FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS May 31, 2018
TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3157 (D.C. No. 6:14-CR-10018-EFM-1) JAMES D. RUSSIAN, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.
This appeal arises from James Russian’s resentencing. Before the
resentencing hearing, Mr. Russian requested the court replace his appointed
counsel. In his view, his counsel had repeatedly lied to him, thus creating a
debilitating breakdown in communication.
The district court denied the motion. It then sentenced Mr. Russian to 101
months’ imprisonment, and imposed, as relevant here, two conditions of
supervised release: (1) a prohibition on engaging “in activities that advocate the
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. violation of law,” and (2) a requirement to complete an “approved program for
substance abuse, which may include . . . outpatient and/or residential
treatment . . . as directed by the Probation Office.” R., Vol. 1 at 826.
Mr. Russian timely appealed, arguing the district court abused its discretion
by denying his motion to replace counsel. He also challenged the two conditions
of supervised release.
We AFFIRM the district court’s denial of Mr. Russian’s motion to replace
his counsel because the record reveals no breakdown in communication. We also
AFFIRM the condition prohibiting Mr. Russian from engaging in activities that
advocate the violation of the law. Mr. Russian contends this condition differs
from the one the district court announced orally. But the sentencing transcript
demonstrates the orally announced condition mirrors the condition in the amended
judgment. Finally, we VACATE the condition requiring Mr. Russian to
participate in a substance abuse program. Delegating the decision of whether Mr.
Russian should enter a residential treatment program to the probation office
contravened Article III of the Constitution. Accordingly, we REMAND the case
to the district court to consider whether to reimpose this condition in a manner
that complies with the Constitution.
-2- I. Background
The government charged James Russian 1 with various offenses related to
his allegedly unlawful possession of weapons and drugs. Mr. Russian pleaded not
guilty, and the matter was set for trial.
Representing himself pro se at a suppression hearing, Mr. Russian asked to
make an entry for the record. When the court allowed him to do so, he repeated
the phrase “foreign immunity” numerous times. R., Vol. 1 at 601. The court told
Mr. Russian to cease speaking. He refused. Instead, he continued repeating the
phrase “foreign immunity” until the court adjourned the hearing and held Mr.
Russian in contempt.
Eventually the court revoked Mr. Russian’s right to represent himself and
appointed counsel. A jury convicted Mr. Russian of all four counts. The court
then sentenced him to 137 months’ imprisonment.
Mr. Russian appealed. But his trial counsel withdrew, so the court
appointed him new counsel: Federal Public Defender Melody Brannon. On
appeal, our circuit concluded the district court had committed various errors when
sentencing Mr. Russian, none of which are relevant to this appeal. Accordingly,
the case was remanded to the district court for resentencing.
1 From his pro se filings, we believe Mr. Russian prefers his name spelled as “James-Donald: Russian.” R., Vol. 1 at 780. For ease of reading, we refer to the appellant by just his last name “Russian.”
-3- The district court set the resentencing hearing for July 7, 2017. Prior to the
hearing, however, on June 20th Mr. Russian filed a pro se motion. In it, he
reported that “Melody Brannon ha[d] been Fired for the many conflicts of
INTEREST.” Id. at 785 (capitalization in original).
Ten days later, Ms. Brannon filed a “Motion to Waive Counsel” in which
she explained that “Mr. Russian asks the Court to dismiss counsel and objects to
counsel filing anything further on his behalf, other than this motion.” Id. at 788.
She asked the court to “set the matter for a Faretta v. California 2 hearing on
whether [Mr. Russian] should be permitted to represent himself at sentencing.”
Id. Finally, the motion asserted Ms. Brannon was “unaware of any prohibitive
conflict or debilitating breakdown in communication, other than the distrust of
counsel expressed by Mr. Russian.” Id. at 790.
On July 5th, the court issued an order addressing Mr. Russian’s and Ms.
Brannon’s motions. It read Mr. Russian’s motion as “purport[ing] to fire
counsel” and seeking the “reinstatement of the right of self-representation.” Id. at
808. The court denied his request to once again represent himself. In doing so, it
emphasized that Mr. Russian had previously appealed his sentence, but failed to
appeal the court’s revocation of his right to self-representation. Accordingly, the
revocation “remains the law of this case,” and the court saw no reason to
reconsider it. Id. at 809.
2 422 U.S. 806 (1975).
-4- A day later—and just a day before the resentencing hearing—Mr. Russian
filed another pro se motion. Entitled “Motion to Replace Counsel,” this motion
alleged that Mr. Russian’s June 20th motion did not, in fact, “ask[] the court for
self representation at sentencing,” as Ms. Brannon’s June 30th motion had
claimed. Id. at 818. Rather, he maintained his June 20th motion asked the court
to “replace counsel due to the debilitating breakdown in communication.” Id. at
819.
The resentencing hearing occurred the next day. The court began by
permitting Mr. Russian to make “any other statements or objections” he had to its
July 5th order. R., Vol. 3 at 9. Mr. Russian began by explaining that his July 6th
motion and the court’s July 5th order got “crossed in the mail.” Id. While the
court acknowledged receiving his motion from July 6th, it believed its July 5th
order addressed the issue—namely, Mr. Russian’s request “for replacement of
counsel.” Id.
Nevertheless, the court allowed Mr. Russian to read his July 6th motion
aloud. He repeated the charge that his counsel “misrepresent[ed] [his] position on
[the] Faretta v. California hearing. James D. Russian never asked the court for
self-representation, as Ms. Brannon’s motion had claimed.” Id. at 10. Once Mr.
Russian had finished, the court noted it understood he was “dissatisfied that Ms.
Brannon ha[d] not followed all of [his] instructions or requests with respect both
to the proceedings of [the] appeal as well as the instant matters here.” Id. at 11.
-5- And the court recognized it could “replace [Ms. Brannon] with another appointed
attorney” or it could let Mr. Russian represent himself. Id. at 12. But “given the
late date of this issue” and the court’s familiarity with Ms. Brannon’s “national
reputation for skill in representing criminal defendants,” it denied his request for
replacement counsel. Id.
Finally, the court gave Mr. Russian the chance to say “anything else” he
wanted with “regards to that issue.” Id. He used this opportunity to express his
view he is not a citizen of the United States.
Before the court moved on, Ms. Brannon interjected. She explained that
she “told Mr. Russian” she would clarify how she “understand[s] that there’s a
distinction between” Mr. Russian “representing himself and wanting new
counsel.” Id. at 13. And to the extent her motion “did not accurately reflect” Mr.
Russian’s wishes, she thought the court “addressed all of that today.” Id. at
13–14.
The court proceeded to sentence Mr. Russian to 101 months’ imprisonment,
followed by two years of supervised release. It also imposed, as relevant here,
two conditions of supervised release. First, a prohibition on engaging “in
activities that advocate the violation of law.” R., Vol. 1 at 826. And second, a
requirement that Mr. Russian “successfully participate in and successfully
complete an approved program for substance abuse, which may include . . .
-6- outpatient and/or residential treatment . . . as directed by the Probation Office.”
Id.
II. Analysis
Mr. Russian raises three issues. First, he argues the district court abused its
discretion by denying his request for replacement counsel. His second argument
relates to the condition of supervised release that prohibits him from engaging in
activities that advocate the violation of the law. Specifically, he claims the
condition in the amended judgment does not reflect the condition the court orally
announced at his resentencing hearing. Finally, his third argument relates to the
condition that requires him to participate in a substance abuse program. The
district court plainly erred, he says, by delegating the decision of whether he
should enter a residential treatment program to the probation office.
A. Request for New Counsel
“We review a district court’s refusal to substitute counsel for an abuse of
discretion.” United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002) (quoting
United States v. Beers, 189 F.3d 1297, 1302 (10th Cir. 1999)). “To warrant a
substitution of counsel, the defendant must show good cause, such as a conflict of
interest, a complete breakdown of communication or an irreconcilable conflict
which leads to an apparently unjust verdict.” Id.
Here, Mr. Russian asks for new counsel because of an allegedly
“debilitating breakdown in communication”—in other words, a complete
-7- communication breakdown. R., Vol. 1 at 819. Four factors help us determine
whether counsel should be replaced for this reason: “(1) whether the motion for
new counsel was timely; (2) whether the trial court adequately inquired into the
reasons for making the motion; (3) whether the defendant-attorney conflict was so
great that it led to a total lack of communication precluding an adequate defense;
and (4) whether the defendant substantially and unreasonably contributed to the
communication breakdown.” Lott, 433 F.3d at 725.
Consideration of these factors compels us to conclude the district court did
not abuse its discretion by denying Mr. Russian’s request to substitute counsel.
First, the tardiness of Mr. Russian’s request supports the district court’s
decision. Mr. Russian claims his June 20th motion requested the court replace his
counsel. But after carefully reviewing the motion, we cannot agree. Nowhere in
it can we find a request to replace counsel. Nor does Mr. Russian’s briefing point
us to any such language. To be sure, the June 20th motion purports to fire his
current counsel. But this does not necessarily mean Mr. Russian asked the court
to provide him with new counsel; he could have been asking to represent himself
in a pro se capacity. Thus, since Mr. Russian’s June 20th motion did not contain
a request for replacement counsel, he first requested this in his motion on July
6th—just a day before the resentencing hearing. Timeliness therefore weighs
heavily in favor of concluding the district court did not abuse its discretion.
-8- Even if we thought Mr. Russian’s June 20th motion did, in fact, request the
court replace his counsel, timeliness still weighs in favor of affirming, though less
heavily. Two of the situations Mr. Russian claims demonstrate the debilitating
communication breakdown between him and his counsel occurred in 2015—years
before his motion in June of 2017. But he also complained about Ms. Brannon
not keeping her word after a meeting on May 23, 2017. The motion was timely as
to this request.
The second factor, whether the trial court adequately inquired into the
reasons for making the motion, also weighs heavily in favor of affirmance.
Despite the tardiness of the motion, the court still took steps to ensure it heard
and understood his argument. At the resentencing hearing, the court allowed Mr.
Russian to make any statement or objection to its July 5th order. And after Mr.
Russian read his July 6th motion aloud, the court gave him the chance to say
“anything else” on the issue. Simply stated, in spite of Mr. Russian’s tardy pro se
motions, the court went to great lengths to inquire into his complaint by giving
him repeated opportunities to explain his argument.
The third factor weighs heavily in favor of affirming the district court as
well. This factor considers whether the alleged conflict was so great that it led to
a total lack of communication, thus precluding an adequate defense. Mr. Russian
contends his relationship with his counsel suffered a debilitating breakdown in
communication. The record rebuffs this contention. Most strikingly, at the
-9- resentencing hearing Ms. Brannon explained how she “told Mr. Russian” she
would clarify that her June 30th motion should have reflected his desire to have
new counsel appointed, rather than represent himself. Id. at 13. In other words,
counsel admitted she and her client had been communicating up until the
resentencing.
To demonstrate his communication with counsel had broken down, Mr.
Russian points to three instances in which his counsel purportedly lied to him.
But these examples do not persuade us that a complete breakdown in
communication occurred.
Mr. Russian first claims his counsel lied to him when she said she would
raise a Faretta defense. His June 20th motion explained that in 2015 Ms.
Brannon told him “she was going to get [him] relief with the Faretta v.
California case,” but she “didn’t keep her word and get [him] the relief.” R., Vol.
1 at 785–86. And Ms. Brannon “lie[d] to [him] again,” he says, by claiming she
“couldn’t use the Faretta case, the[re] just wasn’t enough the[re] to use.” Id. To
start, we fail to understand how this qualifies as lying. By its terms, Mr.
Russian’s complaint relates to his counsel’s inability to “get the relief” he sought.
Id. Not being able to secure relief for a client is a far cry from lying.
But generously reading Mr. Russian’s pro se motion, he seems to allege
that his counsel lied by saying she would raise the Faretta issue and then not
doing so. Even assuming this is true, it does not evidence a total breakdown in
-10- communication. Indeed, counsel did not lie about failing to raise the defense;
rather, she told Mr. Russian she did not raise it because there was not a strong
legal basis for the argument. So even if counsel initially misled Mr. Russian
about what she would argue, that she later told Mr. Russian she did not raise the
defense and explained her reasoning demonstrates that a total and complete
breakdown in communication had not occurred.
Similarly, Mr. Russian highlights how in December of 2015, Ms. Brannon
claimed he would be “out of prison before the summer.” Id. at 785. Yet in June
of 2017, he was “still here in lock up.” Id. According to Mr. Russian, this
further exposes how his counsel frequently lied to him. We assume, solely to
dispose of Mr. Russian’s contention, that Ms. Brannon in fact stated the date she
could get Mr. Russian released from prison. In doing so, she may have promised
her client too much. She may also have failed to adequately set her client’s
expectations about what result she could achieve, and how quickly she could
achieve it. But misunderstandings between lawyers and clients frequently occur.
And lawyers’ predictions are no exact science; they can be subject to changing
circumstances, and often prove less than prophetic in hindsight. Thus, though
every effort should be taken to avoid such miscommunications or over-certain
predictions, and even assuming an isolated incident such as this occurred in this
case, that does not evidence a total breakdown in communication.
-11- Third, Mr. Russian highlights how his counsel’s motion on June 30th
incorrectly claimed he wanted to represent himself. In his view, this
demonstrates the destruction of communication between them. But Mr. Russian
ignores how at resentencing, his counsel corrected any confusion by (1) asking
the court to let Mr. Russian explain what, exactly, he was asking the court for,
and (2) clarifying that the hearing had cleared up her motion’s failure to reflect
Mr. Russian’s wishes. Thus, even if Mr. Russian and his counsel failed to
effectively communicate about the June 30th motion, his counsel remedied this
problem at the resentencing hearing.
The third factor therefore supports the district court’s ruling. The three
pieces of evidence Mr. Russian claims show the debilitating breakdown in
communication do not, in fact, suggest any such breakdown occurred.
Finally, the fourth factor is not implicated. Since Mr. Russian provided no
specific examples of the alleged breakdown in communication, we cannot analyze
whether he substantially and unreasonably contributed to it.
In sum, all three relevant factors support the district court’s decision.
Accordingly, we conclude the district court did not abuse its discretion by
denying Mr. Russian’s request to replace his counsel.
Mr. Russian’s briefing does not focus on these factors. Rather, he contends
we should remand this case for a more fundamental reason: the district court
misconstrued, and therefore did not address, his argument. More precisely, he
-12- claims the district court all but ignored his theory that his counsel’s lack of
candor caused the communication breakdown. To demonstrate this, he points to
the fact that the district court’s July 5th order focused solely on his right to self-
representation; it made no mention of the truthfulness theory. Likewise, at the
resentencing hearing, the court only acknowledged Mr. Russian’s frustration “that
Ms. Brannon ha[d] not followed all of his instructions”; the court did not
explicitly discuss his contention that his counsel repeatedly lied to him. R., Vol.
3 at 11.
We are confident the district court fully understood—and fully
rejected—Mr. Russian’s argument. In its order and at the resentencing hearing,
the district court did not need to recite the details of the argument Mr. Russian
advanced. It listened to Mr. Russian’s argument at the resentencing hearing,
considered it, and ultimately rejected it. Nothing else was required.
But more to the point, we think the district court did address Mr. Russian’s
theory. As we explained, Mr. Russian argued his counsel lacked candor by saying
she would raise the issue of holding a Faretta hearing, yet failing to do so. In
other words, his counsel misleadingly failed to follow his instructions. The
district court directly referenced this theory, noting it understood Mr. Russian was
“dissatisfied that Ms. Brannon ha[d] not followed all [his] instructions or
requests.” Id. To be sure, the district court did not use the words trustworthiness,
-13- candor, or liar. But failing to more fully or directly address Mr. Russian’s theory
does not qualify as an abuse of discretion.
In short, after carefully reviewing the sentencing transcript, we are satisfied
the district court understood and rejected Mr. Russian’s request for new counsel.
B. Restriction on Advocacy
Next, Mr. Russian asks us to modify the condition of supervised release
that prohibits him from engaging in “activities that advocate the violation of law.”
R., Vol. 1 at 826. He claims the condition written in the amended judgment
differs from the condition orally pronounced in open court. The orally announced
condition, he says, prohibits advocating for “direct violation[s] of the law.” R.,
Vol. 3 at 48 (emphasis added). Yet in the amended judgment, the word “direct” is
nowhere to be found. Thus, because “an orally pronounced sentence controls
over a judgment and commitment order when the two conflict,” Mr. Russian asks
us to alter the amended judgment so it includes the “direct violation” language.
United States v. Villano, 816 F.2d 1448, 1450–51 (10th Cir. 1987).
To understand Mr. Russian’s argument, it is helpful to walk through the
district court’s discussion of the issue. When the court first raised the condition,
Ms. Brannon expressed her concerns that it impermissibly limited Mr. Russian’s
First Amendment rights. After a lengthy discussion between both parties, the
court said:
-14- I think I’m going to impose a restriction that prohibits Mr. Russian from engaging in activities which advocate the violation of the law or assisting others who are advocating the violation of the law, but limit it to that, and otherwise not adopt the language as proposed in the PSIR.
R., Vol. 3 at 22–23. Neither party objected.
After discussing a number of other issues, the court summarized the
sentence it would impose, commenting on the advocacy focused condition:
I'm hopeful that this sentence will also afford adequate deterrence to future criminal conduct, and protect the public from the crimes of the defendant. And I do think, apropos the colloquy that Ms. Brannon and I had earlier, there is a difference between Mr. Russian vigorously advocating for his view of the law and his being involved in violations of the law. And certainly the former, his advocacy, is I believe a right that he has and should not be considered itself criminal, only activities in which he would advocate or assist others in advocating for the direct violation of the law.
Id. at 41–42 (emphases added). The court then orally pronounced Mr. Russian’s
sentence, noting that he must “comply with the standard conditions of supervision
that have been adopted by this court.” Id. at 45.
Mr. Russian claims the condition the court orally announced included the
“direct violation of the law” language. Id. at 42 (emphasis added). But the
sentencing transcript tells a different story. It makes it clear that the condition
the court “adopted” was the condition it initially articulated after its lengthy
discussion with the parties about the condition’s scope. After all, it was then the
-15- court described and considered the condition and asked for objections. Id. at
22–23. Though the court later mentioned the condition again—and described it as
prohibiting only advocating for direct violations of the law—this later discussion
did not supercede or somehow supplant the earlier one. In fact, the court
explicitly referred back to the “colloquy” it previously had with Ms. Brannon,
thus suggesting it intended to impose the condition of supervised release it had
previously articulated, which did not include the direct violation language. In
sum, the sentencing transcript convinces us the condition of supervised release
the court orally announced is the same condition in the amended judgment.
Even if the district court’s mention of a direct violation of law created a
dash of ambiguity, the result remains the same. When “an orally pronounced
sentence is ambiguous . . . the judgment and commitment order is evidence which
may be used to determine the intended sentence.” Villano, 816 F.2d at 1451.
Therefore, even if we generously read the sentencing transcript to create some
ambiguity about the contours of this condition, we would resolve this ambiguity
by looking to the amended judgment. And the amended judgment does not, of
course, include the direct violation language.
In sum, the orally pronounced condition mirrors the condition in the
amended judgment.
-16- C. Residential Treatment Program
Mr. Russian’s final argument relates to the condition of supervised release
that requires him to “successfully participate in and successfully complete an
approved program for substance abuse, which may include . . . outpatient and/or
residential treatment . . . as directed by the Probation Office.” R., Vol. 1 at 826.
Neither party objected to the condition, so we review for plain error.
He argues the district court plainly erred by delegating the judicial task of
determining whether he should be enrolled in an outpatient and/or residential
treatment program to a non-judicial officer—the probation office. For good
reason, the government agrees. “Article III prohibits a judge from delegating the
duty of imposing the defendant's punishment to the probation officer.” United
States v. Mike, 632 F.3d 686, 695 (10th Cir. 2011). And in Mike, we held that
conditions requiring “the defendant to participate in residential treatment . . .
must be imposed by the district court.” Id. The district court thus plainly erred
by delegating the decision of whether Mr. Russian needs to participate in a
residential treatment program to the probation office.
We accordingly VACATE this condition of supervised release and
REMAND this case to the district court for the sole purpose of considering
whether to reimpose this condition in compliance with Article III of the
Constitution.
-17- III. Conclusion
In sum, we AFFIRM the district court’s denial of Mr. Russian’s request to
replace his counsel. We also AFFIRM the condition of supervised release
prohibiting him from engaging in activities that advocate violating the law. But
we VACATE the condition that delegated the decision of whether Mr. Russian
will enter a residential treatment program to the probation office. Accordingly,
we REMAND the case to the district court to consider whether to reimpose that
condition in a manner that complies with the Constitution.
ENTERED FOR THE COURT
Timothy M. Tymkovich Chief Judge
-18-