Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, Chief District Judge, Presiding, D.C. No. 2:07-cr-02020-LRS-1.
The opinion of the court was delivered by: Berzon, Circuit Judge
Argued and Submitted March 4, 2010 -- Seattle, Washington.
Before: A. Wallace Tashima, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon; Concurrence by Judge Fisher.
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, RiveraCorona 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:
I was retained by the defendant. The Defendant has requested a hea[r]ing for a new attorney. He apparently maintains that he can no longer work with me. He has claimed that I have been ineffective. In the interest of justice and to allow defendant new counsel, [in] whom he would apparently have more faith, I would request that the Court appoint new counsel and allow me to withdraw.
At a hearing, Marchi explained that Rivera-Corona had 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 entire case, but that he had "exhausted [the retainer] a long, long time ago." The court then invited Rivera-Corona to explain his reasons for seeking substitution of counsel, prompting the following exchange:
RIVERA-CORONA: I would like to know if you can appoint another attorney, because I don't get along with this attorney.
THE COURT: What are the reasons for your not getting along with this attorney?
RIVERA-CORONA: Well, how could I say? He said if we went with a jury he wanted $5,000 more, and that's why. Otherwise, he was going to, like, prosecute my family, and that's why I got scared.
THE COURT: Is there anything additional?
RIVERA-CORONA: And that's why I want to know if you can give me another chance to continue fighting my case.
THE COURT: Are there any other facts that I should consider?
RIVERA-CORONA: For now, that's what I'm saying, ...