UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ANTOINE J. WALLACE, Defendant - Appellant. No. 12-1413 (D.C. No. 1:11-CR -00058-CMA-1) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , HOLMES , and MATHESON , Circuit Judges.
In June 2012, a jury convi cted Appellant Antoine Wallace of charges stemming from the assault of employees at the United States Penitentia ry in Florence, Colorado. Mr. Wallace represented himself at trial. He now challenges his conviction, arguing that the trial court violated his Sixth Amendm ent rights because it did not end his self-

* After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 13, 2013
Elisabeth A. Shumaker Clerk of Court-2- representation and instruct standby counsel to represent him. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND In February 2011, Mr. Wallace was char ged with three counts of assaulting, resisting, opposing, impeding, intimidating, and interfering with employees of the Federal Bureau of Prisons in viola tion of 18 U.S.C. §§ 111(a)(1 ) and (b). He was initially appointed counsel but then requested to represent himself. The trial court held a hearing to ensu re that Mr. Wallace was capable of representing himself and unders tood the consequences of that decision. After advising Mr. Wallace at length of the dangers and limit ations of self-representation, the court found that he knowingly, voluntarily, and intentionally waived his Sixth Amendment right to counsel. The court also ordered the appointment of standby counsel to assist Mr. Wallace at trial and in pretrial preparation. On June 11, 2012, at the start of his two- day trial, Mr. Wallace informed the court that he was “waiving [his] app earance to be present during this mock trial.” ROA, Vol. 3 at 80. Mr. Wallace repeatedly refused to a llow standby counsel to represent him in his absence. The court advised Mr. Wallace that there would be “a serious detrimental impact if [he] refuse[d] to participate in the trial,” but Mr. Wallace insisted on being absent. Id. at 81. After questioning Mr. Wallace and informi ng him of the dangers of his decision, the court concluded that he knowingly, volunt arily, and intentionally waived his right to-3- be present at trial and to have standby couns el represent him. Mr. Wallace was placed in a nearby holding cell with an audio feed of th e trial proceedings. The court instructed standby counsel to be seated in the back of the courtroom and to be “up to speed on what has been presented [at] trial” in the event that Mr. Wallace “change[d] his mind and . . . wishe[d] to proceed.” Id . at 92. Mr. Wallace did not participate and had no representation during the first day of trial. On the second day, he returned to the courtroom to cro ss-examine one of the Government’s witnesses. He also testified in his own defense, ma de closing arguments, and moved for a mistrial. The jury found Mr. Wallace guilty of all three counts. He was sentenced to 720 months in prison.
II. DISCUSSION Mr. Wallace argues that he engaged in “o bstructive conduct” and that the trial court should have “rev oked [his] right to self-repres entation” and or dered standby counsel to “step in on [his] be half.” Aplt. Br. at 5. Th e court’s failure to do so, he argues, violated his rights under th e Sixth Amendment. We disagree. The Sixth Amendment provides a criminal defendant with the right to assistance of counsel. U.S. Const. amend. VI. It also includes the corresp onding right to selfrepresentation, “provided only that [the de fendant] knowingly an d intelligently forgoes his right to counsel and that he is able a nd willing to abide by rules of procedure and courtroom protocol.” McKaskle v. Wiggins , 465 U.S. 168, 173 ( 1984). Courts cannot-4- “thrust counsel upon the accused,” Faretta v. California , 422 U.S. 806, 820 (1975), because the defendant “must be free personally to decide whether in his particular case counsel is to his advantage,” id. at 834. Nevertheless, “the trial judge may term inate self-representa tion by a defendant who deliberately engages in serious and obstructionist misconduct,” and “a State may— even over objection by the accused—appoint a ‘s tandby counsel’ to aid the accused if and when the accused requests help, and to be av ailable to represent th e accused in the event that termination of the defendant’s self-representation is necessary.” Id. at 834 n.46. Standby counsel may assist, over a defenda nt’s objections, in “explain[ing] and enforc[ing] basic rules of courtroom protocol or . . . overcoming routine obstacles that stand in the way of the defendant’s achieveme nt of his own clearly indicated goals.” McKaskle , 465 U.S. at 184. But the right to self-representation is eroded if standby counsel is allowed, over the de fendant’s objection, “to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance.” Id. at 178. Mr. Wallace does not dispute that he know ingly and voluntarily waived his right to the assistance of counsel and elected to proceed pro se. Similarly, Mr. Wallace acknowledges that, when he anno unced his intention to be abse nt from trial, “[t]he trial judge . . . explained in detail the dangers M r. Wallace faced having no one to represent him.” Aplt. Br. at 4. It also is undisputed that Mr. Wallace repeat edly refused to allow standby counsel to represent him in his absence.-5- Nonetheless, he contends that the trial court had an affirmative duty to terminate his self-representation because of his obstructi ve conduct and that its failure to do so violated his rights under the Si xth Amendment. He notes that at times he disobeyed the trial court’s orders to stop talking and engaged in occasional outbursts. 1 Although the Supreme Court has said that a “trial judge may terminate selfrepresentation by a defendant who deliberatel y engages in serious and obstructionist misconduct,” Faretta , 422 U.S. at 834 n.46 (emphasis added), it has not held that the Sixth Amendment mandates this outcome. Rather, the Co urt has instructed that trial courts should not force unwanted coun sel upon defendants who knowingly and voluntarily assert the right to self-representation. See id . at 834; see also McKaskle , 465 U.S. at 178; see also United States v. Boigegrain , 155 F.3d 1181, 1185 (10th Cir. 1998) (“[A] lawyer cannot be forced upon a de fendant who wishes to act as his own representative, even if self-representation would be detrimental to the defendant.”). Other courts have addressed simi lar Sixth Amendment claims. In Clark v. Perez , 510 F.3d 382 (2d Cir. 2008), the Second Circ uit rejected a claim that a criminal defendant’s Sixth Amendment rights were viol ated because the trial court did not revoke her pro se status or appoint standby counsel when she refused to participate in or attend trial. Id. at 396. That court held that no Si xth Amendment viola tion occurred because

1 The record shows that Mr. Wallace did engage in occasional outbursts. The trial court dealt with these outbursts patiently by ordering recesses, excusing the jury, and ordering Mr. Wallace out of the courtroom temporarily to calm himself.-6- the defendant “knowingly and intelligently waived her right to counsel, unequivocally asserted her right to self-representation, ma de a conscious strategic choice to waive her right to be present in the courtroom as part of a de facto political protest defense, and was afforded the opportunity to re turn whenever she chose.” Id. 2 On habeas review, the Third Circuit suggested in dicta that when a pro se criminal defendant voluntarily refuses to participate at trial, the co urt should appo int counsel to represent the defendant. See Thomas v. Carroll , 581 F.3d 118, 126 (3d Cir. 2009). The pro se defendant in Thomas knowingly and voluntarily waived his right to counsel, was never given standby counsel, and later voluntarily waived his right to be present at trial. Id. at 119-122. Ultimately, the Thomas court denied habeas relief on the Sixth Amendment claim, but it stated, “If this appeal had come before us on a direct appeal from a federal court presented with a defendan t who waived his right to counsel and then absented himself from the courtroo m, we might hold differently.” Id. at 127. We conclude that Mr. Wallace’s Sixth Amendment claim is weaker than the claims in Clark and Thomas and is thus unsuccessful . Mr. Wallace knowingly and voluntarily waived his right to counsel a nd elected to proceed pro se. Unlike the defendants in Clark and Thomas , he was appointed standby coun sel in advance of trial.

2 The Second Circuit has signaled that if a misbehaving pro se defendant is involuntarily removed from trial, standby co unsel should be ordered to step in. Davis v. Grant , 532 F.3d 132, 141-45 (2d Cir. 2008) (d enying habeas relief on Sixth Amendment claim, but indicating the result might have been different on direct appeal). Mr. Wallace was not involuntarily removed from trial.-7- At trial, Mr. Wallace knowingly and voluntarily waived his right to be present. When asked if standby counsel could represent hi m in his absence, Mr. Wallace repeatedly refused. Neither the Clark court nor the Thomas court was confronted with a defendant who explicitly refused to allow standby counsel to present a defense. This request placed the trial court in a difficult position, and its decision to allow Mr. Wallace to be absent but to participate at trial if he so please d respected his Sixth Amendment right to selfrepresentation. Moreover, we do not agree w ith Mr. Wallace’s assertion that he did not receive a fair trial as a result of the court’s failure to revoke his pro se status and instruct standby counsel to represent him. See Aplt. Br. at 7 (arguing that, had the trial court ordered standby counsel to represent him, “Mr. Wallace’ s right to a fair trial would have been preserved”). In Thomas , the Third Circuit suggested that the defendant’s trial might have been unfair because his absen ce resulted in a “complete br eakdown of the adversarial process.” 581 F.3d at 126. The Third Circ uit contrasted the defendant’s trial from the trial in Clark , where the defendant “participated in pa rts of the trial, including a lengthy closing statement to the jury,” resulting in an “‘intensely adversarial’” process.” Id. (quoting Clark , 510 F.3d at 397). Like the trial in Clark , Mr. Wallace’s trial was adversarial despite his absence. He participated in parts of the trial, cross-ex amined a Government witness, gave a closing argument, and moved for a mistrial. We cannot say that the trial court’s decision resulted in a “complete breakdown in the adversarial process.” Thomas , 581 F.3d at 126.-8- The trial court honored Mr. Wallace’s choi ces with regard to self-representation and standby counsel after determining th ose choices were made voluntarily and knowingly. We see no Si xth Amendment violation.
III. CONCLUSION For the foregoing reasons, we affirm.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge