The Honorable Andrew W. Bogue, United States District Judge 1

for the District of South Dakota, sitting by designation.

The Honorable Donald J. Stohr, United States District Judge 2

for the Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3033

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Geno L. Armstrong, also known *

as Leon Macon, *

*

Appellant. *

___________

 Submitted: February 12, 1997

 Filed: April 25, 1997

___________

Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District Judge. 1

___________

BOWMAN, Circuit Judge.

Geno Armstrong was found guilty by a jury on charges of possession

with intent to distribute cocaine base, see 21 U.S.C. § 841(a)(1) (1994),

carrying a firearm during and in relation to a drug trafficking crime, see

18 U.S.C. § 924(c)(1) (1994), and being a felon in possession of a firearm,

see 18 U.S.C. § 922(g)(1) (1994). The District Court entered judgment on 2

the verdicts and
Armstrong’s trial was held prior to the Supreme Court’s 3

decision in Old Chief v. United States, 117 S. Ct. 644 (1997),

wherein the Court held that a district court abuses its

discretion when it allows the government to put on evidence of

prior convictions for purposes of proving a 18 U.S.C. § 922(g)(1)

charge if the defendant offers a properly-framed admission to the

prior convictions.

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sentenced Armstrong to concurrent terms of 180 months and 120 months, and

a consecutive sentence of sixty months. Armstrong appeals, raising two

issues. We affirm.

First, Armstrong alleges reversible prosecutorial misconduct as a

result of comments made during the government’s opening statement.

Assuming the comments at issue were improper, we nevertheless conclude that

any error was harmless. 

Before trial, the parties agreed that a stipulation would be read to

the jury that itemized three previous felony convictions from Armstrong’s

criminal record. By so stipulating, Armstrong received the benefit of the

government’s agreement not to put on evidence of these prior convictions

for purposes of proving the felon in possession charge. (The government 3

also agreed to drop Armstrong’s alias from the charge, so that the jury

would not be aware that he was known by another name.)

As trial began, the prosecutor in his opening statement made certain

comments concerning Armstrong’s criminal record. Specifically, Armstrong

objected to the comment that “[t]his case is about a previously convicted

drug dealer who packs a pistol.” Trial Transcript vol. 2 at 42. The court

sustained the objection, but denied Armstrong’s request that the jury be

instructed to disregard the comment, noting, “I think it will call more

attention to it if we do it that way. I’m afraid that if we do that

they’re going to know that the issue is there. . . . I think it will make
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the issue, fix the issue more deeply in their minds.” Id. vol. 2 at 43-44.

The other remark on which Armstrong’s argument focuses was made a moment

later when the prosecutor said, “The Government believes that the evidence

will show that the Defendant, Geno Armstrong, was convicted of a drug

violation in St. Louis . . . .” Id. vol. 2 at 45. Counsel objected, and

the jury was sent out while the parties and the judge conferred. The court

told the prosecutor that he could “say the evidence will show [Armstrong]

has three prior convictions,” but cautioned that the government would not

be permitted to argue or to “go through each piece of evidence here.” Id.

vol. 2 at 46. Defense counsel did not move for a mistrial and the trial

proceeded.

Ordinarily, our review consists of two parts: we first consider

whether the remarks were in fact improper and then, if they were improper,

whether the remarks so prejudiced the defendant’s rights as to deny him a

fair trial. See United States v. Stands, 105 F.3d 1565, 1577 (8th Cir.

1997).

In response to Armstrong’s claim, the government first contends that

the remarks in question were not improper. According to the government,

the comments were not argumentative and merely stated facts that related

to the felon in possession charge--facts that later would be in evidence

via the reading of the stipulation. We need not disturb the District

Court’s conclusion that the form of the comments, at least, was

objectionable. We will assume that the remarks were improper and proceed

to the second part of the test.

We consider three factors when deciding whether the error--the

allegedly improper comments--could have affected the jury’s verdict or

whether it was in fact harmless. United States v. French, 88 F.3d 686, 689

(8th Cir. 1996) (noting harmless error standard of
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review). First, we evaluate “the cumulative effect of the misconduct.”

Id. Although Armstrong’s counsel objected throughout the prosecutor’s

opening statement, there were only three objections specifically related

to this issue (one of which was overruled), and only the two comments

quoted above are cited to us as reversible error. Because the remarks were

limited, and they occurred at the earliest stage of the trial, we think

their cumulative effect was insignificant.

Next we look to whether “the court took any curative actions.” Id.

The District Court specifically declined to give an instruction to

disregard, thinking that it would only draw more attention to the fact that

Armstrong previously had been convicted on drug charges. We think the

court properly exercised its discretion in refusing a special instruction,

and otherwise took appropriate measures to be certain the problem did not

recur. The court advised the prosecutor after the second sustained

objection to avoid arguing the specifics of the convictions, and thereafter

the prosecutor made no more objectionable statements about Armstrong’s

prior convictions.

Finally, “gauging the strength of the evidence against [Armstrong]

in the context of the entire trial,” id., we conclude that the evidence was

overwhelming. Armstrong was first detained by police as he stepped from

a taxicab, and a search of the vehicle revealed crack cocaine and a gun.

Armstrong was essentially caught red-handed, and the government’s case

against him was very strong. Further, at the end of the trial, just before

jury deliberations began, the prosecutor read into the record the

stipulation of the parties that Armstrong had been convicted of the sale

or possession of drugs on three prior occasions--the very subject of the

prosecution statements to which defense counsel had objected.
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In sum, the cumulative effect of the comments was negligible, the

curative action was adequate in the circumstances, and the evidence of

Armstrong’s guilt was compelling. See United States v. Abrams, 108 F.3d

953, ___ (8th Cir. 1997) (“the cumulative effect of the misconduct is

minimal in light of the strength of the properly admitted evidence of guilt

. . . and the fact that the district court took no curative action sua

sponte [to grant a mistrial] did not deprive [defendant] of a fair trial”).

We therefore hold that any error in the portions of the prosecutor’s

opening statement at issue here was harmless to Armstrong’s rights. 

For his second issue on appeal, Armstrong claims that he was denied

his Sixth Amendment right to counsel when the District Court refused his

request to substitute retained counsel for the appointed federal public

defender who had been representing him. We first review the circumstances

surrounding this claim.

Armstrong’s original trial date was April 1, 1996, but trial was

continued until Monday, April 15, 1996. Armstrong was not present in the

courtroom at nine o’clock on April 15 when jury selection was scheduled to

begin, so the start of trial was continued until one o’clock, at which time

Armstrong appeared. On that date, Armstrong had been and continued to be

represented by a federal public defender. In an exchange with the court

during the morning of April 15 when Armstrong was absent, the court told

the public defender that it had come to the court’s attention “over the

past week” that Armstrong’s “family or somebody was seeking to obtain

substitute counsel in this case.” Trial Transcript vol. 1 at 6. The

public defender acknowledged that she was aware that other counsel had been

contacted, but she still believed herself to be counsel of record.
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In the afternoon, the federal public defender told the court that

Armstrong had informed her that he had retained other counsel, but that the

substitute counsel was unable to appear that afternoon for trial. The

court noted on the record that the purported retained counsel had not

entered an appearance, nor was he present in court. Further, there was no

guarantee that such substitute counsel would either enter an appearance or

show up in court in the future. When queried, Armstrong told the court he

had hired new counsel and said, “I paid him Friday and I went over there

today at 12:00 and he told me he wouldn’t make it today because he was at

another trial today and I feel like I would get better service out of him.”

Id. vol. 1 at 11. The court ruled that the trial would go forward without

a change of counsel, and it did. Armstrong claims this decision denied him

his right to retained counsel of his choice. We review for abuse of

discretion. See United States v. Grady, 997 F.2d 421, 423-24 (8th Cir.),

cert. denied, 510 U.S. 958 (1993).

“Last-minute requests to substitute defense counsel are not favored.”

United States v. Klein, 13 F.3d 1182, 1185 (8th Cir.), cert. denied, 512

U.S. 1226 (1994). Given the eleventh-hour nature of Armstrong’s request

(and ignoring for the moment that counsel had not even entered an

appearance) and the fact that a continuance would have been necessary if

counsel had been substituted, Armstrong was required to demonstrate “a

conflict of interest, an irreconcilable conflict, or a complete breakdown

in communication between” himself and his counsel of record. Id.

(citations to quoted cases omitted). While the court might have made a

deeper inquiry into the nature of Armstrong’s dissatisfaction with the

federal public defender, there is no indication in the record or in

Armstrong’s brief that the relationship between Armstrong and his counsel

approached the level of conflict required for last minute substitution of

counsel. Balancing Armstrong’s “right to counsel
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of his choice and the public’s interest in the prompt and efficient

administration of justice,” United States v. Swinney, 970 F.2d 494, 499

(8th Cir. 1992) (quoting Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir.

1985)), cert. denied, 506 U.S. 1011 (1992) and 507 U.S. 1007 (1993), we

cannot say that the District Court in these circumstances abused its

discretion in denying Armstrong’s request to substitute counsel.

The facts of this case are strikingly similar to those reported in

United States v. Vallery, 108 F.3d 155 (8th Cir. 1997). In Vallery, the

defendant was represented by appointed counsel. On the day set for trial,

which had been reached only after several delays, the defendant asked the

district court to allow him to retain his own counsel. The court refused

and the case proceeded. After voir dire, the defendant agreed to plead

guilty but then tried to withdraw his plea before sentencing, arguing “that

he was forced to plead guilty to avoid going to trial with counsel he did

not believe would zealously represent his interests.” 108 F.3d at 157.

This Court held that defendant’s right to counsel was not violated,

and therefore that his guilty plea should stand. As the Court explained,

“[T]he right to retain counsel of one’s choice is not absolute” and cannot

be permitted to “obstruct orderly judicial procedure or deprive courts of

their inherent power to control the administration of justice.” Id.

Although in this case, unlike the situation in Vallery, Armstrong

represented to the District Court that he already had retained counsel,

that attorney, who was known to the court, had not even entered an

appearance notwithstanding his familiarity with federal court practice.
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We hold that the District Court did not abuse its discretion in

requiring Armstrong to go to trial represented by his appointed counsel.

The judgment of the District Court is affirmed.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT