972 F.2d 1107 (9th Cir. 1992), 91-50369, United States v. Castro

Docket Nº:91-50369.
Citation:972 F.2d 1107
Party Name:UNITED STATES of AMERICA, Plaintiff-Appellee, v. Roberto Nicolas CASTRO, Defendant-Appellant.
Case Date:August 17, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1107

972 F.2d 1107 (9th Cir. 1992)

UNITED STATES of AMERICA, Plaintiff-Appellee,


Roberto Nicolas CASTRO, Defendant-Appellant.

No. 91-50369.

United States Court of Appeals, Ninth Circuit

August 17, 1992

Argued and Submitted July 9, 1992.

Page 1108

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:


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

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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.


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...

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