Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Jose Luis Tovar ("Tovar") was indicted on charges of (1) conspiracy to possess with intent to distribute and distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846 (Count I); (2) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1), and aiding and abetting in violation of 18 U.S.C. § 2 (Count II); and (3) illegal use of a communication facility in violation of 21 U.S.C. § 843(b) (Counts III, V, VIII, IX, X, XI and XII). Tovar's trial was severed from the trial of his codefendants, including his wife, Tovar-Sanchez. Tovar went to trial and was convicted by a jury on all counts. On appeal he argues that (1) the district court erred in denying his motion for substitution of counsel; and (2) the district court failed to give proper jury instructions on his defense of entrapment. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

ANALYSIS

At the time of his sentencing, Tovar moved to replace his trial counsel with another attorney. He contended that his counsel at trial had failed to follow Tovar's directions to subpoena several witnesses and produce certain evidence. Tovar also argued that he believed the witnesses had not been called because it would have been too costly for the government to have them present at trial. The district court declined to hold an evidentiary hearing and denied the motion.

We review the district court's denial of a motion for substitution of counsel for abuse of discretion. United States v. Whaley, 788 F.2d 581, 583 (9th Cir. 1986). We consider the timeliness of the motion, the adequacy of the district court's inquiry, and whether any attorney-client conflict was so great as to result in an inadequate defense. Id. See also United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986).

Tovar did not seek to have his trial counsel removed from the case until after the trial was over. Indeed, his motion for substitution was presented to the court for the first time on the date set for sentencing. Although no evidentiary hearing was held, the judge who heard the motion was the same judge who had presided at Tovar's trial. The court permitted Tovar to present his motion and heard argument. Tovar failed to show how additional witnesses or evidence might have helped his case. The evidence against him was overwhelming, and he made no showing of any conflict between him and his counsel which prevented an adequate defense.

We conclude that the district court did not abuse its discretion in declining to hold an evidentiary hearing or in denying Tovar's motion to substitute counsel.

Tovar next contends that the district court failed to provide a proper instruction to the jury on the defense of entrapment. A district court's formulation of jury instructions is reviewed for an abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). Jury instructions are considered as a whole to determine if they are misleading or inadequate. United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986). However, " [i]n cases in which defendants themselves propose the instructions, review is totally barred under the invited error doctrine." United States v. Benny, 786 F.2d 1410, 1416 (9th Cir. 1986) (citing United States v. Alexander, 695 F.2d 398, 402 (9th Cir. 1982)).

In the present case, Tovar presented the instruction on entrapment to which he now objects. The instruction was taken from the Manual of Model Instructions for the Ninth Circuit Sec. 6.05 (West 1985). The court gave the instruction as Tovar requested. He is barrred by the invited error doctrine from challenging the instruction on appeal. Benny, 786 F.2d at 1416.

AFFIRMED.