### 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 Ar mstrong was found guilty by a jury on charges of possessio n with intent to distri bute cocaine base, see 21 U.S.C. § 841(a)(1) (1994), carrying a firearm during and in relation to a d rug 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). Th e 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. -2- sentenced Armstrong t o concurrent terms of 180 months and 120 months, and
a c onsecutive sentence of sixty months. Armstrong appeals, raising tw o issues. We affirm.

Fir st, 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 tha t any error was harmless.
Before trial, the parties agreed tha t a stipulation would be read to the jury that itemize d three previous felony convictions from Armstrong’s criminal record. By so stipulating, Armstrong r eceived the benefit of the government’s agreement not to put on evidence of these prior convictions for purpos es of proving the felon in possession charge. (The government 3 also agre ed to drop Armstrong’s alias from the charge, so that the jur y would not be aware that he was known by another name.) As trial began, the prosecutor in hi s opening statement made certain comments concerning A rmstrong’s criminal record. Specifically, Armstrong objected to the comme nt that “[t]his case is about a previously convicted drug dealer who packs a pistol.” Trial Transcript vol. 2 at 42. The cour t sustained the objection, but denied Armstrong’s request that the jury be instructed to disregard the comment, noting, “I think it will call mor e at tentionto it if we do it that way. I’m afraid that if we do tha t 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 dru g violation in St. Loui s . . . .” Id. vol. 2 at 45. Counsel objected, and the jury was sent out while the parties and the judge conferred. The cour t told the prosecutor t hat he could “say the evidence will show [Armstrong] has three prior convi ctions,” but cautioned that the government would not be permitted to argue or to “go through each pie ce of evidence here.” Id. vol. 2 at 46. Defense counsel did not move for a mistrial and the trial proceeded.

Or dinarily, our review consists of two parts: we first conside r whether the remarks were in fact improper and th en, if they were improper, whether the remarks s o prejudiced the defendant’s rights as to deny him a fair tr ial. See United States v. Stands , 105 F.3d 1565, 1577 (8th Cir

. 1997).
In response to Armstrong’s claim, th e 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 Distric t Court’s c onclusion that the form of the comments, at least, wa s objectionable. We wi ll assume that the remarks were improper and proceed to the second part of the test. We con sider three factors when deciding whether the error--th e alle gedlyimproper comments--could have affected the jury’s verdict o r whether it was in fact harmless. United States v. French , 88 F.3d 686, 68 9 (8th Cir. 1996) (noting harmless error standard of

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rev iew). 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 comment s quoted above are cited to us as reversible error. Because the remarks wer e limited, and they occurred at the earliest stage of the trial, we thin k their cumulative effect was insignificant.

Next we l ook to whether “the court took any curative actions.” Id. The Di strict Court specifically declined to give an instruction t o disregard, thinking that it would only draw more attention to the fact tha t Armst rong previously had been convicted on drug charges. We think th e court properly exercised its discretion in refus ing a special instruction, and otherwise took ap propriate measures to be certain the problem did not
recur. The court advised the prosecutor after the second sustaine d objection to avoid arguing the specifics of the convictions, and thereafte r the prosecutor made no more objectionable statements about Armstrong’ s prior convictions.

Fi nally, “gauging the strength of the evidence against [Armstrong ] in the context of the entire trial,” id. , we conclude that the evidence wa s 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. Arms trong was essentially caught red-handed, and the government’s cas e against him was very strong. Further, at the end of the trial, just befor e jury d eliberations began, the prosecutor read into the record th e stipulationof 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.

### -5- In su m, the cumulative effect of the comments was negligible, th e curative action was adequate in the circumstances, and the evidence o f Armstrong’s guilt was compelling. See United States v. Abrams , 108 F.3d 953, ___ ( 8th Cir. 1997) (“the cumulative effect of the misconduct i s minimal in light of the strength of the properly admitted evidence of guil t

. . . and the fact that the district court took no curative action su a sponte [to grant a mistrial] did not deprive [defendant] of a fair trial”)

. We t herefore hold that any error in the portions of the prosecutor’ s opening statement at issue here was harmless to Armstrong’s rights.

For his s econd issue on appeal, Armstrong claims that he was denied his Sixth Amendment right to counsel when the District Court refused his reques t to substitute retained counsel for the appointed federal publi c defender who had been representing him. We firs t review the circumstances surrounding this claim.

Ar mstrong’s original trial date was April 1, 1996, but trial wa s continued until Monda y, 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 tim e Armstrong appeared. On that date, Armstrong had been and continued to be representedby a federal public defender. In an exchange with the court during the morning of April 15 when Armstrong was absent, the court told the publi c defender that it had come to the court’s attention “over th e past we ek” that Armstrong’s “family or somebody was seeking to obtai n substitut e counsel in this case.” Trial Transcript vol. 1 at 6. Th e public defender acknowledged that she was aware that other counsel had bee n contacted, but she still believed herself to be counsel of record.

### -6- In th e afternoon, the federal public defender told the court tha t Armstrong had informed her that he had retained other counsel, but that th e subst itute counsel was unable to appear that afternoon for trial. Th e court note d on the record that the purported retained counsel had no t entered an appearance, nor was he present in cou rt. Further, there was no guarantee that such substitute counsel would eit her enter an appearance or show up in court in the future. When queried, A rmstrong told the court he hadhired 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 tria l would go forward without
a change of counsel, and it did. Armstrong claims this decision denied hi m his right to retained counsel of his choice. We review for abuse o f discretion. See Unit ed 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 fav ored.” UnitedStates 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 ign oring for the moment that counsel had not even entered a n appearance) and the fact that a continuance would have been necessary if
counse l had been substituted, Armstrong was required to demonstrate “ a conflict of interest, an irreconcilable conflict, or a complete breakdown in co mmunication between” himself and his counsel of record. Id

. (citation s to quoted cases omitted). While the court might have made a deeper inquiry into the nature of Armstrong’s dissatisfaction with th e federal p ublic defender, there is no indication in the record or i n Armstrong’s brief tha t 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 ch oice and the public’s interest in the prompt and efficien t adm inistrationof justice,” United States v. Swinney , 970 F.2d 494, 49 9 (8th Cir. 1992) (quoting Wilson v. Mintzes , 761 F.2d 275, 280 (6th Cir

. 1985)), c ert. denied , 506 U.S. 1011 (1992) and 507 U.S. 1007 (1993), w e
cann ot say that the District Court in these circumstances abused it s discretion in denying Armstrong’s request to substitute counsel.

The fac ts of this case are strikingly similar to those reported i n UnitedStates 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 reache d only after several delays, the defendant asked the district court to all ow him to retain his own counsel. The court refused and the c ase proceeded. After voir dire, the defendant agreed to plea d guilty but then tried to withdraw his plea before sentencing, arguing “tha t he was forced to plea d guilty to avoid going to trial with counsel he did not believe would zealously represent his interests.” 108 F.3d at 157.

This Cour t held that defendant’s right to counsel was not violated, and therefore that hi s guilty plea should stand. As the Court explained, “[T]he right to retain counsel of one’s choice i s not absolute” and cannot be permitted to “obst ruct orderly judicial procedure or deprive courts of thei r inherent power to control the administration of justice.” Id

. Althou ghin this case, unlike the situation in Vallery , Armstron g rep resentedto the District Court that he already had retained counsel , that attorney, who was known to the court, had not even entered a n appearance notwithstanding his familiarity with federal court practice.

### -8- We hold that the District Court did not abuse its discretion i n 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