                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 21 2011

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50304

               Plaintiff - Appellee,             D.C. No. 2:10-cr-0056-RGK-1

  v.
                                                 MEMORANDUM*
GUILLERMO ELOY ALAMOS,

               Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                             Submitted October 11, 2011
                                Pasadena, California

Before: PREGERSON and D.W. NELSON, Circuit Judges, and LYNN, District
Judge.**

        Guillermo Eloy Alamos appeals his conviction and the district court’s denial

of his motions to substitute counsel. We have jurisdiction pursuant to 28 U.S.C. §

1291.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for Northern Texas, Dallas, sitting by designation.
      A district court’s denial of a motion to substitute counsel is reviewed for

abuse of discretion. United States v. Lindsey, 634 F. 3d 541, 554 (9th Cir. 2011).

When reviewing whether a district court abused its discretion in denying a motion

to substitute counsel, we consider three factors: (1) the adequacy of the inquiry into

the defendant’s complaint, (2) the extent of the conflict between the defendant and

trial counsel, and (3) the timeliness of the motion and the extent of resulting

inconvenience and delay. United States v. McKenna, 327 F.3d 830, 843 (9th Cir.

2003).

      For an inquiry regarding a motion to substitute counsel to be sufficient, “the

trial court should question the attorney or defendant ‘privately and in depth.’”

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

v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998)). Further, the district court “must

conduct such necessary inquiry as might ease the defendant’s dissatisfaction,

distrust, and concern. . . . and give the court a sufficient basis for reaching an

informed decision.” United States v. Reyes-Bosque, 596 F.3d 1017, 1033 (9th Cir.

2010) (citations omitted).

      Here, the district court conducted two hearings in response to Alamos’s

requests to substitute trial counsel. The trial court did not conduct during either

hearing an inquiry that provided a sufficient basis for it to reach an informed


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decision. Despite Alamos stating that counsel was lying to him and that he and

counsel lacked communication and were not getting along, the district court did not

inquire as to what Alamos meant by these statements and did not ask any specific

questions about the nature of Alamos’s concerns. Rather, the district court

explained to Alamos the obligations and role of his attorney and the Assistant

United States Attorney, and then assumed, but did not confirm, that the conflict

was only a result of Alamos wanting a better deal than the “fast track” offer that he

rejected. Cf. United States v. Prime, 431 F.3d 1147, 1155 (9th Cir. 2005) (finding

adequate inquiry where district court confirmed the extent of the conflict by asking

defendant if he agreed with the court’s summary of his position).

      It does not suffice that at the second hearing the district court asked Alamos

“[W]hy don’t you tell me what happened since the last time we met?” and “[W]hat

would you like to have [your attorney] tell you?” because such open-ended

questions make it difficult to ascertain the extent of the conflict and place an unfair

onus on the defendant. See United States v. Adelzo-Gonzalez, 268 F.3d 772,

777–78 (9th Cir. 2001) (finding “in most circumstances a court can only ascertain

the extent of a breakdown in communication by asking specific and targeted

questions”). As to the single question Alamos asked his own counsel, “Am I right,




                                           3
John? Did you say that to me?” counsel curiously invoked the attorney-client

privilege against his own client, and the court did not follow-up.

      Accordingly, we find that the district court did not sufficiently inquire into

Alamos’s concerns, and the lack of inquiry makes it impossible to discern the

extent of the conflict between Alamos and his counsel. Therefore, the denials of

Alamos’s motions to substitute counsel and his conviction are reversed,1 and the

case is remanded to the district court for a new trial. We assume that the Federal

Public Defender for the Central District of California will represent Alamos on

remand, but if that is not the case, the district court is directed to appoint new

counsel for Alamos.

      REVERSED AND REMANDED.




      1
       Failure to substitute counsel is a structural defect not subject to harmless
error analysis. Rice v. Wood, 44 F.3d 1396, 1401 (9th Cir. 1995), vacated in part
on reh’g en banc, 77 F.3d 1138 (9th Cir. 1996); see also Adelzo-Gonzalez, 268
F.3d at 781 (reversing denials of motions to substitute counsel and vacating
conviction and sentence); United States v. Nguyen, 262 F.3d 998, 1005 (9th Cir.
2001) (reversing judgment of conviction after finding, inter alia, denial of motion
to substitute counsel violated defendant’s Sixth Amendment right).

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