921 F.2d 282
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
Eddie Toolooah ROBINSON, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 7, 1990.*
Decided Dec. 21, 1990.
Before FERGUSON, WILLIAM A. NORRIS and DAVID R. THOMPSON, Circuit Judges.
Appellant Robinson appeals the district court's denial of his pro se motion to substitute counsel, brought to that court's attention on the first day of his criminal trial, as well as the district court's finding that appellant voluntarily absented himself from trial. We affirm the district court on both issues.
I. The Motion to Substitute Counsel
We review a district court's denial of a defendant's pro se motion to substitute counsel for abuse of discretion. United States v. Wagner, 834 F.2d 1474, 1481 (9th Cir.1987).
The Ninth Circuit has consistently examined three factors in reviewing a district court's decision to deny a motion to remove counsel: "(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 attorney was so great that it resulted in a total lack of communication preventing an adquate defense." U.S. v. Gonzalez, 800 F.2d 895, 898 (9th Cir.1986); see also United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986); United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir.1985); Hudson v. Rushden, 686 F.2d 826, 829 (9th Cir.1982), cert. denied, 461 U.S. 916 (1983). Applying these factors to the facts of our case requires the conclusion that the district court did not abuse its discretion.
First, appellant made his motion on the day of trial. Our court has consistently upheld the denial of a motion for substitution when the request was made on the eve of trial. See, e.g., United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986); United States v. Rogers, 769 F.2d 1418, 1423-24 (9th Cir.1985); United States v. Altamirano, 633 F.2d 147, 152 & n. 4 (9th Cir.1980), cert. denied, 454 U.S. 839 (1981); United States v. Michelson, 559 F.2d 567, 572 (9th Cir.1977). Appellant argues that his motion should be construed liberally, as a pro se effort prepared without assistance of counsel. However, six weeks elapsed between appellant's arraignment and the trial, during which time appellant could have requested substitution. Given this ample opportunity before trial to request substitution, we cannot say that this factor cuts in favor of finding an abuse of discretion in the trial judge's denial of appellant's motion.
Second, we hold that the district court adequately inquired into appellant's complaint. After counsel presented a point-by-point rebuttal of appellant's original complaints about his performance, the district judge gave appellant a chance to raise any other issues relating to his attorney's performance. Well after this episode, the judge gave appellant yet another chance when he allowed appellant to raise for the first time his claim that his counsel failed to interview a particular witness whose testimony might have been helpful. Appellee offers no suggestion of what more the judge should have done, except to suggest that the judge should have explored the "relationship" between appellant and his counsel. See Appellant's Brief at 8. Without further elaboration of what this line of inquiry would have entailed or what its relevance would have been, and without any precedential authority for requiring it, we find the facts of this case to be sufficiently analogous to those cases in which we have held the judge's inquiry adequate to consider those cases to be controlling. See, e.g., United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986) (district court's failure to conduct formal inquiry into substance of defendant's alleged conflict with his trial counsel not "fatal error"); United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir.1985). The district court's inquiry was adequate.
Finally, the attorney-client conflict in this case was not "so great that it resulted in a total lack of communication preventing an adequate defense." United States v. Gonzalez, 800 F.2d 895, 898 (9th Cir.1986). Appellant was obviously able to communicate enough with his attorney to allow the latter to follow up on several potential leads on the case. According to the lawyer, he and appellant had met as recently as the day before the trial, to review their defense strategy. The point here is not that perfect communication between the two parties allowed for the absolute best possible defense; rather, all our cases require is that there not be "a total lack of communication preventing an adequate defense." Id. That hurdle was clearly reached in this case.
In sum, we hold that the district court's denial of appellant's motion was not an abuse of discretion.
II. Voluntariness of Appellant's Absence
The parties agree that the district court's determination that appellant voluntarily absented himself from trial should be reviewed under a clearly erroneous standard. See Appellant's Brief at 10; Appellee's Brief at 16; see also Brewer v. Raines, 670 F.2d 117, 120 (9th Cir.1982) (finding of voluntary absence "is basically a question of fact").
The transcript of the trial makes it clear that appellant voluntarily absented himself from the courtroom. The district judge asked appellant several times, in different forms, about the voluntariness of his decision, and appellant consistently stated that he was acting voluntarily. Appellant's only ambiguous response, expressed both during that questioning and on appeal, is that he faced a Hobson's choice between absenting himself and enduring a trial where his defense was conducted by an attorney in whom he had no confidence. See Appellant's Brief at 10-11. However, as noted above, the district judge did not abuse his discretion in refusing appellant's request for a new attorney. Given our conclusion on that issue, we must hold that defendant's unwillingness to remain with his attorney was a voluntary choice.