Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Dec. 7, 1998.
Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding.
Before PREGERSON, WIGGINS, and BRUNETTI, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
John Blanco appeals following his conviction in a jury trial for conspiracy to manufacture, possess with intent to distribute, and distribute PCP and methamphetamine. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Blanco first challenges the district court's denial of his motion to substitute appointed counsel. We review for an abuse of discretion. See United States v. D'Amore, 56 F.3d 1202, 1204 (9th Cir.1995). The district court has broad discretion to deny a motion for substitution which would require a continuance. See United States v. George, 85 F.3d 1433, 1438 (9th Cir.1996).
In determining whether a district court abused its discretion in denying a defendant's motion to substitute appointed counsel, this court considers (1) the timeliness of the motion; (2) the adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense. See Torres-Rodriguez, 930 F.2d 1375, 1380 (9th Cir.1991). Blanco's motion was untimely because it likely would have required a continuance. The record also suggests that the district court and the magistrate engaged in an adequate inquiry into Blanco's complaints concerning his counsel. Finally, Blanco failed to show that the asserted conflict created a total lack of communication preventing an adequate defense.
Blanco's reliance upon United States v. Walker, 915 F.2d 480 (9th Cir.1990), is misplaced because in Walker the district court did not indicate that timeliness was a factor in denying the defendant's motion to substitute counsel. 915 F.2d at 482.
Blanco next contends that the district court erred in failing to allow the admission of certain tape recordings under the Rule of Completeness contained in F.R.E. 106. This court reviews for an abuse of discretion. See United States v. Collicott, 92 F.3d 973, 983 (9th Cir.1996). We find that the district court did not abuse its discretion when it refused to admit hearsay evidence, notwithstanding the Rule of Completeness. See id.
Blanco also challenges the adequacy of the district court's jury instructions. If there is no objection to the jury instructions at the time of trial, this court reviews the jury instructions for plain error. See United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir.1995). The district court's use of the Ninth Circuit Model Jury Instruction was not plain error.
Finally, Blanco challenges his life sentence. A three-judge panel's decision, such as United States v. Espinosa, 827 F.2d 604, 617 (9th Cir.1991), may only be over-ruled by an en banc court, a Supreme Court decision, or subsequent legislation. See Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). Therefore, this panel will not accept Blanco's invitation to overrule Espinosa.
Blanco's conviction and sentence are therefore AFFIRMED.