                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                February 3, 2020
                                TENTH CIRCUIT                  Christopher M. Wolpert
                                                                   Clerk of Court




    UNITED STATES OF AMERICA,

         Plaintiff-Appellee,
                                                         No. 18-3173
    v.                                        (D.C. No. 6:14-CR-10018-EMF-1)
                                                     (District of Kansas)
    JAMES D. RUSSIAN,

         Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before BACHARACH, SEYMOUR, and MCHUGH, Circuit Judges.


         This appeal arises from Mr. James D. Russian’s hearing on resentencing.

Mr. Russian claims that the district court infringed his Sixth Amendment right

to self-representation by allowing counsel to present arguments on his behalf.

We disagree and affirm.



*
 After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                        I.

                                  Background

      The government charged Mr. Russian with: (1) being a felon knowingly

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); (2) being a

felon knowingly in possession of ammunition in violation of 18 U.S.C. § 922

(g)(1); (3) knowingly possessing a firearm in furtherance of a drug trafficking

offense in violation of 18 U.S.C. § 924 (c)(1)(A); and (4) possessing marijuana

with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Mr. Russian

pled not guilty.

      At a suppression hearing, Mr. Russian represented himself pro se. The

court thereafter revoked his right to self-representation when Mr. Russian

unrelentingly repeated “foreign immunity” despite the court’s direction to

stop. Rec., supp. vol. I at 9. Because of Mr. Russian’s unabated interruption, the

court adjourned the hearing and held him in contempt. The court then

appointed counsel to represent Mr. Russian at trial. The jury convicted him on

all four counts and the court sentenced him to 137 months’ imprisonment

followed by two years of supervised release.

      Mr. Russian appealed his sentence and was appointed counsel on appeal.

We reversed and remanded for resentencing, concluding that the district court

had committed various sentencing errors. United States v. Russian, 848 F.3d

1239 (10th Cir. 2017). Prior to the resentencing hearing, Mr. Russian filed a

pro se motion to disqualify his counsel, and his counsel filed a motion to

waive counsel and to set a Faretta hearing. The district court denied the

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motions, explaining that Mr. Russian had previously appealed his sentence but

failed to appeal the court’s revocation of his right to self-representation. The

court reasoned that the revocation remained the law of the case.

       The day following the filing of the order and one day before the

resentencing hearing, Mr. Russian filed a pro se motion to replace counsel,

asserting that his prior motion had not been intended as a request for self-

representation. At the resentencing hearing, Mr. Russian claimed that the order

and his motion to replace counsel had crossed in the mail. The court allowed

Mr. Russian to read his motion aloud but denied his request to replace counsel

on the grounds that it was untimely and that Mr. Russian’s appointed counsel

was a well-regarded criminal defense attorney. The district court sentenced

Mr. Russian to 101 months’ imprisonment followed by two years of supervised

release. The court also imposed several special conditions of supervised

release including, as relevant here, a requirement that Mr. Russian complete

“an approved program for substance abuse, which may include . . . outpatient

and/or residential treatment . . . as directed by the Probation Office.” Rec., vol.

I at 50.

       Along with other claims, Mr. Russian appealed the imposition of that

special condition of supervised release. We held that “[d]elegating the decision

of whether Mr. Russian should enter a residential treatment program to the

probation office contravened Article III of the Constitution.” We vacated the

condition and remanded the case to the district court to determine “whether to




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reimpose this condition in a manner that complies with the Constitution.”

United States v. Russian, 737 F. App’x 360, 361 (10th Cir. 2018).

      On remand, the district court declined to reinstate the condition and

ordered that the sentence be entered without it. After the court had made this

determination, Mr. Russian’s counsel notified the court that Mr. Russian had

declined representation by counsel. The court then allowed Mr. Russian to

address the court.

      In his statement, Mr. Russian asked the district court to take judicial

notice under Rule 201 of the Federal Rules of Evidence that he did not “submit

to the jurisdiction of this court” and was present on a “restricted appearance,”

claiming that his prior counsel had “failed to join [him] as indispensable party

(sic.).” Rec., vol. III at 26–27. Mr. Russian also raised arguments as to his

“dual American citizenship” based upon his citizenship as “a Kansan and an

American and a sovereign American national.” Id. at 27. He invoked his right

to self-representation under Faretta v. California, 422 U.S. 806 (1975), by

stating “I don’t need, as it says in [Faretta] . . . an unacceptable legal fiction

representing me.” Rec., vol. III at 30. The district court explained that it was

providing Mr. Russian “an opportunity to make any statement [he would] like

to make.” Id. at 30–31. Mr. Russian continued that he had experienced

“violation after violation . . . human right (sic.) violations, violations of the

Constitution, civil rights.” Id. at 31. After he finished, the court addressed Mr.

Russian’s arguments and his pro se request before again affirming the order to




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remove the special condition from his sentence. Mr. Russian appeals, claiming

he was denied his Sixth Amendment right to self-representation at the hearing.

                                        II.

                            Standing and Mootness

      Before we can reach the merits of Mr. Russian’s argument, we must first

assess whether we have jurisdiction to hear this case. The government argues

that Mr. Russian does not have standing to bring this appeal, and also asserts

that the case should be dismissed on the grounds that it is moot. The

government contends the district court did not do anything at the July 30, 2018

hearing adversely affecting Mr. Russian because the court removed the special

condition and did not impose any further orders.

      Constitutionally, the jurisdiction of the federal courts is confined to

“cases” and “controversies.” U.S. Const., Art. III, § 2. The doctrines of

standing and mootness help to identify which cases are “of the justiciable sort

referred to in Article III—serv[ing] to identify those disputes which are

appropriately resolved through the judicial process.” See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (quotation marks and citation omitted).

Standing and mootness are “related doctrines” in that “[s]tanding concerns

whether a plaintiff’s action qualifies as a case or controversy when it is filed;

mootness ensures it remains one at the time a court renders its decision.”

Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016). We consider

standing and mootness in turn.




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                                   A. Standing

      We review questions of standing de novo. Nova Health Systems v.

Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005). Standing requires that the party

invoking federal jurisdiction satisfy a three-part test: “a [party] must show (1)

an injury in fact, (2) a sufficient causal connection between the injury and the

conduct complained of, and (3) a likelihood that the injury will be redressed

by a favorable decision.” Brown, 822 F.3d at 1164 (quotation marks and

citation omitted).

      Even where a party satisfies Article III standing, we may still decline to

hear a case because of prudential considerations. As we explained in Niemi v.

Lasshofer, 770 F.3d 1331, 1344 (10th Cir. 2014), prudential standing

“include[s] at least three broad principles: the general prohibition on a

litigant's raising another person's legal rights, the rule barring adjudication of

generalized grievances more appropriately addressed in the representative

branches, and the requirement that a plaintiff's complaint fall within the zone

of interests protected by the law invoked.” (quotation marks and citation

omitted).

      A federal criminal defendant has a constitutional and statutory right to

self-representation. See 28 U.S.C. § 1654; Faretta, 422 U.S. at 834–36. A

defendant’s right to self-representation is “either respected or denied; its

deprivation cannot be harmless.” McKaskle v. Wiggins, 465 U.S. 168, 177 n.8

(1984). The right to self-representation “affirm[s] the dignity and autonomy of

the accused,” as the defendant’s pro se arguments “may, at least occasionally,

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be the accused’s best possible defense.” See id. at 176–77. Even though

proceeding pro se “usually increases the likelihood of [an] outcome

unfavorable to the defendant,” id. at 177 n.8, the defendant’s “choice must be

honored out of that respect for the individual which is the lifeblood of the

law.” Faretta, 422 U.S. at 834 (quotation marks and citation omitted).

      In Faretta, the defendant challenged the denial of his request to

represent himself, where he “clearly and unequivocally” invoked the right well

before his trial date. Id. at 808, 835. The Supreme Court held that the Sixth

Amendment guarantees a right to self-representation, explaining at length the

history of the right, which is rooted in the “inestimable worth of [the] free

choice” of the defendant. See id. at 818–32, 834.

      Mr. Russian, like Mr. Faretta, claims that he was aggrieved because he

was denied the opportunity to represent himself, as “unwanted counsel

‘represents’ the defendant only through a tenuous and unacceptable legal

fiction.” Id. at 821. While Mr. Russian received a favorable outcome on

remand because the special condition was not reinstated, the alleged violation

of his Sixth Amendment right stands on its own as an injury in fact. See id. at

834 (reasoning that the right to self-representation is a constitutional guarantee

even though “in most criminal prosecutions defendants could better defend

with counsel’s guidance than by their own unskilled efforts”). He therefore has

standing to raise the issue.




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                               B. Mootness

      The next question is whether Mr. Russian’s case is mooted by the

district court’s decision not to reimpose the special condition of supervised

release. As with standing, we review questions of mootness de novo. Rio

Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th

Cir. 2010) (citation omitted). “A case becomes moot only when it is

impossible for a court to grant any effectual relief whatever to the prevailing

party.” Knox v. Service Employees Intern. Union, Local 1000, 567 U.S. 298,

307 (2012) (quotation marks and citation omitted). Where a party has “a

concrete interest, however small, in the outcome of the litigation, the case is

not moot.” Id. at 307–08 (quotation marks and citation omitted).

      There are “two kinds of mootness: constitutional mootness and

prudential mootness.” Rio Grande Silvery Minnow, 601 F.3d. at 1121. The

constitutional mootness doctrine serves to ensure that a “controversy [is]

extant at all stages of review, not merely at the time the complaint is filed.” Id.

(citation omitted). Prudential mootness is a discretionary doctrine that “arises

out of the court’s general discretion in formulating prospective equitable

remedies” and it “generally applies only to requests for injunctive or

declaratory relief.” Id. at 1122 (emphasis added). The doctrine is, therefore,

rooted in the “remedial discretion of the courts,” which “necessarily includes

the power to ‘mould each decree to the necessities of the particular case.’”

Winzler v. Toyota Motor Sales U.S.A., Inc, 681 F.3d 1208, 1210 (10th Cir.




                                         8
2012) (citation omitted). In the present case, the government only raised

constitutional mootness.

      The unique facts of this case make it necessary that we take special care

to distinguish the mootness inquiry from the merits. See 13B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 3533.1 (3d ed.

2019) (“An argument that an action is moot because the plaintiff is not entitled

to the requested relief, for example, is no more than an argument on the merits

that should be decided on the merits.”). The government asserts that Mr.

Russian’s claim is moot because the district court’s mandate on remand was

narrowly focused on whether to reinstate the special condition of supervised

release and Mr. Russian effectively won all that was available on remand.

Accordingly, it argues, he is not entitled to claim a Sixth Amendment violation

on appeal. We disagree.

      The district court was empowered to go beyond the narrow mandate and

grant meaningful relief based upon Mr. Russian’s pro se arguments. See

Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003)

(explaining that “the mandate controls all matters within its scope, . . . [but] a

district court on remand is free to pass upon any issue which was not expressly

or impliedly disposed of on appeal.”) (quotation marks and citation omitted).

This case is unlike cases seeking equitable relief, where a court is empowered

to determine what relief, if any, should be provided. If we find that a criminal

defendant’s constitutional rights were violated, we are obligated to grant

relief. Thus, whether Mr. Russian’s appointed counsel’s participation infringed

                                         9
upon Mr. Russian’s right to self-representation remains live and we deny the

government’s motion to dismiss as moot.

                                    III.

                      Right to Self-Representation

      Mr. Russian contends that the participation of his appointed counsel on

remand violated his right to appear pro se. But a defendant’s right to self-

representation is not unlimited. As we recognized in United States v. Simpson,

a defendant must satisfy four requirements to proceed pro se:

      First, the defendant must clearly and unequivocally inform the
      district court of his intention to represent himself. Second, the
      request must be timely and not for the purpose of delay. Third, the
      court must conduct a comprehensive formal inquiry to ensure that
      the defendant’s waiver of the right to counsel is knowingly and
      intelligently made. Finally, the defendant must be able and willing
      to abide by the rules of procedure and courtroom protocol.

845 F.3d 1039, 1046 (10th Cir. 2017) (quotation marks and citation omitted).

      The Supreme Court has determined that the right to self-representation

“plainly encompasses certain specific rights” to be heard including: the right

“to control the organization and content of [one’s] own defense, to make

motions, to argue points of law, to participate in voir dire, to question

witnesses, and to address the court and the jury at appropriate points in the

trial.” McKaskle v. Wiggins, 465 U.S. 168, 174 (1984). Yet, the appointment

and participation of standby counsel in proceedings is not a violation of the

right to self-representation. See id. at 176–77; see also U.S. v. McKinley, 58

F.3d 1475, 1483 (10th Cir. 1995) (“[T]he district court may—even over

objection by the accused—appoint a ‘standby counsel’ to aid the accused if

                                           10
and when the accused requests help, and to be available to represent the

accused in the event that the termination of the defendant’s self-representation

is necessary.”) (citing Faretta, 422 U.S. at 834–35 n.46).

      In the presence of the jury, the right to self-representation is more

robust as the “objectives underlying the right to proceed pro se may be

undermined by unsolicited and excessively intrusive participation by standby

counsel.” McKaskle, 465 U.S. at 177. Limiting standby counsel’s participation

in proceedings before the jury helps to preserve the core of the Faretta right—

that the defendant controls “the case he chooses to present to the jury”—and to

ensure that “multiple voices ‘for the defense’ will [not] confuse the message

the defendant wishes to convey.” Id. at 177–78.

      Unlike a jury, however, a trial judge can easily distinguish the claims of

the defendant from those of standby counsel. Id. at 179. Where no jury is

present, therefore, a defendant’s Faretta rights are “adequately vindicated”

when “the pro se defendant is allowed to address the court freely on his own

behalf and [so long as] disagreements between counsel and the pro se

defendant are resolved in the defendant's favor whenever the matter is one that

would normally be left to the discretion of counsel.” Id.

      Here, no jury was empaneled on remand and the district court looked

narrowly at the issue of whether the special condition of supervised release

could be imposed constitutionally. While counsel was appointed to represent

Mr. Russian at the hearing, the district court permitted Mr. Russian to make

his own arguments after he raised an objection to being represented by

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counsel. Because Mr. Russian was “allowed to address the court freely on his

own behalf,” he was not prejudiced by the appointed counsel also presenting

arguments to the court. See id. By allowing Mr. Russian the opportunity to

address the court and to raise his arguments for relief, the district court

properly ensured that Mr. Russian was able to control his defense in the

proceeding. Moreover, the court specifically addressed the arguments raised

by Mr. Russian before it reinstated its prior determination that the vacation of

the special condition would stand and that no further condition would be

imposed. Accordingly, Mr. Russian’s right to self-representation was not

violated by the district court.

      WE AFFIRM.

                                              Entered for the Court

                                              Stephanie K. Seymour
                                              Circuit Judge




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