                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 06 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30012

              Plaintiff - Appellee,              D.C. No. 3:11-cr-05295-RBL-2

  v.
                                                 MEMORANDUM*
STEVEN ALLEN MCCRACKEN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted October 7, 2014
                              Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

       Steven Allen McCracken appeals his conviction for conspiracy to distribute

methamphetamine and possession with intent to distribute methamphetamine.

McCracken argues that the district court erred in denying his attorney’s motion to

withdraw. He contends that the district court denied him his choice of counsel and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
right to self-representation by refusing to allow him to either retain substitute

counsel or represent himself. McCracken further asserts that the district court

erred in admitting evidence of his past drug dealing and that it impermissibly

allowed the government to constructively amend the indictment in several respects.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1

      1. In reviewing a motion to substitute counsel, “we consider three factors:

“(1) the adequacy of the district court’s inquiry; (2) the extent of the conflict

between the defendant and counsel; and (3) the timeliness of defendant’s motion.”

United States v. Reyes-Bosque, 596 F.3d 1017, 1033 (9th Cir. 2010). Here,

although its tone may have been overly harsh at times, the district court allowed

McCracken and his appointed counsel to speak at length. McCracken’s request for

substitute counsel, which was far from clear, would have entailed significant

inconvenience and delay because he had not retained substitute counsel. See

United States v. Corona-Garcia, 210 F.3d 973, 977 (9th Cir. 2000) (noting that the

motion to substitute counsel would cause inconvenience and delay to the court and

prosecution because, among other reasons, the defendant “had no other counsel

waiting to substitute”).



      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
                                           2
       The extent of the conflict between McCracken and his lawyer was not

“extensive” or “irreconcilable,” and McCracken did not allege as much. See

United States v. Mendez-Sanchez, 563 F.3d 935, 943 (9th Cir. 2009). Rather,

McCracken wanted his appointed counsel to present a number of affirmative

defenses that counsel thought were untenable. We have indicated that differences

in trial strategy may not arise to the level of a serious conflict of interest where, as

here, the petitioner and his attorney continue to communicate. See Corona-Garcia,

210 F.3d at 977. Indeed, McCracken’s counsel was still able to put on a vigorous

defense at trial.

       Furthermore, although the Sixth Amendment provides a defendant who can

hire his own attorney with a right to be represented by the attorney of his choice,

United States v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010), “[w]here

substitution would result in delay, the defendant may replace existing counsel with

retained counsel, but . . . may do so only upon a showing of good cause.” Id. at

984–85 (Fisher, J., concurring). Here, McCracken’s request would have resulted in

delay and was otherwise not supported by good cause. McCracken had not

actually retained substitute counsel, the defenses that appointed counsel refused to

present were likely baseless, and the motion was not made until six days before

trial. See Miller v. Blacketter, 525 F.3d 890, 896–98 (9th Cir. 2008).


                                            3
      The district court did not violate any of McCracken’s constitutional rights in

denying his request for substitute counsel.

      2. A criminal defendant has a constitutional right to self-representation, but

only if the defendant asserts the right without equivocation. Mendez-Sanchez, 563

F.3d at 945. Here, McCracken asked a number of questions about representing

himself and repeatedly complained about his current and former counsel.

However, our review of the record confirms that McCracken never unequivocally

asserted his right to self-representation.

      3. The district court did not abuse its discretion when it allowed the

government to introduce evidence of McCracken’s prior drug deals and

convictions. Pursuant to Federal Rule of Evidence 404(b), prior crimes and

wrongs acts “may be admitted to refute a duress defense.” United States v.

Verduzco, 373 F.3d 1022, 1029 (9th Cir. 2004). McCracken placed his mental

state in issue. The drug sales and other acts at issue here were highly probative

because they showed that McCracken had sold methamphetamine and other drugs

on numerous occasions in the past, including before he met the person who he

claimed threatened him. In Verduzco, we reiterated that “[w]here the mental state

to be inferred from undisputed overt acts of a defendant is the crucial issue,

evidence of past criminal acts has generally been found insufficiently prejudicial to


                                             4
warrant exclusion.” Id. at 1030 (quoting United States v. McCollum, 732 F.2d

1419, 1425 (9th Cir. 1984)). The lack of prejudice to McCracken is reinforced by

the fact that McCracken’s counsel stated in his opening statement that McCracken

was a part of the drug world, had convictions, and had spent time in prison.

      4. McCracken asserts that the district court impermissibly allowed the

government to constructively amend the indictment and allowed the jury to convict

him: (a) of prior acts dating back to 1998; (b) of aiding and abetting the drug

conspiracy or possession with intent to distribute even if some other drug was at

issue; and (c) of conspiracy to distribute a different drug (i.e. dihydroxy-

methamphetamine).

      “A constructive amendment occurs when the defendant is charged with one

crime but, in effect, is tried for another crime.” United States v. Pang, 362 F.3d

1187, 1194 (9th Cir. 2004). In other words, a constructive amendment “occurs

when the charging terms of the indictment are altered, either literally or in effect,

by the prosecutor or a court after the grand jury has last passed upon them.”

United States v. Ward, 747 F.3d 1184, 1189 (9th Cir. 2014) (internal quotation

marks and citations omitted). Although a constructive amendment requires

reversal, “a variance does not, unless it prejudices the defendant’s substantial

rights.” United States v. Hartz, 458 F.3d 1011, 1020 (9th Cir. 2006). Furthermore,


                                           5
“evidence not referenced in the indictment may be admitted for impeachment or

other legitimate purposes, without effecting any changes to the indictment.”

United States v. Bhagat, 436 F.3d 1140, 1146 (9th Cir. 2006) (internal quotation

marks and citation omitted).

      The admission of evidence concerning McCracken’s prior drug dealing did

not effect a constructive amendment because it was admissible to refute his duress

defense. See Fed. R. Evid. 404(b). The typographical errors in the jury

instructions did not effect a constructive amendment because, when viewed as a

whole, the instructions and verdict forms were not misleading or inadequate to

guide the jury’s deliberations. See United States v. Anderson, 741 F.3d 938, 948

(9th Cir. 2013). Also, the government’s vague suggestion in its closing argument

that dihydroxy-methamphetamine was the same as methamphetamine did not

constructively amend the indictment to allow the jury to convict McCracken of a

different crime. See Ward, 747 F.3d at 1191 (declining to find a constructive

amendment where the indictment “simply contains superfluously specific language

describing alleged conduct irrelevant to the defendant’s culpability under the

applicable statute”). Here, the only evidence in the record indicated that

dihydroxy-methamphetamine was a legal substance. Moreover, the jury

instructions required that the government prove that McCracken “knowingly


                                          6
distributed methamphetamine,” and the only drug that McCracken was alleged to

have possessed was methamphetamine.

      AFFIRMED.




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