United States of America, Plaintiff-appellee, v. Bilal Mustafoski, Defendant-appellant, 106 F.3d 410 (9th Cir. 1997)

MEMORANDUM^* 

Bilal Mustafoski appeals his conviction for conspiracy to distribute cocaine, 21 U.S.C. § 856, and aiding and abetting the distribution of cocaine, 21 U.S.C. § 841(a). He contends that the district court erred in denying his motion to substitute retained counsel for his appointed attorney. He also argues that the evidence presented was insufficient to support a jury verdict. We hold that the district court did not err in denying his motion and that the evidence was sufficient to support the jury's verdict.

Mustafoski did not make his motion to substitute appointed counsel until a hearing held on the Friday preceding his Monday trial date. He was directed to file a written motion, which was heard on that following Monday. The only support for the motion was a written affidavit provided by Mustafoski's attorney, which detailed only minor conflicts between lawyer and client. The affidavit did state that Mustafoski would retain counsel by the time of trial. However, at the hearing, the district judge learned that Mustafoski had failed to do so and denied the substitution motion.

Mustafoski's failure to act, combined with the fact that appointed counsel prepared for trial, made a prior motion for continuance and had requested funds to transport witnesses, provided the judge with ample grounds to deny the motion. See United States v. Castro, 972 F.2d 1107, 1109-10 (9th Cir. 1992) (affirming denial of motion which was filed three days before trial and would have necessitated a continuance), cert. denied, 507 U.S. 994 (1993); United States v. Garcia, 924 F.2d 925, 928 (9th Cir. 1991) (affirming denial of motion made six days before trial), cert. denied, 501 U.S. 1210 (1991). Unlike previous cases where we have upheld untimely substitution motions, here, appellant presented no cognizable evidence to the district court to justify the granting of his motion. See United States v. D'Amore, 56 F.3d 1202, 1207 (9th Cir. 1995). Consequently, the district court did not abuse its discretion. United States v. George, 85 F.3d 1433, 1438 (9th Cir. 1996), cert. denied, --- U.S. ----, 117 S. Ct. 405 (1996).

Appellant's contention that the government presented insufficient evidence to prove that he had any knowledge, or was involved, in the conspiracy to distribute cocaine is meritless. The government presented copious evidence placing Mustafoski at the home when the cocaine was delivered and sold. An informant also testified that Mustafoski told him whom to contact if he wished to buy drugs. In short, in reviewing this evidence in the light most favorable to prosecution, we find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Jones, 84 F.3d 1206, 1210 (9th Cir. 1996).

AFFIRMED.