United States v. Yepiz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 07-50051
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-7
MANUEL YEPIZ, AKA Martin
Sanchez, Seal G and Pony;
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50062
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-37
JOSE LUIS MEJIA, AKA Jose Luiz
Mejia, Jose Nernedes, Juan
Martinez, Jose Mejia, Check Mejia,
Jose Al Mejia, Joe Morin, Jose L.
Mejia, “Checho”, “Joe” and
“Cheech”,
Defendant-Appellant.
2 UNITED STATES V. YEPIZ

UNITED STATES OF AMERICA, No. 07-50063
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-35
FRANCISCO ZAMBRANO, AKA
Franky Boy and “Franky”,
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50067
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-21
JESUS CONTRERAS, AKA Jessie
Contreras, Yuck,
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50070
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-44
MARIANO MEZA,
Defendant-Appellant.
 UNITED STATES V. YEPIZ 3

UNITED STATES OF AMERICA, No. 07-50098
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-36
SERGIO MEJIA, AKA Robert Mesa,
Seal JJ, Jaws,
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50133
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-22
GILBERTO CARRASCO, AKA Gilberto
Carrasco, Jr., Gil Carrasco, Robert
Carrasco, Gilberto Carrosco,
Gilberto Corrosco, Julio Gonazalez,
Vicente Hernandez, Vincente
Hernandez, Vincente NMN
Hernandez, Sergio Renteria, Juan
Rosas, Beto, Betillo, Red and Cejas,
Defendant-Appellant.
4 UNITED STATES V. YEPIZ

UNITED STATES OF AMERICA, No. 07-50142
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-31
ERNESTO OROZCO MENDEZ, AKA
“Gordo”, “El Gordo”, Ernesto
Mijares, Ernesto Mendoza Mijares,
Ernesto Mendoza Orozco (Birth
Name),
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 07-50264
Plaintiff-Appellee,
D.C. No.
v. CR-05-00578-
JFW-1
RAFAEL YEPIZ,
Defendant-Appellant.
OPINION

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

Argued and Submitted December 7, 2015
Pasadena, California

Filed December 20, 2016
 UNITED STATES V. YEPIZ 5

Before: Stephen Reinhardt, John T. Noonan,
and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Noonan;
Dissent by Judge Nguyen

SUMMARY *

Criminal Law

In appeals by nine defendants convicted of crimes arising
out of their alleged membership or association with a
Southern California gang, the panel remanded for fact-
finding in connection with the defendants’ joint
Brady claims, vacated Manuel Yepiz’s conviction due to
defects in the district court’s handling of his requests for
substitution of counsel, and remanded for a new trial in
Yepiz’s case.

On the joint claim that the government violated Brady v.
Maryland by failing to disclose the full extent of the benefits
a cooperating witness received at trial, the panel rejected the
government’s arguments that the defendants waived this
claim, that the allegedly withheld information would have
been cumulative, and that the record conclusively shows that
the benefits were all earned after the trial. In light of
disputed facts surrounding the Brady claim, the panel
remanded to the district court so that it may engage in the
necessary fact-finding to ascertain whether the witness
received benefits that were undisclosed to the defendants at

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

the time at trial, and if so, whether Brady was violated as to
each convicted count.

The panel held that the district court abused its discretion
when it arbitrarily and without explanation rejected Manuel
Yepiz’s pro se April 9, 2006 letter seeking to replace his
retained counsel with court-appointed counsel. The panel
wrote that Yepiz’s failure to submit his letter through the
very counsel he was hoping to discharge does not negate the
court’s duty to inquire into the problems between Yepiz and
counsel when they were first raised. The panel held that
Yepiz did not waive his motion to substitute counsel by
failing to reassert it at a May suppression hearing. The panel
held that the record is sufficiently clear to determine, without
remanding, that replacing counsel would not have caused
significant delay or impeded the fair, efficient, and orderly
administration of justice. The panel concluded that Yepiz
was therefore entitled to discharge retained counsel “for any
or no reason,” and that if he still qualified as an indigent
defendant at the time he sent his pro se letter requesting
substitution, he was also statutorily entitled to appointed
counsel under the Criminal Justice Act.

The panel addressed other issues in a concurrently filed
memorandum disposition.

Judge Nguyen dissented in part. She wrote that the
majority’s holding that the district court’s failure to consider
Yepiz’s letter is structural error requiring automatic reversal
(1) invalidates well-established local rules prohibiting
represented parties from communicating with the court pro
se, and (2) by refusing to engage in harmless error analysis,
brings this court seriously out of step with the Supreme
Court’s Sixth Amendment jurisprudence.
 UNITED STATES V. YEPIZ 7

COUNSEL

Verna Wefald (argued), Pasadena, California, for
Defendant-Appellant Manuel Yepiz.

Phillip A. Treviño, Los Angeles, California, for Defendant-
Appellant Jose Luis Mejia.

Shawn Perez, Las Vegas, Nevada, for Defendant-Appellant
Francisco Zambrano.

Phillip Deitch, Santa Monica, California, for Defendant-
Appellant Jesus Contreras.

Donald C. Randolph (argued) and Ann-Marissa Cook,
Randolph & Associates, Santa Monica, California, for
Defendant-Appellant Mariano Meza.

Diane Berley, West Hills, California, for Defendant-
Appellant Sergio Mejia.

Adam Axelrad, Los Angeles, California, for Defendant-
Appellant Gilberto Carrasco.

Gary P. Burcham, Burcham & Zugman, San Diego,
California, for Defendant-Appellant Ernesto Orozco
Mendez.

Katherine Kimball Windsor (argued), Law Office of
Katherine Kimball Windsor, Pasadena, California, for
Defendant-Appellant Rafael Yepiz.

L. Ashley Aull (argued) and David Kowal, Assistant United
States Attorneys; Robert E. Dugdale, Chief, Criminal
8 UNITED STATES V. YEPIZ

Division; United States Attorney’s Office, Los Angeles,
California; for Plaintiff-Appellee United States.

OPINION

NOONAN, Circuit Judge:

Appellants are all alleged to be members or associates of
the Vineland Boys (“VBS”), a gang located in Southern
California. On November 30, 2005, a grand jury returned a
78-count first superseding indictment charging appellants
and approximately forty other individuals with crimes
arising out of their membership or association with VBS.
Seven of the nine appellants were charged with violating the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), and with RICO conspiracy (Counts 1 and 2,
respectively), and all appellants were charged with
distribution of narcotics (Count 3). Other charged counts
included violent crimes in aid of racketeering (“VICAR”),
attempted murder, and possession with intent to distribute
cocaine, methamphetamine, and marijuana.

Trial commenced on August 9, 2006. On October 26,
2008, the jury returned a verdict of not guilty as to five
counts, a mistrial as to one count, and a verdict of guilty as
to the remaining counts. Appellants’ subsequent motions for
judgments of acquittal and new trials were denied by the
district court. Appellants—Manuel Yepiz, Jose Luis Mejia,
Francisco Zambrano, Jesus Contreras, Mariano Meza,
Sergio Mejia, Gilberto Carrasco, Rafael Yepiz, and Ernesto
Mendez—timely appealed their convictions and sentences.

We note at the outset that this case was vigorously
litigated over the course of two-and-a-half months. It
 UNITED STATES V. YEPIZ 9

presented the district court with a gauntlet of complex legal
questions, and required it to grapple with unique concerns to
courtroom safety and logistics. We are now presented with
nearly three dozen distinct legal questions on appeal. These
questions have been met by the district court promptly and
persuasively.

In this opinion we resolve (1) appellants’ joint Brady
claims, and (2) Manuel Yepiz’s Sixth Amendment Right to
Counsel claim. We address the remaining issues in a
concurrently filed memorandum disposition.

I. DEFENDANTS’ JOINT BRADY CLAIMS

BACKGROUND

At trial, one of the government’s cooperating witnesses
was Victor Bulgarian. In September of 2006, on direct
examination, Bulgarian testified that he was previously
arrested for possession and sale of methamphetamine in an
unrelated case, and agreed to cooperate with law
enforcement in exchange for a lesser sentence, and a grant
of immunity for his testimony as a government witness.
Bulgarian testified to having received no benefits from the
government in exchange for his testimony. However, on
cross-examination, Bulgarian testified to having received
$5,000 in cash from the government after he testified to the
grand jury in this case. Defendants noted that this testimony
directly contravened a letter the government sent to them
asserting that no witnesses received any benefits from the
government in exchange for their testimony. The
government acknowledged that it was “a glaring mistake,”
but argued that the error was cured because defendants had
ample opportunity to cross examine Bulgarian on the subject
of the $5,000 payment. Defendants did not raise the issue
again either at trial or in a post-trial motion.
10 UNITED STATES V. YEPIZ

Approximately three years later, on August 20, 2009,
Bulgarian testified in the trial of Horacio Yepiz. 1 On direct
examination, Bulgarian once again testified to having
received no benefit from the government in return for his
testimony. On cross examination, Bulgarian testified that
since his arrest for drug-related crimes in 2004, he had
received roughly $100,000 to $200,000 in cash from five
different law enforcement agencies, although he was unable
to give an exact figure. He explained that he was able to
solicit paid work from these agencies whenever he wanted
(“I decide when I want to work, and when I work, I get
paid.”). Indeed, he testified to having received $800 for three
hours of work the week prior. Appellants now argue that the
government violated Brady by failing to disclose the full
extent of the benefits Bulgarian received at trial.

STANDARD OF REVIEW

“[T]he suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).
To prevail on a Brady claim, the defendant must show that
the evidence was material. Materiality is satisfied when
“there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the
outcome.” United States v. Bagley, 473 U.S. 667, 682
(1985). This Court reviews alleged Brady violations de
novo. United States v. Baker, 658 F.3d 1050, 1053 (9th Cir.

1
Horacio Yepiz was originally joined as a co-defendant of
appellants, but was later deemed incompetent and tried separately.
 UNITED STATES V. YEPIZ 11

2011), overruled on other grounds by United States v. King,
687 F.3d 1189 (9th Cir. 2012).

DISCUSSION

The government makes three arguments in support of its
contention that it did not violate Brady: (1) defendants
waived any Brady claim by failing to raise it at trial; (2) the
allegedly withheld information would have been cumulative
in light of other impeachment material provided to
defendants; and (3) the record demonstrates that Bulgarian
received these payments only after the trial in this case.

The government argues that defendants have waived
their Brady claim by failing to raise it in the trial court.
However, this Court has previously rejected this precise
argument. In United States v. Bracy, undisclosed
impeachment evidence of a government witness was
uncovered for the first time in a later trial of a severed group
of defendants. 67 F.3d 1421, 1428 (9th Cir. 1995). The
information came to light only after the defendant had filed
his notice of appeal, thereby divesting the trial court of
jurisdiction over his case. See generally Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982). This Court
concluded that “[i]t defies logic to suggest that [the
defendant] waived a claim by not raising it before a court
that lacked jurisdiction to consider it.” Bracy, 67 F.3d at
1428. This reasoning applies with equal force here given that
defendants appealed their case in early 2007, roughly two-
and-a-half years before the new evidence was revealed.

Next, the government presents a litany of impeachment
evidence that it produced to defendants, and argues that
“additional payments information could hardly have caused
the jury to view Bulgarian or his relationship with the
government differently or with greater caution.” To the
12 UNITED STATES V. YEPIZ

extent that the government argues that its duties under Brady
only encompass disclosure of non-cumulative evidence, this
Court has previously found this line of reasoning unavailing.
Carriger v. Stewart, 132 F.3d 463, 481 (9th Cir. 1997) (“We
have held that the government cannot satisfy its Brady
obligation to disclose exculpatory evidence by making some
evidence available and claiming the rest would be
cumulative.”) (internal citations omitted). Moreover, failure
to produce evidence (1) that Bulgarian made hundreds of
thousands of dollars assisting law enforcement, and
(2) enjoyed a relationship that allowed him to earn benefits
whenever he chose, was material despite the effect of other
impeachment evidence provided by the government. Indeed
this evidence could very well have resulted in the jury
disbelieving all of Bulgarian’s testimony, which played an
important role in the government’s case. Cf. Benn v.
Lambert, 283 F.3d 1040, 1058 (9th Cir. 2002) (“The
undisclosed benefits that Patrick received added
significantly to the benefits that were disclosed and certainly
would have ‘cast a shadow’ on Patrick’s credibility. Thus,
their suppression was material.”).

The government’s attempts to minimize the significance
of Bulgarian’s testimony are not persuasive in light of the
record. While some of Bulgarian’s testimony was
independently corroborated, it nonetheless played a
substantial role in the government’s case-in-chief. In
particular, Bulgarian’s testimony was relied upon heavily by
the government to show that VBS was a “criminal
enterprise” under RICO. Therefore, had the alleged Brady
materials been made available to appellants at trial, there is
a “reasonable probability” that the result of the proceeding
would have been altered.
 UNITED STATES V. YEPIZ 13

Finally, the government argues that the record
conclusively shows that the benefits Bulgarian testified to
receiving were all earned after appellants’ trial, and
therefore could not serve as the basis of a Brady violation.
The government points to a discovery letter sent to Horacio
Yepiz in August of 2009, informing him that since
Bulgarian’s testimony in this case in 2006, he had received
an additional $80,000 to $90,000 from the government.
However, Bulgarian testified that he may have received as
much as $200,000 between 2004 and 2009; therefore a letter
stating that he received roughly half that sum after
appellants’ trial in 2006 does not foreclose appellants’ Brady
claim.

The government concedes that the facts surrounding
benefits paid to Bulgarian are “in dispute.” Likewise,
defendants admit that “there are fact-finding gaps in the
record with regard to how much Bulgarian was paid, when
he received payments, and the purpose of the payments.”
Defendants attempt to bridge these “gaps” by requesting that
the court simply take judicial notice of Bulgarian’s 2009
testimony at the trial of Horacio Yepiz. However courts may
only take judicial notice of facts “not subject to reasonable
dispute;” therefore the court DENIES defendants’ motion.
Fed. R. Evid. 201; see also Lee v. City of L.A., 250 F.3d 668,
690 (9th Cir. 2001). 2

2
Defendants also request that this court take judicial notice of a
complaint, verdict, and judgment in a state civil negligence case.
Defendants have failed to adequately explain how these documents relate
to any of their arguments on appeal, and how they meet the standard for
judicial notice. MJN at 5 (citing JOB at 76–77). The Court therefore
14 UNITED STATES V. YEPIZ

In light of the disputed facts surrounding defendants’
Brady claim, we REMAND to the district court so that it
may engage in the necessary fact-finding to ascertain
whether Bulgarian received benefits that were undisclosed
to appellants at the time of trial, and if so, whether Brady
was violated as to each convicted count. 3

II. MANUEL YEPIZ’S SUBSTITUTION OF COUNSEL CLAIM

BACKGROUND

Following Manuel Yepiz’s (“Yepiz”) arrest in June
2005, an attorney named Bernard Rosen was appointed to
represent him. In November 2005, Yepiz retained Nicolas
Estrada to replace Rosen. On April 9, 2006, Yepiz wrote a
letter addressed “to the Honorable Judge Walters,” which the
court received on April 11, 2006. In the letter, Yepiz
expressed “great concern” about “financial differences” he
was having with Estrada. He stated that Estrada had asked
him for $200,000 to proceed to trial, despite having told
Yepiz and his family he would only charge an additional
$25,000 to $35,000 for trial. He stated that if Estrada “would

DENIES defendants’ motion for judicial notice as to these documents as
well.

3
At oral argument, the government conceded that defendants should
have an opportunity to litigate their Brady claims by collaterally
attacking their conviction under 28 U.S.C. § 2255. However, the
government points to no opinion of this Court holding that a post-
conviction motion under § 2255 is preferable to a remand. Indeed, the
government stated at oral argument that “it doesn’t make much
difference” what mechanism is used. Moreover, defendants would not
enjoy the benefit of counsel in a § 2255 proceeding. Given that counsel
for defendants are already familiar with the facts surrounding the Brady
issue, the interests of justice and judicial efficiency militate in favor of
remanding to the district court.
 UNITED STATES V. YEPIZ 15

have been more truthful from the start, [he] would have
never hired [Estrada],” because his family could not afford
him. Finally, Yepiz noted that he did not want to “waste
everybodys [sic] time by waiting [until] the last minute to
ask for a new attorney,” that he had only recently been
informed of Estrada’s prices, and that he was thus requesting
a “panel attorney” now, so that he or she could “prepare for
trial and [have] everything [go] as schedule[d].”

The court did not accept Yepiz’s letter, and instead
ordered the letter “returned to counsel” along with a Notice
of Document Discrepancies (NDD). A checked box at the
bottom of the NDD stated that Yepiz’s letter was “NOT to
be filed, but instead REJECTED.” The NDD did not
indicate the basis for the court’s rejection, and the docket
description of the document only indicated that the denial
was based on the fact that “[p]arties should not write letter[s]
to Judge.” Yepiz and Estrada subsequently appeared before
the court on May 9, 2006 for a hearing on a motion to
suppress evidence, though neither Yepiz nor Estrada
reasserted Yepiz’s motion for substitution of counsel.

On July 25 and 31, Yepiz wrote two additional letters
addressed to Judge Walter asking for an “in camera hearing”
to “request the Court to appoint new counsel” on his behalf.
He raised several concerns in his letters regarding Estrada’s
representation, and the court scheduled a hearing for August
4, 2006 to address them. At the hearing, the court stated that
it had received “two letters from the defendant,” referring to
those letters dated July 25 and July 31. It did not reference
Yepiz’s April 9 letter. After discussing several of Yepiz’s
concerns, the following exchange took place between Yepiz
and Judge Walter:

Yepiz: Okay, Your Honor. And then another
thing. I addressed the Court—I wrote this
16 UNITED STATES V. YEPIZ

letter on April 9th—yes, I believe April 9th.
I have it right here. It was returned, it was
signed by, I believe, you and returned. 4 Right
here I’m asking for a lawyer because I’m
already having problems with [Estrada] as of
April 9th. This is not something that
happened last week or a few weeks ago,
[Y]our Honor, this has been going on. . . .
This is a whole letter right here signed by
you, yourself, [Y]our Honor, I have it right
here in front of me.

The Court: Well, I didn’t sign any letter.

Yepiz: Well, it’s right here.

The Court: I didn’t sign your letter.

Yepiz: You didn’t sign—oh, you signed the
copy of it.

The Court: Your letter that you’re saying
that I signed.

Yepiz: My letter, I apologize, you know, I’m
not the brightest car in the lot.

The Court: All right. Anything else?

4
While the NDD stipulated that the letter should be returned to
counsel, based on Yepiz’s statements, he was aware that the letter had
been returned, either because it had been returned directly to him, or
because Estrada informed him that it had been returned.
 UNITED STATES V. YEPIZ 17

The court then briefly questioned Yepiz about his July 25
letter, but never again acknowledged Yepiz’s April 9 letter.
The court held that “the issues raised ha[d] been adequately
addressed by counsel” and that Yepiz’s requests for
substitution were “untimely, as [they had been] filed on the
eve of trial.” The court further stated that because it had
received four or five letters from several of Yepiz’s co-
defendants who were “all housed together at [a correctional
facility],” they amounted to “nothing more than a strategic
attempt to delay the trial.” Because it found that a
substitution “would necessitate a continuance” of the trial,
the court denied Yepiz’s request.

On September 20, 2006—the 23rd day of trial—Yepiz
sent a fourth letter to the court that was addressed to Judge
Walter. The letter raised several “concerns as to [Yepiz’s]
attorney and his representation.” Among other things, it
stated that Estrada would not spend $60 to copy a videotape
of Yepiz’s arrest and that he feared Estrada had “lost interest
to defend [him]” because he had “run out of money.” He
stated that Estrada was “constantly harass[ing]” him for
money and his family was “selling their house to pay him,”
but that Estrada’s response was “no money [no] defense.”
Interpreting Yepiz’s letter as a request for substitution of
counsel, the court scheduled a hearing for three days later,
where Yepiz clarified that the letter was actually “just a
request to get the video” from Estrada, and Estrada agreed to
produce it.

STANDARD OF REVIEW

“We review a district court’s denial of a motion for
substitution of counsel for abuse of discretion.” United
States v. Rivera-Corona, 618 F.3d 976, 978 (9th Cir. 2010).
Unlike “most substitution cases” that “arise when an
indigent defendant requests new court-appointed counsel in
18 UNITED STATES V. YEPIZ

place of an existing appointed attorney,” the present appeal
concerns a defendant’s request to replace retained counsel
with appointed counsel. Id.

The Sixth Amendment provides that, [i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. This right “encompasses two distinct rights: a
right to adequate representation” for all defendants and, for
defendants who have retained their own attorney, the right
“to be represented by the attorney of [their] choice.” Rivera-
Corona, 618 F.3d at 979 (emphasis omitted). The right to
counsel of choice includes the constitutional “right to
discharge retained counsel,” and a defendant may generally
do so “for any reason or no reason” so long as “the
substitution would [not] cause significant delay or
inefficiency or run afoul of . . . other considerations,” such
as the “fair, efficient and orderly administration of justice.”
United States v. Brown, 785 F.3d 1337, 1340, 1344, 1345,
1346 (2015); Rivera-Corona, 618 F.3d at 980–81. “[D]enial
of a defendant’s right to counsel of choice is a structural
error, requiring that convictions be vacated even without a
showing of prejudice.” Brown, 785 F.3d at 1350. Where a
“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), at any stage of the proceedings. Id. at 1340;
18 U.S.C. § 3006A.

DISCUSSION

Yepiz claims the district court abused its discretion when
it failed to inquire into his April letter seeking to replace
Estrada with court-appointed counsel. We agree. Under this
court’s precedent, “the trial judge had a duty to inquire into
the problems between” Yepiz and Estrada “when they were
 UNITED STATES V. YEPIZ 19

first raised.” Blacketter, 525 F.3d at 896. The court here
failed to conduct any inquiry with regard to Yepiz’s April
letter, though it clearly understood it was bound by such a
duty given the speed with which it scheduled hearings
regarding Yepiz’s July and September letters, each of which
were similarly addressed directly to Judge Walter. Yepiz’s
failure to submit his letter through the very counsel he was
hoping to discharge, does not negate the court’s duty.

As an initial matter, the government argues that the court
need not have addressed Yepiz’s request because it was not
properly filed. According to the government, Yepiz’s letter
was rejected and not filed because it did not comply with
Local Rules 83-2.9.1 and 83-2.11. Those rules prohibit
parties who are represented by counsel from acting pro se
and from communicating with the judge via letters or phone
calls. See C.D. Cal. Civ. L-R 83-2.9.1 & 83-2.11. The NDD
rejecting Yepiz’s letter, however, made no mention of these
local rules. Indeed, no reason for the rejection was provided
on that form. It was only on the electronic version of the
docket that any explanation was provided: “[p]arties should
not write letter [sic] to Judge.” Thus, no clear explanation
as to why Yepiz’s letter was rejected was ever presented to
Yepiz’s counsel, and because the letter and NDD were sent
to Yepiz’s counsel and not to Yepiz, Yepiz was given no
explanation at all.

Had such an explanation been given to Yepiz, he would
have been in a position to properly comply with the local
rules: he could have requested that his counsel file a motion
asking to withdraw, a motion which his counsel would have
been ethically obligated to file. Alternatively, Yepiz could
have filed another letter explaining why he was unable to
comply with the rules—perhaps his counsel was unwilling
or unable to comply with his ethical obligations to file a
20 UNITED STATES V. YEPIZ

motion to withdraw, or perhaps Yepiz was unable to contact
his counsel at all. Because no explanation was provided,
Yepiz was not given notice as to how he could properly
present his request for new counsel, and as such, the local
rules served to arbitrarily deny Yepiz’s constitutional rights.
Under the circumstances of this case, therefore, we reject the
government’s argument that the court was excused from its
duty to inquire into Yepiz’s request because of Yepiz’s
failure to comply with any local rule of procedure.

The government also argues that Yepiz waived his Sixth
Amendment right to counsel when he failed to reassert his
substitution motion at the May suppression hearing. See
United States v. Taglia, 922 F.2d 413, 416 (7th Cir. 1991)
(stating that “[i]f a motion is not acted upon, a litigant had
better renew it. He may not lull the judge into thinking that
it has been abandoned and then, after he has lost, pull a rabbit
out of his pocket in the form of the forgotten motion.”).
However, the record does not support the government’s
claim of waiver.

A constitutional right may generally only be waived “if
it can be established by clear and convincing evidence that
the waiver is voluntary, knowing, and intelligent,” and we
must “indulge every reasonable presumption against waiver
of fundamental constitutional rights.” Schell v. Witek, F.3d
1017, 1024 (9th Cir. 2000). In Schell, we held that the
defendant did not voluntarily, knowingly, and intelligently
waive his right to counsel when he failed to reassert a request
for substitution that the court had overlooked. Id. Instead,
we found that because Schell’s attorney had advised him that
his motion “must have been denied” and there was “nothing
in the record to suggest that Schell knew of the court’s
inadvertent error,” he could not have waived the request. Id.
While this case presents a slightly different scenario in that
 UNITED STATES V. YEPIZ 21

we do not know why Yepiz failed to reassert his motion at
the May hearing, our conclusion is the same.

In this case, Yepiz sent his first letter to the court in April
2006, which the court rejected. He then sent two additional
letters addressed to Judge Walter requesting substitution of
counsel in July 2006. At a hearing to address the July letters,
Yepiz stated that the issues he was having with Estrada were
“not something that had just happened last week,” but had
instead “been going on” since April. In his September letter,
Yepiz stated that “[d]uring a conversation in April 2006, I
explained I had no more money . . . [and] [w]e agreed that
[Estrada] would withdraw from the case. However, he still
remains and I am being repeatedly harassed for money.”
Yepiz’s consistent statements that his issues with Estrada
had not been resolved suggest that Yepiz did not voluntarily,
knowingly, or intentionally waive his motion.

This conclusion is supported by the fact that the NDD
failed to put Yepiz on notice that the letter was rejected or
how he might rectify the deficiency. For all he knew, as in
Schell, the motion “must have been denied.” Schell,
218 F.3d at 1024. We therefore hold that Yepiz did not
waive his motion.

While it may sometimes be necessary to remand a case
such as this to the district court in order to determine whether
substitution of counsel would have “caused significant
delay” or impeded the “fair, efficient and orderly
administration of justice,” the record here is sufficiently
clear to determine, without remanding, that replacing
Estrada would not have implicated these concerns.
Blacketter, 525 F.3d at 896. The court received Yepiz’s
April 2006 letter four months prior to the start of trial. In the
letter, Yepiz stated specifically that he “did not want to delay
the trial,” and merely wanted to “have the time to get a new
22 UNITED STATES V. YEPIZ

lawyer to defend [him] properly,” as provided by the
Constitution. Id. The district court later suggested that “five
weeks would have been sufficient time” for a substitute
attorney to prepare a defense for a different defendant joined
in Yepiz’s case, and any counsel appointed to represent
Yepiz would have had months to prepare for trial. Because
the substitution would not have affected the court’s calendar,
Yepiz was entitled to discharge Estrada “for any reason or
no reason.” Blacketter, 525 F.3d at 896. If Yepiz still
qualified as an indigent defendant at the time he sent his
April letter, he was also statutorily entitled to appointed
counsel under the CJA. Brown, 785 F.3d at 1346.

We therefore find that the district court abused its
discretion when it arbitrarily and without explanation
rejected Yepiz’s April 2006 letter. Given the defects in the
district court’s handling of Yepiz’s requests, we VACATE
Yepiz’s conviction and REMAND for a new trial. Brown,
785 F.3d at 1350.

NGUYEN, Circuit Judge, dissenting in part:

While represented by competent retained counsel,
Manuel Yepiz sent a pro se letter to the district court.
Because the court’s local rules prohibit, among other things,
represented parties from communicating with the court pro
se, his letter was not filed. Instead, the court returned the
letter to Yepiz’s counsel along with notice of the reason for
the rejection. Importantly, Yepiz’s letter doesn’t suggest any
dissatisfaction with his attorney’s representation, only with
its cost. Yet the majority holds that the court’s failure to
consider the letter is structural error requiring automatic
reversal of Yepiz’s conviction. I respectfully dissent.
 UNITED STATES V. YEPIZ 23

The majority’s ruling invalidates not only well-
established local rules in the Central District of California,
but similar rules in every district in the Ninth Circuit. More
troubling, however, is the majority’s refusal to engage in
harmless error analysis. A request for appointed counsel
implicates the Sixth Amendment’s guarantee of effective
assistance, not choice, of counsel, regardless of whether the
attorney whom the criminal defendant seeks to replace was
retained or appointed. Consistent with other effective-
assistance cases, Yepiz’s conviction should be affirmed
unless he can show prejudice. There was no such showing
here. Indeed, counsel continued to represent Yepiz
competently throughout the extensive proceedings in this
case, including pretrial hearings, trial, and sentencing. By
finding structural error and vacating the conviction, the
majority brings us seriously out of step with the Supreme
Court’s Sixth Amendment jurisprudence.

I.

I agree with the majority that the Sixth Amendment
claim turns on Yepiz’s April 2006 handwritten letter to the
district court regarding his retained attorney, Nicolas
Estrada. 1 In the letter, Yepiz did not express concern about
Estrada’s competence or any other aspect of his
performance. To the contrary, the letter was premised

1
Yepiz sent four letters to the court regarding Estrada. The first, at
issue here, was sent in April 2006. Yepiz followed up with two more in
July, and a fourth letter in September after trial had begun. I agree with
the majority that the denial of the July and September requests for
substitution of counsel were justified. See, e.g., United States v. Garcia,
924 F.2d 925, 926 (9th Cir. 1991) (“We have consistently held that a
district court has broad discretion to deny a motion for substitution made
on the eve of trial if the substitution would require a continuance.” (citing
United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986))).
24 UNITED STATES V. YEPIZ

entirely on “financial differences” that developed between
Yepiz and Estrada. Yepiz wrote that he “need[ed] a Panel
attorney” because Estrada had only recently informed him of
the representation’s “financial cost.”

The court “rejected” the letter for filing and returned it
to counsel for failure to comply with the district court’s local
rules. Those rules prohibit a party from “writing letters
to . . . or otherwise communicating with a judge in a pending
matter unless opposing counsel is present” and require “[a]ll
matters [to] be called to a judge’s attention by appropriate
application or motion.” C.D. Cal. L.R. 83-2.11 (2006). The
rules also prohibit a represented party from acting pro se.
C.D. Cal. L.R. 83-2.9.1 (2006). It appears that the letter may
have been bounced by court staff without the judge’s
involvement. 2 At a later hearing in which Yepiz recounted
the letter, the district judge gave no indication that he had
seen it.

The district court sent a notice of discrepancy to Estrada
informing him that filing was rejected, along with a copy of
the letter. The electronic docket entry noted the reason for
the rejection as “[p]arties should not write letter [sic] to

2
Federal Rule of Civil Procedure 5(d)(4) prohibits the clerk from
refusing to file a paper solely for noncompliance with a local rule, but
such orders can be entered at the direction of a judicial officer. E.g.,
Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002); see Fed.
R. Civ. P. 5(e) advisory committee’s note to 1991 amendment (“The
enforcement of these rules and of the local rules is a role for a judicial
officer.”). It’s unclear whether Judge Walter saw the letter and rejected
the filing, he delegated that duty, or, if his usual practice was to set a
hearing, a clerk inadvertently failed to comply. That Judge Walter’s
signature is on the notice of discrepancy doesn’t definitively tell us the
answer as most judges have signature stamps for their courtroom
deputy’s use.
 UNITED STATES V. YEPIZ 25

judge.” In short, the district court promptly alerted Estrada
that the letter was not filed and gave him a copy of it so that
he would know the exact nature of his client’s complaint. It
appears that Estrada discussed the matter with his client
because, at a subsequent hearing, Yepiz stated that he had a
copy of the “returned” letter “signed by” the court
(presumably referring to the notice of discrepancy).

Yet for three months after filing was rejected, neither
Yepiz nor defense counsel raised any concerns. Estrada
continued to represent Yepiz, filing a reply in support of his
motion to suppress wiretap evidence and appearing
alongside him at the hearing. Throughout that time Estrada
never filed a motion to withdraw or a request for
substitution.

II.

The majority acknowledges that the letter was neither
filed nor considered on the merits. It concludes, however,
that because the district court presented “no clear
explanation as to why Yepiz’s letter was rejected” to Yepiz
or to this attorney, the local rules “served to arbitrarily deny
Yepiz’s constitutional rights.” Slip Op. at 19–20. I disagree.

For one thing, the docket entry plainly states that the
letter was rejected “based on: [p]arties should not write
letter [sic] to judge.” Estrada received this notice. See C.D.
Cal. L.R. 5-4.1.4(4). Moreover, because “familiarity with
[the] Local Rules [is] a prerequisite to admission to practice
in the Central District,” Moore v. La Habra Relocations,
Inc., 501 F. Supp. 2d 1278, 1279 (C.D. Cal. 2007) (citing
C.D. Cal. L.R. 83-2.2.2 (2006)), Estrada was expected to
know that those rules prohibited represented parties from
writing letters directly to the judge. He certainly would have
26 UNITED STATES V. YEPIZ

known that the Federal Rules of Civil Procedure require
motions to be served on opposing counsel. Fed. R. Civ. P.
5(a)(1)(D).

Once Estrada learned that his client might want to
discharge him, he had a duty to promptly discuss the issue
with Yepiz and, if Yepiz indeed had that intent, to honor it.
An attorney has an ethical obligation to seek substitution or
withdrawal if his client wants the representation to end. See,
e.g., Fracasse v. Brent, 6 Cal. 3d 784, 790 (1972) (“[T]he
client’s power to discharge an attorney, with or without
cause, is absolute.” (citation omitted)); see also Cal. Bus. &
Prof. Code § 6068(m) (requiring attorneys “to keep clients
reasonably informed of significant developments”); Cal. R.
of Prof’l Conduct, R. 3-500 (same).

“[T]he attorney is in the best position to determine when
a conflict exists and so ‘defense attorneys have the
obligation, upon discovering a conflict of interests, to advise
the court at once of the problem.’” United States v. Elliot,
463 F.3d 858, 866 (9th Cir. 2006) (quoting Holloway v.
Arkansas, 435 U.S. 475, 485–86 (1978)). Attorneys
routinely bring their clients’ requests to discharge counsel or
potential conflicts to the court’s attention, including in the
cases relied upon by Yepiz and the majority. E.g., United
States v. Brown, 785 F.3d 1337, 1341–42 (9th Cir. 2015)
(“[Defense counsel] advised the court [in a written motion]
that Brown ‘desire[d] counsel to withdraw from representing
him . . . .’”); United States v. Rivera-Corona, 618 F.3d 976,
977–78 (2010) (“[Retained counsel] moved to withdraw
[after his client expressed a loss of faith in him] and
requested that new counsel be appointed.”); Miller v.
Blacketter, 525 F.3d 890, 892 (9th Cir. 2008) (filing
withdrawal motion on the day after the defendant “left a
message on [counsel’s] home answering machine stating
 UNITED STATES V. YEPIZ 27

that he was no longer comfortable with her representation
and . . . wanted a new lawyer”). There is no reason to think
Estrada would not have done the same thing here if Yepiz
remained intent on firing him.

For all we know, Yepiz and Estrada may have
temporarily resolved their financial differences after Yepiz’s
letter was rejected. If so, then we must “presume that
counsel [continued] to execute his professional and ethical
duty to zealously represent his client, notwithstanding the
fee dispute.” United States v. O’Neil, 118 F.3d 65, 71 (2d
Cir. 1997). We should assume that Estrada fulfilled his
duties given the “‘strong presumption’ that an attorney’s
conduct was professionally competent.” Frazer v. United
States, 18 F.3d 778, 786 (9th Cir. 1994) (quoting Strickland
v. Washington, 466 U.S. 668, 689 (1984)). Nothing in
Yepiz’s April 2006 letter suggested that Estrada was
unwilling to end the representation or that there was any
other conflict that might have warranted the district court’s
intrusion into the attorney-client relationship. In Yepiz’s
next two letters to the district court, written three months
later, he did not even mention the fee issue. By vacating
Yepiz’s conviction without knowing why he never renewed
his request as a formal substitution motion, the majority flips
the presumption that Estrada was competent on its head. 3

3
As stated, Yepiz knew that his letter was rejected. But the majority
appears to assume that Estrada failed to notify Yepiz in a timely manner
or refused to honor a request to withdraw. Even if true, Yepiz had a
remedy: he could allege ineffective assistance of counsel. Of course,
we usually do not consider such claims on direct appeal because the
record is inadequate to evaluate them. See, e.g., United States v.
Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). But that’s all the more
reason why we shouldn’t disturb the conviction in these proceedings.
28 UNITED STATES V. YEPIZ

Today’s decision will place tremendous strain on our
already overburdened district courts. The majority’s holding
means that district courts can’t enforce local rules
prohibiting represented parties from writing pro se letters to
the judge. Such rules exist in every district court throughout
the Ninth Circuit. See D. Alaska Civ. R. 11.1(a)(1)(3)[A];
D. Ariz. Civ. R. 83.3(c)(2); N.D. Cal. Civ. R. 11-4(c); S.D.
Cal. Civ. R. 83.9; D. Guam Gen. R. 19.1(a); D. Haw. R.
83.6(a); D. Idaho Civ. R. 83.6(a)(2); D. Nev. R. IA 11-6 (a);
D. N. Mar. I. Civ. R. 83.5(g)(1); D. Or. Civ. R. 83-9(b); E.D.
Wash. R. 83.2(d)(2); W.D. Wash. Civ. R. 83.2(b)(4). 4 In
fact, we enforce similar rules in our own court, see, e.g.,
United States v. Noriega-Perez, 467 F. App’x 698, 703 (9th
Cir. 2012); United States v. Ortiz-Martinez, 593 F. App’x
649, 650 (9th Cir.) (rejecting pro se filing seeking new
counsel), cert. denied, 135 S. Ct. 2912 (2015), as do other
circuits, see, e.g., United States v. Hunter, 770 F.3d 740, 746
(8th Cir. 2014) (“It has long been Eighth Circuit policy ‘that
when a party is represented by counsel, we will not accept
pro se briefs for filing.’” (quoting United States v. Payton,
918 F.2d 54, 56 n.2 (8th Cir. 1990))).

Until today, we have always afforded district courts great
discretion in enforcing these rules because “[a] criminal
defendant does not have an absolute right to both self-
representation and the assistance of counsel.” United States

4
The Eastern District of California does not have a specific rule
except for capital habeas petitioners, E.D. Cal. R. 191(c), but its rules
cite “letters to the Court not suitable for filing” as an example of
“received” documents that are “not . . . part of the official record in the
action,” E.D. Cal. R. 101. The District of Montana implies such a rule
for represented criminal defendants: “When the right to counsel no
longer applies in this court, pro se filings may not be dismissed or
stricken on the grounds that the filer was represented by counsel.” D.
Mont. Crim. R. 44.1.
 UNITED STATES V. YEPIZ 29

v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). Of course,
district courts can’t turn a blind eye to conflicts between a
criminal defendant and defense counsel under the guise of
procedure. When the court is aware of a conflict that
potentially could affect a defense counsel’s representation, it
has a duty to inquire further. E.g., Garcia v. Bunnell, 33 F.3d
1193, 1199 (9th Cir. 1994). But “not every conflict or
disagreement between the defendant and counsel implicates
Sixth Amendment rights.” Schell v. Witek, 218 F.3d 1017,
1027 (9th Cir. 2000) (en banc) (citing Morris v. Slappy,
461 U.S. 1, 13–14 (1983) (rejecting “the claim that the Sixth
Amendment guarantees a ‘meaningful relationship’ between
an accused and his counsel”)).

Yepiz expressed no concern about Estrada’s
performance. He did not suggest that counsel’s
representation would suffer as a consequence of their
financial dispute. I agree that because he asked for
appointed counsel, the more prudent course would have been
for the district court to exercise its discretion and take up his
complaint. But the failure to do so under these
circumstances is not per se reversible error. By concluding
that structural error occurs when a district court fails to
inquire into a single pro se letter that is returned to counsel,
the majority effectively requires district judges to review and
entertain all pro se filings submitted by every single
represented criminal defendant. This is no small task. For
many of our district courts that handle massive criminal
dockets, receiving pro se letters is a routine matter. Some
defendants in custody are prolific letter writers and, without
counsel’s help, their messages may be prolix and inscrutable.
District courts, no longer safe to rely on the defense bar’s
professionalism in raising client concerns, will now be
pressed to hold hearings whenever criminal defendants write
30 UNITED STATES V. YEPIZ

to them on differences with their counsel, regardless of how
seemingly minor.

III.

The majority’s assignment of error to the district court’s
routine handling of a pro se communication wouldn’t be
nearly so pernicious if not for its failure to assess
harmlessness. Guided by our precedents—which I believe
were wrongly decided—the majority holds that when a
district court erroneously denies a motion to substitute
retained counsel with appointed counsel, it commits
structural error. The mistake in this approach stems from
confusion about the right at issue.

“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.” Rivera-Corona,
618 F.3d at 979 (quoting Daniels v. Lafler, 501 F.3d 735,
738 (6th Cir. 2007)). These rights are distinct because they
arise from different sources. The right to effective counsel
is derived from the Due Process Clause’s fair trial guarantee
and incorporated into the Sixth Amendment based on “our
perception that representation by counsel ‘is critical to the
ability of the adversarial system to produce just results.’”
United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006)
(quoting Strickland, 466 U.S. at 685). Because the limits of
this right are also derived from the goal of a fair—“not
mistake-free”—trial, “a violation of the Sixth Amendment
right to effective representation is not ‘complete’ until the
defendant is prejudiced.” Id. (citing Strickland, 466 U.S. at
685).

“The right to select counsel of one’s choice, by contrast,
has never been derived from the Sixth Amendment’s
 UNITED STATES V. YEPIZ 31

purpose of ensuring a fair trial. It has been regarded as the
root meaning of the constitutional guarantee.” Id. at 147–48
(footnote and citations omitted). “Deprivation of the right is
‘complete’ when the defendant is erroneously prevented
from being represented by the lawyer he wants, regardless of
the quality of the representation he received.” Id. at 148.
Although the right to choice of counsel is subject to
qualifications, see Wheat v. United States, 486 U.S. 153, 159
(1988), the improper denial of that right, including the right
not to have counsel, see Faretta v. California, 422 U.S. 806,
821 (1975), is structural error subject to automatic reversal.
Gonzalez-Lopez, 548 U.S. at 152; Frantz v. Hazey, 533 F.3d
724, 734 (9th Cir. 2008).

Here, Yepiz did not seek to retain a particular lawyer or
proceed pro se. He asked the district court to appoint
counsel. His request was grounded not in the Sixth
Amendment’s right to counsel of choice but rather in its
“right to the effective assistance of counsel, the violation of
which generally requires a defendant to establish prejudice.”
Gonzalez-Lopez, 548 U.S. at 146; see Wheat, 486 U.S. at 159
(“[W]hile the right to select and be represented by one’s
preferred attorney is comprehended by the Sixth
Amendment, the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.”). The Supreme
Court has cautioned us not “to confuse the right to counsel
of choice—which is the right to a particular lawyer
regardless of comparative effectiveness—with the right to
effective counsel—which imposes a baseline requirement of
competence on whatever lawyer is chosen or appointed.”
Gonzalez-Lopez, 548 U.S. at 148.
32 UNITED STATES V. YEPIZ

In Rivera-Corona, the panel cited Bland v. California
Department of Corrections, 20 F.3d 1469, 1479 (9th Cir.
1994), overruled on other grounds by Schell v. Witek,
218 F.3d 1017, 1024–25 (9th Cir. 2000) (en banc), for the
proposition that a defendant’s request to substitute appointed
counsel in place of a retained attorney “implicate[s] the
qualified right to choice of counsel.” 618 F.3d at 981. I
don’t read Bland as holding that, let alone “unequivocally”
so. Rivera-Corona, 618 F.3d at 981. At issue was the “right
to discharge counsel,” Bland, 20 F.3d at 1472 (emphasis
added), not the right to have new counsel appointed. Bland’s
retained attorney moved unsuccessfully “to be relieved as
counsel.” Id. at 1475 (emphasis omitted). We affirmed
habeas relief based on the trial court’s denial of that motion.
Id. at 1472. Although Bland’s retained attorney also
expressed his client’s wish to have new counsel appointed,
id. at 1475, that request wasn’t at issue because the trial court
ultimately appointed counsel when the retained attorney
failed to appear at sentencing. Id.

Admittedly, we inconsistently framed the issue as both
the right to choice of counsel (which wouldn’t require a
showing of prejudice) and the right to effective assistance
(which would). But it made no difference how Bland’s right
was characterized because he “established the requisite
prejudice” in any event. Id. at 1479. In pointing out that
“the Sixth Amendment . . . protects [Bland’s] qualified right
to obtain retained counsel of his choice,” we “assume[d]
Bland was not indigent.” Id. at 1477 (emphasis added).

As we explained in Schell, the right to choice of counsel
is not implicated by an indigent defendant’s request for
appointed counsel: “The qualified right of choice of counsel
applies only to persons who can afford to retain counsel.”
218 F.3d at 1025 (emphasis added). In Gonzalez-Lopez, the
 UNITED STATES V. YEPIZ 33

Supreme Court echoed this principle, stating that “the right
to counsel of choice does not extend to defendants who
require counsel to be appointed for them.” 548 U.S. at 151.

The error in Rivera-Corona was compounded in Brown,
which held that the erroneous denial of a motion to substitute
retained counsel with appointed counsel “is a structural
error, requiring that convictions be vacated even without a
showing of prejudice.” 785 F.3d at 1350 (citing Gonzalez-
Lopez, 548 U.S. at 150). The panel acknowledged “that it is
not, strictly speaking, correct to say that the defendant in
Rivera-Corona, or [Brown], was entitled to, or seeking,
counsel of choice.” Id. at 1344. Nevertheless, the panel
concluded that the district courts were “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 . . . . [A]t the same time, [the
courts were] also considering a request for appointment of
counsel.” Id. at 1344–45. Since the first issue involves a
right that if violated requires automatic reversal, Brown
concluded that the ultimate decision was also subject to
automatic reversal if erroneous. Id. at 1350.

Whatever the logic of that proposition in general, it
makes no sense to apply it when the substitution request is
for purely financial reasons. The defendant doesn’t want to
fire his retained counsel independently of having new
counsel appointed. The former is incidental to the latter. See
United States v. Mota-Santana, 391 F.3d 42, 47 (1st Cir.
2004) (“[T]he two [analyses] merge, since defendant and his
family ran out of funds to retain other private counsel and
defendant sought court appointed counsel.”). Here, had the
district court found Yepiz indigent and appointed Estrada to
continue representing him at public expense, the majority
presumably would find no error. See C.D. Cal. Gen. Order
34 UNITED STATES V. YEPIZ

13-09 (allowing for appointment of counsel not on Criminal
Justice Act Panel to ensure continuity of representation and
preserve the interests of economy). Then why find per se
reversible error when the consequence of the court’s
purported error was the continued representation by Estrada?
The majority doesn’t say.

Before Rivera-Corona and Brown led us astray, we
treated motions to substitute retained counsel with appointed
counsel under the standard for appointing new counsel
because that was the crux of the request. Bland held that
“[w]hen reviewing the denial of a motion to substitute
[retained with appointed] counsel for abuse of discretion, we
consider . . . three factors: ‘(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 adequate
defense.’” 20 F.3d at 1475 (quoting United States v. Walker,
915 F.2d 480, 482 (9th Cir. 1990)). Schell, though
overruling Bland’s application in habeas cases as
insufficiently deferential, confirmed that the standard
applied in Bland “is the correct methodology for reviewing
federal cases on direct appeal.” 218 F.3d at 1025 (citing
Walker). Yet Rivera-Corona wrongly held that “the extent-
of-conflict review is inappropriate” when a defendant seeks
to replace retained with appointed counsel. 618 F.3d at 981.
But see Martel v. Clair, 132 S. Ct. 1276, 1287 (2012)
(explaining that review of substitution motions “generally
include[s]” factors such as “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)”). See generally
 UNITED STATES V. YEPIZ 35

Rivera-Corona, 618 F.3d at 983–87 (Fisher, J., disagreeing
that Bland and Schell were not controlling but concurring in
the result). By wholly conflating two distinct rights—the
right to counsel of choice and the right to effective counsel—
Rivera-Corona and Brown forged structural error from
harmless mistake.

IV.

This case illustrates why a conviction shouldn’t be set
aside when the district court erroneously denies a request to
substitute retained with appointed counsel absent a showing
of prejudice. Midway through trial, the district court held a
hearing to discuss Yepiz’s most recent complaints about
Estrada. The court made specific findings that Estrada had
continued throughout the proceedings to competently
represent Yepiz, that he had “participated in the trial,” “made
objections . . . at the appropriate time,” and “properly cross-
examined witnesses that ha[d] anything to say that relate[d]
to [Yepiz].” Critically, the court found that Yepiz and
Estrada “[could] continue to work out” defense strategy.
None of these findings is consistent with “the conflict
between the defendant and his attorney [being] so great that
it resulted in a total lack of communication preventing an
adequate defense.” Bland, 20 F.3d at 1475. In other words,
there is no evidence of prejudice.

I respectfully dissent.