                                                                               FILED
                            NOT FOR PUBLICATION                                 SEP 15 2011

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-36032

              Plaintiff-Appellee,                D.C. No. 2:03-cr-0069-EJL-1
                                                          2:08-cv-00191-EJL
  v.

CHRISTOPHER CLOSE,                               MEMORANDUM *

              Defendant-Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                           Submitted September 1, 2011 **
                               Seattle, Washington

Before: HAWKINS, BEA, and MURGUIA, Circuit Judges.

       Christopher Close appeals his conviction in federal district court, following a

jury trial, on eleven counts of health care fraud, obstruction, and money

laundering. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Two days before his trial was set to begin, Close filed his sixth motion to

continue trial so that he could replace his court-appointed attorney, Brian Thie,

with private counsel, Douglas Phelps. The district court held a hearing on Close’s

motion to continue and accepted a sealed affidavit and a sealed supplemental

declaration from Thie—documents which detailed Thie’s interactions with Close

over the previous eight months. These sealed documents were not provided to

Close, nor read aloud in court, but were read by the judge in chambers. After

conviction and exhaustion of his direct appeals, Close filed a petition for habeas

relief under 28 U.S.C. § 2255.1

       Close contends that Thie’s submission of sealed declarations to the district

court, without providing copies to Close, violated Close’s right to conflict-free

counsel because Thie put his own interests before those of Close. The Sixth

Amendment right to counsel includes the right to conflict-free counsel at critical

stages of a criminal proceeding. Wood v. Georgia, 450 U.S. 261, 271 (1981). This

court has never held that a hearing on a motion to continue trial is a “critical stage”

of the proceeding, but Close’s arguments are unavailing even if we assume that it




      1
        This court reviews de novo a district court’s denial of a petition brought
under 28 U.S.C. § 2255. United States v. Fredman, 390 F.3d 1153, 1156 (9th Cir.
2004).

                                           2
is such a critical stage. Here, the client and attorney had a common interest in

showing a breakdown in the relationship and getting a continuance granted.

         Close also contends that he was denied due process when the court did not

provide him with copies of the sealed statements. The Fifth Amendment generally

guarantees an individual reasonable notice and an opportunity to be heard before

he can be deprived of liberty or property. See Mathews v. Eldridge, 424 U.S. 319,

333 (1976). However, Close was present at all portions of the hearing and was

given an opportunity to respond to or rebut the accusations made by Thie in his

testimony. The content of the affidavit and of the attorney’s testimony were

effectively identical.

         Normally, it is the better practice to show an attorney affidavit to the client

as well as to the judge and to allow the client to cross-examine the attorney.

However, for the reasons stated above, we conclude that Close’s claims are without

merit.

         AFFIRMED.




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