v. Moore, 159 F.3d 1154, 1161 (9th Cir. 1998), but because new counsel probably would have required a continuance due to the complicated nature of the case, this factor only slightly favors Smith.

Adequacy of Inquiry: The court's inquiry was more than adequate. The court provided Smith the opportunity to support his papers with oral argument. The court patiently and exhaustively queried Smith about the extent of communication between himself and Palmer, and about Smith's reasons for seeking new counsel a second time. The court confirmed that Palmer was prepared for trial. Finally, the court allowed the government to "weigh-in on this subject." Therefore, this factor favors the government. See Corona-Garcia , 210 F.3d at 976-77 (approving of similar inquiry).

Extent of the Conflict: The circumstances of this case do not present an extensive, irreconcilable conflict. First, Smith's own letter indicates that the dispute about when to file a discovery motion stemmed from a disagreement about"strategic purposes" and the application of "local Rule 16." Litigation tactics are decisions generally left to defense counsel. Id. at 977 n.1. Second, Palmer filed on-time the disputed discovery motion, though not in Smith's preferred words, and was able to obtain substantial information from the government. See United States v. Garcia, 924 F.2d 925, 927 (9th Cir. 1991) ("The record reflects that [defense counsel ] defended [the defendant] fully and forcefully."). Third, Smith's excuse for unilaterally cutting-off communication with Palmer was that "[he] didn't want to meet and discuss something and have nothing be done about it again." However, the record reflects that Palmer visited with Smith regularly, explained that strategy and compliance with local rules required him to wait in filing the discovery motion on-time, and did actually file the motion. Accordingly, Page 764

Smith's proffered justification appears to arise out of "general unreasonableness or manufactured discontent." United States v. Walker, 915 F.2d 480, 484 (9th Cir.1990). Finally, the district court already granted Smith one request for new counsel, and concluded that this second motion was filed to delay the proceedings. This factor strongly favors the government.

Under these circumstances, we hold that the district court appropriately exercised its discretion when it rejected Smith's second pre-trial motion for substitution of counsel.

B. Smith's Post-Trial Motion to Substitute Counsel

1. Background

After the jury convicted him, Smith again moved pro se for new appointed counsel. Smith claimed that (1) Palmer had been ineffective at trial; and (2) there had been no meaningful communication between them. Without a hearing, the district court rejected Smith's motion.

2. The Court Did Not Abuse Its Discretion in Denying Smith's Post-Trial, Pre-Sentencing Motion to Substitute Counsel

Smith argues that the court erred in denying his post-trial, pre-sentence motion for substitute counsel. Again, we review under the deferential abuse of discretion standard and consider (1) the timeliness of the motion; (2) the adequacy of the court's inquiry; and (3) the extent of the conflict. CoronaGarcia, 210 F.3d at 976. Though a closer question than the previous one, we conclude that under the circumstances, the district court did not abuse its discretion.

Timeliness: Smith timely filed his motion over five months before sentencing. However, because Smith had already been granted one substitution of counsel, and was seeking to substitute one appointed counsel with another, delay is less of a consideration. See United States v. Torres-Rodriguez, 930 F.2d 1375, 1380 n.2 (9th Cir. 1991), ("A defendant who seeks to replace one appointed counsel with another . . . will need to justify the replacement even in the absence of delay in the proceedings."), overruled on other grounds by Bailey v. United States, 516 U.S. 137 (1995).

Adequacy of Inquiry: The court conducted no inquiry concerning Smith's post-trial...

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