Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 276 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Alvaro Gomez GIRALDO, aka: Alvaro Gilaldo & John DoeDefendant-Appellant.

No. 88-5231.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1991.Decided June 13, 1991.

Before FLETCHER, CANBY and BOOCHEVER, Circuit Judges.


Alvaro Giraldo appeals his conviction for conspiracy to possess and possession of cocaine with intent to distribute. Giraldo challenges: (1) the district court's denial of his two motions for substitution of counsel; (2) the sufficiency of the evidence; and (3) the government's use of a peremptory challenge. We affirm.

Giraldo argues that the trial court erred in denying his two motions to substitute counsel. Reviewing Giraldo's requests in light of the three factors set forth in United States v. Mills, 597 F.2d 693, 700 (9th Cir. 1979), we conclude that the trial court did not abuse its discretion in denying Giraldo's motions.

a. February 9, 1988 motion to substitute appointed counsel

First, Giraldo's February 9, 1988 motion was not timely. Giraldo concedes that it is within the trial court's discretion to deny a motion to substitute made on the eve of trial if the substitution would require a continuance. United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). Giraldo does not dispute that the substitution would have required a continuance.1 

Second, the trial court conducted a sufficient inquiry into Giraldo's complaints. Giraldo concedes that the inquiry made by the district court was lengthy but contends that it was nonetheless inadequate because the court did not address his statement that his attorney is "tired of my attitude because I request information with regard to my legal case" and that the attorney said, "there is no understanding between him and myself."

A trial court may not summarily refuse to allow the substitution of attorneys, but must conduct "such necessary inquiry as might ease the defendant's dissatisfaction, distrust, and concern." Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982), cert. denied, 461 U.S. 916 (1983). Here, the trial court heard from both Giraldo and his counsel. Giraldo stated that he did not wish to consent to a trial stipulation regarding the quantity and purity of cocaine involved in the case. On this point, the district court removed any prejudice by directing that the government be put "to its proof." Giraldo also complained of a language barrier between himself and his appointed counsel. To minimize this problem, the court arranged for an interpreter to interpret the indictment and all of the discovery documents provided by the government from English to Spanish. Subsequent to this exchange, Giraldo insisted on being furnished with an attorney who spoke Spanish. The district court rejected this request, concluding that Giraldo had no right to appointment of Spanish-speaking counsel. We agree that Giraldo was not entitled to a Spanish-speaking attorney; there was no showing that he was unable to communicate with his attorney through an interpreter or otherwise.

Before making its ruling final, the district court inquired of Giraldo's counsel whether he could provide "adequate and acceptable services" to Giraldo. Giraldo's counsel stated that he could. The court then stated: "I take it that your answer so far given ... indicates that there has not occurred such breach of relationship with the defendant as you see it as to make difficult or indeed impossible your representing him fully & adequately." Giraldo's counsel answered in the affirmative. This inquiry sufficiently addressed Giraldo's asserted dissatisfaction, distrust and concern.

Third, there is no indication that the asserted conflict created a total lack of communication rendering Giraldo unable to present an adequate defense. Giraldo's attorney testified that he was prepared to represent Giraldo at the February 9 hearing and at the trial on March 8, 1988. The record discloses that Giraldo's counsel defended him fully and forcefully, see United States v. Garcia, 924 F.2d 925, 927 (9th Cir. 1991), cert. denied, 1991 WL 72683 (June 10, 1991), and Giraldo does not point to any deficiencies in his defense. Accordingly, we conclude that the district court did not abuse its discretion in denying the February motion for substitution of counsel.

b. March 8, 1988 motion to substitute counsel of choice

We also conclude that the district court did not abuse its discretion in denying Giraldo's motion on March 8, 1988, to substitute counsel of choice. Again, it was within the court's discretion to deny the motion, which was made on the morning of trial, because the substitution would have required a continuance. McClendon, 782 F.2d at 789. Here, Giraldo's substitute counsel requested a two-week continuance. The government, however, was ready for trial and the district court found that the continuance would inconvenience the jurors and witnesses, including one out-of-country witness. The court inquired into the reasons for the substitution and denied the motion after concluding that there would not be "a deprivation or diminution, in any way, of the rights of the defendant Giraldo if [appointed counsel] continues to represent him." Finally, as stated above, Giraldo presented an adequate defense.

Giraldo alleges that the government impermissibly used a peremptory challenge in jury selection to remove a Hispanic juror and that the district court erred in not requiring the government to state its reasons on the record for exercising the peremptory challenge. Giraldo's codefendant presented this same argument on appeal. United States v. Monroy, No. 88-5223 (9th Cir. Aug. 7, 1989). In Monroy, the panel concluded that the government was not required to set forth an explanation for removing the juror because the defendant failed to establish a prima facie case of purposeful discrimination. The government cites Monroy even though it is an unpublished memorandum, and argues that our ruling in Monroy constitutes the law of the case. Even though Giraldo's counsel conceded that point at oral argument, we do not agree with it. The government's argument is certainly not frivolous, and its citation of Monroy is therefore permissible under 9th Cir.R. 36-3, but we cannot agree that the Monroy decision constitutes the law of the case binding on Giraldo in his separate appeal. Our disinclination to apply the law of the case doctrine makes little difference, however, for we agree independently with the Monroy reasoning.

The government used its first two peremptory challenges to strike non-Hispanic jurors, and it then accepted the panel with the two Hispanic members, Mr. Calderon and Mr. Martinez, on it. " [T]he willingness of a prosecutor to accept minority jurors weighs against the findings of a prima facie case" of discrimination in the exercise of the government's challenges. United States v. Chinchilla, 874 F.2d 695, 698 n. 4 (9th Cir. 1989). It was only after Mr. Calderon was questioned by the court and "showed questionable competence" that the prosecution challenged him. We agree with the district court that no prima facie case of purposeful discrimination was established. There was accordingly no need to require the government to explain the basis of its challenge, pursuant to Batson v. Kentucky, 476 U.S. 79, 97 (1986).

The evidence is sufficient to support a conviction if any rational juror, viewing the evidence in a light most favorable to the government, could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 396, 324 (1979). Once the government has proved the existence of a conspiracy, as Giraldo concedes it has, the government need only prove beyond a reasonable doubt that the defendant had a slight connection to the conspiracy. United States v. Hernandez, 876 F.2d 774, 779 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989); United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987).

Here the evidence shows that Giraldo stood twenty-five feet away from the drug transaction, carried a beeper, and had ready access to two loaded handguns. Giraldo initially told officers that he had driven to the location, but when questioned about a Honda key found in his pocket, he asserted that he had arrived at the scene by bus. Giraldo also claimed that he had found the key at the bus stop near the scene of the cocaine sale. In the car to which the key fit, however, officers found a prescription medicine bottle in Giraldo's name. In addition, the search of the car yielded two handguns, five beepers, and a radio detection device. Finally, a piece of paper containing various names and telephone numbers, which was found in Giraldo's possession, almost identically matched a similar piece of paper found in codefendant Montoya's wallet. This circumstantial evidence, viewed in the context of the surrounding circumstances, was sufficient to link Giraldo to the cocaine conspiracy. See United States v. Power, 881 F.2d 733, 737-38 (9th Cir. 1989); United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038 (1980). Once the conspiracy count was proved, there was sufficient evidence to convict Giraldo of the substantive count of possession of cocaine with intent to distribute. See United States v. Miranda-Uriarte, 649 F.2d 1345, 1353 (9th Cir. 1981).2 



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


After the court denied Giraldo's motion to substitute, Giraldo's codefendant announced that he would not plead guilty as originally scheduled. As a result, both the government and Giraldo's codefendant requested, and the trial court granted, a continuance. Nevertheless, neither Giraldo nor his attorney renewed the motion to substitute counsel at this time


Giraldo's reliance on Penagos, 823 F.2d 346 (9th Cir. 1987), United States v. Lopez, 625 F.2d 889 (9th Cir. 1980), and United States v. Cloughessy, 572 F.2d 190 (9th Cir. 1977), is misplaced. In these decisions, we concluded that the evidence was insufficient to show that the defendant participated in the conspiracy where the only evidence of the defendant's involvement in a drug transaction was his presence at the scene. In contrast, the evidence in the present case, including Giraldo's possession of the list, guns and beepers, was sufficient to convince a rational juror beyond a reasonable doubt that Giraldo was a knowing participant in the conspiracy. Power, 881 F.2d at 738