UNITED STATES v. TOBEY (2021)

United States Court of Appeals, Ninth Circuit.2021-04-27No. No. 20-10127

Summary · law.co

Holding. The appellate court affirmed the conviction and upheld the magistrate judge's denial of Tobey's request to discharge retained counsel and appoint new counsel.

Jason Tobey was convicted of threatening or intimidating a forest officer while that officer performed official duties, a class B misdemeanor. On appeal, Tobey challenged the magistrate judge's refusal to let him discharge his retained attorney and appoint new counsel instead. The court found no abuse of discretion in denying these requests because Tobey made his motion to change counsel on the eve of trial, and granting it would have caused substantial disruption—witnesses were already traveling or preparing to travel from out of state for the proceeding.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a defendant has a right to discharge retained counsel on the eve of trial
Whether trial court abused discretion in weighing defendant's right against court efficiency and orderly administration of justice
Whether magistrate judge must consider appointment of counsel after denying discharge of retained counsel

Procedural posture

Tobey appealed his misdemeanor conviction to the district court, which affirmed; he then appealed the magistrate judge's counsel-related rulings to the appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM *

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 judges denial of his request to discharge retained counsel and for the appointment of counsel.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. The magistrate judge did not abuse his direction in denying Tobeys 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 Tobeys request to discharge counsel. See Rivera-Corona, 618 F.3d at 979-80.

2. Because the magistrate judge denied Tobeys 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. 2015).

AFFIRMED.

FOOTNOTES

. 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 Tobeys challenges to the magistrate judges rulings regarding counsel were unripe. The parties dispute the district courts resolution of the ripeness issue and at oral argument broadened the ripeness arguments beyond those set forth in the briefs. We review the magistrate judges 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).