Unpublished Disposition, 928 F.2d 409 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1990)

No. 88-5146.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Central District of California, No. CR 86-1111-TJH; Terry J. Hatter, Jr., District Judge, Presiding.

C.D. Cal.

AFFIRMED.

Before CANBY and RYMER, Circuit Judges, and WARE,**  District Judge.

MEMORANDUM*** 

George Scordel appeals his conviction for conspiracy, mail fraud, wire fraud, interstate transportation of stolen property, and subornation of perjury. Scordel argues that the trial court erred in denying his request for substitution of counsel. We affirm.

DISCUSSION

We review the trial court's decision to deny substitution of counsel for an abuse of discretion. United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). The court's decision is evaluated under three factors: (1) the timeliness of the motion to dismiss counsel; (2) the adequacy of the court's inquiry into defendant's complaint; and (3) whether the conflict between defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense. United States v. Garcia, No. 88-1188, Slip Op. at 1046 (9th Cir. Jan. 30 1990); United States v. Mills, 597 F.2d 693, 700 (9th Cir. 1986).

Applying these factors, we conclude that the district court did not abuse its discretion in denying Scordel's request. First, Scordel's motion for substitution was not timely. Scordel moved for a continuance and substitution of counsel six days before the scheduled trial date. The district court has broad discretion to deny a motion for substitution if the substitution would require a continuance. See, e.g., McClendon, 782 F.2d at 789; United States v. Garcia, Slip Op. at 1046. A continuance would have been required given the quantity and complexity of the discovery materials involved, the anticipated length of the trial and the numerous witnesses. The government estimated that the trial of Scordel and his two codefendants would last eight weeks and involve approximately forty witnesses.1 

Second, the court adequately inquired into Scordel's complaint with his attorney. In his letter dated December 30, Scordel basically identified three complaints: counsel did not visit with him to discuss the case; counsel was relying only on material supplied by the government to prepare the case; and counsel had failed to think of witnesses to call for the defense. Before trial commenced, the court questioned Mr. Treman regarding his preparation for trial. Mr. Treman advised the court that he was prepared to proceed. The court noted that the numerous volumes of documents and exhibits which Mr. Treman had prepared for trial indicated a good amount of preparation.

On the fourth day of trial, after Mr. Treman informed the court that Scordel was refusing to cooperate with him, the court again inquired into Scordel's complaints. The court determined that Scordel objected to Mr. Treman's cross-examination of government witnesses because he believed Mr. Treman was not asking the right questions. To ease Scordel's concerns, the court arranged for Scordel to have additional access to his attorney before and after trial, and additional access to documents and exhibits. The court urged Scordel to work out his differences with Mr. Treman.

Before the trial concluded, the court conducted four additional inquiries. At the last inquiry, immediately prior to sentencing, the court concluded that Scordel would never be satisfied with any appointed counsel.

The court's numerous inquiries were "adequate and fair hearing [s] into the substance of appellant's conflict with his attorney." United States v. Jones, 512 F.2d 347, 350 (9th Cir. 1975). On the basis of these inquiries, we conclude that the court took "the necessary time [to] conduct such necessary inquiry as might have eased [the defendant's] dissatisfaction, distrust and concern." Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970).2 

Third, there is no evidence that the alleged conflict prevented an adequate defense. The record reflects that Mr. Treman vigorously defended Scordel through the nine-week trial. Mr. Treman cross-examined government witnesses and presented defense witnesses and documents. The jury acquitted Scordel on two counts and could not reach a decision on six counts which were later dismissed. Even though Scordel disagreed with Mr. Treman's trial strategy, he continued to cooperate with counsel "under protest." Thus, there was no irreconcilable conflict which prevented Treman from adequately representing Scordel. Scordel's disagreements with Mr. Treman's trial strategy do not by themselves constitute an irreconcilable conflict. See Morris v. Slappy, 461 U.S. 1 (1983).

Accordingly, Scordel's conviction is AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

The Honorable James Ware, United States District Judge for the Northern District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Scordel's earlier requests for substitution of counsel are not relevant to the discussion of this factor. These requests were based on counsel's unpreparedness for the September trial date. At that time defense counsel agreed that he was not prepared for trial. Because the trial was continued, Scordel and his counsel had an additional three months to prepare for the trial. During these three months, Scordel never indicated dissatisfaction with his counsel's performance

 2

United States v. Walker, 915 F.2d 480 (9th Cir. 1990) is inapposite. There, the court failed to focus on the nature and extent of the conflict between the defendant and his counsel. Id. at 483