NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 07 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50382
Plaintiff - Appellee, D.C. No. 8:13-cr-00036-DOC-1
v.
MEMORANDUM*
ARMANDO GRANILLO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted August 5, 2015**
Pasadena, California
Before: O’SCANNLAIN, SILVERMAN, and WARDLAW, Circuit Judges.
Armando Granillo appeals his convictions for honest services fraud in
violation of 18 U.S.C. §§ 1343, 1346. We have jurisdiction under 28 U.S.C. §
1291, and we affirm in part and dismiss in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
-2-
First, Granillo asserts that his trial counsel was ineffective in failing to
subpoena a witness and then, when he learned a week and a half before trial that
the witness would be unavailable, in failing to move for a continuance of the trial.
However, we generally do not review ineffective assistance of counsel claims on
direct appeal. United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). Only
in two exceptional circumstances – “in the unusual cases (1) where the record on
appeal is sufficiently developed to permit determination of the issue, or (2) where
the legal representation is so inadequate that it obviously denies a defendant his
Sixth Amendment right to counsel” – will we review such a claim on direct appeal.
United States v. Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005) (internal citations
omitted), overruled on other grounds by United States v. Castillo, 496 F.3d 947,
957 (9th Cir. 2007) (en banc). This case presents neither of those exceptional
circumstances. The record is devoid of evidence regarding why trial counsel failed
to subpoena the witness and instead made a decision to pursue a different defense.
Of course, Granillo may develop this argument based on a more complete record in
a motion under 28 U.S.C. § 2255.
Second, Granillo argues that the district court abused its discretion by
denying his request, made on the day of trial, for a continuance of a week and a
half. Evaluating the district court’s decision using the four factors outlined in
-3-
United States v. Flynt, we conclude that the district court’s denial of Granillo’s
motion was proper. 756 F.2d 1352, 1358-59 (9th Cir. 1985). Granillo’s need for
the continuance would have been met, had it been granted. However, he was
plainly not diligent in seeking the witness’s testimony or obtaining a continuance
at the earliest possible juncture, and although the district court made no specific
findings about the inconvenience to the court or government, it goes without
saying that a day-of-trial request for continuance will involve some inconvenience.
Finally, Granillo was at best slightly harmed by the inability to call his desired
witness, given the evidence in the record that he was aware that his solicitation of
kickbacks was wrongful and violated company policy. Weighing these factors
together, it is clear that the district court did not abuse its discretion in denying the
continuance. Flynt, 756 F.2d at 1358.
AFFIRMED IN PART AND DISMISSED IN PART.