United States v. Roderick Vanga

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 2 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10308
Plaintiff-Appellee, D.C. No.
2:14-cr-00184-GEB-1
v.
RODERICK EARL VANGA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted March 13, 2018
San Francisco, California
Before: PAEZ and IKUTA, Circuit Judges, and VITALIANO,** District Judge.
Roderick Earl Vanga appeals from the district court’s entry of judgment and
sentence following his guilty plea to one count of violating 18 U.S.C. § 751(a).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
1. We hold that the district court did not improperly deny Vanga his Sixth
Amendment right to represent himself. Although the Sixth Amendment guarantees
a criminal defendant the right to represent himself, Faretta v. California, 422 U.S.
806, 819 (1975), a defendant who wishes to proceed pro se “must make a timely,
unequivocal, voluntary, and intelligent request.” United States v. Farias, 618 F.3d
1049, 1051 (9th Cir. 2010) (footnote, alteration, and quotation marks omitted). “If
he equivocates, he is presumed to have requested the assistance of counsel.”
Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989). While “[w]e have not yet
clarified whether [a] denial of a request to proceed pro se is reviewed de novo or
for abuse of discretion,” United States v. Maness, 566 F.3d 894, 896 n.2 (9th Cir.
2009), we review a district court’s factual findings underlying such a denial for
clear error, including a finding that a request was equivocal. United States v.
Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir. 2009).
The district court did not clearly err in finding Vanga’s self-representation
requests equivocal. Although a defendant’s conditional request may be
unequivocal under limited circumstances, see Adams, 875 F.2d at 1445, the
conditions Vanga placed on his self-representation requests—including library
access to a “full scope of federal law,” regular, business-hours access to advisory
counsel and/or a paralegal and/or an investigator, and obtaining a continuance to
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present his untimely, meritless jurisdictional motion—were inapposite and made
his requests equivocal.
2. We further hold that the district court did not abuse its discretion in denying
substitute counsel. We consider three factors in evaluating whether a district court
abused its discretion in denying a motion to substitute counsel: “(1) the adequacy
of the district court's inquiry; (2) the extent of the conflict between the defendant
and counsel; and (3) the timeliness of defendant's motion.” United States v.
Velazquez, 855 F.3d 1021, 1034 (9th Cir. 2017) (quoting United States v. Reyes-
Bosque, 596 F.3d 1017, 1033 (9th Cir. 2010)). Vanga focuses on the second
factor, arguing that there was a complete breakdown in communications between
Vanga and defense counsel that could not be reconciled. But Vanga “must show
that there was an ‘extensive, irreconcilable conflict’ between himself and his
appointed counsel,” Mendez-Sanchez, 563 F.3d at 943 (quoting United States v.
Smith, 282 F.3d 758, 763 (9th Cir. 2002)), that led to “a significant breakdown in
communication that substantially interfered with the attorney-client relationship.”
United States v. Adelzo-Gonzalez, 268 F.3d 772, 779 (9th Cir. 2001).
We hold that there was no “extensive, irreconcilable” conflict that required
the district court to grant the request for substitution of counsel. Indeed, Vanga
repeatedly affirmed his desire to continue with his appointed counsel. Reviewing
the record as a whole, we conclude that the conflict between Vanga and his counsel
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arose from Vanga’s disagreement with his counsel’s litigation tactics, as well as
from Vanga’s “general unreasonableness or manufactured discontent,” rather than
from a genuine extensive and irreconcilable conflict. See Smith, 282 F.3d at 763–
64 (affirming denial of substitute counsel where defendant disagreed with
attorney’s wording of discovery motion and cut off communication after counsel
refused to use defendant’s wording, noting that “[l]itigation tactics are decisions
generally left to defense counsel” and concluding that the disagreement apparently
arose from defendant’s “general unreasonableness or manufactured discontent”
(quoting United States v. Walker, 915 F.2d 480, 484 (9th Cir. 1990))).
3. Because we affirm Vanga’s conviction, we deny as moot Vanga’s request
that his case should be assigned to a different district judge on remand. We note,
however, that this case is not an example of a “rare and extraordinary
circumstance[]” that would warrant reassignment. See Krechman v. Cnty. of
Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (quoting United Nat. Ins. Co. v.
R&D Latex Corp., 242 F.3d 1102, 1118 (9th Cir 2001)).
AFFIRMED.
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