BERZON, Circuit Judge:
This case requires us to clarify the standard for considering a criminal defendant's motion to discharge his privately retained counsel and to proceed with a different, court-appointed lawyer instead.
Trinidad Rivera-Corona pleaded guilty to carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). During the plea colloquy, Rivera-Corona stated that he understood the terms of the plea agreement; that his retained attorney, Nicholas Marchi, answered all of his questions about the agreement before he signed it; and that he was satisfied with Marchi's representation. Rivera-Corona also testified that nobody had forced him to enter the plea. The district court did not, however, advise Rivera-Corona of his "right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding," as required by Federal Rule of Criminal Procedure 11(b)(1)(D).
Before sentencing, Marchi moved to withdraw and requested that new counsel be appointed. He supported his motion with an affidavit stating:
At a hearing, Marchi explained that Rivera-Corona had called his office about a week after the change of plea hearing and communicated, in Marchi's words, that "I either scared him or he was afraid of me or I didn't do my job." The court asked Marchi whether he had been retained to represent Rivera-Corona, to which Marchi responded that he had been retained for
The district court did not ask Marchi whether Rivera-Corona's allegations were true and did not inquire into Rivera-Corona's financial eligibility for court-appointed counsel. Instead, right after the colloquy quoted, the district court, interpreting Rivera-Corona's request to include both a motion to withdraw his guilty plea and a request for new counsel, denied both, relying on Rivera-Corona's statement during his plea colloquy that he was satisfied with his representation. The district court judge told Rivera-Corona that he had the right to hire new counsel, but that "absent a complete and utter breakdown" in the attorney-client relationship he saw no grounds to "have counsel appointed at public expense, particularly since the last remaining item before[him was] sentencing." Rivera-Corona responded that he had no money to hire a new lawyer. Marchi represented Rivera-Corona at his sentencing hearing. This appeal followed.
We review a district court's denial of a motion for substitution of counsel for abuse of discretion. United States v. Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir.2001). Most attorney substitution cases arise when an indigent defendant requests new court-appointed counsel in place of an existing appointed attorney. In that context, we consider (1) the timeliness of the substitution motion and the extent of resulting inconvenience or delay; (2) the adequacy of the district court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his attorney was so great that it prevented an adequate defense. See United States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir.2009). This standard is the one the district court seemingly purported to apply, but it is not, as we now explain, the standard applicable to Rivera-Corona's motion.
A defendant who can hire 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. See United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). The right to retained counsel of one's choice is not absolute: A defendant may not "insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation," and the Supreme Court has "recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness ... and against the demands of its calendar." Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557 (citing Wheat v. United States, 486 U.S. 153, 159-60, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988)). In general, a defendant who can afford to hire counsel may have the counsel of his choice unless a contrary result is compelled by "purposes inherent in the fair, efficient and orderly administration of justice." United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir. 2007).
The district court in this case to some degree recognized this distinct right to choose retained counsel. The court told Rivera-Corona that "you have the right, if you wish, to hire counsel ... if you have the funds to do so" to replace or supplement Marchi, and did not indicate that there was any extent-of-conflict limitation on that right. But the district court treated as fundamentally different the question whether Rivera-Corona could replace retained counsel with appointed counsel.
Remarkably, we have no presently binding case law dictating the standards applicable in the situation in which a district court considers a defendant's motion to discharge his retained counsel and be represented by a court-appointed attorney. We do, though, have controlling case law in the obverse situation—where a defendant seeks to replace appointed with retained counsel.
Because an additional constitutional right is at stake, such motions have never been governed by the three-part extent-of-conflict analysis applicable to defendants seeking new court-appointed counsel. Unless the substitution would cause significant delay or inefficiency or run afoul of the other considerations we have mentioned,
The only published case in this circuit that arose in the current posture, in which a defendant seeks to substitute appointed for retained counsel, is Bland v. California Department of Corrections, 20 F.3d 1469, 1475 (9th Cir.1994). In Bland, we used the extent-of-conflict standard to evaluate a habeas petition challenging the trial court's refusal to permit him to substitute a court-appointed attorney for his retained counsel, although we did not explain our use of that standard. Id. at 1475. Bland was overruled in this respect by Schell v. Witek, 218 F.3d 1017 (9th Cir.2000) (en banc), which concerned a habeas petitioner who sought new appointed counsel to replace existing appointed counsel. We held the extent-of-conflict inquiry generally inapplicable on habeas review, because the trial court's failure to inquire into the defendant's reasons for seeking substitution would not always render his conviction unconstitutional. Rather, the appropriate inquiry was whether the defendant's conflict with his attorney actually deprived him of the effective assistance of counsel. Id. at 1025, 1027.
Schell thus overruled Bland's unexplained application of the extent-of-conflict standard, albeit on grounds not applicable here. As Schell concerned a motion to substitute appointed counsel on habeas review and did not implicate the constitutional right to counsel of choice, it did not establish a rule of analysis applicable to
In rejecting Schell's contention that the trial court's abuse of discretion in denying his motion required us to grant his writ, we emphasized that Schell's qualified right to choice of retained counsel was not at issue, and on that ground distinguished Bland's holding that denial of the substitution motion was per se prejudicial. Id. at 1025-26. Bland unequivocally held that the denial of the defendant's request to replace his retained counsel with a court-appointed attorney implicated the qualified right to choice of counsel. 20 F.3d at 1479. In so holding, Bland rejected as irrelevant the state's argument that the defendant had not clearly established his financial eligibility for appointed counsel. Id. at 1477.
The district court here never inquired into Rivera-Corona's eligibility for appointed counsel, finding no grounds "to have counsel appointed at public expense, particularly since the last remaining item before me is sentencing." But the Criminal Justice Act expressly provides for appointment of counsel "[i]f at any stage of the proceedings ... the court finds that the [defendant] is financially unable to pay counsel whom he had retained." 18 U.S.C.A. § 3006A(c); see also Doherty v. United States, 404 U.S. 28, 29, 92 S.Ct. 175, 30 L.Ed.2d 209 (1971). Thus, the district court erred in summarily rejecting Rivera-Corona's request for appointed counsel to replace retained counsel simply because of the expense and the stage of the proceedings.
As to the nature of the inquiry that should have been made, we agree with the Second Circuit's articulation:
United States v. Parker, 439 F.3d 81, 92-93 (2d Cir.2006). Here, the district court's failure to apply § 3006A is apparent at the first step. Rivera-Corona was given no opportunity to establish that, as he asserted, he was unable to pay Marchi and therefore eligible for court-appointed and publicly financed representation. Just as "[d]ue process does not permit a judge to decide [whether the defendant can afford to retain counsel to substitute for existing appointed counsel] without hearing the affected party," Bradley, 510 F.3d at 1098, a judge may not summarily decide that a defendant is not eligible for appointed counsel merely because he has previously retained an attorney.
We note that requiring a retained counsel to continue to represent the defendant even if the defendant cannot pay him and no longer wants him, which is what seemingly happened here, is no substitute for appointed counsel paid with public funds and so could not, without more, be in the "interests of justice." Such an unpaid lawyer is likely, consciously or subconsciously, to resent the transformation of an agreement to represent a defendant for pay into an involuntary pro bono arrangement, and therefore to seek to end the representation as expeditiously as possible. That, indeed, is precisely what Rivera-Corona alleged happened here with respect to Marchi's advice whether to plead guilty. Moreover—as also alleged here—an involuntarily unpaid lawyer may influence the defendant's litigation choices by expressing an intention to seek fees from relatives or friends, or from the defendant should he later obtain funds. Our system for providing compensated lawyers where the defendant cannot afford to compensate counsel himself eliminates the opportunity for such extraneous influences on criminal proceedings.
Nor was the district court entitled to rely on Rivera-Corona's statement during his plea colloquy that he was satisfied with Marchi's representation. According to Rivera-Corona, Marchi demanded money that his client presumably did not have as a condition of going to trial, and was prepared to "prosecute"—presumably sue—Rivera-Corona's family if he didn't pay it. If true, these facts could support a motion to set aside his plea, as Rivera-Corona's statement of satisfaction with Marchi at the colloquy could be explained by the same facts. See United States v. Gonzalez, 113 F.3d 1026, 1028 (9th Cir.1997) (holding that the trial court abused its discretion in denying a motion to substitute counsel "on the strength of Gonzalez's sworn responses at the plea-taking that no one was threatening him or forcing him to plead" where the defendant "alleged that his attorney forced him to plead guilty ... and threatened him if he did not take the plea").
The implication of Rivera-Corona's remarks regarding why he sought appointed counsel is that Marchi never suggested that he be appointed as counsel, or that Rivera-Corona seek new, appointed counsel,
Given all these defects in the district court's handling of Rivera-Corona's request, we vacate Rivera-Corona's sentence.
RAYMOND C. FISHER, Circuit Judge, concurring:
I concur in the result, but disagree with some of the reasoning offered by the majority opinion.
I agree with the majority's assessment that the Sixth Amendment right to counsel actually encompasses several rights, including the right to choice of retained counsel, the right to effective assistance of counsel and the right to self-representation. I part company, however, with the majority's conclusion that "we have no presently binding case law dictating 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." Maj. Op. 979.
Appointed/Retained to Retained Substitution. By contrast, when a defendant seeks to replace existing counsel—whether retained or appointed—with retained counsel, she ordinarily need not establish good cause. See, e.g., United States v. Torres-Rodriguez, 930 F.2d 1375, 1380 n. 2 (9th Cir.1991), abrogated on other grounds by Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); see also Miller v. Blacketter, 525 F.3d 890, 895 (9th Cir.2008) (no need to show prejudice); Bradley v. Henry, 510 F.3d 1093, 1099-1100 (9th Cir.2007) (en banc) (Clifton, J., concurring) (explaining that a defendant is generally free to replace counsel with retained counsel of choice unless the substitution "will result in an undue delay of the proceedings").
This dichotomy exists because the defendant seeking to replace appointed counsel with appointed counsel and the defendant seeking to replace existing counsel with retained counsel are relying on different aspects of the Sixth Amendment right to counsel. A defendant who moves to replace appointed counsel with appointed counsel must rely on her Sixth Amendment right to effective assistance of counsel, which requires a showing of good cause—the constructive denial of counsel. See, e.g., United States v. Moore, 159 F.3d 1154, 1158 (9th Cir.1998) ("[I]f the relationship between lawyer and client completely collapses, the refusal to substitute new counsel violates [the defendant]'s Sixth Amendment right to effective assistance of counsel.").
On the other hand, a defendant who moves to replace existing counsel with retained counsel may rely on either her right to choice of counsel or her right to effective assistance of counsel. "When there is no threat of a delay in the proceedings," she may, consistent with her right to choice of counsel, freely substitute one retained counsel for another, without showing that "the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense." Torres-Rodriguez, 930 F.2d at 1380 & n. 2; see also id. at 1380 n. 2 ("If a defendant, much in advance of trial, wishes to substitute retained counsel for an appointed one, and no delay in trial will result, ... there is no reason to deny substitution whether or not the defendant has complaints against, or an irrevocable conflict with, his appointed counsel."). Where substitution would result in delay, the defendant may replace existing counsel with retained counsel, but, consistent with her right to effective assistance
Retained to Appointed Substitution. Unlike the appointed-to-appointed and retained- or appointed-to-retained scenarios discussed above, the question presented here is what standard applies to a defendant's motion to replace retained counsel with appointed counsel. Some courts have held that this scenario is governed by a defendant's right to choice of counsel, such that a defendant can freely discharge retained counsel and obtain appointed counsel without establishing good cause. In People v. Ortiz, 51 Cal.3d 975, 275 Cal.Rptr. 191, 800 P.2d 547, 553 (1990), for example, the California Supreme Court concluded that a trial court may not "require an indigent criminal defendant to demonstrate inadequate representation by his retained attorney, or to identify an irreconcilable conflict between them, before it will approve the defendant's timely motion to discharge his retained attorney and obtain appointed counsel." Other courts, perhaps reflecting the principle that "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them," United States v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), have rejected Ortiz's view and concluded that replacement of retained counsel with appointed counsel does require a showing of good cause. The First Circuit's opinion in United States v. Mota-Santana, 391 F.3d 42 (1st Cir.2004), exemplifies this view:
Id. at 46-47; see also id. at 47 (requiring the defendant, who had moved to replace retained counsel with appointed counsel, to show that "`the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense'") (quoting United States v. Allen, 789 F.2d 90, 92 (1st Cir.1986)).
Were we writing on a clean slate, as the majority believes we are, we would have to make a choice among the approaches exemplified in Ortiz and Mota-Santana. We are not, however, writing on a clean slate. We have already held that, for purposes of the Sixth Amendment, a motion to substitute retained counsel with appointed counsel requires a showing of good cause. See Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir.2000) (en banc); Bland v. Cal. Dep't of Corr., 20 F.3d 1469, 1475 (9th Cir.1994), overruled in part by Schell, 218 F.3d at 1025. Those opinions are binding on us, and it is the majority's refusal to recognize them as binding precedent that causes me to write separately.
I am not persuaded by the majority's attempts to avoid Bland and Schell. First, the majority's suggestion to the contrary notwithstanding, Schell did not overrule Bland in any respect relevant here. See Maj. Op. 980-81. Although Schell overruled Bland as applied to habeas review, Schell expressly and specifically confirmed Bland's good cause standard as applied to "federal cases on direct appeal"—the issue presented here. Schell, 218 F.3d at 1024-25.
Second, the majority's conclusion that Schell "does not control in the current circumstances" because it addressed "substitution of appointed counsel" reflects a fundamental misunderstanding of Schell. Maj. Op. 981 n. 3. The majority apparently concludes that nothing Schell had to say could be binding here because Schell involved a motion to replace appointed counsel with appointed counsel rather than, as in this case, a motion to replace retained counsel with appointed counsel. That suggestion, as well as the majority's labeling of the relevant discussion in Schell as "dicta," misses the point. In Schell, a case involving appointed-to-appointed substitution, we went en banc to overrule Bland, a case involving retained-to-appointed substitution. Schell is therefore premised on the proposition that motions to substitute existing counsel with appointed counsel are governed by the same standard regardless of whether existing counsel is retained (as in Bland) or appointed (as in Schell and Walker). A proposition necessary to the holding cannot be dicta. See, e.g., City of Sausalito v. O'Neill, 386 F.3d 1186, 1203-04 (9th Cir.2004). If, as the majority suggests, retained-to-appointed substitution and appointed-to-appointed substitution are governed by different standards, then Bland could not have served as precedent in Schell, Schell would not have been affected by Bland, Schell would have had no cause to address Bland in en banc proceedings and Schell's overruling of Bland would have been essentially an advisory opinion. Contrary to the majority's suggestion, both Bland and Schell necessarily held that retained-to-appointed and appointed-to-appointed substitutions are governed by the same legal standard—i.e., good cause. We are bound by that holding.
For purposes of the Sixth Amendment analysis, therefore, I would hold that we are bound by circuit precedent to review Rivera-Corona's motion to replace retained counsel with appointed counsel under the same good cause standard we apply to motions to substitute one appointed
I emphasize that I would apply the good cause standard because I believe we are required to do so by the doctrine of stare decisis. See, e.g., In re Tippett, 542 F.3d 684, 691-92 (9th Cir.2008); Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc). In Ortiz, the California Supreme Court offered a number of strong arguments for the proposition that the replacement of retained with appointed counsel should not require a showing of good cause. Were we truly writing on a clean slate, those arguments might well prevail. In my view, however, we are constrained by precedent to apply the good cause standard here.
As the majority explains, Rivera-Corona may also have a right to substitution of counsel under the Criminal Justice Act, which provides in relevant part: "If at any stage of the proceedings, including an appeal, the United States magistrate judge or the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel ... and authorize payment ..., as the interests of justice may dictate." 18 U.S.C. § 3006A(c). This provision "obliges the judge to continually reevaluate the need for appointed counsel as the underlying proceeding progresses." In re Boston Herald, Inc., 321 F.3d 174, 193 (1st Cir. 2003).
Rivera-Corona did not explicitly raise § 3006A(c) in the district court or on appeal. Assuming that Rivera-Corona nonetheless adequately invoked the provision, I agree with the majority that the district court should have conducted an "appropriate inquiry" into Rivera-Corona's financial eligibility for mid-case appointment of counsel and an adequate analysis of whether counsel should have been appointed in the "interests of justice." 18 U.S.C. § 3006A(b)-(c); see also United States v. Parker, 439 F.3d 81, 92-99 (2d Cir.2006) (discussing the "appropriate inquiry" requirement, as well as the "interests of justice" analysis). The interests of justice may dictate mid-case appointment of counsel when the defendant (or his family) is no longer able to pay retained counsel. As the majority points out, such an unpaid lawyer may, consciously or subconsciously, "resent the transformation of an agreement to represent a defendant for pay into an involuntary pro bono arrangement, and therefore seek to end the representation as expeditiously as possible." Maj. Op. 982. On remand, therefore, the district court should also consider whether mid-case appointment of counsel is independently appropriate under the § 3006A(c), assuming Rivera-Corona seeks relief under that provision.
To conclude, I part company with the majority's conclusion that, for purposes of
