*

The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth

Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2758

___________

United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court of the

v. * Western District of Missouri.

*

Clifton D. Taylor, *

*

Defendant - Appellant. *

___________

Submitted: April 11, 2011

Filed: August 30, 2011

___________

Before LOKEN, BALDOCK,*

 and MURPHY, Circuit Judges.

___________

LOKEN, Circuit Judge.

Clifton D. Taylor entered the FDIC-insured Central Bank of Kansas City, slid

a threatening note to a bank-teller, and exited the bank with $2,700 in hundred-dollar

bills. Bank employees followed Taylor as he fled on foot, abandoned the green cap

and jacket he was wearing, and entered a store. They called the police, who arrested

Taylor as he left the store. At Taylor’s bank robbery trial, the government presented

video evidence of Taylor in the store and DNA evidence linking Taylor to the green

hat found in a parked truck along with a leather jacket and $2700 cash. Based on this
1

The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri. Pretrial motion rulings, including those at issue on appeal, were

made initially by the Honorable Robert E. Larsen, United States Magistrate Judge for

the Western District of Missouri. 

2

Appellate counsel argues that Magistrate Judge Larsen “missed” Taylor’s

legitimate concern with Poindexter’s failure to move to suppress an incriminating

statement Taylor made to FBI agents. After careful review of the hearing transcript

and Taylor’s pro se motions, we conclude Taylor expressed a desire to suppress only

inadmissible “hearsay evidence,” not his admission. The record on appeal contains

not the slightest hint that a motion to suppress the admission had merit. 

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and other overwhelming evidence, a jury convicted Taylor of bank robbery in

violation of 18 U.S.C. § 2113(a). Taylor appeals the conviction, arguing that he is

entitled to a new trial because the district court1

 abused its discretion when it denied

his repeated pretrial requests for new appointed counsel, which rendered involuntary

his ultimate decision to waive his Sixth Amendment right to counsel and defend

himself at trial. We affirm. 

I.

Taylor was indicted and arraigned in April 2009. Assistant Federal Public

Defender Travis Poindexter was appointed to represent Taylor and moved to continue

trial from the June docket. Taylor soon filed many extensive pro se motions, followed

in June by a Motion for Ineffective Assistance seeking the appointment of substitute

counsel. Magistrate Judge Larsen held a hearing and asked Taylor why he was

dissatisfied with attorney Poindexter. Taylor complained that Poindexter had refused

to file Taylor’s pro se motions “alleging Government misconduct” and requesting a

hearing “to challenge the reliability of witness statements.” After a lengthy colloquy

discussing these issues, Magistrate Judge Larsen concluded that a different lawyer

would not have filed those motions.2

 “So I’m not going to replace him because I don’t

think he’s done anything or failed to do anything that reflects on the adequacy of the
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representation.” Magistrate Judge Larsen explained that Taylor’s options were to

continue to be represented by Poindexter, to retain substitute counsel, or to represent

himself with Poindexter likely serving as standby counsel. Taylor’s response: “I want

a change of venue.”

Taylor next filed a “criminal complaint” against Poindexter alleging due

process violations and entrapment. He also filed numerous additional pro se motions,

including one that Magistrate Judge Larsen interpreted as a motion to recuse. All

were denied because Taylor was represented by counsel, but Magistrate Judge Larsen

also explained why each motion was baseless. In denying the motion to recuse,

Magistrate Judge Larsen explained: 

Defendant’s second reason . . . is essentially that I will not give him his

own way. Defendant asked for a new attorney. I held a hearing on that

motion and determined that Mr. Poindexter had done a satisfactory job

of representing defendant and that no other attorney would have handled

defendant’s issues differently. Refusing to terminate an attorney and

hire a new one to start all over, without any plausible grounds at all, does

not provide justification for my recusal. . . . There is no competent

attorney who would do the things defendant is requesting as they have

no basis in law.

After this ruling, Taylor continued to file numerous pro se motions, including

an August motion giving notice that his appointed counsel was making him insane.

Attorney Poindexter filed a motion for mental examination, which was granted. In

October, Taylor was found competent. He filed more pro se motions and again

alleged ineffective assistance of counsel, prompting Magistrate Judge Larsen to hold

another hearing on the repeated requests for appointment of new counsel. At the start

of this hearing, Magistrate Judge Larsen asked Taylor, “tell me what it is that you’re

complaining about here with regard to Mr. Poindexter.” Taylor replied:

 
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“I don’t like him. He’s not working in my best interest. He’s not

arguing with the evidence. He hasn’t filed one motion since I’ve been

incarcerated. He doesn’t come to see me, he doesn’t talk about my case.

And he’s like a dead-beat dad. And I don’t need him on my case. And

it’s going to be a problem because I don’t want him on my case.

Taylor then lost control and was removed from the courtroom. Poindexter advised the

court that Taylor had refused Poindexter’s recent attempts at contact. Returned to the

courtroom, Taylor reiterated the meritless evidentiary motions he wanted Poindexter

to file and asserted, “there’s just no way he’s going to be working in my best interest

because I requested that he be removed from the bar.” Magistrate Judge Larsen

explained to Taylor the flaws in each of his motions. After a further exchange,

Magistrate Judge Larsen informed Taylor he was not going to replace Poindexter,

upon which Taylor stood up violently, overturning the counsel table, an action raising

serious security issues that were carefully resolved at trial.

Taylor continued to file ineffective assistance motions asserting the same

issues, which were denied without a hearing. Three weeks before the January 2010

trial, Taylor filed a motion to proceed pro se. Magistrate Judge Larsen held a hearing

at which he advised Taylor regarding aspects of pretrial preparation and trial for which

Taylor would become responsible, and extensively warned Taylor of the dangers of

proceeding pro se. When Taylor persisted, Magistrate Judge Larsen found a knowing,

intelligent, and voluntary waiver of Taylor’s Sixth Amendment right to counsel,

relieved Poindexter as appointed counsel, and appointed Poindexter as standby

counsel “to be available in the courtroom if we run into a problem.” When Taylor

protested, “I want [Poindexter] out of my life,” Magistrate Judge Larsen directed that

Poindexter “be available by phone,” not in the courtroom, “if that’s acceptable with

Judge Smith, who makes the final decisions on these issues.” 

At the start of trial, Judge Smith again cautioned Taylor about the disadvantages

of representing himself and offered to have standby counsel Poindexter reappointed
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as trial counsel. Taylor reaffirmed his waiver of counsel and refused to have any

assistance from Poindexter at trial.

II.

A motion for appointment of substitute counsel is committed to the district

court’s sound discretion. United States v. Webster, 84 F.3d 1056, 1062 (8th Cir.

1996). Taylor argues the district court abused its discretion in denying his repeated

motions for appointment of new counsel. To prevail on this claim, Taylor must show

“justifiable dissatisfaction” with attorney Poindexter, which “can arise from

irreconcilable conflict, a complete breakdown in communication, or any other factor

interfering significantly with an attorney’s ability to provide zealous representation.”

United States v. Boone, 437 F.3d 829, 839 (8th Cir. 2006). Given the importance of

the attorney-client relationship, “[t]he court must conduct an adequate inquiry into the

nature and extent of an alleged breakdown in attorney-client communications.”

United States v. Barrow, 287 F.3d 733, 738 (8th Cir.), cert. denied, 537 U.S. 1024

(2002).

It is clear from this record that the district court made a careful and thorough

inquiry into Taylor’s repeated claims of justifiable dissatisfaction with appointed

counsel Poindexter before denying Taylor’s requests for substitute counsel. “The

defendant’s right to counsel . . . does not involve the right to a ‘meaningful

relationship’ between an accused and his counsel.” United States v. Swinney, 970

F.2d 494, 499 (8th Cir. 1992), citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983).

Thus, frustration with appointed counsel’s performance or disagreement with

counsel’s tactical decisions is not justifiable dissatisfaction. “The proper focus in

evaluating claims of dissatisfaction with counsel is on the quality of advocacy.”

United States v. Exson, 328 F.3d 456, 460 (8th Cir.) (citation omitted), cert. denied,

540 U.S. 1011 (2003). After careful review of the record, we agree with Magistrate

Judge Larsen that Taylor failed to show that attorney Poindexter was unprepared, was
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unable or unwilling to continue representing Taylor, or had failed to take actions on

Taylor’s behalf that would cause “justifiable dissatisfaction” with the quality of

Poindexter’s advocacy. 

By the time Magistrate Judge Larsen granted Taylor’s request to represent

himself at trial, it was obvious there was “a complete breakdown in communication”

between attorney and client. For months, Taylor had refused all contact with a

competent appointed attorney. He filed a “criminal complaint” against counsel,

demanded a “change of venue,” and employed every other tactic he could think of to

coerce the court into appointing a new counsel with whom, the court reasonably

concluded, Taylor was unlikely to have any better relations. Is this a variety of

“justifiable dissatisfaction” requiring us to conclude the district court abused its

discretion? This court, and others, have sensibly declined to do so. Taylor “was not

entitled to new counsel if his refusal to cooperate with [Poindexter] was simply a

‘stonewalling effort to select counsel of his own choice.’” Hunter v. Delo, 62 F.3d

271, 275 (8th Cir. 1995), quoting United States v. Horon, 845 F.2d 1414, 1418 (7th

Cir. 1988); accord United States v. Simpson, 645 F.3d 300, ___ (5th Cir. 2011).

Properly viewed, this was not a breakdown of communication requiring appointment

of new counsel, only an unwillingness on Taylor’s part to communicate with

appointed counsel. See United States v. Anderson, 570 F.3d 1025, 1032 (8th Cir.

2009), and cases cited. The district court did not abuse its discretion by declining to

grant Taylor’s requests for new counsel. See Exson, 328 F.3d at 460-61. 

Taylor further argues that his waiver of counsel was involuntary because the

district court refused to grant him substitute counsel. A defendant’s right to counsel

includes the right to conduct his own defense. Faretta v. California, 422 U.S. 806, 835

(1975). But the court must “assure itself that the waiver of the right to appointed

counsel is knowing and voluntary.” United States v. Mentzos, 462 F.3d 830, 838 (8th

Cir. 2006), cert. denied, 549 U.S. 1359 (2007). A waiver is involuntary if the

defendant is offered the “Hobson’s choice” of proceeding to trial with unprepared
3

Taylor also rejected Poindexter’s services as standby counsel at trial and

unwisely called Poindexter as a witness, attempting to show that Poindexter had

conspired with the prosecution in gathering incriminating DNA evidence. But this

was Taylor’s choice. “There is no constitutional right to hybrid representation.”

United States v. Einfeldt, 138 F.3d 373, 378 (8th Cir.), cert. denied, 517 U.S. 1174

(1996); see generally McKaskle v. Wiggins, 465 U.S. 168 (1984). 

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counsel or no counsel at all. See Gilbert v. Lockhart, 930 F.2d 1356, 1360 (8th Cir.

1991). “However, if defendant’s counsel is competent and defendant cannot establish

good cause entitling him to appointment of new counsel, his waiver will be deemed

voluntary.” United States v. Taylor, 183 F.3d 1199, 1203 (10th Cir.), cert. denied,

528 U.S. 904 (1999). “[A] persistent, unreasonable demand for dismissal of counsel

and appointment of new counsel . . . is the functional equivalent of a knowing and

voluntary waiver of counsel. In such an instance, the trial court may proceed to trial

with the defendant representing himself.” United States v. Moore, 706 F.2d 538, 540

(5th Cir.), cert. denied, 464 U.S. 859 (1983); accord Meyer v. Sargent, 854 F.2d 1110,

1114 (8th Cir. 1988). The district court properly cautioned Taylor as to the dangers

of self-representation. In these circumstances, his waiver of counsel was valid.3

The judgment of the district court is affirmed. We deny Taylor’s pro se motion

claiming ineffective assistance of appellate counsel.

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