United States v. Brown

• Decision Date: 13 May 2015
• Docket Number: No. 13–10354.,13–10354.
• Citation: 785 F.3d 1337
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Richard Carl BROWN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

785 F.3d 1337

UNITED STATES of America, Plaintiff–Appellee

v.Richard Carl BROWN, Defendant–Appellant.

No. 13–10354.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 9, 2014.

Filed May 13, 2015.

Jason F. Carr, Assistant Federal Public Defender, Federal Public Defender's Office, Las Vegas, NV, for Defendant–Appellant.

William Ramsey Reed (argued) and Elizabeth Olson White, Assistant United States Attorneys, United States Attorney's Office, Reno, NV, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, District Judge, Presiding. D.C. No. 2:12–cr–00097–RCJ–VCF–1.

Before: STEPHEN REINHARDT, RONALD M. GOULD, and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

United States v. Rivera–Corona, 618 F.3d 976 (9th Cir.2010), held that an indigent criminal defendant need not establish a conflict with his attorney amounting to the constructive denial of counsel as a prerequisite to substituting appointed counsel for his retained attorney. The district court in this case, like the parties, appears to have been unaware of Rivera–Corona, and instead applied the conflict requirement applicable to substitutions of appointed counsel for appointed counsel. We now reiterate Rivera–Corona's intertwined rules: (1) A defendant enjoys a right to discharge his retained counsel for any reason “unless a contrary result is compelled by ‘purposes inherent in the fair, efficient and orderly administration of justice,’ ” Rivera–Corona, 618 F.3d at 979 (quoting United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir.2007) ), and (2) if the court allows a defendant to discharge his retained counsel, and the defendant is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A. Because no sufficient reason justified the district court's denial of Richard Carl Brown's right to discharge his retained lawyer or its refusal to appoint counsel, we vacate Brown's convictions and remand for a new trial. We also reject Brown's arguments that the evidence presented at trial was insufficient.

I.

Nevada police detectives identified a computer that had been sending and receiving child pornography through FrostWire, a peer-to-peer file-sharing program, as associated with an internet protocol address registered to Brown. After the detectives downloaded from the computer a video containing child pornography, they obtained a search warrant for Brown's home. Brown shared his home with two roommates and ran a computer business from it. The search yielded a computer in Brown's bedroom, which forensic investigation indicated was the source of the video. Also found during the search were a disconnected external hard drive containing: various photos of Brown, including intimate photos; personal documents, such as Brown's father's death certificate; a folder designated to be shared by FrostWire; and hidden folders containing some 900 child pornography files. Brown was charged with one count each of advertising child pornography, 18 U.S.C. § 2251(d)(1)(A) ; transporting child pornography, 18 U.S.C. § 2252A(a)(1) ; receiving child pornography, 18 U.S.C. § 2252A(a)(2) ; and possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B).

Two and a half weeks before trial was to begin, Brown's retained counsel filed a motion to withdraw from the case and substitute a public defender. Brown's attorney cited “strained” communications and an “actual conflict of interest” with Brown. He advised the court that Brown “desires counsel to withdraw from representing him,” and attached an email in which Brown requested the withdrawal and indicated he would seek appointed counsel. A week later, counsel filed a motion to continue the trial regardless of the court's ruling on the motion to withdraw and substitute.

The district court held a hearing on the motion to withdraw. Brown's counsel began by informing the court of the “extreme divergence of philosophical opinion as to how the case should be carried on” between himself and Brown. The court responded, “Actually, is it more based in failure for him to be able to pay your fee?” The court emphasized that counsel could not withdraw for failure to pay fees without leave of court, and then continued:

Now, here we are, of course, on the eve of trial. Trial has been scheduled. And just because your client is disagreeing with you on recommendations regarding plea or trial, that is not the basis to permit withdrawal.

Counsel assured the court that Brown's financial situation “really has nothing to do with this,” but that the problem was “trust.”

The court then ordered the hearing continued ex parte because privileged information would be discussed.¹ At that point, counsel for the government, initially present, was excluded. Before leaving the room, counsel indicated that the government had no position on the motion to withdraw but was opposed to a continuance. An attorney from the Federal Public Defender's Office, initially present as well, remained in the courtroom during the ex parte portion of the hearing.

After counsel for the government left, the court inquired whether Brown had any “objection to the motion to withdraw.” Brown responded that he did not. The court laid out the “problem,” as it saw it, to Brown's attorney:

You know, this is scheduled for trial. Obviously if I allow you to withdraw and appoint now—because he would qualify, I assume, for a public defender [-] and appoint a public defender, that will mandate a continuance of the trial so that person could be brought up to speed.

So I find great fault with your late filing of this motion, on the eve of trial, and what appears to be simply because there's a disagreement over payment and your inability, or unwillingness, to prepare for trial.

Your client has the right to insist upon trial as opposed to plea. That's the problem. So you've got to overcome those concerns in your argument.

Brown's counsel responded that he understood, that the dispute was not about money, and that he was prepared to proceed to trial. However, he again informed the court that “Mr. Brown has indicated to me that he would like us to withdraw.”

The court then engaged Brown in the following colloquy:

THE COURT: ... What is the disagreement, sir, that causes you to want a different attorney?

THE DEFENDANT: Your Honor, there's been—I guess we see things differently....

THE COURT: Sure. What do you see differently?

THE DEFENDANT: I have tried on many occasions to talk to them about my defense, and they have never talked about a defense. They have always said hold on, this is how it works, just keep waiting, keep waiting, keep waiting—

THE COURT: You're talking about anticipating a potential plea?

THE DEFENDANT: Always. It was always about a plea. Ever since we met.

THE COURT: ... What do you see differently from your attorney?

THE DEFENDANT: ... [W]e never really discussed anything about a defense. They didn't want to hear about why I was not guilty. They didn't want to hear about this.

I had witnesses and everything. We never talked about that. The first time I was asked about a list was after the first time I saw a plea, which is in the beginning of—

THE COURT: So what I hear you saying, sir, is you don't feel they were diligent in presenting defenses you wanted them to present?

THE DEFENDANT: Not at all ...

The court told Brown that his attorney was very experienced, and that, within the limits of his ethical duties, his counsel was required to present the case, including any defenses, as Brown wished. Having sought to dispose of Brown's basis for dissatisfaction, the court indicated that it did not “understand yet, other than a feeling that he has not diligently pursued the defense, ... any basis for a disagreement on the defense.”

The discussion then turned to the topic of payment. Brown told the court that his attorney had not contacted him at all for the “first five or six months,” and in general only “rarely contacted [him] except for payments.” Brown said that he had “trouble getting the last payment” as he was “completely out of money.” The court inquired how much the attorney had charged and how much Brown had paid. Brown responded, “$50,000,” pursuant to a payment plan, and that “we're a little late on the last ... payment.” The court responded, “And you got it in.” Brown did not directly respond, but explained that it was “really hard to even get that,” and that his attorney had not asked for any more.

Then Brown returned to the focus of his dissatisfaction, his lawyer's handling of the case. He stated that he was “absolutely ... not guilty” of the charges, and had witnesses to establish that the computer at issue was not his but, rather, belonged to a client of his business. He told the court, presumably also referring to his relationship with counsel, that additionally “[m]oney is an issue because it was always an issue up until this point.”

Next, the district judge again addressed his attention to Brown's attorney. Emphasizing Brown's control of the defense, albeit constrained by counsel's ethical duties, the judge asked “So, again, why should I release you?” The attorney cited a “breakdown in communication.” When the attorney raised his concern about the prospect of “a 2255 somewhere down the road,” presumably in reference to a potential ineffective assistance of counsel claim under 28 U.S.C. § 2255, the court responded, “You better not be, or I'll require you to refund the entire 50 grand.” Counsel clarified that he was only emphasizing the level of “mistrust,” and indicated that he could not “make [Brown] feel more comfortable with [the] representation.”

At that point the court concluded the hearing, stating “I've got it. I'm denying the motion, sir.” The court informed Brown that his attorney was “very reputable [and] qualified,” that the case was prepared for trial, and, somewhat contradictorily, that the court would “give him whatever time he needs before ...