United States v. Cuong MacH Binh Tieu , 553 F. App'x 694 ( 2014 )

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NOT FOR PUBLICATION JAN 24 2014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
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(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
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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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