Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1988)

No. 88-5380.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER, BOOCHEVER and BEEZER, District Judges.

MEMORANDUM^* 

Ronald G. Salavec appeals his conviction for 24 counts of theft of government property in violation of 18 U.S.C. § 641(1). Salavec was found guilty on September 16, 1988, after a day-long jury trial, of receiving and cashing 24 Social Security checks as the representative payee for his grandfather after his grandfather had died. Salavec contends that the district court abused its discretion by denying his motions for substitution of counsel. He also argues that he was denied the effective assistance of counsel because his attorney failed to present any defense to the charges against him. We affirm.

Salavec's initial contention arises from the denial of his motions for substitution of counsel, the first made at a status conference before the district court on July 9, 1988, and the second on the day of his trial, September 16, 1988, before the trial began. At the status conference on July 9, Salavec requested that the court appoint him another public defender. He stated that he was intimidated by his attorney, Mr. Trevino, and felt uncomfortable with him. The court inquired of Mr. Trevino whether he felt that the professional relationship with his client was untenable, and Trevino stated that he did not. The court denied Salavec's motion. On September 16, 1988, the day appointed for his trial, Salavec renewed his motion for substitution of counsel. The court stated that it was too late, and again denied the motion.

The decision whether to grant or deny a criminal defendant's motion to substitute counsel is within the trial court's sound discretion. See United States v. Owens, 844 F.2d 701 (9th Cir. 1988). In determining whether the district court abused its discretion, we examine the following factors: (1) the timeliness of the motion; (2) the adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense. See United States v. Gonzalez, 800 F.2d 895, 898 (9th Cir. 1986); Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982), cert. denied, 461 U.S. 916 (1983).

Salavec contends that the district court failed to make the required inquiry into the circumstances that gave rise to Salavec's dissatisfaction with his appointed counsel. This contention is without merit. When Salavec initially made his motion to substitute counsel, the court did inquire of Mr. Salavec what the nature of his dissatisfaction was. The district court's inquiry into the defendant's complaint need not be formal or extensive. See Hudson v. Rushen, 686 F.2d at 829. In Hudson, we found the court's inquiry adequate where "the court invited defendant to make a statement, listened to defendant's reasons for desiring new counsel, and found them to be without merit." Id. at 831. We distinguished that case from Brown v. Craven, 424 F.2d 1166, 1169-70 (9th Cir. 1970), in which the trial court summarily denied the defendant's motion for new counsel without any inquiry at all. See Hudson, 686 F.2d at 829. See also United States v. Williams, 594 F.2d 1258, 1260-61 (9th Cir. 1979), in which, in the face of a record that showed that client and attorney were at serious odds, and that the attorney-client relationship had been marked with "quarrels, bad language, threats, and counter threats," the district court summarily denied the motion for substitution, without further inquiry. Id. at 1259-60. Salavec's expressed disagreement with his attorney did not rise to the level of dissatisfaction present in Brown and Williams. We find that the district court's inquiry into the facts on defendant's initial motion for substitution of counsel was adequate.

As to Salavec's renewal of the motion for substitution of counsel on the day of trial, the fact that granting the motion would have required a significant delay was a relevant factor to be taken into account by the trial court. See United States v. Williams, 594 F.2d at 1260-61. " [W]here the request for change of counsel comes during the trial, or on the eve of trial, the court may, in the exercise of its sound discretion, refuse to delay the trial to obtain new counsel and therefore may reject the request." Id. (citations omitted). The denial of the second motion for substitution of counsel was not an abuse of discretion.

Salavec also contends that the district court abused its discretion by failing to appoint separate counsel to represent Mr. Salavec in making the motions for substitution of counsel. In support, he cites United States v. Wadsworth, 830 F.2d 1500, 1510-11 (9th Cir. 1987), but Wadsworth is readily distinguishable. In Wadsworth, the defendant's motion for substitution of counsel was based in part upon allegations that counsel had failed to adequately prepare a defense. The defendant's counsel there was put in a position of defending his own preparation for trial. Id. at 1506-08. In those circumstances, counsel did take an "adversary and antagonistic position" to that of his client, and appointment of separate counsel was appropriate. However, Wadsworth cannot be read to require the appointment of separate counsel to represent a defendant in every case in which a defendant wishes to move to substitute counsel.

Salavec also argues that he was denied the effective assistance of counsel required by the sixth amendment because his trial counsel failed to present any real defense to the charges against him. To show ineffective assistance of counsel, a defendant must show that his counsel's actions were outside the range of professionally competent assistance, and that he was prejudiced. See Strickland v. Washington, 466 U.S. 668, 687-90 (1984). To show prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Salavec contends that his trial counsel's performance fell below professionally competent standards because his trial attorney did not present a psychiatric defense. He argues that, based on evidence in the record that the prosecutor twice suggested a psychiatric study of the appellant and the trial court ultimately made psychological counseling a condition of Salavec's probation, as well as trial counsel's own statements questioning Salavec's comprehension of reality, any competent defense attorney would have considered presenting a psychiatric defense to the charges, arguing that Salavec was incompetent to stand trial, or using psychiatric evidence as a mitigating factor at sentencing. There is nothing in the record, however, to indicate that a psychiatric defense would be viable.

The record shows that, far from presenting no defense to the charges against Salavec, Salavec's trial counsel vigorously defended Salavec in that proceeding. Mr. Trevino vigorously cross-examined the government witnesses on key issues in the case.

In addition, there is nothing to indicate here that the result would have been different had trial counsel conducted the defense differently. The government presented overwhelming evidence that Salavec committed the crimes charged. Salavec has failed to show actual prejudice as required by Strickland, 466 U.S. at 694.

AFFIRMED.