United states court of appeals for the ninth circuit united states of america, P



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A. Standard of Review
A district court’s refusal to substitute counsel is reviewed for abuse of discretion. United States v. Castro, 972 F.2d 1107, 1109 (9th Cir. 1992). The district court’s ruling on a motion for a continuance is also reviewed for abuse of discretion. United States v. Garrett, 179 F.3d 1143, 1444-45 (9th Cir. 1999) (en banc).
B. Attempt to Remove Covell
[4] We must examine three elements when reviewing a district court’s denial of a substitution motion: 1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and 3) whether the asserted conflict was so great as to result in a complete breakdown in communication and a consequent inability to present a defense. Castro, 972 F.2d at 1109. Given the judge’s recognition and proper assessment of each of these factors, we conclude that he did not abuse his discretion in denying the motion to remove Covell and substitute new counsel.
1. Timeliness
[5] In United States v. Garcia, we held that a motion made six days before the trial was scheduled to begin was not timely because the quantity and complexity of the discovery materials would have required a continuance. 924 F.2d 925, 926 (9th Cir. 1991). In this case, the substitution motion was made ten days before trial, which given the quantity and complexity of the evidence and issues is not significantly different from the situation in Garcia. As the district judge noted, “it would be extremely unlikely that any new counsel could be appointed and be in a position to be prepared to go to trial in a mere 10 days from now.” We are not suggesting that any particular time period prior to trial is dispositive regarding this factor. Rather, timeliness may depend on the reason for substitution, and its strength. If, for example, counsel was indeed unprepared, the defendant might not have cause to raise unpreparedness until shortly before trial, when preparedness would be expected.
2. Adequacy of the Inquiry
[6] Prime was given a full and fair opportunity to explain why he felt substitution was necessary. After the court allowed Prime an opportunity to voice his concerns, the court responded “[s]o it’s basically Mr. Covell met with your parents, they told you that they didn’t feel that he was prepared, that he was not - - didn’t have a defense plan, and you’re going with their advice?” Prime agreed with the court’s summary of his position. The court then asked Prime “Is there anything else you want to bring to my attention?” At this point, Prime expressed his concern that Covell had given up, and was working on sentencing issues rather than his defense. Covell then testified that he was well prepared for the trial and he had no difficulties communicating with Prime. Because Prime was given the opportunity to express whatever concerns he had, and the court inquired as to Covell’s commitment to the case and his perspective on the degree of communication, we find that the hearing was adequate.
3. Degree of communication breakdown
Based on Covell’s representation that he had no difficulties communicating with Prime and that he and Prime enjoyed a good rapport and working relationship, in addition to the lack of any indication by Prime that communication was a problem, the court properly determined that Prime failed to demonstrate any breakdown in the attorney-client relationship.

[7] In light of the district court’s reasoned determination with regard to each of the three factors, the court did not abuse its discretion in denying Prime’s motion to remove his appointed attorney days before trial.





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