                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 24 2014

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



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-10639

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00097-CRB-1

  v.
                                                 MEMORANDUM*
CUONG MACH BINH TIEU, a.k.a. Ah
Keung, a.k.a. Steve, a.k.a. Hak Se Wui,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                    Argued and Submitted January 16, 2014**
                           San Francisco, California

Before: TALLMAN and IKUTA, Circuit Judges, and GORDON, District
Judge.***




        *
             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).
        ***
              The Honorable Andrew P. Gordon, United States District Judge for
the District of Nevada, sitting by designation.
      Defendant Cuong Mach Binh Tieu appeals his convictions following guilty

pleas to ten racketeering and drug trafficking charges. Tieu alleges that: (1) trial

counsel was ineffective for failing to inform him that the government might offer a

package plea deal in the future; (2) trial counsel had an actual conflict of interest

because counsel could not move for specific performance of a lapsed plea offer

without conceding his ineffectiveness; and (3) the district court abused its

discretion by declining to appoint independent counsel to advise Tieu about the

availability of a motion for specific performance of a lapsed plea offer. Tieu

insists that the record is adequately developed to permit us to rule on his claims

now. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Tieu claims that when counsel advised him on whether to accept his original

individual plea offer, counsel did not inform him that any future plea offer might

be a package deal, less favorable because it would be contingent upon acceptance

by his co-defendant, who later rejected the offer. To establish ineffective

assistance of counsel, Tieu must show that: (1) counsel’s performance was

deficient, in that it fell below an objective standard of reasonableness; and (2)

counsel’s deficient performance prejudiced the defense. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Failure to meet either prong is fatal to an

ineffective assistance of counsel claim. See Gentry v. Sinclair, 705 F.3d 884, 899


                                           2
(9th Cir. 2012). We conclude that Tieu has not met his burden under the first

prong to show that a reasonable criminal defense attorney, knowing that package

deals are not offered in every multi-defendant case, should have informed his client

that the government might decide to offer a package plea deal in the future. See

Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (“The defendant bears

the burden of overcoming the strong presumption that counsel performed

adequately.”). This theory is insufficient to establish that Tieu’s counsel was

ineffective.

      Next, Tieu contends that his counsel’s ineffectiveness resulted in an actual

conflict of interest because moving for specific performance of Tieu’s initial lapsed

plea agreement would force his counsel to concede ineffectiveness. However,

showing a conflict is not enough; Tieu must demonstrate that “some plausible

alternative defense strategy or tactic might have been pursued but was not[.]”

Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006) (citation omitted, emphasis

added). Tieu’s proposed motion for specific performance was not plausible

because it required a showing of counsel’s ineffectiveness, and we conclude

counsel was not.

      Finally, Tieu claims that the district court abused its discretion by declining

to appoint independent counsel to advise Tieu about the availability of a motion to


                                          3
compel specific performance of the lapsed plea offer. We review the district

court’s denial of a motion for substitution of counsel for abuse of discretion. See

United States v. Rivera-Corona, 618 F.3d 976, 978 (9th Cir. 2010). Here, the

district court conducted an ex parte hearing in which he questioned defense

counsel to evaluate the extent of any potential conflict and the likelihood that such

a motion would be meritorious at this stage of the case. See United States v.

Roston, 986 F.2d 1287, 1292 (9th Cir. 1993) (concluding that a single in camera

session was an “extensive” inquiry). The district court concluded that a second

opinion from independent counsel was not necessary since there was no showing

of ineffectiveness at that point in the prosecution of Tieu. The district court’s

inquiry was adequate, and its decision to decline to appoint independent counsel

was not an abuse of discretion.

      AFFIRMED.




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