                     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,1 District Judge.
                               ___________


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 Court2 entered judgment on
the verdicts and




     1
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
     2
      The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
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.3          (The government
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




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




                                      -3-
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.




                                          -4-
     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.




                                    -5-
       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




                                      -6-
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.




                                        -7-
     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




                                  -8-
