United States v. Brenda Mendoza-Bojorquez

694 F. App'x 579

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2017
• Docket: 16-10113
• Status: Unpublished

Opinion

MEMORANDUM **

Brenda Mendoza-Bojorquez appeals her convictions for conspiracy with intent to distribute, possession with intent to distribute, conspiracy to import, and importation of methamphetamine. We affirm.

The district court did not abuse its discretion in denying the motion for a new trial. Like the district court, we have reviewed the Government’s information about the confidential source in camera. Even if we assume that information that a district court had already reviewed in camera could count as newly discovered evidence for the purposes of a new trial motion, the source’s identity and potential testimony do not “indicate! ] the defendant would probably be acquitted in a new trial.” See United States v. King, 735 F.3d 1098, 1108 (9th Cir. 2013) (quoting United States v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010)).

The district court also did not abuse its discretion in denying the motion to substitute counsel. The district court held a hearing in which it asked Mendoza-Bojor-quez and her counsel questions targeted at understanding the source and extent of the alleged conflict between them. See United States v. Reyes-Bosque, 596 F.3d 1017, 1034 (9th Cir. 2010). Based on their answers, the court determined that, contrary to Mendoza-Bojorquez’s assertions, she and her counsel were able to communicate. The- court also concluded that Mendoza-Bojorquez’s discomfort resulted more from her counsel’s tactical decisions and his legal assessment of her case than from a true breakdown in communications. See United States v. McKenna, 327 F.3d 830, 843-44 (9th Cir. 2003); United States v. Roston, 986 F.2d 1287, 1292-93 (9th Cir. 1993).

The district court also found the motion untimely. Mendoza-Bojorquez made her request about ten days before trial. While this timing may in some cases be timely, see United States v. Velazquez, 855 F.3d 1021, 1036-37 (9th Cir. 2017), here, she testified that her concerns about her attorney were longstanding, and she did not offer any explanation for the delay in raising those concerns. In addition, a material witness had been paroled into the country and was in custody for the trial, meaning that a continuance would prolong the time he spent in custody. In these circumstances, the district court did not abuse its discretion by denying the motion to substitute counsel. 1

“[T]he customary procedure in this Circuit for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255.” United States v. Hanoum, 33 F.3d 1128, 1131 (9th Cir. 1994) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (per curiam)); see United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011). We decline to depart from our custom to consider Mendoza-Bojorquez’s ineffective assistance of counsel claim on direct review.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3,

1 . At oral argument, counsel contended that the district court erred procedurally by failing to question Mendoza-Bojorquez outside the presence of her attorney. Mendoza-Bojorquez did not make this argument in her briefs, and thus she waived it. See Harger v. Dep't of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009) (argument raised for first time at oral argument is waived).