                                                                                   FILED
                           NOT FOR PUBLICATION
                                                                                   AUG 11 2016
                    UNITED STATES COURT OF APPEALS                              MOLLY C. DWYER, CL
                                                                                 U.S. COURT OF APPEA


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 15-10301

             Plaintiff-Appellee,                D.C. No. 2:14-cr-500-PHX-JAT-2
 v.
                                                MEMORANDUM*
CHRISTOPHER DARRELL,

            Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding

                            Submitted August 9, 2016**
                             San Francisco, California

Before: GRABER and McKEOWN, Circuit Judges, and LYNN,***TChief District
Judge.




      *
              This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.

      **
               The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
               The Honorable Barbara M.G. Lynn, United States Chief District
Judge for the Northern District of Texas, sitting by designation.
      Defendant Christopher Darrell appeals his jury convictions for one count of

assault with a dangerous weapon, in violation of 18 U.S.C. § 1153 and

§ 113(a)(3); one count of assault resulting in serious bodily injury, in violation of

18 U.S.C. § 1153 and § 113(a)(6); and one count of robbery, in violation of 18

U.S.C. § 1153 and § 2111.

      First, Defendant claims that the district court abused its discretion and

constructively denied him his Sixth Amendment right to counsel by denying his

motion for substitution of counsel. Generally, denial of a motion for substitution

of counsel is reviewed for abuse of discretion. United States v. Mendez-Sanchez,

563 F.3d 935, 942 (9th Cir. 2009). We review de novo a claim of denial of a

defendant’s Sixth Amendment right to counsel because of an irreconcilable conflict

with counsel. United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998).

      “The test for determining whether the [district court] should have granted a

substitution motion is the same as the test for determining whether an

irreconcilable conflict existed.” Daniels v. Woodford, 428 F.3d 1181, 1197 (9th

Cir. 2005). We consider: (1) the extent of the conflict; (2) the adequacy of the

district court’s inquiry; and (3) the timeliness of the motion. Id. at 1197-98;

Moore, 159 F.3d at 1158-59. An irreconcilable conflict occurs “only where there

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is a complete breakdown in communication between the attorney and client, and

the breakdown prevents effective assistance of counsel.” Stenson v. Lambert, 504

F.3d 873, 886 (9th Cir. 2007).

      Defendant requested appointment of new counsel several months before

trial, claiming that his court-appointed counsel had sought continuances without

his knowledge or consent, had not discussed the case or shared discovery with him,

and had not adequately prepared for trial. The district court heard from Defendant

and his counsel at an ex parte hearing, where (1) Defendant admitted that counsel

had visited him on several occasions and had given him the discovery he

requested; and (2) his counsel agreed to be prepared for trial on the date set and not

to seek additional continuances without Defendant’s consent. Defendant points to

no evidence of conflict after the hearing.

      The facts did not evidence an irreconcilable conflict. As the district court

found, the primary concern Defendant expressed at the hearing was for his trial to

proceed more quickly, and appointment of new counsel would have resulted in

additional delay. Cf. United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001)

(finding a complete breakdown in communication where, by the time of trial, the

defendant would not speak to defense counsel). In this case, the district court

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conducted a reasonable inquiry, allowing Defendant to express his concerns at an

ex parte hearing, and confirmed with counsel that those concerns were being

addressed. The district court did not err in denying the motion to substitute.

      Second, Defendant argues that he was denied effective assistance of counsel

at trial, because in his opening statement defense counsel promised evidence that

he did not present. Ineffective assistance of counsel claims are rarely appropriate

on direct appeal and may be reviewed “only in the unusual cases where (1) the

record on appeal is sufficiently developed to permit determination of the issue, or

(2) the legal representation is so inadequate that it obviously denies a defendant his

Sixth Amendment right to counsel.” United States v. Rahman, 642 F.3d 1257,

1260 (9th Cir. 2011). Neither exception is met here.

      Finally, Defendant argues that the prosecutor committed constitutional error

in his closing statement by placing the burden of proof on Defendant. Allegations

of prosecutorial misconduct raised for the first time on appeal are reviewed for

plain error. United States v. Tam, 240 F.3d 797, 804 (9th Cir. 2001); United States

v. Cabrera, 201 F.3d 1243, 1246 (9th Cir. 2000). Improper comment warrants

reversal only if it appears that the comment may have affected the verdict. Lincoln

v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987).

                                          4
       In response to the defense’s argument that, although Defendant had the

victim’s keys and other items in his pocket, the government had not proved how

the evidence had gotten there, the prosecutor stated:

         They have no, no explanation whatsoever for those items being
         in the pocket. Nothing, other than we don’t know how it got
         there. Who knows how it got there? That’s also not how you
         decide a case. The . . . evidence is what’s brought into the
         courtroom. Not guesswork about, well, how could this maybe
         have happened . . . .

       A prosecutor may not comment on a defendant’s failure to testify. Griffin v.

California, 380 U.S. 609, 615 (1965). However, we have “maintained a distinction

between comments about the lack of explanation provided by the defense, and

comments about the lack of explanation furnished by the defendant.” United

States v. Mayans, 17 F.3d 1174, 1185 (9th Cir. 1994). A prosecutor may comment

on the defense’s failures, so long as the comment is not “manifestly intended to

call attention to the defendant’s failure to testify, or is of such a character that the

jury would naturally and necessarily take it to be a comment on the failure to

testify.” Lincoln, 807 F.2d at 809.

       Where “the defendant is the only witness who could rebut or negate the

government witness’s testimony, prosecutorial comment suggesting that the jury

should have heard more testimony” can be improper. Id. at 810 (internal quotation

                                             5
marks omitted); see also id. at 809 n. 1 (finding error where the prosecutor made

multiple references to the “only . . . person who can tell us,” and the “only . . .

other person who can testify” (internal quotation marks and emphases omitted)).

On the other hand, general comments, which do not “single out the defendant from

his case in general,” are not improper. Mayans, 17 F.3d at 1185-86.

      The prosecutor’s comment here was a general comment on the evidence.

See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1132 (9th Cir.), amended

by 416 F.3d 939 (9th Cir. 2005) (finding that the prosecutor did not make an

improper comment by stating, “the defendant has not addressed what’s really going

on here” and “[h]e never did give you an explanation for what’s really going on”).

There was no plain error.

      AFFIRMED.




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