                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          JUL 27 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.    16-10113

                Plaintiff-Appellee,              D.C. No.
                                                 4:14-cr-01558-CKJ-CRP-2
 v.

BRENDA MARIA MENDOZA-                            MEMORANDUM*
BOJORQUEZ,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted July 10, 2017
                            San Francisco, California

Before: GRABER and FRIEDLAND, Circuit Judges, and GUILFORD,** District
Judge.

      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.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.
      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-

Bojorquez 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


                                         2
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.




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).

                                           3
