United States v. Rivera-Corona

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30286
Plaintiff-Appellee,
D.C. No.
v.
 2:07-cr-02020-
TRINIDAD RIVERA-CORONA, AKA LRS-1
Trino Rivera-Corona,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding

Argued and Submitted
March 4, 2010—Seattle, Washington

Filed August 18, 2010

Before: A. Wallace Tashima, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;
Concurrence by Judge Fisher

12147
12150 UNITED STATES v. RIVERA-CORONA

COUNSEL

David R. Partovi, Spokane, Washington, for the defendant-
appellant.

Jane Kirk, Assistant United States Attorney, Yakima, Wash-
ington, for the plaintiff-appellee.
 UNITED STATES v. RIVERA-CORONA 12151
OPINION

BERZON, Circuit Judge:

This case requires us to clarify the standard for considering
a criminal defendant’s motion to discharge his privately
retained counsel and to proceed with a different, court-
appointed lawyer instead.

Trinidad Rivera-Corona pleaded guilty to carrying a fire-
arm in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). During the plea colloquy, Rivera-
Corona stated that he understood the terms of the plea agree-
ment; that his retained attorney, Nicholas Marchi, answered
all of his questions about the agreement before he signed it;
and that he was satisfied with Marchi’s representation.
Rivera-Corona also testified that nobody had forced him to
enter the plea. The district court did not, however, advise
Rivera-Corona of his “right to be represented by counsel—
and if necessary have the court appoint counsel—at trial and
at every other stage of the proceeding,” as required by Federal
Rule of Criminal Procedure 11(b)(1)(D).

Before sentencing, Marchi moved to withdraw and
requested that new counsel be appointed. He supported his
motion with an affidavit stating:

I was retained by the defendant. The Defendant has
requested a hea[r]ing for a new attorney. He appar-
ently maintains that he can no longer work with me.
He has claimed that I have been ineffective. In the
interest of justice and to allow defendant new coun-
sel, [in] whom he would apparently have more faith,
I would request that the Court appoint new counsel
and allow me to withdraw.

At a hearing, Marchi explained that Rivera-Corona had cal-
led his office about a week after the change of plea hearing
12152 UNITED STATES v. RIVERA-CORONA
and communicated, in Marchi’s words, that “I either scared
him or he was afraid of me or I didn’t do my job.” The court
asked Marchi whether he had been retained to represent
Rivera-Corona, to which Marchi responded that he had been
retained for the entire case, but that he had “exhausted [the
retainer] a long, long time ago.” The court then invited
Rivera-Corona to explain his reasons for seeking substitution
of counsel, prompting the following exchange:

RIVERA-CORONA: I would like to know if you
can appoint another attorney, because I don’t get
along with this attorney.

THE COURT: What are the reasons for your not
getting along with this attorney?

RIVERA-CORONA: Well, how could I say? He
said if we went with a jury he wanted $5,000 more,
and that’s why. Otherwise, he was going to, like,
prosecute my family, and that’s why I got scared.

THE COURT: Is there anything additional?

RIVERA-CORONA: And that’s why I want to
know if you can give me another chance to continue
fighting my case.

THE COURT: Are there any other facts that I
should consider?

RIVERA-CORONA: For now, that’s what I’m say-
ing, and that’s all.

THE COURT: Have you given all of the informa-
tion that you believe supports your request for differ-
ent counsel?

RIVERA-CORONA: Well, I wonder if you can just
provide me with another attorney so I can continue
 UNITED STATES v. RIVERA-CORONA 12153
—how would I say? [J]ust continue fighting my
case.

The district court did not ask Marchi whether Rivera-
Corona’s allegations were true and did not inquire into
Rivera-Corona’s financial eligibility for court-appointed
counsel. Instead, right after the colloquy quoted, the district
court, interpreting Rivera-Corona’s request to include both a
motion to withdraw his guilty plea and a request for new
counsel, denied both, relying on Rivera-Corona’s statement
during his plea colloquy that he was satisfied with his repre-
sentation. The district court judge told Rivera-Corona that he
had the right to hire new counsel, but that “absent a complete
and utter breakdown” in the attorney-client relationship he
saw no grounds to “have counsel appointed at public expense,
particularly since the last remaining item before [him was]
sentencing.” Rivera-Corona responded that he had no money
to hire a new lawyer. Marchi represented Rivera-Corona at his
sentencing hearing. This appeal followed.1

We review a district court’s denial of a motion for substitu-
tion of counsel for abuse of discretion. United States v.
Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001). Most
attorney substitution cases arise when an indigent defendant
requests new court-appointed counsel in place of an existing
appointed attorney. In that context, we consider (1) the timeli-
ness of the substitution motion and the extent of resulting
inconvenience or delay; (2) the adequacy of the district
court’s inquiry into the defendant’s complaint; and (3)
whether the conflict between the defendant and his attorney
was so great that it prevented an adequate defense. See United
States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir. 2009).
1
Rivera-Corona’s guilty plea included a waiver of his right to appeal,
but his contention that his plea was involuntary raises the possibility that
the appeal waiver was involuntary and so not enforceable. See United
States v. Pena, 314 F.3d 1152, 1154 n.1 (9th Cir. 2003). In any event, the
government does not contend that the plea agreement bars this appeal.
12154 UNITED STATES v. RIVERA-CORONA
This standard is the one the district court seemingly purported
to apply, but it is not, as we now explain, the standard appli-
cable to Rivera-Corona’s motion.

[1] “The Sixth Amendment’s right to counsel encompasses
two distinct rights: a right to adequate representation and a
right to choose one’s own counsel. The adequate-
representation right applies to all defendants and ‘focuses on
the adversarial process, not on the accused’s relationship with
his lawyer as such.’ ” Daniels v. Lafler, 501 F.3d 735, 738
(6th Cir. 2007) (quoting United States v. Cronic, 466 U.S.
648, 657 n.21 (1984)). Indigent defendants have a constitu-
tional right to effective counsel, but not to have a specific
lawyer appointed by the court and paid for by the public.
“[T]hose who do not have the means to hire their own lawyers
have no cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts.” Caplin &
Drysdale v. United States, 491 U.S. 617, 624 (1989). The
three-part extent-of-conflict inquiry applicable to attempts to
substitute one appointed counsel for another is designed to
determine whether the attorney-client conflict is such that it
impedes the adequate representation that the Sixth Amend-
ment guarantees to all defendants, including those who cannot
afford to hire their own attorneys. See Daniels v. Woodford,
428 F.3d 1181, 1198 (9th Cir. 2005) (characterizing the
extent-of-conflict inquiry as the “constructive denial of coun-
sel doctrine”).

[2] A defendant who can hire his own attorney has a differ-
ent right, independent and distinct from the right to effective
counsel, to be represented by the attorney of his choice. See
United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48
(2006). The right to retained counsel of one’s choice is not
absolute: A defendant may not “insist on representation by a
person who is not a member of the bar, or demand that a court
honor his waiver of conflict-free representation,” and the
Supreme Court has “recognized a trial court’s wide latitude in
balancing the right to counsel of choice against the needs of
 UNITED STATES v. RIVERA-CORONA 12155
fairness . . . and against the demands of its calendar.”
Gonzalez-Lopez, 548 U.S. at 152 (citing Wheat v. United
States, 486 U.S. 153, 159-60 (1988)). In general, a defendant
who can afford to hire counsel may have the counsel of his
choice unless a contrary result is compelled by “purposes
inherent in the fair, efficient and orderly administration of jus-
tice.” United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir.
2007).

The district court in this case to some degree recognized
this distinct right to choose retained counsel. The court told
Rivera-Corona that “you have the right, if you wish, to hire
counsel . . . if you have the funds to do so” to replace or sup-
plement Marchi, and did not indicate that there was any
extent-of-conflict limitation on that right. But the district
court treated as fundamentally different the question whether
Rivera-Corona could replace retained counsel with appointed
counsel.

Remarkably, we have no presently binding case law dictat-
ing the standards applicable in the situation in which a district
court considers a defendant’s motion to discharge his retained
counsel and be represented by a court-appointed attorney. We
do, though, have controlling case law in the obverse situation
—where a defendant seeks to replace appointed with retained
counsel.

[3] Because an additional constitutional right is at stake,
such motions have never been governed by the three-part
extent-of-conflict analysis applicable to defendants seeking
new court-appointed counsel. Unless the substitution would
cause significant delay or inefficiency or run afoul of the
other considerations we have mentioned, a defendant can fire
his retained or appointed lawyer and retain a new attorney for
any reason or no reason. See Miller v. Blacketter, 525 F.3d
890, 896 (9th Cir. 2008) (in a case in which the defendant
sought to replace his court-appointed attorney with retained
counsel, evaluating “whether the trial judge’s decision was an
12156 UNITED STATES v. RIVERA-CORONA
unreasonable exercise of its discretion to balance Miller’s
right to his chosen counsel against concerns of fairness and
scheduling”); Bradley v. Henry, 510 F.3d 1093, 1096-98 (9th
Cir. 2007) (en banc) (holding the state court’s denial of a
motion to substitute retained counsel for appointed counsel to
be an unreasonable application of Gonzalez-Lopez, because it
was not justified by undue delay and the trial court wrongly
assumed, without questioning the defendant, that she could
not afford to pay retained counsel).2 Conflict between the
defendant and his attorney enters the analysis only if the court
is required to balance the defendant’s reason for requesting
substitution against the scheduling demands of the court. See
United States v. Torres-Rodriguez, 930 F.2d 1375, 1380 n.2
(9th Cir. 1991) (explaining that, absent any delay, where a
defendant seeks to replace a court-appointed attorney with a
private one, “there is no reason to deny substitution whether
or not the defendant has complaints against, or an irrevocable
conflict with, his appointed counsel”) overruled on other
grounds by Bailey v. United States, 516 U.S. 137 (1995);
accord United States v. Brumer, 528 F.3d 157, 161 (2d Cir.
2008); Carlson v. Jess, 526 F.3d 1018, 1027 (7th Cir. 2008)
(“[E]ven if a breakdown in communication is not so severe as
to implicate the right to counsel, it may still provide a reason-
able justification for a substitution of retained counsel.”).

The only published case in this circuit that arose in the cur-
rent posture, in which a defendant seeks to substitute
appointed for retained counsel, is Bland v. California Depart-
ment of Corrections, 20 F.3d 1469, 1475 (9th Cir. 1994). In
Bland, we used the extent-of-conflict standard to evaluate a
2
The majority opinion was joined by five of the eleven judges on the en
banc panel, but four additional members of the en banc court agreed that
the trial court’s refusal to permit Bradley to substitute a retained attorney
for her court-appointed counsel violated her Sixth Amendment right to
counsel of choice. See Bradley, 510 F.3d at 1099-1100 (Clifton, J. concur-
ring in the judgment) (holding the trial court violated Bradley’s right to
counsel of choice because none of the conditions identified in Wheat as
overriding the right to counsel of choice were present).
 UNITED STATES v. RIVERA-CORONA 12157
habeas petition challenging the trial court’s refusal to permit
him to substitute a court-appointed attorney for his retained
counsel, although we did not explain our use of that standard.
Id. at 1475. Bland was overruled in this respect by Schell v.
Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc), which con-
cerned a habeas petitioner who sought new appointed counsel
to replace existing appointed counsel. We held the extent-of-
conflict inquiry generally inapplicable on habeas review,
because the trial court’s failure to inquire into the defendant’s
reasons for seeking substitution would not always render his
conviction unconstitutional. Rather, the appropriate inquiry
was whether the defendant’s conflict with his attorney actu-
ally deprived him of the effective assistance of counsel. Id. at
1025, 1027.

Schell thus overruled Bland’s unexplained application of
the extent-of-conflict standard, albeit on grounds not applica-
ble here. As Schell concerned a motion to substitute appointed
counsel on habeas review and did not implicate the constitu-
tional right to counsel of choice, it did not establish a rule of
analysis applicable to Rivera-Corona’s substitution motion.3
The portion of Bland that Schell did not disturb, however,
compels us to conclude that the extent-of-conflict review is
inappropriate here.

In rejecting Schell’s contention that the trial court’s abuse
of discretion in denying his motion required us to grant his
3
Schell’s statement that the extent-of-conflict standard was “of course
. . . the correct methodology for reviewing federal cases on direct appeal,”
218 F.3d at 1025, does not control in the current circumstances. In addi-
tion to being dicta, this statement obviously referred to substitution of
appointed counsel, as it was followed by citation to United States v.
Walker, 915 F.2d 480 (9th Cir. 1990), an appointed counsel case, which
was also, of course, the context of Schell. Moreover, “[o]ur primary reason
for . . . en banc review was to correct the standard of review we ha[d] been
using to examine the constitutionality of a state court’s handling of a
motion to substitute appointed counsel based on allegations of an irrecon-
cilable conflict.” Id. at 1024 (emphasis added).
12158 UNITED STATES v. RIVERA-CORONA
writ, we emphasized that Schell’s qualified right to choice of
retained counsel was not at issue, and on that ground distin-
guished Bland’s holding that denial of the substitution motion
was per se prejudicial. Id. at 1025-26. Bland unequivocally
held that the denial of the defendant’s request to replace his
retained counsel with a court-appointed attorney implicated
the qualified right to choice of counsel. 20 F.3d at 1479. In
so holding, Bland rejected as irrelevant the state’s argument
that the defendant had not clearly established his financial eli-
gibility for appointed counsel. Id. at 1477.

[4] The district court here never inquired into Rivera-
Corona’s eligibility for appointed counsel, finding no grounds
“to have counsel appointed at public expense, particularly
since the last remaining item before me is sentencing.” But
the Criminal Justice Act expressly provides for appointment
of counsel “[i]f at any stage of the proceedings . . . the court
finds that the [defendant] is financially unable to pay counsel
whom he had retained.” 18 U.S.C.A. § 3006A(c); see also
Doherty v. United States, 404 U.S. 28, 29 (1971). Thus, the
district court erred in summarily rejecting Rivera-Corona’s
request for appointed counsel to replace retained counsel sim-
ply because of the expense and the stage of the proceedings.4

[5] As to the nature of the inquiry that should have been
made, we agree with the Second Circuit’s articulation:
4
We note that Judge Fisher in his concurrence essentially agrees with
us in the end as to the proper standard applicable here: If 18 U.S.C.
§ 3006A(c) applies, “the district court should have conducted an ‘appro-
priate inquiry’ into Rivera-Corona’s financial eligibility for mid-case
appointment of counsel and an adequate analysis of whether counsel
should have been appointed in the ‘interests of justice.’ ” Concurrence at
12169. Although Judge Fisher suggests Rivera-Corona may not have ade-
quately invoked 18 U.S.C. § 3006A(c), Concurrence at 12169, § 3006A(c)
simply provides the standard governing when a court may appoint counsel
mid-proceedings if a person so requests and asserts that he is financially
unable to pay retained counsel. So we can see no reason Rivera-Corona
was required to invoke this provision independently of his request for
appointed counsel.
 UNITED STATES v. RIVERA-CORONA 12159
Reviewing a district court’s determination of finan-
cial eligibility for mid-case appointment under
§ 3006A(c) . . . requires a three-fold determination.
First, did the district court conduct an “appropriate
inquiry” into the defendant’s financial eligibility?
Second, if the district court conducted an appropriate
inquiry, was the court correct in its ultimate conclu-
sion of financial eligibility? Third, if the district
court conducted an appropriate inquiry and defen-
dant is financially eligible for mid-case appointment,
did the district court err in its weighing of the “inter-
ests of justice”?

United States v. Parker, 439 F.3d 81, 92-93 (2d Cir. 2006).
Here, the district court’s failure to apply § 3006A is apparent
at the first step. Rivera-Corona was given no opportunity to
establish that, as he asserted, he was unable to pay Marchi and
therefore eligible for court-appointed and publicly financed
representation. Just as “[d]ue process does not permit a judge
to decide [whether the defendant can afford to retain counsel
to substitute for existing appointed counsel] without hearing
the affected party,” Bradley, 510 F.3d at 1098, a judge may
not summarily decide that a defendant is not eligible for
appointed counsel merely because he has previously retained
an attorney.

We note that requiring a retained counsel to continue to
represent the defendant even if the defendant cannot pay him
and no longer wants him, which is what seemingly happened
here, is no substitute for appointed counsel paid with public
funds and so could not, without more, be in the “interests of
justice.” Such an unpaid lawyer is likely, consciously or sub-
consciously, to resent the transformation of an agreement to
represent a defendant for pay into an involuntary pro bono
arrangement, and therefore to seek to end the representation
as expeditiously as possible. That, indeed, is precisely what
Rivera-Corona alleged happened here with respect to Mar-
chi’s advice whether to plead guilty. Moreover—as also
12160 UNITED STATES v. RIVERA-CORONA
alleged here—an involuntarily unpaid lawyer may influence
the defendant’s litigation choices by expressing an intention
to seek fees from relatives or friends, or from the defendant
should he later obtain funds. Our system for providing com-
pensated lawyers where the defendant cannot afford to com-
pensate counsel himself eliminates the opportunity for such
extraneous influences on criminal proceedings.5

Nor was the district court entitled to rely on Rivera-
Corona’s statement during his plea colloquy that he was satis-
fied with Marchi’s representation. According to Rivera-
Corona, Marchi demanded money that his client presumably
did not have as a condition of going to trial, and was prepared
to “prosecute”—presumably sue—Rivera-Corona’s family if
he didn’t pay it. If true, these facts could support a motion to
set aside his plea, as Rivera-Corona’s statement of satisfaction
with Marchi at the colloquy could be explained by the same
facts. See United States v. Gonzalez, 113 F.3d 1026, 1028 (9th
Cir. 1997) (holding that the trial court abused its discretion in
denying a motion to substitute counsel “on the strength of
Gonzalez’s sworn responses at the plea-taking that no one
was threatening him or forcing him to plead” where the defen-
dant “alleged that his attorney forced him to plead guilty . . .
and threatened him if he did not take the plea”).

The implication of Rivera-Corona’s remarks regarding why
he sought appointed counsel is that Marchi never suggested
5
We also note that a defendant’s right to appointed counsel under Fed-
eral Rule of Criminal Procedure 44 includes “defendants unable to obtain
counsel for reasons other than financial.” Argersinger v. Hamlin, 407 U.S.
25, 37 n.5 (1972) (quoting 1966 Advisory Comm. Note to Fed. R. Crim.
P. 44). Thus, even assuming that Rivera-Corona is ineligible for a CJA
appointment, the court may still have a duty under Rule 44 to appoint a
new attorney for him, if Rivera-Corona were unable to retain substitute
counsel in Marchi’s stead. We need not examine these circumstances,
however, because there is no indication in the record that such circum-
stances pertain and, if they were to arise, they should be addressed by the
district court in the first instance.
 UNITED STATES v. RIVERA-CORONA 12161
that he be appointed as counsel, or that Rivera-Corona seek
new, appointed counsel, if Rivera-Corona and his family
could not pay Marchi for a trial. Particularly in light of the
court’s failure during the Rule 11 colloquy to notify Rivera-
Corona that he was entitled to counsel at trial and that counsel
could be appointed for him if necessary, Rivera-Corona may
have believed at the time of his plea that he had no alternative
to pleading guilty other than proceeding to trial without an
attorney or exposing his family to financial threats if he was
unable to pay Marchi.6 Moreover, even if Rivera-Corona’s
request to withdraw his plea was properly denied, the consti-
tutional right to counsel is fully applicable to sentencing. Rob-
inson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); see
Fed. R. Crim. P. 44(a) (“A defendant who is unable to obtain
counsel is entitled to have counsel appointed to represent the
defendant at every stage of the proceeding from initial appear-
ance through appeal.”).

[6] Given all these defects in the district court’s handling
of Rivera-Corona’s request, we vacate Rivera-Corona’s sen-
tence.7 On remand, the district court must appoint counsel if
6
The government concedes that the district court failed to advise Rivera-
Corona during his plea colloquy that he had the right to proceed to trial
and to have court-appointed counsel if necessary, but contends that the
error was harmless because Rivera-Corona was informed of this right dur-
ing his initial appearance and at both arraignments. The government’s reli-
ance on United States v. Vonn, 294 F.3d 1093 (9th Cir. 2002) is
inapposite. Vonn applied harmless error review to a defendant’s motion to
set aside his conviction based on a Rule 11 violation; it does not suggest
that a district court may rely on a flawed Rule 11 colloquy to deny a
motion to substitute counsel.
7
We note that Rivera-Corona would be entitled to remand even under
the Mendez-Sanchez standard. That test requires consideration of the ade-
quacy of the district court’s inquiry into the defendant’s complaint. The
district court in this case made only cursory inquiries following Rivera-
Corona’s allegations against Marchi. The allegations raised the possibility
of an irreconcilable conflict, loss of trust, or a potential financial conflict
of interest. The district court, however, asked only if “there [was] anything
additional?” and if “there [were] any other facts [to] consider?” The court
12162 UNITED STATES v. RIVERA-CORONA
Rivera-Corona is financially eligible, and make appropriate
factual inquiries into Rivera-Corona’s allegations concerning
the circumstances underlying his guilty plea if there is a for-
mal motion to set aside the plea.

VACATED and REMANDED.

RAYMOND C. FISHER, Circuit Judge, concurring:

I concur in the result, but disagree with some of the reason-
ing offered by the majority opinion.

I. Sixth Amendment Right to Counsel

I agree with the majority’s assessment that the Sixth
Amendment right to counsel actually encompasses several
rights, including the right to choice of retained counsel, the
right to effective assistance of counsel and the right to self-
representation. I part company, however, with the majority’s
conclusion that “we have no presently binding case law dic-
tating the standards applicable in the situation in which a dis-
trict court considers a defendant’s motion to discharge his
retained counsel and be represented by a court-appointed
attorney.” Maj. Op. 12155.

Appointed to Appointed Substitution. We have long held
that, for purposes of the Sixth Amendment, denial of a defen-
dant’s motion to replace appointed counsel with appointed

failed to seek further clarification from Rivera-Corona, nor did it ask Mar-
chi to confirm, deny, or explain the allegations. Consequently, the court’s
inquiry in this case failed to establish a “sufficient basis for reaching an
informed decision.” See, e.g., United States v. Adelzo-Gonzalez, 268 F.3d
772, 777-78 (9th Cir. 2001) (“[I]n most circumstances a court can only
ascertain the extent of a breakdown in communication by asking specific
and targeted questions.”).
 UNITED STATES v. RIVERA-CORONA 12163
counsel is governed by a three-part standard requiring a show-
ing of good cause. See, e.g., United States v. Walker, 915 F.2d
480, 482 (9th Cir. 1990) (“We consider three factors ‘when
reviewing the denial of a motion to substitute counsel: (1)
timeliness of the motion; (2) 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 ade-
quate defense.’ ”) (quoting United States v. Rogers, 769 F.2d
1418, 1423 (9th Cir. 1985)), overruled on other grounds by
United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000);
see 3 Wayne R. LaFave et al., Criminal Procedure § 11.4(b),
at 703 (3d ed. 2007) (“The defendant has a right to substitu-
tion only upon establishing ‘good cause, such as a conflict of
interest, a complete breakdown of communication, or an irrec-
oncilable conflict which [could] lead . . . to an apparently
unjust verdict.’ ”) (quoting McKee v. Harris, 649 F.2d 927,
931 (2d Cir. 1981)) (alterations in original).

Appointed/Retained to Retained Substitution. By contrast,
when a defendant seeks to replace existing counsel —
whether retained or appointed — with retained counsel, she
ordinarily need not establish good cause. See, e.g., United
States v. Torres-Rodriguez, 930 F.2d 1375, 1380 n.2 (9th Cir.
1991), abrogated on other grounds by Bailey v. United States,
516 U.S. 137 (1995); see also Miller v. Blacketter, 525 F.3d
890, 895 (9th Cir. 2008) (no need to show prejudice); Bradley
v. Henry, 510 F.3d 1093, 1099-1100 (9th Cir. 2007) (en banc)
(Clifton, J., concurring) (explaining that a defendant is gener-
ally free to replace counsel with retained counsel of choice
unless the substitution “will result in an undue delay of the
proceedings”).

This dichotomy exists because the defendant seeking to
replace appointed counsel with appointed counsel and the
defendant seeking to replace existing counsel with retained
counsel are relying on different aspects of the Sixth Amend-
ment right to counsel. A defendant who moves to replace
12164 UNITED STATES v. RIVERA-CORONA
appointed counsel with appointed counsel must rely on her
Sixth Amendment right to effective assistance of counsel,
which requires a showing of good cause — the constructive
denial of counsel. See, e.g., United States v. Moore, 159 F.3d
1154, 1158 (9th Cir. 1998) (“[I]f the relationship between
lawyer and client completely collapses, the refusal to substi-
tute new counsel violates [the defendant]’s Sixth Amendment
right to effective assistance of counsel.”).

On the other hand, a defendant who moves to replace exist-
ing counsel with retained counsel may rely on either her right
to choice of counsel or her right to effective assistance of
counsel. “When there is no threat of a delay in the proceed-
ings,” she may, consistent with her right to choice of counsel,
freely substitute one retained counsel for another, without
showing that “the conflict between the defendant and his
counsel was so great that it resulted in a total lack of commu-
nication preventing an adequate defense.” Torres-Rodriguez,
930 F.2d at 1380 & n.2; see also id. at 1380 n.2 (“If a defen-
dant, much in advance of trial, wishes to substitute retained
counsel for an appointed one, and no delay in trial will result,
. . . there is no reason to deny substitution whether or not the
defendant has complaints against, or an irrevocable conflict
with, his appointed counsel.”). Where substitution would
result in delay, the defendant may replace existing counsel
with retained counsel, but, consistent with her right to effec-
tive assistance of counsel, may do so only upon a showing of
good cause. See id. at 1380 & n.2; see also 3 LaFave, supra,
§ 11.4(c), at 716 (“As in the replacement of appointed coun-
sel, if the defendant can establish that his current counsel
would not be able to give him competent representation (as
where a conflict of interest exists), the defendant’s constitu-
tional right to the effective assistance of counsel demands
granting such continuance as is necessary to substitute new
[retained] counsel.”).

Retained to Appointed Substitution. Unlike the appointed-
to-appointed and retained- or appointed-to-retained scenarios
 UNITED STATES v. RIVERA-CORONA 12165
discussed above, the question presented here is what standard
applies to a defendant’s motion to replace retained counsel
with appointed counsel. Some courts have held that this sce-
nario is governed by a defendant’s right to choice of counsel,
such that a defendant can freely discharge retained counsel
and obtain appointed counsel without establishing good cause.
In People v. Ortiz, 800 P.2d 547, 553 (Cal. 1990), for exam-
ple, the California Supreme Court concluded that a trial court
may not “require an indigent criminal defendant to demon-
strate inadequate representation by his retained attorney, or to
identify an irreconcilable conflict between them, before it will
approve the defendant’s timely motion to discharge his
retained attorney and obtain appointed counsel.” Other courts,
perhaps reflecting the principle that “the right to counsel of
choice does not extend to defendants who require counsel to
be appointed for them,” United States v. Gonzalez-Lopez, 548
U.S. 140, 151 (2006), have rejected Ortiz’s view and con-
cluded that replacement of retained counsel with appointed
counsel does require a showing of good cause. The First Cir-
cuit’s opinion in United States v. Mota-Santana, 391 F.3d 42
(1st Cir. 2004), exemplifies this view:

In the instant case, there are two actions of the court
at issue: its refusal to allow Sanchez[, retained coun-
sel,] to withdraw and its refusal to appoint substitute
counsel. Were the only issue that of the appropriate-
ness of the court’s refusal to permit withdrawal, San-
chez having been retained privately, there might be
some question. As we said in United States v. Woo-
dard, 291 F.3d 95, 107 (1st Cir. 2002), a defendant
is not ordinarily dependent on the court’s permission
to replace retained counsel. But here the two actions
merge, since defendant and his family ran out of
funds to retain other private counsel and defendant
sought court appointed counsel.

Id. at 46-47; see also id. at 47 (requiring the defendant, who
had moved to replace retained counsel with appointed coun-
12166 UNITED STATES v. RIVERA-CORONA
sel, to show that “ ‘the conflict between the defendant and his
counsel was so great that it resulted in a total lack of commu-
nication preventing an adequate defense’ ”) (quoting United
States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986)).

Were we writing on a clean slate, as the majority believes
we are, we would have to make a choice among the
approaches exemplified in Ortiz and Mota-Santana. We are
not, however, writing on a clean slate. We have already held
that, for purposes of the Sixth Amendment, a motion to sub-
stitute retained counsel with appointed counsel requires a
showing of good cause. See Schell v. Witek, 218 F.3d 1017,
1024-25 (9th Cir. 2000) (en banc); Bland v. Cal. Dep’t of
Corr., 20 F.3d 1469, 1475 (9th Cir. 1994), overruled in part
by Schell, 218 F.3d at 1025. Those opinions are binding on us,
and it is the majority’s refusal to recognize them as binding
precedent that causes me to write separately.

In Bland, we held that a motion to replace retained counsel
with appointed counsel is governed by the same good cause
standard that governs a motion to replace appointed counsel
with appointed counsel. See Bland, 20 F.3d at 1475 (relying
on Walker, 915 F.2d at 482, an appointed-to-appointed substi-
tution case). We required the defendant to show good cause,
such as an “irreconcilable conflict,” to establish a right to sub-
stitution. Id. at 1475, 1477. Although Bland was a habeas
case, Schell subsequently clarified that Bland described the
“correct methodology for reviewing federal cases on direct
appeal.” Schell, 218 F.3d at 1024-25. Taken together, Bland
and Schell hold that a motion to substitute retained counsel
with appointed counsel in federal district court proceedings
requires a showing of good cause.

I am not persuaded by the majority’s attempts to avoid
Bland and Schell. First, the majority’s suggestion to the con-
trary notwithstanding, Schell did not overrule Bland in any
respect relevant here. See Maj. Op. 12157. Although Schell
overruled Bland as applied to habeas review, Schell expressly
 UNITED STATES v. RIVERA-CORONA 12167
and specifically confirmed Bland’s good cause standard as
applied to “federal cases on direct appeal” — the issue pres-
ented here. Schell, 218 F.3d at 1024-25.

Second, the majority’s conclusion that Schell “does not
control in the current circumstances” because it addressed
“substitution of appointed counsel” reflects a fundamental
misunderstanding of Schell. Maj. Op. 12157 n.3. The majority
apparently concludes that nothing Schell had to say could be
binding here because Schell involved a motion to replace
appointed counsel with appointed counsel rather than, as in
this case, a motion to replace retained counsel with appointed
counsel. That suggestion, as well as the majority’s labeling of
the relevant discussion in Schell as “dicta,” misses the point.
In Schell, a case involving appointed-to-appointed substitu-
tion, we went en banc to overrule Bland, a case involving
retained-to-appointed substitution. Schell is therefore prem-
ised on the proposition that motions to substitute existing
counsel with appointed counsel are governed by the same
standard regardless of whether existing counsel is retained (as
in Bland) or appointed (as in Schell and Walker). A proposi-
tion necessary to the holding cannot be dicta. See, e.g., City
of Sausalito v. O’Neill, 386 F.3d 1186, 1203-04 (9th Cir.
2004). If, as the majority suggests, retained-to-appointed sub-
stitution and appointed-to-appointed substitution are governed
by different standards, then Bland could not have served as
precedent in Schell, Schell would not have been affected by
Bland, Schell would have had no cause to address Bland in en
banc proceedings and Schell’s overruling of Bland would
have been essentially an advisory opinion. Contrary to the
majority’s suggestion, both Bland and Schell necessarily held
that retained-to-appointed and appointed-to-appointed substi-
tutions are governed by the same legal standard — i.e., good
cause. We are bound by that holding.1
1
As noted above, I recognize that Schell concerned habeas review rather
than direct federal review. Schell’s holding that retained-to-appointed and
appointed-to-appointed substitution are subject to the same legal stan-
dards, however, does not distinguish between the two and therefore is
binding on direct review as well.
12168 UNITED STATES v. RIVERA-CORONA
For purposes of the Sixth Amendment analysis, therefore,
I would hold that we are bound by circuit precedent to review
Rivera-Corona’s motion to replace retained counsel with
appointed counsel under the same good cause standard we
apply to motions to substitute one appointed counsel for
another. Applying that standard here, I agree with the major-
ity that the district court failed to conduct an adequate inquiry
in response to Rivera-Corona’s motion. See Maj. Op. 12161
n.6.2 I would vacate and remand on that basis.

I emphasize that I would apply the good cause standard
because I believe we are required to do so by the doctrine of
stare decisis. See, e.g., In re Tippett, 542 F.3d 684, 691-92
(9th Cir. 2008); Miller v. Gammie, 335 F.3d 889, 899 (9th
Cir. 2003) (en banc). In Ortiz, the California Supreme Court
offered a number of strong arguments for the proposition that
the replacement of retained with appointed counsel should not
require a showing of good cause. Were we truly writing on a
clean slate, those arguments might well prevail. In my view,
however, we are constrained by precedent to apply the good
cause standard here.

II. Statutory Rights under the Criminal Justice Act

As the majority explains, Rivera-Corona may also have a
right to substitution of counsel under the Criminal Justice Act,
which provides in relevant part: “If at any stage of the pro-
2
On remand, the court’s good cause inquiry should consider not only
whether there was an irreconcilable conflict between Rivera-Corona and
his attorney but also any other evidence tending to establish that proceed-
ing with retained counsel would have resulted in ineffective assistance of
counsel. In particular, as relevant here, the district court should consider
whether Rivera-Corona’s inability to continue paying his retained counsel
established a basis for substitution. See Ortiz, 800 P.2d at 553 (“We are
justifiably concerned about the . . . right to effective assistance of counsel
when a defendant is forced to choose between proceeding to trial without
an attorney or continuing to trial with an attorney originally hired to repre-
sent him but whom he no longer is able to pay.”).
 UNITED STATES v. RIVERA-CORONA 12169
ceedings, including an appeal, the United States magistrate
judge or the court finds that the person is financially unable
to pay counsel whom he had retained, it may appoint counsel
. . . and authorize payment . . . , as the interests of justice may
dictate.” 18 U.S.C. § 3006A(c). This provision “obliges the
judge to continually reevaluate the need for appointed counsel
as the underlying proceeding progresses.” In re Boston Her-
ald, Inc., 321 F.3d 174, 193 (1st Cir. 2003).

Rivera-Corona did not explicitly raise § 3006A(c) in the
district court or on appeal. Assuming that Rivera-Corona
nonetheless adequately invoked the provision, I agree with the
majority that the district court should have conducted an “ap-
propriate inquiry” into Rivera-Corona’s financial eligibility
for mid-case appointment of counsel and an adequate analysis
of whether counsel should have been appointed in the “inter-
ests of justice.” 18 U.S.C. § 3006A(b)-(c); see also United
States v. Parker, 439 F.3d 81, 92-99 (2d Cir. 2006) (discuss-
ing the “appropriate inquiry” requirement, as well as the “in-
terests of justice” analysis). The interests of justice may
dictate mid-case appointment of counsel when the defendant
(or his family) is no longer able to pay retained counsel. As
the majority points out, such an unpaid lawyer may, con-
sciously or subconsciously, “resent the transformation of an
agreement to represent a defendant for pay into an involuntary
pro bono arrangement, and therefore seek to end the represen-
tation as expeditiously as possible.” Maj. Op. 12159. On
remand, therefore, the district court should also consider
whether mid-case appointment of counsel is independently
appropriate under the § 3006A(c), assuming Rivera-Corona
seeks relief under that provision.

***

To conclude, I part company with the majority’s conclusion
that, for purposes of Sixth Amendment analysis, the good
cause standard does not apply to motions to substitute
retained counsel with appointed counsel. I believe we are
12170 UNITED STATES v. RIVERA-CORONA
bound by Bland and Schell to apply that standard here. I none-
theless concur in the judgment, because the district court
failed to conduct an adequate inquiry, as required by Bland
and Schell, in response to Rivera-Corona’s motion to replace
retained counsel with appointed counsel.