Unpublished Disposition, 861 F.2d 269 (9th Cir. 1988)

MEMORANDUM^* 

Andrew C. Morse appeals his convictions for (1) distribution of cocaine and (2) possession of cocaine with intent to distribute. On appeal, he contends that (1) the district court abused its discretion by refusing to substitute counsel, (2) his counsel was ineffective, (3) the district court should have given a sua sponte instruction on simple possession and (4) the district court abused its discretion when it denied his motion for a new trial based on new evidence. We affirm the convictions, but remand for resentencing.

DISCUSSION

Morse argues that the district court abused its discretion when it denied his motion to substitute counsel. We disagree.

When reviewing the denial of a motion to substitute counsel, we consider three factors: (1) timeliness of the motion; (2) adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his or her attorney was so great that it resulted in a total lack of communication so as to prevent an adequate defense. United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir. 1985).

Here, we conclude that the district court did not abuse its discretion in denying Morse's motion to substitute counsel. Concededly, the district court should have asked whether new counsel could have proceeded without a continuance. But in his reply brief Morse admits that his motion to substitute counsel would have resulted in a continuance. Accordingly, the motion was untimely, and could have been rejected on that basis. See United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986) ("It is within the trial court's discretion to deny a motion to substitute made during or on the eve of trial if the substitution would require a continuance").

Even if the motion was timely, we find no abuse of discretion. Admittedly, the district court should have inquired into why Morse wanted new counsel. But in this instance, this failure is not fatal because our review of the record indicates that there was not a total lack of communication that prevented Hayes from conducting an adequate defense. Hayes and Morse communicated for three hours on the day of trial. Hayes conducted an adequate defense, acting vigorously and making a number of objections. Moreover, Hayes was well prepared in his arguments. Consequently, we cannot say that the district court's failure to conduct a formal inquiry was fatal because on this record there was no irreconcilable conflict that warrants reversal. See United States v. Wagner, 834 F.2d 1474, 1481 (9th Cir. 1987) (a district court's refusal to allow substitution of counsel may violate the sixth amendment if there was an irreconcilable conflict); United States v. Altamirano, 633 F.2d 147, 152 (9th Cir. 1980) (district court did not abuse its discretion in denying motion to substitute counsel because review of record revealed no conflict), cert. denied, 454 U.S. 839 (1981).

Morse claims that he was deprived of effective assistance of counsel. We dismiss his claim without prejudice because the customary procedure for challenging the effectiveness of counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255. Wagner, 834 F.2d at 1482.

3. Sua Sponte Jury Instruction on Lesser Included Offense

Morse argues that the district court erred in not giving an instruction on simple possession sua sponte. We disagree.

To be entitled to a lesser included offense instruction, the defendant must (1) identify the lesser included offense and (2) demonstrate that a rational jury could find the defendant guilty of the lesser offense, but not the greater. United States v. Pace, 833 F.2d 1307, 1314 (9th Cir. 1987), cert. denied, 108 S. Ct. 1742 (1988).

Here, we conclude that Morse satisfied neither requirement. First, Morse did not identify the lesser included offense. Second, while Morse claimed that the informant had entrapped him, he admitted to both possessing and distributing cocaine, an admission incompatible with the proposition that he may have been guilty only of possession. Thus, the jury only could find that Morse either was completely innocent because he was entrapped or was guilty as charged because his admission could not be excused.

Morse argues that the district court erred when it denied his motion for a new trial based on newly discovered evidence (three new witnesses). We disagree.

"In general, a defendant seeking a new trial on the basis of newly discovered evidence must meet the following requirements: '(1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.' " United States v. Krasny, 607 F.2d 840, 842-43 (9th Cir. 1979) (quoting United States v. Cervantes, 542 F.2d 773, 779 (9th Cir. 1976)) (emphasis in original), cert. denied, 445 U.S. 942 (1980).

Here, we conclude that the district court did not abuse its discretion in denying Morse's motion for a new trial based on newly discovered evidence. Morse has not shown that (1) the three witnesses were, in fact, discovered only after trial; (2) he was diligent in attempting to discover the witnesses before trial (there appears to be no reason why the witnesses--who are co-workers and acquaintances of Morse--could not be discovered and produced at trial); (3) any part of the "new" evidence is material; and (4) the new evidence would probably produce an acquittal. Moreover, part of the "new" evidence is cumulative. One witness would have merely repeated a point another witness made (that the informant had approached and/or purchased cocaine from employees other than Morse).

When a defendant distributes a sample of drugs and retains the remainder to make an immediate distribution to the same recipients at the same place and at the same time, he or she may be convicted for both distribution and possession with the intent to distribute, but entry of judgment of conviction must be stayed on one of the counts and only one sentence for these offenses may be imposed. See United States v. Palafox, 764 F.2d 558, 560 (9th Cir. 1985) (en banc).

Here, we conclude that Palafox applies. In response to a question from the bench at oral argument, counsel for the government conceded the trial judge should not have imposed separate sentences on both convictions.

Accordingly, we remand with instructions to vacate sentence on one of the two counts and to vacate the entry of judgment of conviction on that count.

AFFIRMED IN PART and REMANDED IN PART with instructions.

REINHARDT, J., Circuit Judge, concurring.

The Constitution guarantees that criminal defendants who can afford retained counsel have the right to select counsel of their choice. Wheat v. United States, 56 U.S.L.W. 4441, 4443 (May 23, 1988). This right to choose and change counsel cannot be limited unless the trial court can establish some countervailing interest in the efficient and fair administration of justice. In the absence of any indication of such a governmental interest on the record, the district court erred in assuming without proper inquiry that a change in counsel would hinder the court's docket or adversely affect other litigants. However, since appellant admits that substitute counsel would not have been ready until the day after the scheduled commencement of trial, see Appellant's Reply Brief at 3, the failure to inquire into the potential delay created by the proposed change was harmless: in light of all the circumstances, including the defendant's failure to notify the court of his desire to change counsel prior to the day of trial, there were insufficient grounds for the continuance that would have been required.