                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2537
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas
Nimrod Sanders,                         *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: February 11, 2008
                                Filed: May 6, 2008
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
                          ___________

PER CURIAM.

       While on supervised release following his conviction and imprisonment for
armed bank robbery, Nimrod Sanders appeared at the United State Probation Office
and asked to be taken into custody. The Probation Officer explained that Sanders was
not in violation of the terms of his release. Sanders responded, “Do I need to commit
another crime or do something, because I want to go into custody.” Concerned that
Sanders might be a danger to others in the community, the Probation Officer
petitioned the district court1 for an arrest warrant and revocation hearing.

      1
        The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
      Undoubtedly due to Sanders’s bizarre request, the district court ordered that
Sanders undergo a mental evaluation to determine whether he was competent to
represent himself or assist in his own defense. See 18 U.S.C. § 4241. Sanders
appealed the order, and we took jurisdiction under the collateral order doctrine. See
United States v. Ferro, 321 F.3d 756, 759-60 (8th Cir. 2003).

      Since this appeal was filed, the Bureau of Prisons evaluated Sanders and
concluded that he was competent to stand trial. The district court held a revocation
hearing and modified the conditions of Sanders’s release. Consequently, the
Government asserts that the only issue in this appeal is moot. Sanders urges us to
consider his appeal notwithstanding its mootness, suggesting that the issue is capable
of repetition, yet evading review.

        Article III of the United States Constitution limits the power of federal courts
to deciding only cases and controversies. De Funis v. Odegaard, 416 U.S. 312, 316
(1974). Therefore, we are without the power to decide moot questions, that is, when
the issues are not live and the parties lack a legally cognizable interest in the outcome.
Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam). An exception to the
mootness rule, however, are cases that are capable of repetition, yet evading review.
Id. at 482. This exception is limited to situations in which (1) the challenged action
is of too short a duration to be fully litigated before it comes to an end, and (2) there
is a reasonable expectation that the complaining party will be subject to the same
action again. Id.

      A “reasonable expectation” is something more than a merely physical or
theoretical possibility; rather, there must be a demonstrable probability that the same
controversy, involving the same complaining party, will recur. Id. In Murphy, the
controversy involved a criminal defendant who claimed he was denied bail, but was
convicted of the crime before the district court decided his complaint. Id. at 479-80.



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The Supreme Court was unwilling “to believe that Hunt will once again be in a
position to demand bail before trial.” Murphy, 455 U.S. at 484.

      Likewise, Sanders has not shown a demonstrable probability that he will once
again be in a position to challenge an order that he undergo a mental evaluation as to
his competence to represent himself or assist in his own defense. As such, Sanders
has not met his burden of demonstrating that this court has subject matter jurisdiction.
See V S Ltd. P’ship v. HUD, 235 F.3d 1109, 1112 (8th Cir. 2000).

      Because the issue in this appeal is moot, we dismiss the appeal.
                      ______________________________




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