Seventh Circuit overturns a supervised release condition giving a probation officer the power determine whether a defendant could associate with “known felons,” including his own children

In United States v. Lee, the Seventh Circuit recently held that a supervised release condition prohibiting a convicted defendant from interacting with known felons “unless granted permission to do so by the probation officer” impermissibly delegated Article III powers “relating to [the defendant’s] liberty interest in familial association.” (Because two of the defendants’ sons “are felons themselves,” the release condition “allow[ed] the probation officer—instead of the district judge—to determine whether [the defendant] can enjoy the company of his own children.”)

To determine whether a condition of supervised release violates the non-delegation rule, we distinguish between permissible conditions that merely task the probation officer with performing ministerial acts or support services related to the punishment imposed and impermissible delegations that allow the officer to decide the nature or extent of the defendant’s punishment.

In this case, the district court’s release condition gave the probation officer the power to determine “whether, when, and how [the defendant] can exercise his constitutional liberty interest in familial association,” which is “much more than a ‘ministerial act.’” Therefore, the Seventh Circuit vacated the release condition and remanded the case for further proceedings.

Third Circuit: evidentiary hearing needed to determine whether defendant was afforded effective assistance of appellate counsel where his lawyer did not challenge the district court’s failure to personally address him at sentencing

Yesterday, in United States v. Scripps, the Third Circuit held that an evidentiary hearing should have been held with respect to a convicted defendant’s motion for relief under 28 U.S.C. § 2255. The defendant claimed that his sentencing judge failed to personally address him during the sentencing proceeding, as required under Rule 32 of the Federal Rules of Criminal Procedure, and that his lawyer’s failure to raise that issue on appeal amounted to ineffective assistance of counsel.

District courts are required to hold evidentiary hearings unless a § 2255 motion “and the files and records of the case conclusively show that the prisoner is entitled to no relief.” United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005). Moreover, the Scripps panel noted that sentencing courts are required to personally address defendants, “and that no substitute for such a personal address will be permitted.”

In the absence of an evidentiary hearing on the defendant’s § 2255 motion, the Third Circuit determined that it could not determine whether appellate counsel had a strategic reason for failing to raise the Rule 32 issue. Moreover, because “there is a reasonable probability that we would have remanded for resentencing if counsel had raised the Rule 32 error on direct appeal,” the Third Circuit determined that the district court abused its discretion by summarily denying the defendant’s § 2255 motion without conducting an evidentiary hearing.

Ninth Circuit: The Fourth Amendment “administrative search” exception does not apply where the “primary purpose” of a search is to gather criminal evidence.

In United States v. Grey, the Court of Appeals for the Ninth Circuit recently upheld a district court order suppressing evidence that was recovered during an “administrative” inspection of the defendant’s home, where the “primary purpose” of that inspection was to gather evidence in support of a criminal investigation.

Under the Fourth Amendment, police may not search a person’s home without a warrant supported by probable cause. Of course, there are manyexceptions” to the warrant requirement. (As a practical matter, it might more accurate to say that the Fourth Amendment is a narrow exception to the general rule that police officials can do whatever they want with your property.) One of these exceptions is the “administrative search” rule, under which “government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’” Grey, at 21 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). This means that a warrant is not generally required “where the search or seizure is in execution of an administrative warrant authorizing . . . an inspection of residential premises to ensure compliance with a housing code.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011)).

However, in Grey the Ninth Circuit confirmed that: (1) when an officer’s “primary purpose” in conducting an administrative search is to further a criminal investigation, and (2) where the officer’s “criminal investigatory motive plainly increased the intrusion on [the defendant’s] privacy interests,” the administrative search exception does not apply and the search violates the Fourth Amendment.  

Third Circuit reverses award of damages to man wrongfully prosecuted for immigration crime

In United States v. Mario Nelson Reyes-Romero, a non-U.S. citizen who was previously deported to El Salvador was arrested and prosecuted for the crime of unlawful reentry. The district court found that DHS officers’ testimony about the prior deportation proceedings amounted to “a combination of nonsense . . . [and] lies,” and criticized the federal prosecutors for relying on that testimony and then failing to disavow it, in spite of applicable ethics standards that require prosecutors to correct witness statements that are obviously untrue.

The defendant then sued the government under the Hyde Amendment, and the district court granted him an award of $73,757 in fees and costs. Among other things, the district court found that inconsistencies in the immigration removal forms that were used in the prior deportation proceedings were so apparent that it was “frivolous” for the government to have charged him under the illegal reentry statute. Although district courts are ordinarily entitled to substantial discretion in granting or denying Hyde Amendment awards, the Court of Appeals for the Third Circuit reversed, stating that “the Hyde Amendment is not an appropriate vehicle to criticize the conduct of law enforcement officers or second-guess the management of a criminal prosecution.”

Unfortunately, there is no other viable “vehicle” for people to sue miscreant prosecutors or law enforcement officials. Despite the enormous amount of power they wield, they are almost entirely impervious to accountability. Prosecutors are absolutely immune from liability under the civil rights statutes, and police officers and other executive branch officials benefit from “qualified immunity,” which has become the practical equivalent of absolute immunity. While the Hyde Amendment purports to open a small crack in that wall of impunity, the Third Circuit’s Reyes-Romero decision sends an unmistakable message to district courts: if you dare to find a prosecutor liable then all deference to your findings of fact will go out the window.

Second Circuit: Criminal restitution includes payments for losses incurred outside the statute of limitations period if the scheme itself is less than five years old

In United States v. Parnell, the district court ordered a former federal employee to make restitution for the hundreds of fraudulent expense reimbursement forms she submitted between 2010 and 2016. The employee, who was indicted in August of 2017, argued that the five-year statute of limitations barred restitution for any expense form filed before August of 2012. But today the Second Circuit held that the Mandatory Victims Restitution Act of 1996 (18 U.S.C. § 3663A) authorizes sentencing courts to impose restitution for all “losses arising from criminal conduct in the course of a scheme, including acts outside the statute-of-limitations period, as long as those losses are attributable to the same underlying scheme, and as long as some part of th[e] scheme for which the defendant was convicted occurred within the statute of limitations.”[1]

The defendant in Parnell pleaded guilty to wire fraud (18 U.S.C. § 1343), which includes, as an element, “a scheme to defraud.” Therefore, because the former federal employee’s wire fraud scheme fell within the five-year statute of limitations, the Second Circuit held that total amount of restitution included all of the losses suffered by the government during the course of that scheme.


[1] The Second Circuit panel noted that the Sixth, Ninth, and Eleventh Circuits have already held that MVRA restitution orders may include losses incurred prior to the five-year statute of limitations cutoff, citing to United States v. Ellis, 938 F.3d 757 (6th Cir. 2019), United States v. Anieze-Smith, 923 F.3d 565 (9th Cir. 2019), and United States v. Dickerson, 370 F.3d 1330 (11th Cir. 2004). The Second Circuit panel also noted that the Tenth Circuit “has reached the same conclusion, albiet in a non-precedential order,” citing United States v. Williams, 356 Fed. App’x 167 (10th Cir. 2009).