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declining to recognize a new public policy exception to Nevada's at-will doctrine and explaining "[a]s a federal court ruling on state law, we feel no duty to be in the vanguard in changing the state law."
Summary of this case from Buchanan v. Watkins & Letofsky, LLP.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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)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 Sept. 18, 1998.
Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding.
Before CANBY and KLEINFELD, Circuit Judges, and KEEP, District Judge.
The Honorable Judith N. Keep, United States District Judge for the Southern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
1. Lyons argues insufficiency of evidence because of the indefiniteness of Moore's reference to "it," lack of physical or other corroboration for much of her remaining testimony, and lack of evidence of his participation in a conspiracy with her. The context made it clear that "it" referred to narcotics. Though one might reasonably distrust the girlfriend's testimony, because of her incentive to say whatever would avoid for herself the same penalty suffered by Lyons, and because of her own narcotics use, the government is correct that a trier of fact may base a conviction on the uncorroborated testimony of an accomplice. United States v. Whitten, 706 F.2d 1000, 1007 (9th Cir.1983). If Moore was believed, as she was, then there was intentional and direct participation in a conspiracy by Lyons. The judge's findings reflect his attention to the risk that the girlfriend might be lying. The test on appeal for sufficiency of evidence is whether "reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," United States v. Edmonds, 103 F.2d 822, 824-25 (9th Cir.1996). The evidence on all the challenged counts meets this test.
2. Lyons argues that the district court abused its discretion in denying his motion to remove counsel. We review only for abuse of discretion. United States v. Walker, 915 F.2d 480, 482 (9th Cir.1990). We have said that on review, we consider timeliness of the motion, adequacy of the court's inquiry, and whether the conflict between the defendant and his attorney was "so great that it resulted in a total lack of communication preventing an adequate defense." United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir.1985). Here the colloquy was adequate, and the conflict, if there was one, did not rise to the level requiring substitution. When the judge asked Lyons why he wanted to fire his lawyer, Lyons said he did not have enough money to get transcripts and pay for his appeal (he had already been convicted), so the judge explained that he would not need any money and could have appointed counsel for appeal. The judge then probed to see whether Lyons had any additional reasons, and Lyons said he had not seen the presentence report earlier, but the judge said he would be given time to talk with his lawyer about it. The judge probed yet again, and Lyons said "we didn't get along," explaining that he had not realized he would have to pay his lawyer more money if he wanted retained counsel to do his appeal. As for not getting along, there was no evidence of irreparable failure of communications, and a "defendant's right to the effective assistance of counsel does not entitle him to a friend ." United States v. Keys, 67 F.3d 801, 808 (9th Cir.1995).
3. Lyons argues that the second and third superseding indictments amounted to vindictive prosecution. He would have the inference drawn that they "could only have been a vindictive response to Lyons' refusal to cooperate and plead." There was no plain error (Lyons did not object in district court), because there is nothing in the record to suggest that the charges were increased to punish Lyons for asserting his constitutional rights. The record suggests rather that as the girlfriend kept talking, the charges kept building.
4. Lyons argues that because only 30.52 grams of crack were put into evidence, the court erred in sentencing him based on 8500 grams. Lyons did not object to the finding of the presentence report that he was responsible for selling 8500 grams, so we review for plain error. We find none. The number was the probation officer's estimate based on Lyons' regular course of business as described by his girlfriend. All Lyons needed to have sold for his offense level was 1,500 grams, and considering that the judge found the girlfriend believable, there was no reason why he could not accept an estimate that put Lyons over that level.
5. Lyons claims ineffective assistance of counsel because of his attorney's failure to challenge vindictive prosecution and failure to do anything for him at sentencing. We do not address this argument on direct appeal, because it is more appropriately left open for review in habeas proceedings. See United States v. Hanoum, 33 F.3d 1128, 1131-32 (9th Cir.1994); United States v. Daly, 974 F.2d 1215, 1218 (9th Cir.1992).
6. Lyons has filed a pro se brief raising additional claims. He is represented, not pro se, but the clerk filed his brief and the government has responded to it, so we have considered his points. His ineffective assistance claims based on his lawyer's failure to assert a speedy trial violation and performance at closing argument is left for habeas review, as explained above. He argues that the evidence was insufficient to show that the $6,000 forfeited was drug money, but the girlfriend's testimony about how Lyons did business, and the presence of this large quantity of cash where he lived, allowed for a factfinder to conclude that the money was from sale of narcotics. Lyons argues that he was denied due process because he was prosecuted federally, where the sentence was much harsher than state sentences for the same crime. There is no constitutional right to be prosecuted in the more lenient jurisdiction. See United States v. Nance, 962 F.2d 860, 865 (9th Cir.1992). Lyons argues that the federal government lacked jurisdiction to prosecute him for selling drugs, because the activity occurred on private property. The point is frivolous.
AFFIRMED.