dissenting:

I respectfully dissent.

A newborn infant must be given nourishment. Nothing that the infant can do will justify the failure of a mother to meet its need. The majority would apparently apply the same standard to a judge in his duty to provide counsel for one accused of a crime. The Constitution does not require so much.

A timely request for counsel was made by Kurt Wadsworth. Competent counsel was provided in response to that request. A difficulty arose because Kurt wanted to dictate defense strategy. Counsel is not required to ignore legal precedent and put aside all notions of how to proceed with a legal defense in an effort to satisfy the wishes of a client who demands that he do so. A court s proper use of sanctions preclude that course.

Unfortunately, these defendants have been labeled by some as “tax protesters.” That label has no use in a court of law. America was built by “protesters.” Their input should always be considered. It is legitimate for a court on appeal to be concerned about those rare instances when those who are identified as “protesters” (of any sort) are given less than their due at trial. That was not true here. The court did more than was required in an effort to satisfy all rights of the accused to the assistance of counsel. That burden having been met, we should affirm the convictions.

The record reflects that Kurt Wads-worth’s purpose in asserting a claim of ineffective assistance of counsel was to delay the trial. According to his attorney, Mr. Woolf, Kurt failed for two months to cooperate in the preparation of his defense. He refused to meet with his counsel, failed to produce requested documents, and insisted on presenting frivolous defenses at trial. Mr. Woolf, a competent and experienced attorney, understandably declined to go to trial with Kurt’s defenses, and proceeded instead to do what he could for his recalcitrant client. I would find that counsel’s conduct under the circumstances was professionally reasonable and did not prejudice his client in any way. Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052, 2068 , 80 L.Ed.2d 674 (1984). I would also find that Kurt’s eleventh-hour motion to replace Mr. Woolf with a second court-appointed attorney was unjustified and could properly have given rise to the inference that the motion was brought for an improper motive. The district court did not abuse its discretion in refusing Kurt’s request for a continuance.

We have recently entertained a similar claim that the district court erred in denying a criminal defendant effective representation at trial. United States v. Kelm, 827 F.2d 1319 (9th Cir.1987). We affirmed the conviction, stating:

Id. at 7, 90 S.Ct. at 2002; see United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979). Because “[t]he record clearly demonstrate[d] that Kelm was manipulating his constitutional right to counsel in an effort to effect delay,” id. at 8, 90 S.Ct. at 2002-OS, we concluded that the district court properly treated defendant’s antics as an effective waiver of his right to counsel.

United States v. Hull, 792 F.2d 941 (9th Cir.1986), is also instructive. There the trial court refused to grant a request for a continuance made the day before trial. The defendant brought the motion for the stated purpose of replacing the public defender with private counsel, but the district court found instead that the motion was made to delay trial. Id. at 943 . We affirmed defendant’s conviction, reasoning that the trial judge could properly consider the lateness of defendant’s request and the competence of her attorney. See id. (“Hull had ‘a very fine attorney’ and ... her lack of confidence in him flowed from her lack of knowledge of legal proceedings”). See also Relerford v. United States, 309 F.2d 706, 708 (9th Cir.1962).

As in Hull , the timing of Kurt’s request to replace Mr. Woolf, combined with Kurt’s failure to cooperate and the absence in the record of any evidence of ineffective assistance of counsel, confirms the inference that the July 22nd motion “was motivated by a desire to delay.” Hull, 792 F.2d at 943 . Kurt certainly had the right to refuse to cooperate with his attorney and to present his own case. Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir.1969). But this right carries with it no correlative right to impede the judicial process. Kurt’s options were 1) to prepare his own defense or 2) to cooperate with his appointed counsel or 3) to timely request relief from the court. He did none of these. The court was under no obligation to indulge him. See Nunn v. Wilson, 371 F.2d 113, 117 (9th Cir.1967) (holding that defendant has no right to repeated continuances to obtain new counsel when the facts demonstrate that defendant has “been playing footsie with the court”).

The conclusion that Kurt intended to delay the trial is reinforced, in my view, by the evidence that Kurt knew several weeks before the trial date that Mr. Woolf would not present Kurt’s desired defense. The majority acknowledges this fact but then states, without support, that it was Mr. Woolf's duty, not Kurt’s, to file a prompt motion for substitution of counsel. The court also suggests that Woolf’s failure to inform the court of his tactical disagreement with Kurt amounted to ineffective assistance of counsel. I disagree.

We must begin with the “strong presumption that a lawyer is competent and that presumption must be overcome with concrete evidence.” Smith v. Ylst, 826 F.2d 872 (9th Cir.1987). Here, such evidence is wholly lacking. The fact that Mr. Woolf did not inform the court earlier of his client’s obstinacy may be seen as beneficial to Kurt. It may also be inferred that Woolf thought he could convince his client to adopt a meritorious defense. Given the fact that it was clearly Kurt who intended the lawyer-client relationship to break down, he should have requested a substitution of attorneys earlier.

Moreover, the trial judge must be afforded discretion to assess the performance of defense counsel. McMann v. Richardson, 397 U.S. 759, 771 , 90 S.Ct. 1441, 1449 , 25 L.Ed.2d 763 (1970). Woolf’s performance conformed with the standard of the reasonably competent defense attorney, Cooper v. Fitzharris, 586 F.2d 1325 (en banc) (9th Cir.1978), cert. denied, 440 U.S. 974 , 99 S.Ct. 1542 , 59 L.Ed.2d 793 (1979), and Kurt was not entitled to have him replaced. The district court therefore acted within its discretion in ruling that Kurt’s pattern of disruptive and dilatory behavior amounted to a constructive waiver of the right to counsel at trial.

*1513 In the case of Delbert Wadsworth, the issue of waiver of the right to counsel is more complicated. No counsel ever appeared on behalf of Delbert, and Delbert made no statements for the record between the date of his arraignment and his trial.

Delbert was informed at his arraignment of his right to representation. When asked at that time if he wished to represent himself, Delbert responded in the affirmative, waiving his right to counsel at the arraignment. He also rejected the magistrate’s offer of court-appointed counsel. He never expressly waived his right to be represented by an attorney at later stages of the proceedings or stated that he intended to proceed pro se at trial but he also never requested counsel although he was advised of his rights. His conduct from the date of the arraignment until the day before trial therefore reflected a desire to proceed pro se. There is evidence, for example, that Delbert consulted privately with an attorney, although no attorney ever appeared in court on his behalf. This suggests that Delbert was both aware of his sixth amendment right to counsel and that he had taken charge of the conduct of his defense.

The question is whether such a waiver was knowing and intelligent. See United States v. Bird, 621 F.2d 989, 991 (9th Cir.1980). In the absence of evidence of deliberate “ploys to gain time or effect delay,” Kelm, supra, at 1322 , there are two ways to satisfy the test for knowing and intelligent waiver. The “preferable procedure” is for the district court to discuss with the defendant in open court “the charges, the possible penalties, and the dangers of self-representation.” United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982). When such a discussion has not taken place, we have recognized a limited exception “when the record as a whole reveals a knowing and intelligent waiver.” United States v. Balough, 820 F.2d 1485 (9th Cir.1987). The totality of the circumstances supports the district court’s finding of waiver.

I would affirm.