Opinion
Case No. CR03-234-S-EJL.
November 24, 2004
ORDER
Pending before the Court in the above entitled matter is Defendant Ariel Vazquez-Vazquez's Motion for Appointment of Appellate Counsel.
DISCUSSION
The Court has reviewed the record and finds as follows. At the time of Mr. Vazquez's arraignment, Mr. Labrado was retained as defense counsel. Mr. Labrador represented Mr. Vazquez through trial and sentencing. Mr. Labrador has filed a motion seeking the appointment of counsel for Mr. Vazquez for purposes of appeal (Docket No. 77) and references an Affidavit in Support for Motion for Appointment of Counsel. However, no affidavit of counsel was filed with the Court. Moreover, the Court does not have an affidavit of the Defendant indicating his financial status. On the same day as the motion for appointment of counsel was filed, Mr. Labrador also filed a notice of appeal on November 19, 2004 (Docket No. 76). The Ninth Circuit Briefing Schedule was issued on November 22, 2004 (Docket No. 78).
The Rules of the United States Court of Appeals for the Ninth Circuit appear to anticipate that after the filing of the notice of appeal any substitution of counsel will be ordered by the Ninth Circuit and not the District Court. See Circuit Rule 4-1(a), (c) (stating that "counsel shall continue to represent the defendant on appeal until counsel is relieved and replaced by substitute counsel . . . in accordance with this rule" and then providing a mechanism for substitution by leave of the Ninth Circuit). And as a practical matter, because resolution of this issue may affect other orders previously entered by the Ninth Circuit, such as the briefing schedule, and because the outcome may be controlled by the Circuit Rules, see 4-1, it is most appropriate for the Ninth Circuit to consider these matters.
Also, assuming trial counsel will seek to withdraw as counsel, a trial court's decision to release counsel is an exercise of its discretion. United States v. Williams, 717 F.2d 473 (9th Cir. 1983) (citing Glavin v. United States, 396 F.2d 725, 726 (9th Cir. 1968)). However, the authority to substitute counsel has been found to reside with the court "having jurisdiction."United States v. Katz, 296 F. Supp. 1404, 1406 (S.D.N.Y. 1969) (interpreting prior version of 18 U.S.C. § 3006A). Where, as here, "appeal has been taken . . . the district court is divested of jurisdiction to take any action except in aid of appeal."Ruby v. Secretary of Navy, 365 F.2d 385 (9th Cir 1966), cert. denied, 386 U.S. 1011 (1967). Thus, this determination shall also be left to the Ninth Circuit. The Court notes that Local Rules require an attorney to continue to represent the defendant after an appeal has been taken "until leave to withdraw is granted by [the] court as provided in 18 U.S.C. § 3006A" and as provided by the Judicial Counsel of the Ninth Circuit. See Local Criminal Rule 44.1(b).
Accordingly, IT IS HEREBY ORDERED that the Defendants Motion for Appointment of Appellate Counsel (Docket No. 77) is DENIED WITHOUT PREJUDICE for lack of jurisdiction.