U.S. v. Castro

• Decision Date: 17 August 1992
• Docket Number: No. 91-50369,91-50369
• Citation: 972 F.2d 1107
• Parties: UNITED STATES of AMERICA, Plaintiff-Appellee, v. Roberto Nicolas CASTRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1107

972 F.2d 1107

UNITED STATES of AMERICA, Plaintiff-Appellee, v. Roberto Nicolas CASTRO, Defendant-Appellant.

No. 91-50369.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 9, 1992.

Decided Aug. 17, 1992.

James R. Bostwick, Jr., Claremont, Cal., for defendant-appellant.

Peter G. Spivack, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FARRIS, WIGGINS, and FERNANDEZ, Circuit Judges.

WIGGINS, Circuit Judge:

OVERVIEW

Roberto Castro appeals from the district court's judgment following a jury verdict against him for conspiracy and five counts of possession with intent to distribute cocaine. He argues that: 1) the district court abused its discretion in refusing to allow him to substitute new counsel; 2) his convictions are not supported by sufficient evidence; 3) the use of the amended Sentencing Guidelines in his case was a violation of the Ex Post Facto Clause; and 4) the district court erred in increasing his offense

                level for being a leader of the conspiracy.   We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291.   We affirm in part and reverse in part
                

DISCUSSION

I. The District Court did not Abuse its Discretion in Denying Castro's Motion to Substitute Counsel

Castro claims that the district court erred in refusing to permit him to substitute counsel prior to trial. A district court's refusal to substitute counsel is reviewed for abuse of discretion. United States v. Schaff, 948 F.2d 501, 503 (9th Cir.1991). There are three elements which must be examined in reviewing a district court's denial of a substitution motion: (1) the timeliness of the motion; (2) the adequacy of the district court's inquiry into the defendant's complaint; and (3) whether the asserted conflict was so great as to result in a complete breakdown in communication and a consequent inability to present a defense. United States v. Garcia, 924 F.2d 925, 926 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2809, 115 L.Ed.2d 982 (1991).

An examination of the three required elements reveals that the district court properly denied the motion. Castro's motion was untimely. The motion was made only three days before the trial was supposed to commence. Castro initially indicated to his counsel that he wanted other counsel two weeks before the trial date. Castro's counsel told him that he would have to request substitution from the district court. Yet, neither Castro nor his counsel attempted to request substitution until three days prior to the trial date. The court, in ruling on the motion, noted that granting the motion would require a continuance to allow the new counsel to become familiar with the case. The court also noted that a continuance would result in a waste of the entire week of the court's time that had been set aside for the trial, as nothing else could be scheduled on such short notice.

We have consistently held that a district court has broad discretion to deny a substitution motion made on the eve of trial, particularly where it would require the grant of a continuance. United States v. Schaff, 948 F.2d at 504. Motions made on the first day of trial have been held to be untimely. United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986). Even motions filed six days prior to trial have been held to be untimely. United States v. Garcia, 924 F.2d at 926. Here, the motion was filed only three days before trial and would have necessitated a continuance. Thus, the motion was untimely.

Second, the district court conducted the necessary inquiry into Castro's complaint. The district court specifically questioned Castro as to why he wanted new counsel. Castro identified three areas of dissatisfaction with his attorney. He complained that his attorney was not interested in the case, that he had difficulty communicating with his attorney who did not speak Spanish, and that his attorney, did not have the experience necessary to handle the case.

The district court examined Castro's attorney as to whether he had had enough time to prepare the case and whether he was prepared to go to trial. Counsel informed the court that he had had enough time to prepare and was prepared to go to trial. Furthermore, counsel did not indicate that he was not interested in proceeding in the case.

The district court also examined counsel on the issue of communication. Counsel indicated that his inability to speak Spanish hindered communication with Castro. The district court took steps to ensure that an interpreter would be made available during breaks and the lunch hour to facilitate communication.

Lastly, the district court examined counsel as to his legal experience in drug cases. The district court also asked about counsel's overall trial experience and experience with the Central District. The district court concluded that counsel had sufficient experience to try the matter competently.

The district court conducted a sufficient inquiry. The court allowed the defendant to list all the concerns which he had about his counsel. The court then examined counsel with respect to each of Castro's concerns. Castro complained that the district court should have examined him with respect to each of his concerns. There is no requirement that the court's inquiry include a more extensive examination of the defendant. Furthermore, the court allowed Castro to express freely his concerns first. There was no necessity to examine Castro further.

Third, the claimed conflict with counsel was not so severe that it prevented all communication and thereby the ability to conduct a defense. The district court examined counsel on the issue of communication. Counsel informed the court that the language barrier created problems but did not indicate that there were any other factors responsible for any communication problem. Castro had not refused to speak to counsel. Neither did Castro allege any personal conflict that affected his communication with counsel. In fact, during the trial, Castro utilized the services of the court appointed interpreter for the purpose of conversing with his attorney. As the government points out, the obvious implication of this is that Castro and his counsel were communicating. Lastly, Castro advanced no evidence that any lack of communication prevented the presentation of his defense. The defense did not present a case at trial, resting after the government's presentation. However, that decision was a strategic decision based on the defense's perception that the government's case was weak because there was no direct evidence linking Castro to the cocaine.

All three required elements support the district court's decision to deny the substitution motion. Therefore, the district court did not abuse its discretion in denying the motion.

II. There was Sufficient Evidence for the Jury to Find that Castro was a Member of the Conspiracy

Castro claims that there was insufficient evidence to allow the jury to conclude that he committed an overt act in furtherance of the conspiracy. Castro also claims that there was insufficient evidence to establish that he possessed cocaine. We have held that there is sufficient evidence to support a conviction where, reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988).

A. The Conspiracy Charge

Castro argues that there is insufficient evidence to support his conviction for conspiracy. He contends that the mere fact that he associated with the coconspirators is not enough to find that he was a member of the conspiracy. Castro essentially contends that he cannot be convicted without some direct evidence of his involvement in the conspiracy. Castro's argument is meritless.

It is well established that where the existence of a conspiracy has been established, the government need only show a slight connection to it, beyond a reasonable doubt, in order to convict a defendant of conspiracy. United States v. Stauffer, 922 F.2d 508, 514-15 (9th Cir.1990); United States v. Ramirez, 710 F.2d 535, 548 (9th Cir.1983). The government does not have to present direct evidence. Circumstantial evidence and the inferences drawn from that evidence will sustain a conspiracy conviction. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). Lastly, the defendant need not have committed an overt act in furtherance of the conspiracy; he may still be convicted so long as one of his coconspirators did so. Manual of Model Jury Instructions for the 9th Circuit, Instruction No. 8.05A (1989).

There is ample circumstantial evidence in this case to support the jury's conclusion that Castro was a member of the conspiracy. The government presented evidence of a pattern of behavior by Castro prior to each seizure of cocaine. The jury could reasonably determine that prior to each of the first four seizures, Castro coordinated meetings between individuals and vehicles loaded with cargo and large tractor-trailers which were later apprehended carrying large amounts of cocaine. Prior to the last seizure, Castro was observed dropping off a van loaded with cargo. The van was followed to an apartment where large amounts of cocaine were found in a container which had been taken from the van. The jury could have reasonably concluded that the cocaine seized in the apartment had come from the van that Castro had dropped off. Castro claims that there are innocent explanations for his conduct prior to each seizure. This may be true. However, the jury could reasonably infer from the pattern of conduct that the innocent explanations were not credible. It is a bit much to expect the jury to believe that Castro was in the wrong place at the wrong time so...