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United States v. D'amore

filed: June 12, 1995.


Appeal from the United States District Court for the District of Nevada. D.C. No. CR-90-00297-LDG. Lloyd D. George, District Judge, Presiding.

Before: William A. Norris, Charles Wiggins, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Norris.

Author: Norris

NORRIS, Circuit Judge:

Robert D'Amore appeals the district court's denial of his request to substitute private counsel of his choosing for his court-appointed lawyer at his probation revocation hearing. We reverse and remand for a new hearing.*fn1


In September, 1993, the Government filed a Petition on Probation and Supervised Release seeking revocation of the defendant's probation. The petition alleged that D'Amore had violated state law by obtaining money under false pretenses and had failed to follow a counseling program for a gambling addiction. A private attorney, Douglas Crawford, was appointed to represent D'Amore. The Government amended the petition to add further allegations on November 23, 1993. A bench warrant was then issued and D'Amore was detained pending his probation revocation hearing. At the stipulation of the parties, the hearing was then rescheduled for January 14, 1994, but that date was later changed by the court to January 28.

The day before the hearing, January 27, Crawford filed a motion requesting leave to withdraw as counsel to permit D'Amore to substitute retained counsel of his choosing. The court issued no formal ruling on the motion on January 27 and did not continue the revocation hearing in order to permit time to consider the motion. Thus, the motion was still pending on the morning of January 28, when the parties gathered for the scheduled revocation hearing. Before the hearing on the revocation began, the court permitted D'Amore to make a statement. He reminded the court that a motion for substitution of counsel had been made the day before and complained about Crawford's representation. In particular, he was upset that Crawford had not sufficiently explored plea bargaining possibilities, had not spent adequate time preparing for the case, and could not be reached for the last three weeks because he was vacationing in Europe. D'Amore told the court that his family had retained substitute counsel, Carmine Colucci, who had been given the case file, but who had not yet had a chance to prepare with D'Amore for the revocation hearing. He promised to prepare with new counsel expeditiously and further stated that he believed he could reach a plea agreement and avoid the need for a hearing with the help of new counsel.

At this point, the court stated:

You can - you can admit to the violations, and I would have to think you've been advised of that. It isn't - and it happens with regularity. But I'm not going to countenance this kind of delay. This has been pending for a very long time, and I see all kinds of evidence of efforts being made to avoid and delay responsibility. We will go ahead today. I advised Mr. Crawford of that yesterday. I have not heard from any other counsel, as far as I know. And we will proceed.

After the hearing, the district court found that the defendant had violated his probation and sentenced him to five years incarceration.


The district court's denial of the motion to substitute counsel is reviewed for abuse of discretion. United States v. Castro, 972 F.2d 1107, 1109 (9th Cir. 1992). That discretion must be exercised, however, within the limitations of the Sixth Amendment, which grants criminal defendants a qualified constitutional right to hire counsel of their choice. United States v. Ray, 731 F.2d 1361, 1365 (9th Cir. 1984). This right is qualified in that it may be abridged to serve some "compelling purpose." United States v. Lillie, 989 F.2d 1054, 1055-56 (9th Cir. 1993). Such a compelling purpose may be found when granting the motion would lead to a delay in the proceedings and the Government's interest in the prompt and efficient administration of Justice outweighs the defendant's need for new counsel to adequately defend himself.*fn2 See id.; United States v. Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987). Absent such a compelling purpose, however, it is a violation of the Sixth Amendment to deny a motion to substitute counsel and an error that must be reversed, regardless of whether prejudice results. United States v. Washington, 797 F.2d 1461, 1467 (9th Cir. 1986); Ray, 731 F.2d at 1365. Thus, "the defendant can't be denied his choice of retained counsel just because the request comes late, or the court thinks current counsel is doing an adequate job." Lillie, 989 F.2d at 1056. Instead, when granting the motion would require a continuance,*fn3 the court must weigh the defendant's Sixth Amendment interest against any delay or inconvenience caused by the request for substitution, even when the request is made at the last minute. See id ; Kelm, 827 F.2d at 1322.

In reviewing the district court's denial of a late motion to substitute private for appointed counsel, we ...

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