                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       APR 17 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50435

                 Plaintiff-Appellee,            D.C. No.
                                                2:13-cr-00288-RGK-1
 v.

JERRY ANTHONY GREGOIRE, Jr., AKA                MEMORANDUM*
Jerry Gregoire, AKA Jerry Anthony
Gregoire,

                 Defendant-Appellant.

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

                             Submitted April 13, 2018**
                               Pasadena, California

Before: SCHROEDER, CLIFTON, and M. SMITH, Circuit Judges.

      Defendant-Appellant Jerry Anthony Gregoire, Jr., appeals the findings made

by the district court on remand. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      As the facts and procedural history are familiar to the parties, we do not recite

them here.

      A prior panel of this court directed the district court on remand “to determine

the extent of the pre-trial conflict between Gregoire and counsel.” Specifically, the

panel instructed the district court to determine whether the conflict rose to the level

of “an irreconcilable conflict . . . that would have resulted in a constructive denial of

counsel or actual prejudice to Gregoire.”

      We hold that the district court complied with these directives. First, the court

held evidentiary hearings on June 13, June 30, and August 30, 2016, at which it

heard testimony and admitted evidence. The court also accepted written argument

from both sides. This afforded the court a sufficient basis for reaching an informed

decision. See, e.g., United States v. Velazquez, 855 F.3d 1021, 1034-35 (9th Cir.

2017); United States v. Smith, 282 F.3d 758, 763 (9th Cir. 2002).

      Having conducted this inquiry, the court properly proceeded to the second

step mandated by the prior panel and our circuit’s precedents. The court evaluated

the testimony and evidence to determine “whether the conflict between [Gregoire]

and his attorney was so great that it resulted in a total lack of communication

preventing an adequate defense.” United States v. Musa, 220 F.3d 1096, 1102 (9th

Cir. 2000). Rejecting much of Gregoire’s characterization of the representation as

“not credible,” the district court determined that the “main dispute” between


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Gregoire and his counsel resulted from his counsel’s decision not to file a frivolous

motion to dismiss the indictment for lack of jurisdiction. Because this dispute did

not prevent Gregoire and his counsel from otherwise being “in frequent and

meaningful communication . . . during the course of the representation,” the court

determined that it did not rise to the magnitude of a conflict “that would have resulted

in a constructive denial of counsel or actual prejudice” to Gregoire. The court

reached this conclusion in compliance with this court’s directives and precedents.

      AFFIRMED.




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