United States v. Richard Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10354
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00097-
RCJ-VCF-1
RICHARD CARL BROWN,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding

Argued and Submitted
September 9, 2014—San Francisco, California

Filed May 13, 2015

Before: Stephen Reinhardt, Ronald M. Gould,
and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon
2 UNITED STATES V. BROWN

SUMMARY*

Criminal Law

The panel vacated convictions for advertising,
transporting, receiving, and possessing child pornography,
and remanded for a new trial, in a case in which the district
court denied the defendant’s motion to discharge his retained
counsel.

The panel reiterated the intertwined rules of United States
v. Rivera-Corona, 618 F.3d 976 (9th Cir. 2010): (1) A
defendant enjoys a constitutional right to discharge his
retained counsel for any reason “unless a contrary result is
compelled by the ‘purposes inherent in the fair, efficient and
orderly administration of justice,’” and (2) if the court allows
a defendant to discharge his retained counsel, and the
defendant is financially qualified, the court must appoint new
counsel for him under the Criminal Justice Act.

The panel held that the district court abused its discretion
in denying the defendant’s motion to discharge retained
counsel and in refusing to appoint new counsel, where neither
the reasons the district court offered after its own detailed
inquiry, the additional reasons the government has suggested
in its briefing, nor any reason the panel could infer from the
record, provide any ground necessary to the fair, efficient,
and orderly administration of justice to justify the denial of
the defendant’s motion to discharge retained counsel. The
panel therefore vacated the convictions.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. BROWN 3

The panel rejected the defendant’s arguments that the
evidence presented at trial was insufficient to support his
transportation and advertising convictions, and therefore
remanded for a new trial. The panel held that a conviction for
transportation or advertising of child pornography does not
require evidence that the material actually crossed state lines.
The panel also held that a reasonable jury could conclude that
the actions taken by the defendant, the proprietor of a
computer business with substantial technical computer
knowledge – designating a non-default folder on his external
hard drive to be shared by a peer-to-peer file-sharing program
– are not materially different from those of a bulletin board
operator, which United States v. Mohrbacher, 182 F.3d 1041
(9th Cir. 1999), suggested could be charged with
transportation.

COUNSEL

Jason F. Carr, Assistant Federal Public Defender, Federal
Public Defender’s Office, Las Vegas, Nevada, for
Defendant-Appellant.

William Ramsey Reed (argued) and Elizabeth Olson White,
Assistant United States Attorneys, United States Attorney’s
Office, Reno, Nevada, for Plaintiff-Appellee.
4 UNITED STATES V. BROWN

OPINION

BERZON, Circuit Judge:

United States v. Rivera-Corona, 618 F.3d 976 (9th Cir.
2010), held that an indigent criminal defendant need not
establish a conflict with his attorney amounting to the
constructive denial of counsel as a prerequisite to substituting
appointed counsel for his retained attorney. The district court
in this case, like the parties, appears to have been unaware of
Rivera-Corona, and instead applied the conflict requirement
applicable to substitutions of appointed counsel for appointed
counsel. We now reiterate Rivera-Corona’s intertwined
rules: (1) A defendant enjoys a right to discharge his retained
counsel for any reason “unless a contrary result is compelled
by ‘purposes inherent in the fair, efficient and orderly
administration of justice,’” Rivera-Corona, 618 F.3d at 979
(quoting United States v. Ensign, 491 F.3d 1109, 1115 (9th
Cir. 2007)), and (2) if the court allows a defendant to
discharge his retained counsel, and the defendant is
financially qualified, the court must appoint new counsel for
him under the Criminal Justice Act (“CJA”), 18 U.S.C.
§ 3006A. Because no sufficient reason justified the district
court’s denial of Richard Carl Brown’s right to discharge his
retained lawyer or its refusal to appoint counsel, we vacate
Brown’s convictions and remand for a new trial. We also
reject Brown’s arguments that the evidence presented at trial
was insufficient.

I.

Nevada police detectives identified a computer that had
been sending and receiving child pornography through
FrostWire, a peer-to-peer file-sharing program, as associated
 UNITED STATES V. BROWN 5

with an internet protocol address registered to Brown. After
the detectives downloaded from the computer a video
containing child pornography, they obtained a search warrant
for Brown’s home. Brown shared his home with two
roommates and ran a computer business from it. The search
yielded a computer in Brown’s bedroom, which forensic
investigation indicated was the source of the video. Also
found during the search were a disconnected external hard
drive containing: various photos of Brown, including intimate
photos; personal documents, such as Brown’s father’s death
certificate; a folder designated to be shared by FrostWire; and
hidden folders containing some 900 child pornography files.
Brown was charged with one count each of advertising child
pornography, 18 U.S.C. § 2251(d)(1)(A); transporting child
pornography, 18 U.S.C. § 2252A(a)(1); receiving child
pornography, 18 U.S.C. § 2252A(a)(2); and possessing child
pornography, 18 U.S.C. § 2252A(a)(5)(B).

Two and a half weeks before trial was to begin, Brown’s
retained counsel filed a motion to withdraw from the case and
substitute a public defender. Brown’s attorney cited
“strained” communications and an “actual conflict of
interest” with Brown. He advised the court that Brown
“desires counsel to withdraw from representing him,” and
attached an email in which Brown requested the withdrawal
and indicated he would seek appointed counsel. A week
later, counsel filed a motion to continue the trial regardless of
the court’s ruling on the motion to withdraw and substitute.

The district court held a hearing on the motion to
withdraw. Brown’s counsel began by informing the court of
the “extreme divergence of philosophical opinion as to how
the case should be carried on” between himself and Brown.
The court responded, “Actually, is it more based in failure for
6 UNITED STATES V. BROWN

him to be able to pay your fee?” The court emphasized that
counsel could not withdraw for failure to pay fees without
leave of court, and then continued:

Now, here we are, of course, on the eve of
trial. Trial has been scheduled. And just
because your client is disagreeing with you on
recommendations regarding plea or trial, that
is not the basis to permit withdrawal.

Counsel assured the court that Brown’s financial situation
“really has nothing to do with this,” but that the problem was
“trust.”

The court then ordered the hearing continued ex parte
because privileged information would be discussed.1 At that
point, counsel for the government, initially present, was
excluded. Before leaving the room, counsel indicated that the
government had no position on the motion to withdraw but
was opposed to a continuance. An attorney from the Federal
Public Defender’s Office, initially present as well, remained
in the courtroom during the ex parte portion of the hearing.

After counsel for the government left, the court inquired
whether Brown had any “objection to the motion to
withdraw.” Brown responded that he did not. The court laid
out the “problem,” as it saw it, to Brown’s attorney:

You know, this is scheduled for trial.
Obviously if I allow you to withdraw and

1
The transcript of the ex parte portion of the hearing was filed under
seal in the district court but included in Brown’s unsealed excerpts of
record before this court. We therefore order the transcript unsealed.
 UNITED STATES V. BROWN 7

appoint now – because he would qualify, I
assume, for a public defender [–] and appoint
a public defender, that will mandate a
continuance of the trial so that person could
be brought up to speed.

So I find great fault with your late filing of
this motion, on the eve of trial, and what
appears to be simply because there’s a
disagreement over payment and your inability,
or unwillingness, to prepare for trial.

Your client has the right to insist upon
trial as opposed to plea. That’s the problem.
So you’ve got to overcome those concerns in
your argument.

Brown’s counsel responded that he understood, that the
dispute was not about money, and that he was prepared to
proceed to trial. However, he again informed the court that
“Mr. Brown has indicated to me that he would like us to
withdraw.”

The court then engaged Brown in the following colloquy:

THE COURT: . . . What is the disagreement,
sir, that causes you to want a different
attorney?

THE DEFENDANT: Your Honor, there’s
been – I guess we see things differently. . . .

THE COURT: Sure. What do you see
differently?
8 UNITED STATES V. BROWN

THE DEFENDANT: I have tried on many
occasions to talk to them about my defense,
and they have never talked about a defense.
They have always said hold on, this is how it
works, just keep waiting, keep waiting, keep
waiting –

THE COURT: You’re talking about
anticipating a potential plea?

THE DEFENDANT: Always. It was always
about a plea. Ever since we met.

THE COURT: . . . What do you see
differently from your attorney?

THE DEFENDANT: . . . [W]e never really
discussed anything about a defense. They
didn’t want to hear about why I was not
guilty. They didn’t want to hear about this.

I had witnesses and everything. We never
talked about that. The first time I was asked
about a list was after the first time I saw a
plea, which is in the beginning of –

THE COURT: So what I hear you saying, sir,
is you don’t feel they were diligent in
presenting defenses you wanted them to
present?

THE DEFENDANT: Not at all . . .
 UNITED STATES V. BROWN 9

The court told Brown that his attorney was very experienced,
and that, within the limits of his ethical duties, his counsel
was required to present the case, including any defenses, as
Brown wished. Having sought to dispose of Brown’s basis
for dissatisfaction, the court indicated that it did not
“understand yet, other than a feeling that he has not diligently
pursued the defense, . . . any basis for a disagreement on the
defense.”

The discussion then turned to the topic of payment.
Brown told the court that his attorney had not contacted him
at all for the “first five or six months,” and in general only
“rarely contacted [him] except for payments.” Brown said
that he had “trouble getting the last payment” as he was
“completely out of money.” The court inquired how much
the attorney had charged and how much Brown had paid.
Brown responded, “$50,000,” pursuant to a payment plan,
and that “we’re a little late on the last . . . payment.” The
court responded, “And you got it in.” Brown did not directly
respond, but explained that it was “really hard to even get
that,” and that his attorney had not asked for any more.

Then Brown returned to the focus of his dissatisfaction,
his lawyer’s handling of the case. He stated that he was
“absolutely . . . not guilty” of the charges, and had witnesses
to establish that the computer at issue was not his but, rather,
belonged to a client of his business. He told the court,
presumably also referring to his relationship with counsel,
that additionally “[m]oney is an issue because it was always
an issue up until this point.”

Next, the district judge again addressed his attention to
Brown’s attorney. Emphasizing Brown’s control of the
defense, albeit constrained by counsel’s ethical duties, the
10 UNITED STATES V. BROWN

judge asked “So, again, why should I release you?” The
attorney cited a “breakdown in communication.” When the
attorney raised his concern about the prospect of “a 2255
somewhere down the road,” presumably in reference to a
potential ineffective assistance of counsel claim under
28 U.S.C. § 2255, the court responded, “You better not be, or
I’ll require you to refund the entire 50 grand.” Counsel
clarified that he was only emphasizing the level of “mistrust,”
and indicated that he could not “make [Brown] feel more
comfortable with [the] representation.”

At that point the court concluded the hearing, stating “I’ve
got it. I’m denying the motion, sir.” The court informed
Brown that his attorney was “very reputable [and] qualified,”
that the case was prepared for trial, and, somewhat
contradictorily, that the court would “give him whatever time
he needs before we finally go to trial.” But, the court went
on, “he’s been paid $50,000.” And, the court assured Brown,
he would not receive nearly as good a defense were the court
to appoint a public defender. The court agreed, however, to
“honor any appropriate request for a continuance.” Trial was
continued for nearly a month. Brown was convicted on all
counts.

After the conviction, Brown filed a motion for judgment
of acquittal or for a new trial, based in part on the court’s
denial of his attorney’s motion to withdraw. The court denied
the motion “mainly for the reasons set forth in the
government’s opposing brief,” summarily concluding that
there was no error and no prejudice. In actuality, the
government, in its brief, did not address Brown’s argument
regarding the motion to withdraw, beyond noting that the
government was “not a party” to the ex parte proceedings and
 UNITED STATES V. BROWN 11

that, in its view, Brown’s attorney did “an excellent job” at
trial.

The district court sentenced Brown to concurrent 180-
month sentences on each of the advertising, transportation,
and receipt counts, and a concurrent 180-month suspended
sentence for the possession count. This appeal followed.

II.

As Rivera-Corona explained, “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.” 618 F.3d at 979 (quoting Daniels v. Lafler,
501 F.3d 735, 738 (6th Cir. 2007)) (internal quotation marks
omitted). At the outset, this case, like Rivera-Corona,
involves the latter right.

When the court has appointed an attorney for an indigent
defendant, the defendant, like all criminal defendants, has “a
constitutional right to effective counsel.” Rivera-Corona,
618 F.3d at 979 (emphasis added). But he does not have the
right to the counsel of his choice; that is, “to have a specific
lawyer appointed by the court and paid for by the public.” Id.
Thus, when an indigent defendant represented by appointed
counsel asks the court to discharge that lawyer and appoint a
different one, the governing question is whether the conflict
between client and counsel is so extreme as to constitute a
“constructive denial of counsel” altogether. Id. (quoting
Daniels v. Woodford, 428 F.3d 1181, 1198 (9th Cir. 2005))
(internal quotation marks omitted). To determine if the
conflict is severe enough to warrant substitution under those
circumstances, “we consider (1) the timeliness of the
substitution motion and the extent of resulting inconvenience
12 UNITED STATES V. BROWN

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.” Id. at 978 (citing United
States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir.
2009)).

By contrast, a defendant who has hired his own attorney
“has a different right, independent and distinct from the right
to effective counsel, to be represented by the attorney of his
choice.” Id. at 979 (citing United States v. Gonzalez-Lopez,
548 U.S. 140, 147-48 (2006)). This “right to select counsel
of one’s choice” is “the root meaning of the constitutional
guarantee” found in the Sixth Amendment. Gonzalez-Lopez,
548 U.S. at 147-48. Accordingly, the denial of this right does
not depend on “the quality of the representation . . .
received.” Id. at 148. While the right to counsel of one’s
choice is not absolute, “[i]n 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 justice.’”
Rivera-Corona, 618 F.3d at 979 (quoting Ensign, 491 F.3d at
1115)).

Rivera-Corona addressed “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.” 618 F.3d at 979. We held
that, as a defendant’s request to substitute appointed counsel
in place of a retained attorney “implicate[s] the qualified right
to choice of counsel,” “the extent-of-conflict review is
inappropriate.” Id. at 981.
 UNITED STATES V. BROWN 13

We note that it is not, strictly speaking, correct to say that
the defendant in Rivera-Corona, or the defendant in this case,
was entitled to, or seeking, counsel of choice. Had either
defendant’s motion been granted, he would have been entitled
to some appointed counsel, not an appointed lawyer of his
choosing. See Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 624 (1989). Rather, in the context of
Rivera-Corona and of this case, the Sixth Amendment right
to counsel of choice means that a defendant has a right to
“fire his retained . . . lawyer . . . for any reason or [for] no
reason.” Rivera-Corona, 618 F.3d at 980 (emphasis added).
One constitutional right at issue in this context is, thus, a right
to discharge retained counsel.

The government contends in its supplemental briefing –
having previously overlooked Rivera-Corona – that
Rivera-Corona does not govern this case. The attorney in
Rivera-Corona, notes the government, had demanded an
additional $5,000 in legal fees. Rivera-Corona, 618 F.3d at
978; see also id. at 982. In this case, by contrast, Brown
apparently paid the full retainer amount, and there was no
additional fee due.2

Rivera-Corona’s constitutional holding, however, was not
limited to circumstances in which retained counsel demands
additional fees. Instead, it considered, in general, “the
standard for considering a criminal defendant’s motion to
discharge his privately retained counsel and to proceed with

2
The district court appears to have found that Brown paid the full
retainer. Although the record does not reflect that Brown ever clearly
stated as much, Brown does not challenge that conclusion, and it is not
clearly erroneous. See United States v. Adelzo-Gonzalez, 268 F.3d 772,
777 (9th Cir. 2001).
14 UNITED STATES V. BROWN

a different, court-appointed lawyer instead,” id. at 977, and
concluded that, under those circumstances, the defendant
enjoys a Sixth Amendment right to discharge his retained
counsel, id. at 981. That constitutional holding applies to this
case as well.

III.

Again like Rivera-Corona, this case implicates not only
the constitutional right to discharge retained counsel but also
the statutory right to appointment of counsel in his stead.
When a court denies a motion to substitute appointed for
retained counsel, as the district court did in this case, it is
really deciding two issues. The first, whether the defendant
may discharge the attorney whom he retained, implicates the
Sixth Amendment right to counsel of choice, as discussed
above. But the court ruling on such a motion is, at the same
time, also considering a request for appointment of counsel.
And, while a criminal defendant’s right to appointed counsel
of course does have a constitutional aspect, see Gideon v.
Wainwright, 372 U.S. 335 (1963), in federal court the
question whether counsel should be appointed is governed,
first and foremost, by the CJA, 18 U.S.C. § 3006A. Of
course, as a practical matter the two issues – discharge of
retained counsel and appointment of CJA counsel – are
intertwined, and the decisions as to them will ordinarily be
considered and announced together. However, the sequence
and manner in which the two issues are addressed may not
leave the defendant without any counsel at all, absent a
voluntary, knowing, and intelligent decision to proceed pro
se. See Faretta v. California, 422 U.S. 806, 835 (1975);
United States v. Gerritsen, 571 F.3d 1001, 1007 (9th Cir.
2009). The difficult issue, in an intertwined case of this
nature, occurs with respect to the first issue, the constitutional
 UNITED STATES V. BROWN 15

issue, whether the defendant may discharge retained counsel.
If the answer is yes, the CJA provides that counsel shall be
appointed for the indigent defendant unless he wishes to
assert his Faretta rights.

In general, section 3006A(b) provides that, “[i]n every
case in which a person entitled to representation . . . appears
without counsel . . . the court, if satisfied after appropriate
inquiry that the person is financially unable to obtain counsel,
shall appoint counsel to represent him,” unless the right is
waived. 18 U.S.C. § 3006A(b) (emphasis added). An
indigent defendant who exercises his constitutional right to
discharge retained counsel is “without counsel,” so
§ 3006A(b) applies.3 Accordingly, the CJA requires the
appointment of counsel under the circumstances of this case.

3
We note that an indigent defendant who exercises his constitutional
right to discharge his retained counsel, and so is left without an attorney,
is thus very differently situated from an indigent defendant who can no
longer pay his retained lawyer but may have no objection to that lawyer’s
continued representation, and indeed may welcome it. Some courts have
pointed out that appointing a previously retained lawyer as CJA counsel
in the latter circumstance is not warranted simply to “bail . . . out” retained
counsel “who fails to make adequate arrangements before accepting
representation of a client,” Haas, 623 F.3d at 1221 (internal quotation
marks omitted), and expressed concern that “a defendant with some
means” could “in effect, select [his CJA] counsel,” while an initially
indigent defendant has no such opportunity. United States v. Thompson,
361 F. Supp. 879, 888 (D.D.C. 1973) (Bazelon, Ch. J., D.C. Cir.), vacated
in part on other grounds, affirmed in part without opinion, 489 F.2d 1273
(D.C. Cir. 1974), overruled in part on other grounds, United States v.
Hunter, 394 F. Supp. 997, 1001 (D.D.C. 1975) (Bazelon, Ch. J., D.C.
Cir.). On the other hand, a district court might choose, despite these
concerns, to appoint previously retained counsel, as doing so is likely to
save the court time and money as compared to appointing new counsel.
In any event, where, as here, the defendant is dissatisfied with his retained
counsel and therefore discharges him, these concerns related to the
appointment of the same previously retained lawyer are not implicated.
16 UNITED STATES V. BROWN

The government maintains that, in cases like this one, as
in Martel v. Clair, the factors relevant to the appointment of
counsel issue are “the timeliness of the motion; the adequacy
of the district court’s inquiry into the defendant’s complaint;
and the asserted cause for that complaint, including the extent
of the conflict or breakdown in communication between
lawyer and client (and the client’s own responsibility, if any,
for that conflict).” Martel v. Clair, 132 S. Ct. 1276, 1287
(2012).

The government’s proposed standard for appointment of
counsel once retained counsel is discharged is essentially
identical to the extent-of-conflict analysis applicable to
replacement of one appointed counsel by another. That is, the
government would have us hold that, notwithstanding
Brown’s constitutional right to discharge his lawyer, the
restrictive extent-of-conflict analysis governs whether a
replacement is appointed. We disagree. The appropriate
standard must reflect the Sixth Amendment right which
governs a particular case. Where, as here, the right to
retained counsel of choice is implicated, Rivera-Corona
specifically held that “the extent-of-conflict review is
inappropriate.” Rivera-Corona, 618 F.3d at 981.

Nor does Martel support the government’s position. It
concerned the substitution of one appointed counsel for
another, not the initial appointment of counsel for a
financially qualified individual after retained counsel is
discharged.

If anything, Martel points against the government’s
proposed standard. In Martel, the Supreme Court read an
interests-of-justice standard into 18 U.S.C. § 3599, which
provides for appointed counsel in capital habeas proceedings
 UNITED STATES V. BROWN 17

but does not specify the standard applicable to requests for a
new appointed attorney. 132 S. Ct. at 1283–84. The Court
rejected California’s argument that, because habeas
petitioners have no Sixth Amendment right to counsel at all,
a more restrictive standard for appointment of a replacement
attorney is warranted in such cases than applies to defendants
in federal criminal prosecutions. “A statute need not draw the
same lines as the Constitution,” the Court observed. Id. at
1286. And the Court held that in § 3599 Congress
permissibly chose to provide greater access to counsel than
the Sixth Amendment required. Id. In this case, by contrast,
the government’s statutory interpretation would, in effect,
provide Brown with less access to counsel than that to which
he is constitutionally entitled, by potentially denying him any
counsel if he exercises his constitutional right to discharge
retained counsel.

As we have seen, there is a statutory right to appointed
counsel. Once a district court allows a financially qualified
defendant to exercise his right to fire his retained lawyer,
§ 3006A(b) requires, absent a voluntary, knowing, and
intelligent decision to proceed pro se, see Faretta, 422 U.S.
at 835, that the court appoint a new attorney in his place.

We note that in Rivera-Corona, which was in many
respects similar to the case before us, the dispute essentially
revolved around the defendant’s concern about financial
relationships between himself and his counsel. He was
concerned that his counsel would not perform properly
because he was unable to afford to make the necessary
payments. We treated this question as primarily covered by
subsection (c), which relates in part to persons financially
unable to pay retained counsel during the course of a case,
rather than the more general subsection (b), which is
18 UNITED STATES V. BROWN

applicable here. Rivera-Corona’s controlling principles
relate essentially to the constitutional question of how and
when a defendant may discharge a retained attorney and
substitute an appointed one. Rivera-Corona’s answer to that
constitutional question was “for any reason,” subject to only
the orderly administration of justice qualification. Having
applied Rivera-Corona’s constitutional rule in Brown’s favor,
our final step is to apply the appropriate statutory rule for the
appointment of counsel to an indigent defendant, § 3006A(b).

IV.

Applying Rivera-Corona’s principles to this case, we hold
that the district court abused its discretion in denying
Brown’s motion to discharge retained counsel. The district
court prevented Brown from discharging his retained lawyer
and so refused to appoint counsel. As discussed above, each
of those decisions was erroneous unless the denial of the
motion to discharge retained counsel was “compelled by
‘purposes inherent in the fair, efficient and orderly
administration of justice.’” Id. Here, neither the reasons the
district court offered after its own detailed inquiry, the
additional reasons the government has suggested in its
briefing, nor any reason we can infer from the record, provide
any ground necessary to the fair, efficient, and orderly
administration of justice to justify the denial of Brown’s
motion.

A.

We note at the outset that the district court did not
explicitly discuss either the constitutional right to retained
counsel of choice or the extent-of-conflict analysis. Nor,
indeed, did it ever discuss how, if at all, it believed Brown’s
 UNITED STATES V. BROWN 19

Sixth Amendment rights were implicated. But, to the extent
that the court did implicitly consider a Sixth Amendment
right, it focused on considerations pertinent to the right to
constitutionally adequate counsel, rather than to the right to
choice of counsel Brown actually enjoyed. Reflecting the
district court’s misunderstanding of the right at issue, the
reasons the district court gave for denying the motion are
inadequate to preclude the discharge of retained counsel and
thus the initial appointment of counsel, the questions actually
before it, and before this court.

To some extent, the district court’s attention was focused
on the attorney’s reasons for moving to withdraw. From the
outset, the court was concerned that counsel was seeking to
withdraw from the case because Brown had not paid his legal
fees, although eventually the court accepted that Brown had
paid his fees in full. The court was, however, still very
concerned about the prospect that Brown’s attorney was
proposing to walk away from the case after being paid
$50,000; when counsel raised the possibility of an ineffective
assistance of counsel claim, the court responded by
threatening to order a refund of the entire retainer amount.
Finally, the court reiterated several times that, within his
ethical obligations, counsel was required to defer to Brown’s
wishes regarding the conduct of his case, and that
disagreements on that issue would not be grounds to
withdraw.

But this motion was not primarily about Brown’s lawyer
trying to withdraw from the case. Rather, Brown was trying
to fire his lawyer. Brown and his attorney made that impetus
for the motion abundantly clear in an email attached to the
original motion to withdraw and in several statements each
made during the hearing. That being the case, the district
20 UNITED STATES V. BROWN

court’s primary responsibility was not to ensure a fair
attorney-client relationship or to supervise the conduct of the
lawyer. Those are relevant and important considerations
when a court considers a lawyer’s motion to withdraw. See,
e.g., Brandon v. Blech, 560 F.3d 536, 537–39 (6th Cir. 2009).
But where, as here, it is apparent that the defendant, not the
attorney, instigated the withdrawal motion, the defendant’s
Sixth Amendment rights should trump whatever concerns the
court has about the lawyer’s motives.

When the district court did turn its attention to the
defendant’s reasons for wishing to switch lawyers, it became
clear that Brown’s complaints were threefold. First and
foremost, Brown was unsatisfied with his lawyer’s conduct
of the case. Underscoring his attorney’s assessment of an
“extreme divergence of philosophical opinion as to how the
case should be carried on,” and a great deal of “mistrust,”
Brown made it perfectly clear that he believed himself to be
innocent of the charges, but that his attorney had “never
talked about a defense” but “always about a plea . . . since
[they] met.” Second, Brown agreed with his counsel that he
and his lawyer had been in infrequent contact, although each
blamed the other for the lack of communication. Third, while
Brown indicated that he had paid the entire $50,000 retainer,
he implied that financial tensions had contributed to souring
the relationship with his lawyer: He had “trouble getting the
last payment,” and money was “always an issue up until
[that] point.”

In the context of the constitutional right to discharge a
retained lawyer, any of these concerns was more than
sufficient. Brown’s reasons for wanting to discharge his
retained lawyer were not properly the court’s concern at all.
He had the right to “fire his retained . . . lawyer . . . for any
 UNITED STATES V. BROWN 21

reason or [for] no reason.” Rivera-Corona, 618 F.3d at 980
(emphasis added). Only affirmative interference with the
“fair, efficient and orderly administration of justice,” id. at
979 (internal quotation marks omitted), could have justified
an order that Brown could not discharge his lawyer.

Yet, in rejecting the request despite Brown’s serious
concerns about his attorney, the court cited only the
qualifications of Brown’s current attorney; the supposedly
inferior representation Brown would receive if the Federal
Public Defender’s Office substituted into the case; the
attorney’s ethical obligation to allow Brown to control the
defense; the lawyer’s representation that he was prepared for
trial, as well as the court’s offer of a continuance for
“whatever time he need[ed]” to finish preparing; and the fact
that the lawyer had already been paid $50,000. All of these
reasons – except, perhaps, the last – bear on the district
court’s perception that the retained attorney would provide an
adequate defense and that Brown’s complaints did not
establish a conflict sufficient to constitute a constructive
denial of counsel, neither of which were, in themselves,
pertinent considerations.4

Again, given Brown’s right to discharge his retained
attorney if he chose to do so, it did not matter whether the
court considered Brown’s current lawyer well qualified, or
prepared for trial, or – most dubiously of all, given the very
high quality of federal public defenders in general – better

4
The fact that the lawyer had already been paid $50,000 was relevant
only to the notion that allowing the lawyer to walk away from the case
would be unfair to Brown. This concern, too, was not a pertinent
consideration, as Brown, not the lawyer, was instigating the withdrawal.
22 UNITED STATES V. BROWN

than the alternative.5 See Gonzalez-Lopez, 548 U.S. at 148
(the right to counsel of choice is “the right to a particular
lawyer regardless of comparative effectiveness” (emphasis
added)). All of the court’s articulated reasons were, simply
put, not relevant under these circumstances.

B.

One possible reason for the district court’s rulings
warrants separate analysis. The government suggests in its
briefing that the district court denied Brown’s motions
because of the expectation of delay associated with allowing
Brown to discharge his lawyer and obtain the appointment of
new counsel. This reason is best understood as addressing
question one – whether the district court should permit a
defendant to discharge retained counsel or whether “a
contrary result is compelled by ‘the purposes inherent in the
fair, efficient and orderly administration of justice.’” Rivera-
Corona, 618 F.3d at 979 (quoting Ensing, 491 F.3d at 1115).

5
Indeed, we completely disagree with the district court’s assessment of
federal public defenders, who, in our experience, typically provide the
highest quality representation, very often superior to that provided by
members of the private criminal defense bar. Nor are we alone in that
opinion: A survey of 457 federal district and appellate judges, published
as part of an article co-authored by Judge Posner of the Seventh Circuit,
rated advocacy by public defenders in federal court significantly higher
than that provided by privately retained attorneys, court-appointed
attorneys, and even prosecutors. Richard A. Posner & Albert H. Yoon,
What Judges Think of the Quality of Legal Representation, 63 Stan. L.
Rev. 317, 322, 327 (2011); see also id. at 341-42 (reviewing research
suggesting that “a majority of indigent federal criminal defendants may be
serving longer sentences by virtue of not having been represented by a
federal public defender”).
 UNITED STATES V. BROWN 23

The district court in this case did initially express concern
with the timing of the request, which was filed two and a half
weeks before trial was originally set to begin. And the
district court has “wide latitude in balancing the right” to
discharge retained counsel against “the demands of its
calendar.” Gonzalez-Lopez, 548 U.S. at 152. We conclude,
however, that the district court in this case did not, in fact,
deny the motion because of “the demands of its calendar,” id.,
nor, on this record, would that concern suffice as an
administration-of-justice basis for denial of the constitutional
right to discharge retained counsel.

First, the court never said that concern for its calendar
was its reason for denying the motion. Rather, the court cited
various factors that related principally to its perception that
Brown’s lawyer would provide effective assistance of
counsel. The court did not cite possible delay when it ruled
on the motion.

Second, the court’s willingness to continue the case belies
the suggestion that it denied the motion to avoid delay. The
court repeatedly offered to continue the case, indicating, at
one point, that it would allow Brown’s lawyer “whatever time
he need[ed] before we finally go to trial.” And, in fact, the
trial was continued, by a month, after the hearing, and so took
place some six and a half weeks after the motion to substitute
was filed.

Third, the court made no effort to ascertain how long the
newly appointed attorney would likely need to prepare for
trial. The court stated that such an appointment would
require a “continuance of the trial so that person could be
brought up to speed.” But, even though an attorney from the
Federal Public Defender’s Office was present throughout the
24 UNITED STATES V. BROWN

hearing, indicating that the office was acquainted with the
circumstances and was willing to take over the case
immediately, the court never asked how long a continuance
would be necessary should it do so.

In light of these circumstances, we cannot conclude that
the district court denied Brown’s request to discharge his
retained counsel because of concern for its calendar, or that
the federal public defender would have needed any more time
than retained counsel requested and was granted. Indeed, it
appears that the retained attorney had concentrated
theretofore on trying to obtain a plea bargain, and, in fact,
shortly before the hearing on the motion to withdraw, filed a
motion to continue the trial regardless of the outcome of the
hearing, citing the need to repair his relationship with Brown,
investigate, research, and prepare for trial.

Aside from timing, the government suggests no reason
why the “purposes inherent in the fair, efficient and orderly
administration of justice,” Rivera-Corona, 618 F.3d at 979
(quoting Ensign, 491 F.3d at 1115) (internal quotation marks
omitted), could justify the district court’s ruling, nor, having
independently reviewed the entire record, can we conceive of
any.

The district court fully explored all the possible reasons
for granting or denying Brown’s motion and set forth those it
considered relevant. Despite its extensive inquiry, at no point
did it indicate that granting the motion would pose any
impediment to the “fair, efficient and orderly administration
of justice,” id. (internal quotation marks omitted), which
surely it would have had it concluded that such an
impediment supported the denial of Brown’s motion. Having
carefully reviewed the record in light of the constitutional and
 UNITED STATES V. BROWN 25

statutory requirements, we conclude that no such reason
exists, and so Brown’s motion to discharge his retained
lawyer should have been granted. As Brown met the
financial requirements for an appointed lawyer, he was
entitled to one – such as the federal public defender waiting
in the courtroom.

V.

We turn to the question of remedy. The denial of a
defendant’s right to counsel of choice is a structural error,
requiring that convictions be vacated even without a showing
of prejudice. Gonzalez-Lopez, 548 U.S. at 150. Accordingly,
because Brown’s motion to substitute counsel should have
been granted, Brown was denied his right to counsel of
choice and we must vacate his convictions.6

6
The remedy we adopt (vacating Brown’s convictions) is not
inconsistent with Martel, 132 S. Ct. at 1289 n.4. The alleged abuse of
discretion considered in Martel’s footnote 4 was a purely procedural one:
According to this court, the district court in Martel had erred in “denying
Clair’s substitution motion without inquiry.” Id. (emphasis added). In this
case, in contrast, the district court’s error was substantive: Unlike the
standards applicable to replacing appointed counsel, at issue in Martel, the
standards applicable to denial of the constitutional right to counsel of
choice centrally at issue here allows the district court only limited
discretion to deny the defendant’s choice when required by the “fair,
efficient and orderly administration of justice.” Rivera-Corona, 618 F.3d
at 979 (internal quotation marks omitted); see also Cassel, 408 F.3d at 637
(“The trial court’s discretion must be exercised . . . within the limitations
of the Sixth Amendment . . . .”) (internal quotation marks omitted). Under
the correct standard, there was no adequate reason to deny Brown’s
motion, and so it should have been granted.
26 UNITED STATES V. BROWN

VI.

We next consider Brown’s arguments that the evidence at
trial was insufficient to establish guilt, as those arguments, if
correct, would foreclose retrial. See McDaniel v. Brown,
558 U.S. 120, 131 (2010) (citing Burks v. United States,
437 U.S. 1, 18 (1978)); United States v. Rylander, 714 F.2d
996, 1001, 1003, 1004–05 (9th Cir. 1983). We review
sufficiency of the evidence de novo, determining whether,
“after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Fasthorse, 639 F.3d 1182, 1183-84 (9th Cir.
2011) (quoting United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (en banc)) (emphasis and internal
quotation marks omitted).

Brown argues, first, that the transportation and advertising
convictions required evidence that “the material itself . . .
cross[ed] state lines.” United States v. Wright, 625 F.3d 583,
594 (9th Cir. 2010). Wright was specifically predicated,
however, on the wording of § 2252A(a)(1) “[a]s it existed at
the time of Wright’s offense in 2003.” Id. at 590. At that
time, the statute criminalized transportation “in interstate . . .
commerce.” Id. (internal quotation marks omitted). As
Wright noted, the statute was amended in 2008, and now bars
transportation “using any means or facility of interstate . . .
commerce or in or affecting interstate . . . commerce.”
18 U.S.C. § 2252A(a)(1); see also Wright, 625 F.3d at
599–600. The advertising statute was also amended to
include essentially identical language. See 18 U.S.C.
§ 2251(d)(2)(A)–(B); Pub.L. No. 110–358, 122 Stat. 4001.
 UNITED STATES V. BROWN 27

This amendment “effected a substantial change”: While
the former wording was selected “to afford the statute a more
limited jurisdictional reach,” in 2008 “Congress chose to
regulate to the outer limits of its Commerce Clause authority
by inserting the ‘affecting interstate commerce’ language.”
Wright, 625 F.3d at 600; see also United States v. Walls, No.
13-30223, 2015 WL 1783041, at *2–3 (9th Cir. Apr. 21,
2015). Congress has the constitutional authority to
“criminalize [the] intrastate possession” of child
pornography. United States v. Sullivan, 753 F.3d 845, 854
(9th Cir. 2014) (citing United States v. Gallenardo, 579 F.3d
1076, 1081 (9th Cir. 2009)); see also 18 U.S.C.
§ 2252A(a)(5)(B). We see no reason why it would have less
authority to criminalize intrastate transportation and
advertising of such materials. Accordingly, we hold that a
conviction for transportation or advertising of child
pornography does not require evidence that the material
actually crossed state lines.

Second, Brown asserts that the government’s theory of
the case, namely that “by knowingly allowing files to remain
in FrostWire’s shared folder, Brown ‘transported’ the files,”
does not in fact establish a violation of 18 U.S.C.
§ 2252A(a)(1). Brown’s argument is not without persuasive
force. If, for example, the owner of an apple tree hangs a sign
inviting passersby to help themselves, he has surely possessed
and advertised the apples, and, if someone picks one, can
fairly be said to have distributed it by making it freely
available. See United States v. Budziak, 697 F.3d 1105, 1109
(9th Cir. 2012). But has he “transported” the apples?

The slate on this issue is not blank. In United States v.
Mohrbacher, 182 F.3d 1041 (9th Cir. 1999), the defendant
was charged with the closely related crime of transporting
28 UNITED STATES V. BROWN

visual depictions of minors engaged in sexually explicit
conduct, 18 U.S.C. § 2252(a)(1), for having “download[ed]
images of child pornography from [an] . . . electronic bulletin
board.” 182 F.3d at 1043. The electronic bulletin board was
an automated system that allowed users to select and
download images. Id. at 1045. Mohrbacher held that the
defendant in that case could not be convicted of
transportation, as “[a]n individual who downloads images
from a computer bulletin board takes an action that is more
analogous to ordering materials over the phone and receiving
materials through the mail than to sending or shipping such
materials.” Id. at 1050.

Mohrbacher contrasted the defendant’s role in that case
to that of the operators of the bulletin board: Despite the
automated nature of the system, “[t]hose who are responsible
for providing the images to a customer, by making them
available on a computer bulletin board . . . , are properly
charged with and convicted of shipping or transporting
images under § 2252(a)(1).” Id. (emphasis omitted). The
point was further underscored in a footnote: It was “difficult
to claim that Mohrbacher himself caused the images to be
transported when one considers that the bulletin board
operator is in reality the individual who is primarily
responsible for the images moving from the bulletin board to
individuals’ computers.” Id. at 1049 n.9. Thus, contrary to
the government’s position in that case, the court indicated
that “[t]he action of the bulletin board operator,” rather than
Mohrbacher’s, could be prosecuted as an instance of
“transporting.” Id.

To be sure, Mohrbacher involved a slightly different
statute. Further, the defendant in Mohrbacher was analogous
not to Brown but to individuals who downloaded child
 UNITED STATES V. BROWN 29

pornography from Brown’s computer. The criminal liability
of the uncharged operator, which Mohrbacher suggested
could be charged with transportation, was not directly at issue
in Mohrbacher. Nonetheless, Mohrbacher’s holding, that
Mohrbacher was not guilty of transportation, stood squarely
on the understanding that the bulletin board operator was
guilty of that crime. Thus, to the extent Brown’s role is
materially the same as that of the bulletin board operator,
Mohrbacher forecloses his argument.

To resolve this case, however, we need not decide
whether any user of a peer-to-peer service who makes his
files available for other users to download is categorically
equivalent to the operator of the bulletin board discussed in
Mohrbacher. The evidence at trial showed that Brown, the
proprietor of a computer business with substantial technical
computer knowledge, had designated a non-default folder on
his external hard drive to be shared by FrostWire. In light of
this evidence, a reasonable jury could conclude that the
actions Brown took are not materially different from those the
operator took in setting up the bulletin board system in
Mohrbacher. The evidence was therefore sufficient as to the
transportation charge.7

7
In light of our decision to vacate Brown’s convictions, we do not reach
his other arguments. We note that the government conceded on appeal
that Brown’s conviction for possession of child pornography is a lesser
included offense of his conviction for receipt of child pornography. If, on
retrial, Brown is again convicted of both offenses, the district court should
vacate one of the convictions, rather than suspending one of the sentences.
See United States v. Brobst, 558 F.3d 982, 1000 (9th Cir. 2009).
30 UNITED STATES V. BROWN

VII.

Because Brown was denied his constitutional right to
discharge his retained lawyer and his statutory right to have
counsel appointed in that lawyer’s place, we vacate Brown’s
convictions and remand for a new trial.

VACATED AND REMANDED.