At page 789 Trial court discretion regarding motions to substitute counsel84 citing cases“a sufficient basis for reaching an informed decision.”
- United States v. Perez, No. 23-3861 (9th Cir. Apr. 8, 2026).unpublished(It is within the trial judge’s discretion to deny a motion to substitute made during or on the eve of trial if the substitution would require a continuance.)
- United States v. Perez, No. 23-3861 (9th Cir. Feb. 11, 2026).unpublished(It is within the trial judge’s discretion to deny a motion to substitute made during or on the eve of trial if the substitution would require a continuance.)
- State v. Jones, 2010 WI 72, 797 N.W.2d 378.published(In applying the ... rule, three factors are considered)
- United States v. Larry Walker, 915 F.2d 480 (9th Cir. 1990).published (While the trial judge might have made a more thorough inquiry ..., McClendon's description of the problem and the judge's own observations provided a sufficient basis for reaching an informed decision.)
- People of Guam v. Ben Castro Crisostomo, 2026 Guam 4 (Guam 2026).publishedThe trial court’s inquiry into the conflict was inadequate [45] Crisostomo argues “[t]he trial court limited its review to discussion with trial counsel and the government about whether [P.C.] would be called to testify and if there was in…
- Chapman, No. 1:25-cv-00075 (D. Idaho Apr. 24, 2026).While a motion “made on the eve of trial alone is not dispositive,” Adelzo-Gonzalez, 268 F.3d at 780 , “[i]t is within the trial judge’s discretion to deny [such a motion] if the substitution would require a continuance.” United States v.…
- Keller v. Garrett, No. 3:22-cv-00481 (D. Nev. May 16, 2025).“It is within the trial judge’s 12 discretion to deny a motion to substitute [counsel] made during or on the eve of trial if the substitution would require a continuance.” 13 United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986); B…
- Douglas Clark v. Ron Broomfield, 83 F.4th 1141 (9th Cir. 2023).publishedId. (quoting United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986)).
- United States v. Brandon Sharp, No. 22-3569 (6th Cir. June 13, 2023).unpublishedSee United States v. Jackson, 662 F. App’x 416, 423 (6th Cir. 2016); United States v. Griffin, 476 F. App’x 592, 597 (6th Cir. 2011); United States v. Justice, 14 F. App’x 426 , 430-31 (6th Cir. 2001) (per curiam); see also United States v…
- People of Guam v. Michael Anthony Libby, 2021 Guam 27 (Guam 2021).publishedUnited States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986) (citing Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970)).
Show 72 more citing cases
- State of Washington v. Craig Russell Jungers, No. 37574-9 (Wash. Ct. App. Sept. 9, 2021).unpublished The “adequacy of the inquiry” factor is concerned with whether the inquiry created a “sufficient basis for reaching an informed decision.” United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986).
- Jeremiah Winchester v. Mike Obenland, No. 19-35940 (9th Cir. Oct. 7, 2020).unpublished United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986).
- O'Neill v. Baker, No. 3:11-cv-00901 (D. Nev. Jan. 6, 2020). (determining that if a defendant moves for substitution 21 of counsel, a state district court may exercise its discretion and deny that motion if it 22 would require a continuance of the trial date)
- Keller (Christopher) v. State, No. 73871 (Nev. Oct. 15, 2018).unpublished"It is within the trial judge's discretion to deny a motion to substitute [counsel] made during or on the eve of trial if the substitution would require a continuance." United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986); Brinkle…
- United States v. Don White, No. 16-10539 (9th Cir. July 24, 2018).unpublished“It is within the trial judge’s discretion to deny a motion to substitute made during or on the eve of trial if the substitution would require a continuance.” 3 United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). 4.
- United States v. Guadalupe Velazquez, 855 F.3d 1021 (9th Cir. 2017).published See Martel, 565 U.S. at 664–66; United States v. Smith, 282 F.3d 758 , 764–65 (9th Cir. 2002); United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986).
- United States v. Donny Love, Sr., 642 F. App'x 700 (9th Cir. 2016).unpublishedThough “the trial judge might have made a more thorough inquiry into the substance of [Lovej’s alleged conflict with counsel, [Lovej’s description of the problem-and the judge’s own observations provided a sufficient basis for reaching an…
- United States v. Steven Laubly, 502 F. App'x 649 (9th Cir. 2012).unpublishedHere, the district court’s inquiry was adequate because he questioned both Laubly and counsel at length about their relationship and had “a sufficient basis for reaching an informed decision.” United States v. McClendon, 782 F.2d 785, 789…
- State v. Thompson, 290 P.3d 996 (Wash. Ct. App. 2012).publishedUnited States v. Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001) (quoting United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986)).
- United States v. Pedro Aguilar-Quinones, 451 F. App'x 671 (9th Cir. 2011).unpublishedSee United States v. Franklin, 321 F.3d 1231, 1239 (9th Cir.2003); United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986).
- United States v. Carlos Lobo, 425 F. App'x 657 (9th Cir. 2011).unpublished“It is within the trial judge’s discretion to deny a motion to substitute made during or on the eve of trial if the substitution would require a continuance.” United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986).
- United States v. Patrick Big Lake, 399 F. App'x 298 (9th Cir. 2010).unpublishedSecond, the judge’s inquiry was adequate because he heard from both counsel and Big Lake about their relationship and thus had “a sufficient basis for reaching an informed decision.” United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1…
- United States v. Emilio Reyes-Bosque, No. 08-50253 (9th Cir. Mar. 1, 2010).publishedUNITED STATES v. REYES-BOSQUE 3225 McClendon, 782 F.2d 785, 789 (9th Cir. 1986), overruled on other grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999)).
- United States v. Reyes-Bosque, 596 F.3d 1017 (9th Cir. 2010).publishedThis inquiry must give the court “a sufficient basis for reaching an informed decision.” United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986), overruled on other grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir.1999).
- United States v. Bride, 263 F. App'x 550 (9th Cir. 2008).unpublishedThe evidentiary hearing transcript reveals that the hearing, while brief, provided the district court with a “sufficient basis for reaching an informed decision.” United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986); cf. Musa, 220…
- Stenson v. Lambert, 504 F.3d 873 (9th Cir. 2007).published United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986).
- Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006).published(motion to substitute made on first day of trial was untimely)
- United States v. Williams, 160 F. App'x 582 (9th Cir. 2005).unpublishedA district court should grant a motion to withdraw where a defendant and his attorney are “embroiled in an irreconcilable conflict” to the extent that the defendant can no longer receive the effective assistance of counsel United States v.…
- United States v. Velazquez, 141 F. App'x 526 (9th Cir. 2005).unpublishedUnited States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986); see United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir.1998). .
- United States v. Velazquez, 127 F. App'x 968 (9th Cir. 2005).unpublishedUnited States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986); see United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir.1998). .
- United States v. Flores-Gonzalez, 120 F. App'x 749 (9th Cir. 2005).unpublishedId.; United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986).
- United States v. Rangel-Rodriguez, 109 F. App'x 182 (9th Cir. 2004).unpublishedWithout knowledge of the facts which might have been revealed by a more careful inquiry, the district court could not have had a “sufficient basis for reaching an informed decision,” United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1…
- United States v. Yazzie, 38 F. App'x 407 (9th Cir. 2002).unpublishedThe inquiry must provide a “sufficient basis for reaching an informed decision.” United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986).
- United States v. Michael Andrew Smith, AKA the Bird, 282 F.3d 758 (9th Cir. 2002).publishedFor instance, “the district court’s failure to conduct a formal inquiry is not fatal error,” if “[the defendant’s] own description of the problem and the judge’s own observations provide[ ] a sufficient basis for reaching an informed decis…
- United States v. Ramirez, 30 F. App'x 747 (9th Cir. 2002).unpublishedUnited States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986).
- United States v. Carlos Adelzo-Gonzalez, 268 F.3d 772 (9th Cir. 2001).publishedThe inquiry must also provide a “sufficient basis for reaching an informed decision.” United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986).
- United States v. Palma, 7 F. App'x 748 (9th Cir. 2001).unpublished(defendant’s description of the problem and judge’s observations provided a sufficient basis for reaching an informed decision)
- United States v. Jones, 4 F. App'x 394 (9th Cir. 2001).unpublishedA district court has “broad discretion” to deny a motion for substitution of counsel that is “made on the eve of trial if the substitution would require a continuance.” United States v. Schaff, 948 F.2d 501, 504 (9th Cir.1991) (citing Unit…
- United States v. Drago Carl Musa, 220 F.3d 1096 (9th Cir. 2000).publishedHowever, “[bjefore the district court can engage in a measured exercise of discretion, it must conduct an inquiry adequate to create a ‘sufficient basis for reaching an informed decision.’ ” D'Amore, 56 F.3d at 1205 (quoting United States…
- UNITED STATES of Am., Plaintiff-Appellee, v. Vincent GONZALEZ, Defendant-Appellant, 113 F.3d 1026 (9th Cir. 1997).publishedA. Adequacy of Inquiry “Before the district court can engage in a measured exercise of discretion, it must conduct an inquiry adequate to create a ‘sufficient basis for reaching an informed decision.’” D'Am ore, 56 F.3d at 1205 (quoting Un…
- United States v. James E. Wagner, 834 F.2d 1474 (9th Cir. 1987).published
- United States v. Henry Garcia, Jr., 924 F.2d 925 (9th Cir. 1991).published
- United States v. Calixtro Torres-Rodriguez, United States of Am. v. Ricardo Guardado, United States of Am. v. Trinidad J. Estrada-Solorzano, United States of Am. v. Am Paro Madriz, 930 F.2d 1375 (9th Cir. 1991).published
- United States v. Melvin Frank Schaff, 948 F.2d 501 (9th Cir. 1991).published
- United States v. Kevin Andre Newburn, 951 F.2d 364 (9th Cir. 1991).unpublished
- Edwin Buffaloheart v. Manfred Maass, Superintendant, Oregon State Penitentiary, 958 F.2d 376 (9th Cir. 1992).unpublished
- United States v. Glenn E. Willmschen, 967 F.2d 596 (9th Cir. 1992).unpublished
- United States v. Roberto Nicolas Castro, 972 F.2d 1107 (9th Cir. 1992).published
- United States v. James Salazar Luna, 972 F.2d 1345 (9th Cir. 1992).unpublished
- United States v. Rogelio Ruiz-Alvarez, 972 F.2d 1347 (9th Cir. 1992).unpublished
- United States v. Miguel Rodriguez-Martinez, AKA Eduardo Cuzares-Guerrero, 983 F.2d 1079 (9th Cir. 1993).unpublished
- United States v. Lee A. Toney, Aka: Tony Lee, 983 F.2d 1080 (9th Cir. 1993).unpublished
- United States v. Fernando Perez Bustillo, 990 F.2d 1261 (9th Cir. 1993).unpublished
- United States v. Jesus Adalberto Ciwensa-Salguero, AKA Corre Caminos, 990 F.2d 1261 (9th Cir. 1993).unpublished
- United States v. Anthony Wayne Fagan, United States of Am. v. Anthony Wayne Fagan, 996 F.2d 1009 (9th Cir. 1993).published
- United States v. Brandon Lee, 465 F. App'x 627 (9th Cir. 2012).unpublished
- United States v. Victor Gallardo, 15 F.3d 1091 (9th Cir. 1993).published
- Gregory Tabarez v. Vernon Smith, 17 F.3d 396 (9th Cir. 1994).unpublished
- Daniel Eugene Frazer v. United States, 18 F.3d 778 (9th Cir. 1994).published
- United States v. James B.A. Niven, 19 F.3d 31 (9th Cir. 1994).unpublished
- Harvey Mack Leonard v. Eddie Ylst Dan Lungren, 24 F.3d 247 (9th Cir. 1994).published
- United States v. Alfredo James Kozlowski, 48 F.3d 1229 (9th Cir. 1995).published
- United States v. Robert D'Amore, 56 F.3d 1202 (9th Cir. 1995).published
- Phillip Benjamin Gunn v. James H. Gomez, Dir. Attorney Gen. of the State of California, 87 F.3d 1318 (9th Cir. 1996).unpublished
- United States v. David Palmer, 91 F.3d 156 (9th Cir. 1996).unpublished
- United States v. Marcos Siordia-Felix, 97 F.3d 1463 (9th Cir. 1996).unpublished
- United States v. Mirssa Araiza-Reyes, A/K/A Mirssa Araiza Reyes, 107 F.3d 878 (9th Cir. 1997).unpublished
- United States v. Carl Dexter Moore, 159 F.3d 1154 (9th Cir. 1998).published
- United States v. Suzette Gal, 606 F. App'x 868 (9th Cir. 2015).unpublished
- United States v. Yepiz, 844 F.3d 1070 (9th Cir. 2016).published
- United States v. Gregory Belcher, No. 18-10133 (9th Cir. May 24, 2021).unpublished
- United States v. Gutierrez, 48 F. App'x 636 (9th Cir. 2002).unpublished
- United States v. Christian, 86 F. App'x 272 (9th Cir. 2004).unpublished
- United States v. Perez-Morales, 89 F. App'x 618 (9th Cir. 2004).unpublished
- Haines v. Roe, 90 F. App'x 525 (9th Cir. 2004).unpublished
- United States v. Taylor, 142 F. App'x 287 (9th Cir. 2005).unpublished
- United States v. Burks, 155 F. App'x 287 (9th Cir. 2005).unpublished
- United States v. Sou, 216 F. App'x 704 (9th Cir. 2007).unpublished
- United States v. Sandoval, 221 F. App'x 606 (9th Cir. 2007).unpublished
- United States v. Torres-Rodriguez, 930 F.2d 1375 (9th Cir. 1991).published
- Marquez v. Baker, No. 3:20-cv-00073 (D. Nev. Jan. 10, 2024).
- United States v. White, 38 F. App'x 426 (9th Cir. 2002).unpublished
At page 790 Reviewing sufficiency of evidence standard for conviction13 citing cases“in reviewing a sufficiency of the evidence claim, this court must affirm the verdict if, 'after viewing 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.”
- (HC) Collins v. Pfeiffer, No. 2:21-cv-01312 (E.D. Cal. Feb. 17, 2022).See, e.g., Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (testimony of single witness sufficient to uphold 28 conviction under Jackson); United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986). 1 evidence to support the jury…
- (HC) Torres v. Lozano, No. 2:18-cv-03136 (E.D. Cal. Oct. 27, 2020).The parties are advised that failure to file objections within the specified time may 24 //// 25 //// 26 //// 27 28 conviction under Jackson); United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986). 1 | waive the right to appeal the…
- (HC) Rodriguez v. Lizzaraga, No. 2:15-cv-01154 (E.D. Cal. Sept. 15, 2020).See, e.g., Bruce, 376 F.3d at 957-58 (testimony of single witness sufficient to uphold conviction under Jackson); United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986).
- Erdmann v. State of Alaska, No. 3:19-cv-00287 (D. Alaska Apr. 1, 2020).See, e.g., Bruce, 376 F.3d at 957-58 (testimony of single witness sufficient to uphold conviction under Jackson); United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986).
- (HC) Johnson v. Spearman, No. 2:17-cv-01635 (E.D. Cal. Nov. 4, 2019).See, e.g., Bruce, 376 F.3d at 957-58 (testimony of single witness sufficient to uphold conviction under Jackson); United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986).
- United States v. Sandra Vaccaro, John Vaccaro, Michael Brennan, Paul Bond, Norman Alvis, Stephen Labarbera, Dorothy Snider, & William Cushing, 816 F.2d 443 (9th Cir. 1987).published
- United States v. Raimundo Crespo De Llano, United States of Am. v. George Antonio Rojas, United States of Am. v. Justina Garcia Dominguez, United States of Am. v. Santos Amable Dominguez-Peraza, 830 F.2d 1532 (9th Cir. 1987).published
- United States v. Raimundo Crespo De Llano, United States of Am. v. George Antonio Rojas, United States of Am. v. Justina Garcia Dominguez, United States of Am. v. Santos Amable Dominguez-Peraza, 838 F.2d 1006 (9th Cir. 1988).published
- United States v. Gregory Cook, 34 F.3d 1074 (9th Cir. 1994).unpublished
- Subramaniam v. Vijendira v. United States, 35 F.3d 573 (9th Cir. 1994).unpublished
Show 2 more citing cases
- Oliva v. Hedgpeth, 600 F. Supp. 2d 1067 (C.D. Cal. 2009).published
- United States v. Crespo de Llano, 830 F.2d 1532 (9th Cir. 1987).published
At page 788 Discretion in denying additional peremptory challenges8 citing casesDisagreement between codefendants on the exercise of joint peremptory challenges does not mandate a grant of additional challenges unless defendants demonstrate that the jury ultimately selected is not impartial or representative of the community.
- United States v. Liana Lee Lopez, 649 F.3d 1222 (11th Cir. 2011).published(Disagreement between codefendants on the exercise of joint peremptory challenges does not mandate a grant of additional challenges unless defendants demonstrate that the jury ultimately selected is not impartial or rep…)
- United States v. Johnson, 677 F.3d 138 (3d Cir. 2012).publishedSee, e.g., United States v. Femandez-Hernandez, 652 F.3d 56, 65 (1st Cir.2011) (“The court’s questioning of the prospective jurors outside the presence of the Defendant] was justified, and, in any event, [Defendant] waived any right to be…
- United States v. Ronald R. Rewald, 889 F.2d 836 (9th Cir. 1989).published
- United States v. James J. Boutross, United States of Am. v. Martin Harris, 967 F.2d 592 (9th Cir. 1992).unpublished
- 42 Fed. R. Evid. Serv. 1089, 95 Cal. Daily Op. Serv. 6281, 95 Daily Journal D.A.R. 10,701 United States of Am. v. Guy W. Olano, Jr., United States of Am. v. Raymond M. Gray, 62 F.3d 1180 (9th Cir. 1995).published
- In Re Cardinal, 649 A.2d 227 (Vt. 1994).published
- United States v. Olano, 62 F.3d 1180 (9th Cir. 1995).published
At page 786 Justifying waiver of ineffective assistance of counsel claim4 citing casesmotion on day of trial untimely
- Bradley v. Henry, 510 F.3d 1093 (9th Cir. 2007).published It may also "be justified in obtaining the defendant's waiver of *1104 any ineffective assistance of counsel claim growing from the late substitution." Id. (citing United States v. McClendon, 782 F.2d 785, 786 (9th Cir.1986)).
- United States v. Dean E. Lillie, 989 F.2d 1054 (9th Cir. 1993).published
- United States v. Gun Ho Kim, United States of Am. v. Hyung Su Lee, AKA Chris Lee, United States of Am. v. Hyung Su Lee, AKA Chris Lee, United States of Am. v. Gun Ho Kim, 59 F.3d 176 (9th Cir. 1995).published
At page 787 Limiting peremptory challenges and juror excusal procedures3 citing casesOn the same day, the court granted each side the minimum number of peremptory challenges required by the Federal Rules of Criminal Procedure plus a…
- United States v. Sandra Vaccaro, John Vaccaro, Michael Brennan, Paul Bond, Norman Alvis, Stephen Labarbera, Dorothy Snider, & William Cushing, 816 F.2d 443 (9th Cir. 1987).published
- United States v. Jack Farmer, Kevin McNab Pamela Farmer, Martin Byrski, James Villalpando, & Michael Farmer, 924 F.2d 647 (7th Cir. 1991).published
- State v. Purdy, 491 N.W.2d 402 (N.D. 1992).published
v.
Rupert Earl McCLENDON, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Bernest COLLINS, Defendant-Appellant
McClendon and Collins appeal from their convictions of conspiracy and multiple acts of armed bank robbery. We affirm.
FACTS
On March 2, 1984, appellants were indicted on multiple counts of armed bank robbery and one count of conspiracy to commit bank robbery. Eleven of the thirteen counts concerned a string of bank robberies committed in the fall of 1983. One of the remaining counts, Count Two, charged McClendon and a third defendant, Higgins, with assisting in an unrelated bank robbery in July of that same year. Higgins was not indicted on any other charge.
On the first day of trial, appointed counsel for McClendon told the court that his client wanted him to withdraw and had retained a lawyer to replace him. Counsel, who had been working on the case for more than two months, said that there were “irreconcilable” differences between him and his client. After some discussion, McClendon volunteered that counsel stuttered and “wasn’t that thorough” in his investigation of the case. The judge responded that he had known counsel for nine years and that he did not stutter. He then refused to allow the substitution unless McClendon produced his new attorney for the scheduled start of trial that afternoon and agreed to waive any future claim of ineffective assistance of counsel. When McClendon’s new attorney did not appear that afternoon, the court denied the motion. McClendon did not renew his motion to substitute and his retained counsel did not appear at any point during the trial.
[*787] On the same day, the court granted each side the minimum number of peremptory challenges required by the Federal Rules of Criminal Procedure plus a proportionate number of additional challenges. After the first jury panel was discharged because of problems not relevant here, the court sua sponte reversed its decision to award additional challenges and limited the parties to the minimum of 10 to the defense and six to the government, provided for in Fed.R. Crim.P. 24(b). The court reasoned that it was an unnecessary exercise of judicial discretion to extend the number and that adherence to the standard would favor the “expeditious and efficient prosecution” of the case. Defendants unsuccessfully objected, claiming that significant differences in the codefendant’s cases required the grant of additional challenges. Defendants later renewed their argument when they could not agree on how to exercise their last two peremptory challenges. Again, their motion for additional challenges was denied.
Through out voir dire, many jurors were examined individually in chambers concerning their claims of hardship. Counsel and the court reporter were present, but defendants were not. Defendants did not object to their exclusion.
Near the end of voir dire, the government concluded examination of juror Kemp by passing its sixth and final peremptory challenge. Under both the local rules and the court’s statement at the time, the pass was the equivalent of exercising the challenge. The government thus exhausted its allotment of peremptory challenges.
The defense then asked to reopen voir dire of juror Kemp. The government and court agreed, after defendants stipulated that the government could reconsider its waiver of challenge against Kemp. The court concluded the agreement by stating that the proceedings were back where they had been before the government passed its last peremptory.
Before juror Kemp could be reexamined, the court received a note stating that a previously selected juror had been overheard making biased statements to some of the other jurors. After questioning, that juror was excused by stipulation. Juror Brown took the discharged juror’s place in the box and both she and juror Kemp were examined. At the close of the examination, the government sought to exercise its peremptory challenge against juror Brown. The defense objected, arguing that the stipulation to restore the government’s final challenge only applied to its use against juror Kemp. The court allowed the government to excuse Brown. '
After a six-week trial, appellants were convicted of conspiracy and multiple instances of armed bank robbery. McClendon was found guilty on Count Two while his alleged accomplice, codefendant Higgins, was acquitted.
I. REFUSAL TO GRANT ADDITIONAL PEREMPTORY CHALLENGES.
Both appellants claim that the court abused its discretion in (1) reversing its initial decision to grant defendants additional peremptory challenges, and (2) refusing to grant defendants additional challenges when defense, counsel could not agree on the joint exercise of their final two challenges. Citing the rule that any impairment of the right to peremptory challenges mandates reversal without a showing of prejudice, Swain v. Alabama, 1965, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759; United States v. Brooklier, 9 Cir., 1982, 685 F.2d 1208, 1223, appellants conclude that reversal is automatically required.
However, there is no “right” to additional peremptory challenges in multiple defendant cases. The award of additional challenges is permissive, not mandatory, Fed.R.Crim.P. 24(b), and rests in the trial court’s sound discretion. United States v. Hueftle, 10 Cir., 1982, 687 F.2d 1305, 1309; United States v. Haldeman, D.C.Cir., 1976, 559 F.2d 31, 79; see United States v. Turner, 9 Cir., 1977, 558 F.2d 535, 538. Cf United States v. Hooper, 5 Cir., 1978, 575 F.2d 496, 498.
[*788] At oral argument appellants agreed that the district court could properly have denied their initial motion for additional challenges. Absent a showing of prejudice to defendants, it follows that it was also within the court’s discretion to review and reverse its decision. See United States v. Tucker, 5 Cir., 1976, 526 F.2d 279, 283. It was proper for the court to consider the need for expeditious proceedings in so doing. United States v. Johnson, 6 Cir., 1978, 584 F.2d 148, 155. The district court did not abuse its discretion in denying appellants additional peremptory challenges.
Appellants also err in their claim that the deadlock over the use of their final challenges required the grant of additional challenges. Disagreement between codefendants on the exercise of joint peremptory challenges does not mandate a grant of additional challenges unless defendants demonstrate that the jury ultimately selected is not impartial or representative of the community. Hueftle, 687 F.2d at 1309; see Stilson v. United States, 1919, 250 U.S. 583, 586, 40 S.Ct. 28, 29, 63 L.Ed. 1154. Cf. Hooper, 575 F.2d at 498. Appellants have not made the necessary showing.
II. RESTORATION OF GOVERNMENT’S PASSED PEREMPTORY CHALLENGE.
McClendon and Collins also claim that the district court abused its discretion when it allowed the government to exercise its restored peremptory challenge against juror Brown. They correctly note that Local Rule 326-1 requires that a passed challenge be treated as waived and argue that their stipulation to the contrary was limited to the challenge’s use against juror Kemp. Because the passed challenge represented the government’s last peremptory, appellants contend that the court’s action effectively granted the government an additional peremptory challenge without defendant’s consent, and thus violated Federal Rule of Criminal Procedure 24(b).
It is true that the district court may not grant the government more than the minimum number of peremptory challenges without the consent of the defendants. Fed.R.Crim.P. 24(b); see, e.g., United States v. Tucker, 526 F.2d at 283. In this case, however, the court did not grant the government an extra challenge. Instead, it restored a passed challenge, and did so with appellants’ consent. Although discussion of the stipulation to restore the passed challenge centered on juror Kemp’s reexamination, the stipulation was not limited to that reexamination. In fact, in summing up the discussion, the trial judge stated that the proceedings had returned to the point just before the government was asked to exercise its last peremptory challenge. If a new juror had unexpectedly been brought into the box at this point originally, the government could certainly have used its last challenge against the new juror instead of juror Kemp. The fact that the unanticipated discharge of a previously examined juror occurred just before the government’s restored opportunity to exercise the same challenge does not require a different result.
III. EXCLUSION FROM IN-CHAMBERS VOIR DIRE.
McClendon and Collins argue that their exclusion from in-chambers voir dire of prospective jurors violated Rule 43(a) of the Federal Rules of Criminal Procedure. The Rule provides:
The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
Appellants did not object to their exclusion from in-chambers conferences at any time in the proceeding.
In United States v. Gagnon, 1985, — U.S.-, 105 S.Ct. 1482, 84 L.Ed.2d 486, the Supreme Court considered just this situation. Assuming for the purposes of the case that an in camera conference with a juror was a “stage of the trial,” the Court held that
[*789] failure by a criminal defendant to invoke his right to be present under Federal Rule of Criminal Procedure 48 at a conference which he knows is taking place between the judge and a juror in chambers constitutes a valid waiver of that right.
Id., 105 S.Ct. at 1486. Under Gagnon, therefore, both McClendon and Collins waived their right to be present at the in-chambers voir dire.
IV. SUBSTITUTION OF COUNSEL.
In Brown v. Craven, 9 Cir., 1970, 424 F.2d 1166, we held that refusal to allow substitution of attorneys may result in denial of the constitutional right to effective assistance of counsel if the defendant and his attorney are embroiled in an “irreconcilable conflict.” Id. at 1170. In applying the Craven rule, three factors are considered: (1) the timeliness of the motion to dismiss counsel; (2) the adequacy of the court’s inquiry into defendant’s complaint; and (3) whether the conflict between defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense. United States v. Mills, 9 Cir., 1979, 597 F.2d 693, 700. McClendon argues that the district court failed to conduct the necessary inquiry and that reversal is therefore required. Analysis of the district court’s ruling under the full Mills test demonstrates that his claim lacks merit.
The first factor in the Mills test is the timing of the motion to substitute. In this case, the motion was made on the first day of trial. It is within the trial judge's discretion to deny a motion to substitute made during or on the eve of trial if the substitution would require a continuance. United States v. Williams, 9 Cir., 1979, 594 F.2d 1258, 1260-61; United States v. Michelson, 9 Cir., 1977, 559 F.2d 567, 572. The trial judge in this case denied McClendon’s motion after refusing to grant a continuance to allow the substitution. This decision was not an abuse of discretion.
While the trial judge might have made a more thorough inquiry into the substance of McClendon’s alleged conflict with counsel, McClendon’s description of the problem and the judge’s own observations provided a sufficient basis for reaching an informed decision. Thus, the district court’s failure to conduct a formal inquiry was not fatal error. Moreover, there was no showing that the alleged conflict was so great that it prevented McClendon from presenting an adequate defense. The record reveals no lack of communication between McClendon and counsel and shows that counsel was vigorous and well prepared in his argument. Under these circumstances and considering the untimeliness of the motion, the trial judge did not abuse his discretion in denying McClendon’s motion to substitute counsel.
V. SUFFICIENCY OF THE EVIDENCE ON COUNT TWO.
McClendon’s final claim on appeal is that there was insufficient evidence to support his conviction on Count Two of the indictment. Count Two charged McClendon and codefendant Higgins with aiding an unidentified man in a bank robbery on July 18, 1983. The robbery preceded and was independent of the Collins/McClendon conspiracy and robberies that were the subject of other counts in the indictment.
The evidence on Count Two is not in dispute. It showed that an armed man robbed the United Bank on Polk Street of $700 on July 18, 1983. The robber fled on foot to a waiting car occupied by two black males. One of the occupants, later identified as Higgins, left the car just before his companion and the robber drove away. A few minutes later the same car, now occupied by three black men, was seen speeding on Polk Street and chased by police, who lost it. Less than fifteen minutes later, other police stopped the car. At that time there were only two occupants, defendants McClendon and Higgins, who were arrested. The third man, the alleged bank robber, had disappeared.
Two eyewitnesses who saw the getaway near the bank confirmed that McClendon[*790] and Higgins were the same two men they had seen in the waiting getaway car. They also confirmed that the car stopped was the same car. One of the eyewitnesses, who had gotten a particularly good look at McClendon, made an in-court identification of both men as the ones she had seen in the getaway car. The second eyewitness was not able to make an in-eourt identification.
On the basis of this evidence, McClendon was convicted and Higgins was acquitted. The essence of McClendon’s claim is that the jury could not reach opposite conclusions on virtually the same evidence. The fact that they did, McClendon argues, demonstrates that the evidence on Count Two was not sufficient for conviction and that in order to convict McClendon, the jury must have improperly considered evidence introduced on the other robbery counts.
In reviewing a sufficiency of the evidence claim, this court must affirm the verdict if, “after viewing 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.” Jackson v. Virginia, 1979, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (emphasis in original); see United States v. Cusino, 9 Cir., 1982, 694 F.2d 185, 187.
The evidence against McClendon was sufficient to support a conviction under this standard. From the eyewitness testimony alone, a jury could rationally conclude that McClendon had waited for the robber outside the bank and helped him to escape. See United States v. Larios, 9 Cir., 1981, 640 F.2d 938, 940 (testimony of one eyewitness sufficient to uphold conviction). Moreover, the jury could have properly considered evidence of McClendon’s involvement in subsequent robberies on the issues of his modus operandi, knowledge, and intent in the robbery charged in Count Two. See, e.g., United States v. McKoy, 9 Cir., 1985, 771 F.2d 1207, 1213-14 (evidence of other crimes relevant to any issue at trial is admissible except where the evidence proves only the defendant’s criminal disposition); United States v. Casanova, 9 Cir., 1981, 642 F.2d 300, 301 (evidence of two similar robberies admissible on issue of knowledge and intent). While the fact that the jury was less convinced of Higgins’ guilt may be curious, it does not undermine our finding that a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” from the evidence presented against McClendon. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
In each appeal, the judgment is AFFIRMED.