          United States Court of Appeals
                     For the First Circuit


No. 12-2424

                         UNITED STATES,

                            Appellee,

                               v.

                    FERNANDO DÍAZ-RODRÍGUEZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                 Thompson, Lipez, and Kayatta,

                         Circuit Judges.



     Rafael F. Castro Lang for appellant.

     Justin Reid Martin, with whom Rosa Emilia Rodriguez-Velez,
Nelson Pérez-Sosa, and John A. Mathews II were on brief, for
appellee.




                         March 17, 2014
           LIPEZ, Circuit Judge. Appellant Fernando Díaz-Rodríguez,

convicted at trial of one count of aiding and abetting interference

with commerce by threats of violence and one count of using a

firearm during the commission of a crime of violence, argues on

appeal that the district court abused its discretion when it did

not allow his counsel to withdraw, and further argues that this

decision resulted in a denial of the effective assistance of trial

counsel, all in violation of the Sixth Amendment.             Díaz-Rodríguez

also argues that his sentence of 360 months imprisonment was

procedurally and substantively unreasonable.

           We   conclude     that   the    district   court   violated   Díaz-

Rodríguez's Sixth Amendment right to counsel when it forbade him

from retaining new counsel without conducting any inquiry into his

conflict   with    present    counsel.       Accordingly,     we   vacate   the

conviction.       We need not reach the ineffective assistance or

sentencing issues.

                                      I.

           The crime in this case was vicious.1          Díaz-Rodríguez was

one of four individuals charged with the armed robbery of an

armored truck in September 2010.           His compatriots fired multiple

gunshots during the course of the robbery, seriously wounding an

armed guard and, inadvertently, Díaz-Rodríguez, whose injuries



     1
       The facts of the crime are reported in the light most
favorable to the jury's verdict.

                                     -2-
required medical treatment.       One of Díaz-Rodríguez's compatriots

likely would have killed the armed guard if his firearm had not

malfunctioned.

          Díaz-Rodríguez was arrested and indicted shortly after

the robbery, and his trial was scheduled to begin on May 3, 2011.

In April, the government learned that Díaz-Rodríguez was having

difficulties with his counsel, Carlos Noriega, and consequently

might be seeking substitute counsel.2       Fearful that such a change

in representation would delay the trial,3 the government filed a

motion on April 14 informing the court of the possibility that

Díaz-Rodríguez might retain new counsel and requesting an order

establishing a deadline for doing so or, in the alternative, a

Pretrial Conference with the defendant present to discuss the

matter.   On April 15, before Díaz-Rodríguez could respond to the

government's     motion,   the   district   court   entered   a   summary

electronic order decreeing that "[a]t this late date defendant will

not be allowed to retain new counsel."




     2
       Attorney Noriega was initially retained by Díaz-Rodríguez.
When a plea agreement could not be reached, it became clear that
Díaz-Rodríguez could not afford to pay Noriega for his continued
representation. Accordingly, on the first day of trial, April 16,
2012, Noriega filed, and the court granted, a motion to be
appointed counsel under the Criminal Justice Act (CJA), 18 U.S.C.
§ 3006A.
     3
        The government was concerned with maintaining the
established schedule due to the need to make travel arrangements
for an expert witness.

                                   -3-
             Subsequently, as Díaz-Rodríguez's medical condition from

his gunshot wound worsened, he had to undergo numerous surgeries,

and the trial was repeatedly continued to an April 16, 2012 start

date.   On March 31, 2012, Attorney Noriega filed a motion to

withdraw, citing "irreconcilable differences that prevent [him] to

further assist the defendant as counsel in this case."          He also

noted   that     "the    essential   aspect   of   the   attorney-client

relationship must rest in the trust the defendant has on his

attorney.      It is destroyed when the client places his trust on

another source."        The government responded later that same day,

arguing that the motion was untimely.         On April 2, the district

court summarily denied the motion by electronic order.

             On April 12, Attorney Noriega filed a motion for a

continuance that again mentioned the breakdown in the attorney-

client relationship.        On April 13, following the government's

response, the district court denied the motion for a continuance

calling it an "untimely and speculative request."          On April 15,

Noriega filed a supplemental motion requesting reconsideration of

his motion for continuation of trial.         Among other things, the

motion reasserted the breakdown in his relationship with Díaz-

Rodríguez:

             In    relation    to   the    Attorney-client
             relationship I have stated that it has been
             affected. . . . [The] Six [sic] Amendment
             right is unique and profound in its meaning.
             It relies in [sic] the one and only element.
             It depends on: TRUST. A defendant must trust

                                     -4-
          his attorney.   And when that requirement is
          affected the Attorney client privileges [sic]
          disappear for good.

On April 16, the district court noted the motion and ordered that

trial nonetheless continue as scheduled.

          The jury trial was conducted from April 16 to April 18.

The government introduced physical evidence, including DNA, and

called multiple witnesses, including a DNA expert.        Attorney

Noriega chose to rely solely on the cross-examination of government

witnesses and introduced no evidence.        The jury found Díaz-

Rodríguez guilty of both charges.

          The district court sentenced Díaz-Rodríguez to 240 months

on the robbery count and 120 months on the firearm count, to be

served consecutively.    This appeal followed.

                                 II.

           Díaz-Rodríguez argues that the district court's refusal

to allow him to retain new counsel violated his Sixth Amendment

right to counsel of choice because the court initially forbade him

from hiring substitute counsel without giving him an opportunity to

be heard on the issue.       He further asserts that Noriega was

operating under a conflict of interest due to the loss of trust in

their relationship.

          The Sixth Amendment guarantees criminal defendants the

right to counsel.     An "essential component of that right is the

accused's opportunity to obtain counsel of his own choice." United


                                 -5-
States v. Panzardi Alvarez, 816 F.2d 813, 815 (1st Cir. 1987)

(citing Powell v. Alabama, 287 U.S. 45 (1932)).          However, a

defendant's right to his choice of counsel is not absolute; there

are limits to the time and manner of its exercise.        See United

States v. Richardson, 894 F.2d 492, 496 (1st Cir. 1990).             A

defendant cannot exercise this right in a manner that will "unduly

hinder the fair, efficient and orderly administration of justice."

Panzardi Alvarez, 816 F.2d at 816; see also United States v.

Poulack, 556 F.2d 83, 86 (1st Cir. 1977) ("[T]he right of an

accused to choose his own counsel cannot be insisted upon in a

manner   that   will   obstruct    reasonable   and   orderly    court

procedure.").   Thus, when a defendant seeks to substitute counsel

as trial is approaching, the court must balance his "interest in

retaining counsel of his choice against the public's interest in

the prompt, fair and ethical administration of justice."        United

States v. Woodard, 291 F.3d 95, 106 (1st Cir. 2002) (internal

quotation marks omitted).

          We review a trial court's decision on a defendant's

request to substitute counsel for abuse of discretion.4     Woodard,


     4
       Cases in this area of the law describe motions bearing
different labels. If a motion is filed by the defendant directly,
it is often called a motion for substitution of counsel. If a
motion is filed by the attorney, it is often called a motion to
withdraw.   In some cases these are companion motions, with the
shared objective of replacing one attorney with another. These
motions frequently detail conflicts between the attorneys and the
clients that threaten a breakdown in the attorney-client
relationship.

                                  -6-
291 F.3d at 106.          However, we have also held that the trial court

must       conduct   an   appropriate    inquiry    into    the   source   of   the

defendant's dissatisfaction with his counsel.                 United States v.

Prochilo, 187 F.3d 221, 228-29 (1st Cir. 1999); see also United

States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986) ("Where the

accused voices objections to appointed counsel, the trial court

should inquire into the reasons for the dissatisfaction.").5

Although we have held that "there is no invariable model for a

trial court's inquiry into an allegedly embattled attorney-client

relationship," we have consistently required some "probe into the

nature and duration of the asserted conflict." United States v.

Myers, 294 F.3d 203, 207 (1st Cir. 2002); see also Woodard, 291

F.3d at 107 (noting that "[t]he extent and nature of the inquiry

may vary in each case; it need not amount to a formal hearing");

Prochilo, 187 F.3d at 229 n.8 (noting that, at times, "a chambers

conference,"         "a   telephone   conference,"     or    even   simply      "the

submission of affidavits" might suffice).

               These duty to inquire cases primarily dealt with motions

concerning      appointed     counsel,    whereas   here    Noriega   was    still




       5
       In Allen, we set forth the several factors that we must
examine when reviewing a district court's decision on a motion for
substitution or withdrawal: "the timeliness of the motion, the
adequacy of the court's inquiry into the defendant's complaint, and
whether the conflict between the defendant and his counsel was so
great that it resulted in a total lack of communication preventing
an adequate defense." 789 F.2d at 92.

                                         -7-
retained counsel at the time the motions at issue were filed.6

Nonetheless, in Woodard, a Sixth Amendment right to counsel case

involving retained counsel, we drew on Allen, one of our court-

appointed counsel precedents, for the proposition that "[w]hen a

defendant voices objections to counsel, the trial court should

'inquire into the reasons for the dissatisfaction.'"   Woodard, 291

F.3d at 107 (citing Allen, 789 F.2d at 92).   Although the Woodard

panel expressed "some question about the applicability of the Allen

factors to [motions concerning retained counsel]," see supra note

5, it expressed no reservation about the duty of the court to

inquire about the nature of the attorney-client conflict when faced

with a motion seeking substitution of retained counsel.     Hence,

this duty to inquire applies with equal force whether the counsel

at issue is appointed or retained.7


     6
        As noted above, Noriega became appointed counsel on the
first day of trial, April 16, 2012, after he filed a motion so
requesting.
     7
       In expressing its reservation about the applicability of the
Allen factors to a motion concerning retained counsel, the Woodard
panel suggested that a defendant filing a motion for substitution
of retained counsel could "simply fire[] [his counsel] and retain[]
a different lawyer before trial was scheduled . . . [in order to]
present[] the trial court faced with a motion by counsel to
withdraw with a more palatable alternative." 291 F.3d at 107. The
panel also noted that "[u]nlike a defendant with appointed counsel,
[the defendant] was not dependent on the court's permission to
replace [her attorney]." Id.
     Although this does not appear to be a case in which Díaz-
Rodríguez actually attempted to substitute another retained counsel
for Noriega, we note, for the sake of clarity in the future, that
this dictum from Woodard about the freedom of a defendant with
retained counsel to replace counsel without the court's permission

                               -8-
            The situation presented here is unusual in that the

possibility of substituting defense counsel was first brought to

the court's attention by the government's motion of April 14, 2011.

The court then ruled on that motion the day after it was filed

without giving Díaz-Rodríguez an opportunity to respond either by

written submission or court appearance.         Although we acknowledge

the heavy demands of the district court's docket in Puerto Rico,

the court's failure to inquire in any fashion about the alleged

breakdown in the attorney-client relationship is incompatible with

the precedent already noted requiring such inquiry.        It is telling

that the government's motion did not even seek the relief the court

summarily   granted   --   an   order   forbidding   Díaz-Rodríguez   from


is problematic. Even if a defendant with retained counsel were to
take the course we suggested in Woodard and "simply fire[] [his
counsel] and retain[] a different lawyer," 291 F.3d at 107, the
fired attorney would still have to file a motion to withdraw
pursuant to the local rules of the jurisdiction in which the matter
was pending. See United States v. Gaffney, 469 F.3d 211, 216 (1st
Cir. 2006) (explaining that "[i]n conjunction with filing a motion
for substitution of counsel, [the defendant] would have to fire his
present attorney, hire a new one, and cause his former attorney to
move to withdraw").
     This continuing involvement of the court is necessary because,
even in the privately retained attorney scenario, the decision to
fire counsel, particularly on the eve of trial, affects the
interests of the government in preparing for trial and the court in
the administration of justice. There is always the possibility
that such firings could be delay tactics by the defendant. Still,
we agree with the Woodard panel that the factors relevant to the
court's inquiry into an attorney-client conflict, and its ruling on
that conflict, may differ from those articulated in Allen when
dealing with a motion by retained counsel.        Here, because no
inquiry at all was conducted, we need not decide how the relevant
factors may differ. It is enough to rely on the requirement that
some inquiry must be made.

                                    -9-
retaining new counsel -- but instead sought only a deadline for

retaining new counsel or a hearing on the matter.

            To be sure, the court's initial order of April 15, 2011,

forbidding Díaz-Rodríguez from retaining new counsel "[a]t this

late date," reflected a legitimate concern about the temporal

relationship between his possible desire (attributed to him by the

government) to substitute counsel and a long-scheduled trial date.

We   have   held   that   "as   trial    approaches,    the   balance    of

considerations shifts ever more toward maintaining existing counsel

and the trial schedule."    United States v. Teemer, 394 F.3d 59, 67

(1st Cir. 2005). Here, however, the court did not conduct any such

balancing because the court heard only the government's version of

Díaz-Rodríguez's problems with his attorney, and conducted no

inquiry into the nature of those problems. As we held in Prochilo,

"[b]ecause no inquiry was made, [we] [have] no basis in the record

for sustaining the trial court's rulings."             187 F.3d at 229.

Accordingly, regardless of the time pressures on the district

court, its decision to forego any response from Díaz-Rodríguez and

any inquiry into his relationship with his attorney before entering

its April 15 order was incompatible with Díaz-Rodríguez's Sixth

Amendment right to counsel.

            There were subsequent events, however, that we must

factor into our final decision on the Sixth Amendment issue.            The

subject of Díaz-Rodríguez's representation reemerged almost a year


                                  -10-
later, in late March and early April 2012, again just a few weeks

before the trial, which had been delayed due to Díaz-Rodríguez's

medical treatment.    Attorney Noriega's motion to withdraw and

motion for a continuance provided the district court with some

information on the nature and extent of the breakdown in the

attorney-client relationship. This is the type of information that

Díaz-Rodríguez was not given the opportunity to provide when the

court first dealt with the issue in 2011 and forbade any retention

of new counsel.   The district court again summarily denied the

motions, saying only that the request for a continuance was an

"untimely and speculative request."

          Although there is no requirement that the court always

say more in denying such motions, the circumstances here required

the court to say more.    The basis for the 2012 withdrawal and

continuance motions was an alleged breakdown in the attorney-client

relationship and the need for new counsel.   In its order of April

15, 2011, entered without hearing from Díaz-Rodríguez in any form

and without the inquiry required by the Sixth Amendment, the

district court forbade Díaz-Rodríguez from retaining new counsel.

We cannot tell from the record if the court denied the subsequent

motions on the basis of the flawed April 15 order or whether, on

the basis of the papers submitted to it by Noriega in March and

April 2012, it belatedly made the inquiry, required by Prochilo,

187 F.3d at 228-29, into the breakdown of the attorney-client


                               -11-
relationship.   See also Myers, 294 F.3d at 207 (holding that the

Sixth Amendment requires some "probe into the nature and duration

of the asserted conflict").    Accordingly, given the inescapable

uncertainty on this record of the district court's compliance with

Díaz-Rodríguez's right to counsel, "we are constrained . . . to

direct that [the] conviction be set aside and that this case be

remanded to the district court for further proceedings." Prochilo,

187 F.3d at 229.8

                               III.

          For the foregoing reasons, the conviction and sentence

are vacated.

          So Ordered.




     8
       In a three-line footnote on page 39 of its brief, the
government implies that any error by the district court in its
denial of the motions to withdraw and for a continuance was
harmless.    Although Prochilo suggests that such a result is
possible upon a finding that "[the defendant] suffered no prejudice
by virtue of being represented at trial by [his original attorney]
rather than [substitute counsel]," this argument is developed so
perfunctorily here that we deem it waived. 187 F.3d at 228.

                               -12-
