                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               JUN 18 1997
                    UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                    Clerk
                                  TENTH CIRCUIT



 UNITED STATES,

               Plaintiff - Appellee,

          v.                                                 No. 95-6444
                                                      (D. Ct. No. CR-95-80-M)
 JAMES EDWARD SANDERSFIELD,                                 (W. D. Okla.)
 a/k/a James Eddie Sandersfield, a/k/a
 Eddie Sandersfield,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and KELLY, Circuit Judges.



      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Defendant James Edward Sandersfield appeals his conviction in district

court for aiding and abetting in the possession of stolen government property in

violation of 18 U.S.C. §§ 641 and 2, and receiving stolen mail matter in violation

of 18 U.S.C. §§ 1708 and 2. Sandersfield argues that the district court erred in:

(1) refusing to grant a continuance to obtain new counsel and to admit substitute

counsel in violation of his Sixth Amendment right to counsel, and (2) restricting

Sandersfield’s cross-examination of a key government witness in violation of his

Sixth Amendment right to confrontation. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.



                                 BACKGROUND

      Early Monday morning on May 29, 1996, postal workers discovered that the

Southeast Station of the Oklahoma City Post Office had been burglarized. Among

the items taken were three “bait” money orders, a large mail hamper, some

stamps, and a specialized computer. After one of the money orders was

negotiated, postal inspectors traced the money order to Joan Ellen Jenkin, who

resided next door to Sandersfield. As the inspectors approached Jenkin’s home,

they noticed several muddy footprints in the walkway. Finding no one home, the

inspectors left for the day.




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      Early the next morning, one of the inspectors observed Sandersfield and

Jenkin exit her home. The inspector noticed that Sandersfield locked the front

door as he left. The inspector watched as Sandersfield entered his home next

door and as Jenkin climbed into a van parked nearby. The inspector approached

Jenkin and obtained her permission to search the house. Meanwhile another

inspector arrested Sandersfield, noticing that his shoes appeared to match

footprints left at the post office and the muddy footprints outside Jenkin’s house.

      The inspectors proceeded to search Jenkin’s house by opening the

combination lock on Jenkin’s front door using Sandersfield’s date of birth. In the

house, the inspectors found the items taken from the post office. They also found

Sandersfield’s wallet located in a bedroom.

      A grand jury indicted Sandersfield and Ms. Jenkin on two counts of aiding

and abetting each other in the possession of stolen government property in

violation of 18 U.S.C. §§ 641 and 2 (Counts One and Three), and aiding and

abetting each other in the receipt of stolen mail matter in violation of 18 U.S.C.

§§ 1708 and 2 (Count 4). The grand jury also indicted Ms. Jenkin with one count

of falsely making and forging a material endorsement on a money order in

violation of 18 U.S.C. § 500 (Count 2).

      On the morning of the first day of trial, Sandersfield requested a

continuance to retain different counsel. The court denied defendant’s request,


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finding that the attempt to substitute counsel was untimely and would cause undue

cost and delay. The court also noted that Sandersfield had not yet retained new

counsel, that Sandersfield’s current counsel was prepared to go to trial, and that

Sandersfield would not be prejudiced by the denial of a continuance. After the

trial began, Sandersfield’s attorney, at his client’s request, filed a motion to admit

new counsel. Again, the court denied the request.

       At trial, the prosecution’s key witness against Sandersfield was Ernest

Draper. Draper was a cellmate of Sandersfield at the Oklahoma County Jail.

Draper testified that Sandersfield told him that he and two others burglarized the

post office and stole money orders, computers, and other items. The court refused

to permit the defense to question Draper about the nature of the state charges

pending against him. Instead, the court allowed questions regarding whether

Draper had been promised leniency in exchange for his testimony. Draper

testified that he had not received anything other than being transferred to a

different cell.

       The jury acquitted Sandersfield on Count One but convicted him on Counts

Three and Four. This appeal followed.




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                                   DISCUSSION

I.    R IGHT TO C OUNSEL

      Sandersfield contends that the district court erred in denying his motions

for a continuance to obtain substitute counsel and to admit new counsel after the

trial began. We review a district court’s refusal to substitute counsel for an abuse

of discretion. United States v. Johnson, 961 F.2d 1488, 1490 (10th Cir. 1992).

“While we recognize the right to choose and be represented by one’s preferred

attorney is encompassed by the Sixth Amendment, the Supreme Court reminds us

that the ‘essential aim of the Amendment is to guarantee an effective advocate for

each criminal defendant rather than to ensure that a defendant will inexorably be

represented by the lawyer whom he prefers.’” United States v. Mendoza-Salgado,

964 F.2d 993, 1015 (10th Cir. 1992) (quoting Wheat v. United States, 486 U.S.

153, 159 (1988)). When a defendant seeks a continuance to retain substitute

counsel, courts must “balance a defendant’s constitutional right to retain counsel

of his choice against the need to maintain the highest standards of professional

responsibility, the public’s confidence in the integrity of the judicial process and

the orderly administration of justice.” United States v. Collins, 920 F.2d 619, 626

(10th Cir. 1990).

      In reviewing the district court’s discretionary decision to deny a

continuance to obtain substitute counsel, we look to a number of factors,


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including: (1) whether the request was timely; (2) whether the continuance would

have inconvenienced the witnesses, the court, counsel, or the parties; (3) whether

other continuances had been granted; (4) whether legitimate reasons existed for

the delay; (5) whether defendant contributed to the circumstances giving rise to

the request; (6) whether defendant had other competent counsel prepared to try

the case; (7) whether rejecting defendant’s request caused identifiable prejudice

to his case, constituting material or substantial harm; and (8) whether the

complexity of the action or other relevant factors necessitated the delay. See

Mendoza-Salgado, 964 F.2d at 1015; Johnson, 961 F.2d at 1490. “Because the

factors influencing a particular case often vary, the district court enjoys broad

discretion on matters of continuance, even when the parties implicate Sixth

Amendment issues.” Mendoza-Salgado, 964 F.2d at 1015.

      Applying these factors, we conclude that the district court did not abuse its

discretion in denying defendant’s motion for a continuance to obtain substitute

counsel. The record shows that Sandersfield’s attorney requested a continuance

on the morning the trial was to begin. Because Sandersfield had known about the

trial date for nearly two months, the request was untimely and would have

inconvenienced the other participants in the trial. Sandersfield could give no

reason for his last minute request other than that his family wanted to hire a

different attorney and had not yet done so. Sandersfield’s attorney made


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numerous attempts before trial to obtain the names of other attorneys

Sandersfield’s family might retain, but as of the morning of trial, no other

attorney had been hired. Finally, the court determined that Sandersfield’s

attorney was prepared to try the case, and Sandersfield has failed to identify any

prejudice to his case as a result of the representation. Although Sandersfield

contends that his attorney was not prepared to try the case because of a “complete

breakdown in his communication with Mr. Sandersfield and his family,” App’t.

Br. at 14, the record does not support his contention. Accordingly, we hold that

the district court did not abuse its discretion in denying Sandersfield’s motion for

a continuance in order to obtain substitute counsel.

      Similarly, we conclude that the district court did not abuse its discretion in

refusing to admit new counsel after the trial began. “Absent a showing the

district court unreasonably or arbitrarily interfered with defendant’s right to

counsel of choice, we believe reversal is appropriate only when defendant

identifies specific prejudice resulting from denial of preferred counsel, and when

such prejudice renders the trial fundamentally unfair.” Mendoza-Salgado, 964

F.2d at 1016 (citing United States v. Cronic, 466 U.S. 648, 662 n. 31 (1984)). In

this case, the defendant has identified no specific prejudice resulting from the

denial of new counsel. On the contrary, the district court stated that he was

concerned that admission of new counsel after the start of the trial might cause


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prejudice to both Sandersfield and Jenkin. Further, in denying defendant’s

motion, the district court relied on the potential for delay and “the interest of an

efficient administration of justice.” Because the district court’s refusal to admit

new counsel was not arbitrary or unreasonable and because defendant has not

identified prejudice resulting from the denial, we conclude that the district court

did not abuse its discretion in refusing to admit new counsel once the trial began.

II.   R IGHT TO C ONFRONT WITNESSES

      Mr. Sandersfield next argues that the district court violated his right to

confrontation by restricting his cross-examination of Earnest Draper concerning

the nature of a pending state felony indictment against him. We review an alleged

violation of the Sixth Amendment right to confrontation de novo. Hatch v.

Oklahoma, 58 F.3d 1447, 1467 (10th Cir. 1995), cert. denied, 116 S. Ct. 1881

(1996).

      “[A] criminal defendant states a violation of the Confrontation Clause by

showing that he was prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on the part of the

witness.” Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986). However, “trial

judges retain wide latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on concerns about . . .




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harassment, prejudice, confusion of the issues, the witness’[s] safety, or

interrogation that is repetitive or only marginally relevant.” Id. at 679.

      In this case, the defense sought to cross-examine Draper about the nature of

his pending state indictment, arguing that the seriousness of the state charges

created a “prototypical form of bias” favoring the prosecution. Sandersfield

contends that Draper had an obvious incentive to help the federal prosecution

because if convicted on the state charges, he faced life imprisonment.

      We addressed a similar argument in United States v. Ellzey, 936 F.2d 492

(10th Cir. 1991). In that case, we held that the district court did not abuse its

discretion in restricting the defendant’s cross-examination of a government

witness concerning a pending state indictment. Id. at 496. We noted that the

defendant failed to offer any evidence of an actual agreement with the prosecution

or that the witness had a subjective hope or belief that he would benefit from

testifying. Id. We emphasized that the defendant had “shown only the existence

of an indictment in another jurisdiction being prosecuted under separate

prosecuting authority.” Id. Thus, we held that the state indictment did “not

establish the direct link between the witness’s testimony and potential reward or

retribution by the charging prosecution.” Id. at 497.

      As in Ellzey, the federal prosecutors in this case had no direct authority or

influence over the state charges pending against Draper. The defense also failed


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in its repeated attempts to elicit testimony from Draper that he was testifying

against Sandersfield in the hope of receiving favorable treatment. On the

contrary, Draper testified that he had not been promised anything for his

testimony, that he had not asked for leniency from the prosecution, and that he

was unaware of any deals with any law enforcement agency that would result in

favorable treatment. R. Vol. IV, at 509-511, 524. Because Sandersfield has not

satisfied his burden of showing evidence from which an appropriate inference of a

“prototypical form of bias” could be drawn, the district court did not abuse its

discretion in restricting Sandersfield’s cross-examination.

      AFFIRMED.

                                       ENTERED FOR THE COURT,


                                       Deanell Reece Tacha
                                       Circuit Judge




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