UNITED STATES of America, Plaintiff-Appellee, v. Viken BENLIAN, Defendant-Appellant

In this appeal we must determine whether a defendant’s refusal to be interviewed by a probation officer gives rise to a Sixth Amendment claim of ineffective assistance of counsel, when that refusal was based on defense counsel’s failure to schedule a time to be present for such an interview. For the reasons which follow, we conclude on the facts of this case that no Sixth Amendment violation occurred.

FACTS AND PRIOR PROCEEDINGS

In April 1992, Viken Benlian (“Benlian”) opened a phony auto accessory store called The Rim Shop in Colton, California. The Rim Shop had a credit card point-of-sale terminal (“POST”) for electronically entering credit card purchases. Using stolen credit card numbers, Benlian entered more than $20,000 in false purchase transactions until his POST was terminated in June 1992. Immediately thereafter, Benlian recruited several individuals to set up other phony auto repair and accessory shops (viz., Rim Shop, One Stop Rim Shop, Discount Auto Accessories, and S & K Auto Accessories) in Rancho Cucamonga and La Puente, California, for the purpose of obtaining new POSTs.

Using stolen credit card numbers obtained on the black market, the co-conspirators entered…