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United States v. Chow

United States District Court, N.D. California

July 26, 2016

KWOK CHEUNG CHOW, a/k/a “Raymond Chow, ” a/k/a “Hai Jai, ” a/k/a “Shrimpboy, ” et al. Defendants.



         Defendant Kwok Cheung Chow seeks leave to file a motion for reconsideration of the Court’s June 15, 2016 ruling granting in part and denying in part the motion to withdraw filed by prior retained counsel J. Tony Serra, Curtis L. Briggs, and Tyler R. Smith. See Mot. for Reconsideration (dkt. 1522); Motion Hearing of June 15, 2016 (dkt. 1480); Mot. to Withdraw (dkt. 1458).[1] Chow is correct that a “difference in . . . law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought, ” but not that the difference is “material, ” as required by the Local Rules. See Mot. for Reconsideration at 3-4; Civ. L. R. 7-9(b)(1). Neither Chow’s prior counsel nor his present counsel, who specially appeared for Chow at the June 15, 2016 hearing, referenced United States v. Rivera-Corona, 618 F.3d 976 (9th Cir. 2010), or United States v. Brown, 785 F.3d 1337 (9th Cir. 2016), in support of the June 15, 2016 motion to withdraw. The newly cited authority is not material, however, because the Motion is moot. The Court has already provided Chow with the relief that he sought at the June 15, 2016 hearing: prior counsel is out.

         Chow argues, however, that the Court “should appoint Mr. Chow new counsel and permit newly appointed counsel to file an amended new trial motion.” Mot. for Reconsideration at 7. Neither remedy is appropriate.

         First, although the Court has already entered an order permitting present counsel to substitute into the case, see Substitution of Counsel (dkt. 1516), Chow has no right to have present counsel appointed, see Rivera-Corona, 618 F.3d at 979 (“Indigent defendants have a constitutional right to effective counsel, but not to have a specific lawyer appointed by the court and paid for by the public.”); Brown, 785 F.3d at 1343 (same). The Northern District of California’s General Order No. 2 provides that “If the Federal Public Defender cannot accept an appointment, the Court shall select a panel attorney who is willing to take the representation.” General Order No. 2 at 6. The court is to appoint panel attorneys “on a strict rotational basis.” Id. Non-panel attorneys may be appointed “only in exceptional circumstances” “in the interest of justice, judicial economy or continuity of representation.” Id. Present counsel is not a panel attorney and has made no showing of any exceptional circumstance. Moreover, present counsel represented to the Court that he would be representing Chow pro bono. He can continue to do so.

         Second, it does not follow from Rivera-Corona or Brown that Chow’s entitlement to new counsel means that Chow is also entitled to have his new counsel re-file previously adjudicated motions. As present counsel concedes, at the time of the June 15, 2016 hearing on the motion to withdraw, the Court had already denied the motion for a new trial filed by Chow’s prior counsel. See Mot. to Reconsider at 8; Order Denying Motion for New Trial (dkt. 1454) (filed June 2, 2016).[2] Even if the Court had allowed present counsel to substitute in on June 15, 2016, the Court would not have permitted present counsel to file a new motion for a new trial. Nor may present counsel do so now. Chow may not have a second bite at the apple. That present counsel wishes “to file a new trial motion based on . . . prior counsel’s ineffective representation” is not compelling. See Mot. to Reconsider at 9. The Ninth Circuit has explained that such a claim is “more appropriately reserved for habeas corpus proceedings, where facts outside the record, but necessary to the disposition of the claim, may be fully developed.” See United States v. Laughlin, 933 F.2d 786, 788 (9th Cir. 1991). Nothing will prevent Chow from including an ineffective assistance claim in an eventual habeas petition if he wishes to do so.

         For the foregoing reasons, the Motion for Reconsideration is DENIED AS MOOT.

         IT IS SO ORDERED.



[1] The Court’s ruling permitted Briggs to withdraw but denied the motion as to Smith and Serra. The Court provided further explanation for its ruling in a written order, and filed that order under seal because it cited extensively to attorney-client communications and to the under seal portions of the June 15, 2016 motion hearing.

[2]At the June 15, 2016 hearing, the Court noted that there were three motions on which briefing was not complete: the motion to dismiss for outrageous government conduct, the motion to transfer, and the motion for reconsideration of the Court’s order on the motion for disqualification. Present counsel ...

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