                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 31 2011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. 10-10151

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00270-RLH-
                                                 GWF-1
  v.

THOMAS COMANS, III,                              MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Roger L. Hunt, Chief Judge, Presiding

                           Submitted February 16, 2011 **
                             San Francisco, California

Before: W. FLETCHER, TALLMAN, and CALLAHAN, Circuit Judges.

       Thomas Comans, III, appeals his jury conviction for soliciting sex with a

minor over the internet. He challenges the district court’s denial of two requests

for change of counsel, both of which were made within two weeks of a retrial. It is


        *
             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).
undisputed that either motion, if granted, would have required a continuance. We

affirm.1

      We review the denial of motions to substitute or withdraw counsel for an

abuse of discretion. United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009)

(motion to withdraw); United States v. Torres-Rodriguez, 930 F.2d 1375, 1380

(9th Cir. 1991) (motion to substitute), overruled on other grounds by Bailey v.

United States, 516 U.S. 137 (1995). In doing so, we consider three factors: (1) the

adequacy of the inquiry into the alleged conflict between the defendant and

counsel, (2) whether the conflict resulted in a total lack of communication

preventing an adequate defense, and (3) the timeliness of the motion and possible

delay. Carter, 560 F.3d at 1113; Torres-Rodriguez, 930 F.2d at 1380 & n.2

(explaining that the three-factor analysis applies to a motion to substitute retained

counsel where trial would be delayed as a result).

      1. Here, the three factors support the denial of counsel’s motion to

withdraw. First, during an ex parte hearing, the district court fully explored the

conflict over the defense strategy for retrial. This inquiry provided a sufficient

basis for the district court to make an informed decision. Notably, Comans has not



      1
             The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.

                                           2                                    10-10151
indicated what information the district court lacked in making its decision.

Second, the disagreement over defense strategy is insufficient, without more, to

establish a conflict that would prevent an adequate defense. United States v.

Reyes-Bosque, 596 F.3d 1017, 1034 (9th Cir. 2010) (concluding that defendant’s

dissatisfaction with defense strategy did not require change of counsel), cert.

denied, 2011 U.S. LEXIS 286 (U.S. Jan. 10, 2011).

      Third, the district court found that the delay of retrial was unjustified

because the motion to withdraw was motivated by fee issues and Comans’s desire

to delay retrial, rather than the conflict. The district court’s findings are not clearly

erroneous given counsel’s focus on fee issues and Comans’s history of requesting

continuances shortly before trial. See Anderson v. Bessemer City, 470 U.S. 564,

574 (1985) (a district court’s findings are not in clear error if “plausible in light of

the record viewed in its entirety”); United States v. Thompson, 587 F.3d 1165,

1174–75 (9th Cir. 2009) (history of continuances supported court’s finding that

motion for change of counsel was brought for delay).

       Accordingly, the district court did not abuse its discretion by denying the

motion to withdraw.

      2. Consideration of these three factors also supports the district court’s

denial of the motion for substitution of counsel. First, the district court held


                                            3                                      10-10151
another hearing that provided a sufficient basis for the court’s decision. Comans

again has not pointed to any information the court lacked in reaching its decision.

      Second, although there was a breakdown in communications after the denial

of counsel’s motion to withdraw, it did not prevent an adequate defense because

counsel had already discovered all of the relevant facts in the case and developed a

full defense theory. Cf. Brown v. Craven, 424 F.2d 1166, 1169–70 (9th Cir. 1970)

(discussing a debilitating conflict that prevented counsel from developing the facts,

interviewing witnesses, and putting on more than a perfunctory defense). The

record reflects that counsel’s decision not to call witnesses at retrial was tactical

and not the result of a breakdown in communications.

      Third, the district court’s finding that delay of retrial was unjustified is

supported by Comans’s history of continuances, see Thompson, 587 F.3d at 1174–

75, as well as the district court’s assessment that the conflict over the use of expert

testimony was inconsequential because there were no issues for which expert

testimony would be warranted.

      Accordingly, the district court did not abuse its discretion by denying the

motion to substitute.

      AFFIRMED.




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