UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4570

AARON D. PORTIS, a/k/a Puff,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Joseph Robert Goodwin, District Judge.
(CR-96-179)

Submitted: August 18, 1998

Decided: September 8, 1998

Before ERVIN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas J. Gillooly, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, John L. File, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Aaron Portis ("Portis") was convicted by a jury of one count of
conspiracy to possess with intent to distribute crack cocaine, in viola-
tion of 21 U.S.C. § 846 (1994); two counts of possession with intent
to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(1994); and five counts of distribution of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1) (1994). The district court sentenced Portis to
151 months' imprisonment, to be followed by five years of supervised
release, and imposed fines and assessments totaling $2800. Portis
appeals his convictions and resulting sentence, contending that the
court erred in denying his motion for substitute appointed counsel,
that the court incorrectly denied his motion for a new trial, and that
he was denied effective assistance of counsel. Finding no error, we
affirm.

I.

In the spring and summer of 1996, West Virginia State Police con-
ducted an undercover investigation of the illegal drug activity at the
Beckley West Apartments in Beckley, West Virginia. As part of that
investigation, Jay Sauls ("Sauls"), a crack cocaine addict who main-
tained an apartment in the complex, permitted the agents to conceal
video and audio recording devices in his apartment. For approxi-
mately one month, the agents recorded, observed, and in some
instances, participated in, controlled substance transactions involving
a number of individuals, including Portis. Eventually, a grand jury
indicted eight people as a result of this investigation.

On November 8, 1996, following Portis's arraignment, the district
court appointed Jane Charnock ("Charnock") to represent Portis. On
January 6, 1997, the day before trial, Charnock filed a motion to with-
draw as counsel, or, in the alternative, to continue the trial date. In
that motion, Charnock stated that her request was"not based on any
fundamental disagreement with [Portis], but . . . on [Portis's] failure
to meet and assist in the preparation for trial."1 At a hearing regarding
_________________________________________________________________
1 J.A. at 32.

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that motion on January 8, 1997, Charnock indicated that "the issues
that were raised in the motion have been resolved to a point,"2 but still
requested a continuance, which the court granted. The court, at the
Government's request, granted two additional continuances, which
postponed the trial until May 20, 1997.

On May 13, 1997, Charnock filed a motion to withdraw as counsel
on the basis of "a fundamental conflict of interest between counsel
and Mr. Portis . . . ."3 The district court held an in camera hearing on
May 15, 1997, during which Charnock stated that Portis would not
identify possible witnesses or defenses. Portis disputed this statement
and complained of Charnock's lack of diligence. Specifically, Portis
stated he was being "pushed" into a plea bargain which he did not want.4

After questioning Portis, the court recessed and directed Charnock
and Portis to meet and attempt to resolve their differences. After con-
ferring with Portis, Charnock stated that she thought "substantial
progress" had been made and that she was ready to proceed with trial.5
Portis then stated that, "[i]f [Charnock] wants to stay on as my law-
yer, it's fine with me."6 However, Portis then stated that he wanted
to be "represented differently," by someone who would more thor-
oughly examine his case. After further questioning, the district court
determined that Portis failed to satisfy his burden of showing good
cause for a new appointed attorney and denied the motion for new
counsel.

At trial, the Government presented ample evidence that Portis pos-
sessed and distributed crack cocaine. For example, Sergeant David
Hess ("Hess") of the West Virginia State Police testified that, while
working undercover, he purchased crack cocaine from Portis on two
occasions. In addition, Sauls testified that, while working as a confi-
dential informant, he purchased crack cocaine from Portis on three
occasions. These five transactions were videotaped and audio taped.
_________________________________________________________________
2 Id. at 34.
3 Id. at 81.
4 See id. at 92-93.
5 Id. at 100.
6 Id.

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The government also introduced Portis's voluntary post-arrest state-
ments in which he admitted that he was involved in the distribution
of crack cocaine. Finally, Arthur Floyd ("Floyd"), a central figure in
the drug dealing at the apartment complex, testified that he supplied
Portis with crack cocaine and observed Portis selling it.

After the Government completed its case, the district court granted
Charnock's request for an in camera hearing. During that hearing,
Charnock stated, "Mr. Portis has a request, that he be allowed to pres-
ent his case tomorrow . . . . Mr. Portis thinks that I'm not ready to
put a witness on the stand."7 The district court reluctantly granted the
request. The following day, Portis testified. He denied possessing or
selling crack cocaine, stated that the police officers' testimony was
inaccurate, and contradicted the police officers' accounts of his post-
arrest statements. The jury convicted Portis on all counts, and the dis-
trict court sentenced him to 151 months of imprisonment, to be fol-
lowed by five years of supervised release, and imposed $2800 in fines
and assessments. This appeal followed.

II.

A.

Portis's first contention on appeal is that the district court erred in
denying his motion for substitute counsel. Portis argues that the court
failed to inquire adequately into, to appreciate the seriousness of, or
to take into account the early and repeated signs of differences
between Portis and Charnock. According to Portis, these signs
included the May 15, 1997 pre-trial hearing in which Portis stated that
he was being "pushed" into accepting a plea agreement and believed
Charnock was not adequately prepared for trial and the in camera
hearing conducted at the close of the Government's case in which
Charnock stated that, "Mr. Portis thinks that I'm not ready to put a
witness on the stand."8 We disagree with Portis's contention.

In United States v. Mullen,9 we were confronted with the issue Por-
tis has raised. We stated that:
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7 Id. at 293.
8 Id. at 293.
9 32 F.3d 891 (4th Cir. 1994).

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          As a general rule, a defendant must show good cause in
          requesting a new appointed lawyer. And the trial court has
          the discretion to determine whether the defendant's motion
          for substitution of counsel should be granted. In evaluating
          whether the trial court abused its discretion in denying a
          motion for substitution, we consider three factors:"Timeli-
          ness of the motion; adequacy of the court's inquiry into the
          defendant's complaint; and whether the attorney/client con-
          flict was so great that it had resulted in total lack of commu-
          nication preventing an adequate defense."10

An analysis of these factors leads us to the conclusion that the district
court did not abuse its discretion in denying Portis's motion for sub-
stitute counsel.

First, Portis's motion was untimely. As the district court stated, the
"motion [was] made just two working days, basically, before trial,"11
and "the public interest and proceeding on schedule and moving the
docket weighs heavily in favor of denying this motion."12

Second, the district court adequately inquired into Portis's griev-
ances against Charnock. It conducted a thorough hearing, during
which it questioned Portis at length, recessed to permit Portis and
Charnock to discuss the situation, and reconvened to continue the
hearing. In addition, the court specifically inquired into Portis's dis-
satisfactions, asking such questions as, "[w]hat is your problem with
your lawyer specifically?;"13"[w]hat is it that Miss Charnock--that
you've told her you want to do that she won't do or hasn't done?";14
and asked "[w]hat kind of conflict of interest" Portis was alleging.15
Thus, the court made an adequate inquiry into the bases of Portis's
dissatisfaction with Charnock.
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10 United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994) (quoting
United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988) (internal cita-
tions omitted)).
11 J.A. at 102-03.
12 Id. at 102.
13 Id. at 92.
14 Id. at 98.
15 Id. at 101.

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Finally, we do not believe that the conflict was so great that it
resulted in a "total lack of communication preventing an adequate
defense."16 After meeting at the court's direction on May 15, 1997,
Charnock stated that "substantial progress" had been made. In addi-
tion, Portis himself stated that, "[i]f [Charnock] wants to stay on as
my lawyer, it's fine with me."17 As the court noted, a total lack of
communication does not occur "if you just don't like what your law-
yer is telling you."18 Therefore, based on an assessment of the factors
outlined in Mullin, we conclude that the district court did not abuse
its discretion in denying Portis's motion for substitute appointed
counsel.

B.

Portis next contends that the court erred in denying his motion for
a new trial. In that motion, Portis asserted that there was "sufficient
error" throughout the trial, that "manifest injustice" would occur if a
new trial was not granted, and that the jury verdict was unsupported
by the evidence.19 However, in his brief, Portis contends that the dis-
trict court abused its discretion in denying the motion because Portis
was denied counsel of his choice and was denied effective assistance
of counsel. Specifically, Portis argues that Charnock: (1) failed to
present three potentially effective themes for defense of the case; (2)
"offered curtailed and terse opening and closing statements;"20 (3)
"fail[ed] to attack [the Government's] witnesses vigorously in either
cross examination or closing argument, if not in both, [which] was
tantamount in this case to abandoning the field to the prosecution;"21
(4) used the term "reasonable doubt" only once in her closing argu-
ment; and (5) treated Portis's motion for a new trial "as routinely as
she treated the rest of her defense which she offered, filing the bare
minimum written motion to comply with the requirement of the rule
_________________________________________________________________
16 Mullen, 32 F.3d at 895.
17 J.A. at 100.

18 Id. at 103.
19 J.A. at 416.
20 Appellant's Br. at 21.

21 Id. at 22.

                    6
. . . ."22 Because we discuss Portis's ineffective assistance of counsel
claim in the following section, we limit our discussion here to
whether the evidence supported the jury's verdict.

A review of the record discloses that the evidence presented clearly
supported the jury's verdict, and therefore, the district court did not
abuse its discretion in denying Portis's motion for a new trial. The
government offered the testimony of an undercover police officer
who personally purchased crack cocaine from Portis on two occa-
sions, the testimony of another officer who observed the transactions,
the testimony of Floyd, who stated that he supplied Portis with crack
cocaine, and Portis's post-arrest admissions. In addition, the jury also
had the benefit of weighing Portis's own testimony, in which he
denied any wrongdoing and contradicted the police officers' state-
ments. In light of this evidence, we conclude that the district court did
not err in denying Portis's motion for a new trial.

C.

In addition to asserting ineffective assistance of counsel as one of
the grounds on which the district court should have ordered a new
trial, Portis also contends that it constitutes an independent basis for
reversal of his conviction. In support of his argument, he incorporates
his allegations of ineffective assistance of counsel from the preceding
section.

Portis is aware that "a defendant may raise [his] claim of ineffec-
tive assistance of counsel in the first instance on direct appeal if and
only if it `conclusively appears' from the record that [his] counsel did
not provide effective assistance."23 In addition, Portis concedes that
"an evidentiary hearing below might reveal evidence of ineffective
assistance beyond that described in [Portis's] brief . . . ."24

It does not "conclusively appear" from the record before us that
_________________________________________________________________
22 Id. at 23.
23 United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995); Appellant's
Br. at 24 (quoting Smith).

24 Appellant's Br. at 24.

                     7
Charnock provided ineffective assistance of counsel. 25 Therefore, we
refuse to disturb Portis's convictions or sentence on this ground.

III.

Based upon the foregoing, we affirm Portis's sentence and convic-
tions. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED
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25 Because it does not "conclusively appear" from the record that Portis
was denied effective assistance of counsel, we similarly reject his argu-
ment that the court erred in denying his motion for a new trial based on
Charnock's alleged deficient performance.

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