United States v. Jason Tobey ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10127
Plaintiff-Appellee, D.C. Nos.
2:19-cr-00150-JAM-1
v. 2:19-cr-00150-JAM
JASON A. TOBEY,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted April 15, 2021
San Francisco, California
Before: W. FLETCHER, RAWLINSON, and BADE, Circuit Judges.
Jason Tobey appeals his conviction for threatening or intimidating a forest
officer engaged in performance of official duties in violation of 36 C.F.R. § 261.3,
a class B misdemeanor. He challenges the magistrate judge’s denial of his request
to discharge retained counsel and for the appointment of counsel.1 We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
Tobey appealed to the district court under 18 U.S.C. § 3402 and Federal
Rule of Criminal Procedure 58(g). The district court affirmed and determined that
review of Tobey’s challenges to the magistrate judge’s rulings regarding counsel
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The magistrate judge did not abuse his direction in denying Tobey’s request
to discharge counsel. United States v. Rivera-Corona, 618 F.3d 976, 978 (9th Cir.
2010). When a defendant seeks to discharge retained counsel, the defendant may
generally do so “for any reason or no reason” as long as doing so is not outweighed
by “purposes inherent in the fair, efficient and orderly administration of justice.”
Id. at 979-80 (citations omitted).
Tobey waited until the eve of trial to request a change of counsel. The
magistrate judge found that granting the motion would have substantially burdened
the court and the government as at least one witness was already en route to
California from Georgia, while others were preparing to travel for trial. The
magistrate judge thus did not abuse his discretion by denying Tobey’s request to
discharge counsel. See Rivera-Corona, 618 F.3d at 979-80.”
2. Because the magistrate judge denied Tobey’s request to discharge counsel,
he did not abuse his discretion by not considering whether to appoint counsel under
18 U.S.C. § 3006A. See United States v. Brown, 785 F.3d 1337, 1345 (9th Cir.
were unripe. The parties dispute the district court’s resolution of the ripeness issue
and at oral argument broadened the ripeness arguments beyond those set forth in
the briefs. We review the magistrate judge’s denial of the request for substitution
of counsel for an abuse of discretion, and, under the circumstances of the case,
reject the parties’ broader arguments. See United States v. Rivera-Corona, 618
F.3d 976, 978 (9th Cir. 2010) (reviewing for abuse of discretion when district court
denied motion to substitute retained counsel with appointed counsel).
2
2015).
AFFIRMED.
3