Argued and Submitted, San Francisco, California
September 9, 2014
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:12-cr-00097-RCJ-VCF-1. Robert Clive Jones, District Judge, Presiding.
The panel vacated convictions for advertising, transporting, receiving, and possessing child pornography, and remanded for a new trial, in a case in which the district court denied the defendant's motion to discharge his retained counsel.
The panel reiterated the intertwined rules of United States v. Rivera-Corona, 618 F.3d 976 (9th Cir. 2010): (1) A defendant enjoys a constitutional right to discharge his retained counsel for any reason " unless a contrary result is compelled by the 'purposes inherent in the fair, efficient and orderly administration of justice,'" and (2) if the 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.
The panel held that the district court abused its discretion in denying the defendant's motion to discharge retained counsel and in refusing to appoint new counsel, where neither the reasons the district court offered after its own detailed inquiry, the additional reasons the government has suggested in its briefing, nor any reason the panel could infer from the record, provide any ground necessary to the fair, efficient, and orderly administration of justice to justify the denial of the defendant's motion to discharge retained counsel. The panel therefore vacated the convictions.
The panel rejected the defendant's arguments that the evidence presented at trial was insufficient to support his transportation and advertising convictions, and therefore remanded for a new trial. The panel held that a conviction for transportation or advertising of child pornography does not require evidence that the material actually crossed state lines. The panel also held that a reasonable jury could conclude that the actions taken by the defendant, the proprietor of a computer business with substantial technical computer knowledge -- designating a non-default folder on his external hard drive to be shared by a peer-to-peer file-sharing program -- are not materially different from those of a bulletin board operator, which United States v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999), suggested could be charged with transportation.
Jason F. Carr, Assistant Federal Public Defender, Federal Public Defender's Office, Las Vegas, Nevada, for Defendant-Appellant.
William Ramsey Reed (argued) and Elizabeth Olson White, Assistant United States Attorneys, United States Attorney's Office, Reno, Nevada, for Plaintiff-Appellee.
Before: Stephen Reinhardt, Ronald M. Gould, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Berzon.
BERZON, Circuit Judge:
United States v. Rivera-Corona, 618 F.3d 976 (9th Cir. 2010), held that an indigent criminal defendant need not establish a conflict with his attorney amounting to the constructive denial of counsel as a prerequisite to substituting appointed counsel for his retained attorney. The district court in this case, like the parties, appears to have been unaware of Rivera-Corona, and instead applied the conflict requirement applicable to substitutions of appointed counsel for appointed counsel. We now reiterate Rivera-Corona' s intertwined rules: (1) A defendant enjoys a right to discharge his retained counsel for any reason " unless a contrary result is compelled by 'purposes inherent in the fair, efficient and orderly administration of justice,'" Rivera-Corona, 618 F.3d at 979 (quoting United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir. 2007)), and (2) if the 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" ), 18 U.S.C. § 3006A. Because no sufficient reason justified the district court's denial of Richard Carl Brown's right to discharge his retained lawyer or its refusal to appoint counsel, we vacate Brown's convictions and remand for a new trial. We also reject Brown's arguments that the evidence presented at trial was insufficient.
Nevada police detectives identified a computer that had been sending and receiving child pornography through FrostWire, a peer-to-peer file-sharing program, as associated with an internet protocol address registered to Brown. After the detectives downloaded from the computer a video containing child pornography, they obtained a search warrant for Brown's home. Brown shared his home with two roommates and ran a computer business from it. The search yielded a computer in Brown's bedroom, which forensic investigation indicated was the source of the video. Also found during the search were a disconnected external hard drive containing: various photos of Brown, including intimate photos; personal documents, such as Brown's father's death certificate; a folder designated to be shared by FrostWire; and hidden folders containing some 900 child pornography files. Brown was charged with one count each of advertising child pornography, 18 U.S.C. § 2251(d)(1)(A); transporting child pornography, 18 U.S.C. § 2252A(a)(1); receiving child pornography, 18 U.S.C. § 2252A(a)(2); and possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B).
Two and a half weeks before trial was to begin, Brown's retained counsel filed a motion to withdraw from the case and substitute a public defender. Brown's attorney cited " strained" communications and an " actual conflict of interest" with Brown. He advised the court that Brown " desires counsel to withdraw from representing him," and attached an email in which Brown requested the withdrawal and indicated he would seek appointed counsel. A week later, counsel filed a motion to continue the trial regardless of the court's ruling on the motion to withdraw and substitute.
The district court held a hearing on the motion to withdraw. Brown's counsel began by informing the court of the " extreme divergence of philosophical opinion as to how the case should be carried on" between himself and Brown. The court responded, " Actually, is it more based in failure for him to be able to pay your fee?" The court emphasized that counsel could not withdraw for failure to pay fees without leave of court, and then continued:
Now, here we are, of course, on the eve of trial. Trial has been scheduled. And just because your client is disagreeing with you on recommendations regarding plea or trial, that is not the basis to permit withdrawal.
Counsel assured the court that Brown's financial situation " really has nothing to do with this," but that the problem was " trust."
The court then ordered the hearing continued ex parte because privileged information would be discussed. At that point, counsel for the government, initially present, was excluded. Before leaving the room, counsel indicated that the government had no position on the motion to withdraw but was opposed to a continuance. An attorney from the Federal Public Defender's Office, initially present as well, remained in the courtroom during the ex parte portion of the hearing.
After counsel for the government left, the court inquired whether Brown had any " objection to the motion to withdraw." Brown responded that he did not. The court laid out the " problem," as it saw it, to Brown's attorney:
You know, this is scheduled for trial. Obviously if I allow you to withdraw and appoint now -- because he would qualify, I assume, for a public defender [--] and appoint a public defender, that will mandate a continuance of the trial so that person could be brought up to speed.
So I find great fault with your late filing of this motion, on the eve of trial, and what appears to be simply because there's a disagreement over payment and your inability, or unwillingness, to prepare for trial.
Your client has the right to insist upon trial as opposed to plea. That's the problem. So you've got to overcome those concerns in your argument.
Brown's counsel responded that he understood, that the dispute was not about money, and that he was prepared to proceed to trial. However, he again informed the court that " Mr. Brown has indicated to me that he would like us to withdraw."
The court then engaged Brown in the following colloquy:
THE COURT: . . . What is the disagreement, sir, that causes you to want a different attorney?
THE DEFENDANT: Your Honor, there's been -- I guess we see things ...