                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 07 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50085

              Plaintiff - Appellee,              D.C. No. 3:10-CR-02418-MMM

  v.                                             MEMORANDUM*

DONNY LOVE, SR.,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Southern District of California
                 Margaret M. McKeown, Circuit Judge, Presiding

                      Argued and Submitted February 1, 2016
                               Pasadena, California

Before: PAEZ and M. SMITH, Circuit Judges, and SILVER, Senior District
Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.

      *** Margaret M. McKeown, Circuit Judge, for the Ninth Circuit Court of
Appeals, sitting in the United States District Court for the Southern District of
California, by designation.
      Early in the morning of May 4, 2008, a bomb detonated outside the main

entrance to the Edward J. Schwartz United States Courthouse in downtown San

Diego. Donny Love Sr. was subsequently convicted of ten counts related to the

bombing, and he appeals. We affirm except as to Count 10, which we reverse.

      Love argues the district court erred in denying his pretrial motion to change

venue from the courthouse where the bombing occurred. We review the denial of a

motion to transfer venue for abuse of discretion. United States v. Sherwood, 98

F.3d 402, 410 (9th Cir. 1996). Love argues prejudice should be presumed because

the courthouse was the crime scene. We have recognized presumed prejudice may

apply in certain “extreme” cases of prejudicial pretrial publicity, Hayes v. Ayers,

632 F.3d 500, 508 (9th Cir. 2011) (quoting Skilling v. United States, 561 U.S. 358,

381 (2010)), but we have not addressed this type of presumed prejudice claim.

      Only two cases have done so, United States v. Nettles, 476 F.3d 508 (7th Cir.

2007) (affirming denial of transfer motion where bombing had no chance of

success) and State v. Baumruk, 85 S.W.3d 644 (Mo. 2002) (reversing denial of

transfer motion where mass shooting took place inside the courthouse). We need

not decide whether this presumed prejudice claim could be viable as a general

matter because the circumstances of the bombing were insufficient to presume that




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jurors would be prejudiced. Thus, the district court did not abuse its discretion in

denying the motion.

       Love next argues the district court erred in denying his repeated motions for

new counsel. We review a denial of a motion for new counsel for abuse of

discretion and consider: (1) the timeliness of Love’s motions, (2) the adequacy of

the district court’s inquiries, and (3) the extent of the conflict between Love and his

counsel. United States v. Smith, 282 F.3d 758, 763 (9th Cir. 2002). Only an

“extensive, irreconcilable conflict” requires substitution of counsel. Id. Love’s

primary argument relates to the adequacy of the inquiry conducted by the district

court on his first motion, specifically, its denial of the motion without a hearing.1

However, “the failure to conduct a hearing is not by itself an abuse of discretion.”

Id. at 764.

       “[T]he nature of our review requires that we accord the district court

sufficient latitude to conduct the proper inquiry under the circumstances of each

case.” United States v. Walker, 915 F.2d 480, 483 (9th Cir. 1990), overruled on

other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000).

Here, the district court observed Love and his counsel’s interactions before and



       1
       The United States does not dispute this first motion, filed September 22,
2010 (nunc pro tunc to September 1), was timely.

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throughout trial, and held a post-trial hearing addressing the circumstances of each

motion for new counsel. Though “the trial judge might have made a more thorough

inquiry into the substance of [Love]’s alleged conflict with counsel, [Love]’s

description of the problem and the judge’s own observations provided a sufficient

basis for reaching an informed decision.” United States v. McClendon, 782 F.2d

785, 789 (9th Cir. 1986). The refusal to appoint new counsel was not an abuse of

discretion.

      Love also raises two multiplicity arguments. Because he did not raise them

below, we review for plain error. United States v. Zalapa, 509 F.3d 1060, 1064

(9th Cir. 2007). “Plain error is so clear-cut, so obvious, a competent district judge

should be able to avoid it without benefit of objection.” Id. (quoting United States

v. Smith, 424 F.3d 992, 1002 (9th Cir. 2005)).

      First, Love argues his convictions on Counts 6 and 7, both under 18 U.S.C. §

844(h), are multiplicitous because they relate to the same explosive. Assuming we

would agree on de novo review, Love cannot show plain error because this Court

has never held two convictions under § 844(h) for the same explosive

multiplicitous, nor does our precedent otherwise make that conclusion clear-cut or

obvious. Cf. United States v. Gonzalez Becerra, 784 F.3d 514, 518 (9th Cir. 2015)

(“An error cannot be plain where there is no controlling authority on point and


                                           4
where the most closely analogous precedent leads to conflicting results.”) (quoting

United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003)).

      Second, Love argues his § 844(h) convictions are multiplicitous of his

conviction on Count 5, under 18 U.S.C. § 924(c). Because these counts arise under

different statutes, “the test to be applied . . . is whether each provision requires

proof of a fact which the other does not.” Blockburger v. United States, 284 U.S.

299, 304 (1932). Section § 924(c) is limited to use of a firearm in a “crime of

violence” rather than in “any felony” as required by § 844(h). Since a “crime of

violence” need not be a felony and “any felony” includes non-violent crimes, each

statute requires proof of a fact the other does not. Thus, the convictions are not

multiplicitous under the Blockburger test.

      Finally, the United States concedes Love’s conviction on Count 10 must be

reversed because we held in United States v. Ermoian, 752 F.3d 1165, 1172 (9th

Cir. 2013) that an FBI investigation is not an “official proceeding” for the purpose

of 18 U.S.C. § 1512(c)(2). We therefore reverse Love’s conviction on Count 10

and remand for resentencing.

      AFFIRMED IN PART, REVERSED IN PART, REMANDED FOR

RESENTENCING.




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