United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS June 20, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-30357
STEVEN McCLURE; CLAYTON SMITH; MICHAEL BEHAN,
Plaintiffs-Appellees,
versus
JOHN ASHCROFT, sued in his capacity as Attorney General,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GARWOOD, SMITH, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This civil appeal challenges a permanent injunction obtained
by third-parties to a final judgment of conviction in an earlier
criminal case. That case concerned illegal drug use at the
criminal defendant's business premises (theater). Enjoined is
enforcement of a plea agreement provision, which the district court
accepted and included as part of a special condition in the final
judgment. The part in issue requires the criminal defendant and
related persons to take reasonable steps to prohibit the
introduction of certain legal items into their theater (special
condition). Primarily at issue is whether third-parties, who claim
the special condition violates their constitutional rights, have
standing to challenge the final criminal judgment. VACATED and
REMANDED.
I.
This civil action concerns “raves” – high-energy, all-night
dance parties, popular with teenagers and young adults, which
feature electronic dance music with a fast, pounding beat and
choreographed laser and dance programs. U.S. Dept. of Justice,
Information Bulletin: Raves, Prod. No. 2001-L0424-004 (April
2001). The State Palace Theater (the Theater) in New Orleans,
Louisiana, frequently holds raves. Commonly, they last from 10:00
p.m. until 7:00 a.m. and are attended by several thousand people,
who pay an entry fee of $10 to $40.
Some attending raves use illegal drugs, particularly 3,4
methylenedioxymethamphetamine (ecstasy). In 1999, the DEA began an
investigation of alleged drug use at the Theater. That
investigation revealed that, between December 1997 and March 2000,
more than 70 people were transported from the Theater to a hospital
because of drug overdoses; one seventeen-year-old died. In
undercover operations conducted at seven raves at the Theater, DEA
agents made 50 purchases of ecstasy or other controlled substances.
Robert Brunet and his wife lease the Theater. Robert and
Brian Brunet (the Brunets) are corporate officers of Barbeque of
2
New Orleans, Inc. (Barbeque), which manages the Theater. James
Estopinal is its rave promoter.
In August 2000, the DEA raided the Theater. As a result,
charges were brought against the Brunets and Estopinal under 21
U.S.C. § 856(a)(2) (unlawful to manage building and knowingly and
intentionally make it available for controlled substance use).
United States v. Brunet, No. 01-CR-10 (E.D. La. filed 12 January
2001). The charges were dismissed in March 2001.
Barbeque was then charged with conspiracy to violate §
856(a)(2). United States v. Barbeque of New Orleans, Inc., No. 01-
CR-153 (E.D. La. filed 13 June 2001). Pursuant to a plea
agreement, Barbeque pled guilty to the charge and agreed, inter
alia, that it, the Brunets, “and any other corporation or business
that these two individuals are associated with” would
take all reasonable steps to prohibit the
introduction of infant pacifiers or any
objects in the shape of a pacifier, objects
that glow, including but not limited to glow
sticks and flashing rings, vapor rub products
and vapor inhalers, dust masks or masks of any
description by any person entering a concert
or an event where an admission is charged or
at the State Palace Theater.
In addition, Barbeque and the Brunets agreed: (1) not to
introduce, sell, or distribute the above listed items, as well as
not provide masseurs, massage tables, or “chill rooms” (kept 15
degrees cooler than the rest of the building); and (2) to contact
the New Orleans Police Department if they or their employees
3
observe the sale or possession of controlled substances. (These
last two terms, made part of the special condition in the
subsequent criminal judgment, are not at issue. At issue is only
the above-quoted plea provision that was also made part of that
special condition.)
In August 2001, the district court accepted the Federal Rule
of Criminal Procedure 11 plea agreement. It then entered a final
judgment and probation order (criminal judgment), sentencing
Barbeque to five-years probation and a $100,000 fine, and including
the plea agreement terms. As noted, the above-quoted plea
provision was included in the criminal judgment as part of the
special condition. (Hereinafter, that plea provision is usually
referred to as the special condition.)
The items listed in the special condition are all linked to
ecstasy use, which causes heightened physical sensations. Objects
that glow provide enhanced visual stimulation. (Glowsticks are
also an integral part of dancing at raves.) Ecstasy users wear
dust masks, onto which vapor rub is spread, to stimulate olfactory
sensations. Finally, pacifiers alleviate trismus (tightening of
the jaw muscles) and bruxism (grinding of teeth) caused by ecstasy
use.
Even before the plea agreement was accepted by the district
court, Barbeque and the Brunets implemented a policy enforcing the
substance of the plea provision. That policy allows individuals to
4
return the items to their vehicles or leave them to be retrieved.
(Nonetheless, the Theater's security guards have, at times,
violated this policy and confiscated or disposed of these items.)
Electronic music, dancing, and laser light shows continue at these
raves. Since the implementation of this policy, however, far fewer
individuals have been transported to a hospital due to illegal drug
use; from February 2001 to December 2001, the closest hospital
received no one for drug overdoses connected with the Theater.
Approximately two weeks after entry of the criminal judgment
in August 2001, Plaintiffs filed a class action contending the
special condition violated their constitutional rights. The named
plaintiffs are: a founding member of an electronic music band
whose performances include glowstick costumes decorated to create
a porcupine effect; a member of the United States Air Force’s saber
drill team, who has adapted its acrobatic sword techniques to be
performed with glowsticks and who also wears a pacifier around his
neck at raves; and a performance artist, who is identified by his
elaborate glowing masks and costumes.
Plaintiffs claim the special condition violates their First
Amendment right to freedom of expression. In this regard, they
assert glowsticks and masks are an integral part of their
performance and also claim they wear pacifiers to identify
themselves with the rave culture. (Concerning the First Amendment,
they have not explained, however, the significance of vapor rub.)
5
In addition, Plaintiffs claim Fourth and Fifth Amendment
violations, asserting that the Theater’s confiscation of their
items amounts to an unreasonable seizure or violation of their
property rights.
Within a week of this action’s being filed, the district
judge, who had earlier accepted the plea agreement and entered the
criminal judgment, granted a preliminary injunction in this civil
action against the Government’s “enforcing the [above-quoted]
provision of the plea agreement”. That November, the district
court certified a class. Following a bench trial on 17 December
2001, the district court ruled in February 2002 that Plaintiffs’
First Amendment rights were violated. (It did not address the
Fourth and Fifth Amendment claims.) As a result, the district
court permanently enjoined enforcement of the plea provision, using
the language employed in the preliminary injunction. (The district
court enjoined enforcement of the “provision of the plea
agreement”. In fact, as discussed, it enjoined a special condition
in the criminal judgment.)
In its ruling, the district court first held, inter alia, that
it was “not trying to revoke its acceptance of [the] plea
agreement” and that then Federal Rule of Criminal Procedure
11(e)(1) (court shall not participate in plea agreement
discussions; provision now at Rule 11(c)(1) (as amended 1 December
2002)) did not apply in this civil action, as discussed infra. (It
6
did not address, however, the fact that the plea provision at issue
became a special condition in the final criminal judgment.) As
discussed infra, the district court held Plaintiffs have standing
to bring a third-party constitutional challenge to a plea
agreement. It also ruled that the requisite state action is
present because of the combination of the Government's action and
those of the private actors required to comply with the special
condition.
In its First Amendment ruling, the district court found that
the plea agreement evinced no improper purpose or motive by the
Government to eliminate rave culture. Nevertheless, it reasoned:
although elimination of ecstasy use was a significant, legitimate
governmental interest, the plea provision was not narrowly
tailored; the Government could not ban legal, expressive items
simply because they are associated with illegal activities; and
there was no evidence that the ban reduced ecstasy use. McClure v.
Ashcroft, No. 01-2573 (E.D. La. 1 Feb. 2002). (As noted, the court
did not address Plaintiffs’ Fourth and Fifth Amendment claims.)
II.
Permanent injunctions are reviewed for abuse of discretion.
E.g., Peaches Entm’t Corp. v. Entm’t Repertoire Assoc., Inc., 62
F.3d 690, 693 (5th Cir. 1995). A district court abuses its
discretion if it: (1) relies on clearly erroneous factual
findings; (2) relies on erroneous conclusions of law; or (3)
7
misapplies the law to the facts. Id. Standing, an issue of law,
receives plenary review. Maiz v. Virani, 311 F.3d 334, 337 (5th
Cir. 2002).
The standing doctrine defines and limits the role of the
judiciary and is a threshold inquiry to adjudication. E.g., Warth
v. Seldin, 422 U.S. 490, 517-18 (1975). The inquiry has two
components: constitutional limits, based on the case-and-
controversy clause in Article III of the Constitution; and
prudential limits, crafted by the courts. Raines v. Byrd, 521 U.S.
811, 820 (1997). “In both dimensions it is founded on concern
about the proper — and properly limited — role of the courts in a
democratic society.” Warth, 422 U.S. at 498.
As a result, Plaintiffs must establish that “their claimed
injury is personal, particularized, concrete, and otherwise
judicially cognizable”. Raines, 521 U.S. at 820 (emphasis added).
No authority need be cited for the rule that courts should avoid
constitutional decisions as much as possible. Therefore, for
disposing of this appeal, the better course is through prudential
considerations, rather than through constitutional limits involving
more difficult issues, such as state action, as discussed infra.
Accordingly, as discussed in part II.A. infra, we assume
arguendo that Plaintiffs have satisfied the Article III
requirements of “personal”, “particularized”, and “concrete”
injury. And, as discussed in part II.B. infra, because of
8
prudential considerations, including the finality of criminal
judgments and the limited role of the judiciary, Plaintiffs’ injury
is not “judicially cognizable”.
A.
Article III case-and-controversy requirements provide the
“irreducible constitutional minimum” to demonstrate an action is
justiciable. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992); Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 475 (1982) (“We
need not mince words when we say that the concept of ‘Art. III
standing’ has not been defined with complete consistency.... But
of one thing we may be sure: Those who do not possess Art. III
standing may not litigate as suitors in the courts of the United
States.”).
[T]o satisfy Article III’s standing
requirements, a plaintiff must show (1) it has
suffered an “injury in fact” that is (a)
concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the
challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative,
that the injury will be redressed by a
favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000) (citing Lujan, 504 U.S. at 560-61).
Plaintiffs have shown a particularized, actual injury. They
assert that the requisite state action exists because the special
condition requires Barbeque and the Brunets to violate Plaintiffs’
9
First, Fourth, and Fifth Amendment rights. E.g., Peterson v.
Greenville, 373 U.S. 244, 247-48 (1963) (state action where
restaurant owner enforces city ordinance requiring segregation).
Plaintiffs have shown that members of their class use glowsticks
and masks to dance, e.g., Schad v. Borough of Mt. Ephraim, 452 U.S.
61, 65 (1981) (live musical entertainment falls within First
Amendment), and wear pacifiers for the purpose of expressing
adherence to the rave culture, e.g., Texas v. Johnson, 491 U.S.
397, 404 (1989) (expressive conduct if intent to convey
particularized message and likelihood message understood by those
viewing it). (As noted, Plaintiffs have not shown, however, that
vapor rub was used for expressive purposes.) Further, in alleged
support of their Fourth and Fifth Amendment claims, they have shown
that their property was seized when they attempted to enter an
electronic music concert at the Theater. (On the other hand, these
seizures are arguably not state action because, among other things,
the special condition only requires Barbeque and the Brunets to
“take reasonable steps to prohibit the introduction” of these items
into the Theater; restated, it does not require their
confiscation.) As discussed, we assume arguendo that state action
has been shown for each claim.
Plaintiffs have also shown they plan to attend raves in the
future and use glowsticks and masks in their performances and wear
pacifiers. E.g., Friends of the Earth, Inc., 528 U.S. at 182-82
10
(injury-in-fact where plaintiff intended to use polluted site for
recreating, if statute was enforced to prevent pollution). Along
this line, the class is defined by the district court as
[a]ll persons present and future who have
attended an electronic music concert at State
Palace Theater and who either suffered seizure
and confiscation of their property pursuant to
the ... plea agreement ... or have suffered
artistic censorship or loss of the use of
their property ... due to the threat of
enforcement of [the] plea agreement.
(Emphasis in original.)
Showing the requisite causation and redressability is more
difficult.
When ... a plaintiff’s asserted injury arises
from the government’s allegedly unlawful
regulation (or lack of regulation) of someone
else[, (third party)] causation and
redressability ordinarily hinge on the
response of the regulated (or regulable) third
party to the government action or inaction —
and perhaps on the response of others as
well.... [I]t becomes the burden of the
plaintiff to adduce facts showing that those
choices have been or will be made in such
manner as to produce causation and permit
redressability of injury.... Thus when the
plaintiff is not himself the object of the
government action or inaction he challenges,
standing is not precluded, but it is
ordinarily substantially more difficult to
establish.
Lujan, 504 U.S. at 562 (citing Warth, 422 U.S. at 505, and Allen v.
Wright, 468 U.S. 737, 758 (1984)) (emphasis in original; other
internal quotations and citations omitted).
11
Accordingly, Plaintiffs' ability to show causation and
redressability hinges on the response of Barbeque and the Brunets
to the Government’s enforcement of the special condition being
enjoined. Lujan is instructive.
In Lujan, the Endangered Species Act, 16 U.S.C. § 1531, et
seq., required federal agencies to consult with the Secretary of
the Interior when their conduct would jeopardize endangered
species. Although the Secretary promulgated a regulation requiring
consultation for domestic, as well as foreign, conduct, the
regulation was revised to require consultation only for domestic
conduct.
Environmental conservation organizations brought an action
against the Secretary, seeking to require him to promulgate a
regulation making consultation necessary before agencies engaged in
foreign conduct affecting endangered species. The Supreme Court
denied standing, in part, because the Secretary’s regulations were
not binding on the agencies; the environmental organizations could
not show a likelihood the injury would be redressed; and the
agencies might choose not to comply with the regulation. Lujan,
504 U.S. at 568-72.
Likewise, Plaintiffs’ relief hinges on third-party actions.
Plaintiffs seek to enjoin the Government's enforcement of the
challenged special condition. Plaintiffs concede, however, that
Barbeque and the Brunets could implement (and have implemented) a
12
policy on their own. Significantly, after the August 2000 raid
(before a plea agreement was finalized) and after the preliminary
injunction was granted, Barbeque and the Brunets adhered to a
policy of prohibiting glowsticks, pacifiers, vapor rub, and masks
in the Theater.
Nonetheless, this case may be distinguishable from Lujan.
There, the court order required the subject of the suit, the
Secretary of the Interior, to promulgate non-binding regulations,
which, if followed, would create more onerous duties on the third-
party agencies. Here, Plaintiffs seek to enjoin the subject of
their suit, the Government, from enforcing the special condition;
this would relieve the third-parties in this case, Barbeque and the
Brunets, of a duty.
There is evidence Barbeque and the Brunets enacted such a
policy because of fear of future prosecution. Robert Brunet
stated: “I personally [have] no desire to keep these items out of
the ... Theater.... If there was no plea agreement, and no fear of
being prosecuted, I would have permitted these items [at past
events]”. If the permanent injunction against enforcing the
special condition is upheld, such fear of future prosecution may be
alleviated, and, arguably, Barbeque and the Brunets would change
the policy. Plaintiffs have sufficiently shown they will continue
to attend raves at the Theater and wish to bring the prohibited
items.
13
In any event, and as discussed supra, we assume arguendo that
Plaintiffs meet the Article III requirements for standing.
Nevertheless, as also discussed supra, because the special
condition is part of a final criminal judgment, prudential
considerations preclude Plaintiffs’ having standing, as further
discussed infra.
B.
“Beyond the constitutional requirements, the federal judiciary
has also adhered to a set of prudential principles that bear on the
question of standing.” Valley Forge Christian College, 454 U.S. at
475. “Prudential standing limitations help courts identify proper
questions of judicial adjudication, and further define the
judiciary’s role in the separation of powers.” Ruiz v. Estelle,
161 F.3d 814, 829 n.22 (1998). See Valley Forge Christian College,
454 U.S. at 472; Warth, 422 U.S. at 498.
Along this line, Plaintiffs acknowledge that third parties
lack standing in criminal proceedings. Nevertheless, without
citing authority, they assert that a criminal judgment may be
challenged through a civil action where plaintiffs claim violation
of their constitutionally-protected rights. Consistent with this
contention, the district court ruled: when third-party
constitutional rights are violated by a plea agreement, that third-
party has standing.
This standing arises from the fact that the
government is allegedly violating an inherent
14
right we all, as Americans, enjoy. The fact
that the government is allegedly violating the
rights of all through a plea agreement with a
criminal defendant does not bear on a civil
plaintiff’s standing to redress the alleged
wrong that he is suffering.
McClure, No. 01-2573, slip op. at 5. Because of the importance of
both the finality of criminal judgments and the judiciary's limited
role, the district court erred in considering Plaintiffs’
constitutional claims.
“The policy of finality is, and should be, strong.” Bros
Inc. v. W.E. Grace Manufacturing Co., 320 F.2d 594, 610 (5th Cir.
1963). Accordingly, judgments, particularly criminal judgments,
should not be lightly disturbed. Cobbledick v. United States, 309
U.S. 323, 326 (1940). “The desirability of order and
predictability in the judicial process calls for exercise of
caution in such matters.” Seven Elves, Inc. v. Eskenazi, 635 F.2d
396, 400 (5th Cir. 1981). “Inroads on the concept of finality tend
to undermine confidence in the integrity of our procedures....
Moreover, increased volume of judicial work associated with the
processing of collateral attacks inevitably impairs and delays the
orderly administration of justice.” United States v. Addonizio,
442 U.S. 178, 185 n.11 (1979). While this last statement was made
in the context of 28 U.S.C. § 2255 motions to vacate or correct
sentences (discussed infra), it is no less true of third-party
collateral attacks on final criminal judgments.
15
In this regard, criminal defendants did not even have a right
to appeal until 1889. Cobbledick, 309 U.S. 323, 325 (1940).
“[E]ncouragement of delay is fatal to the vindication of the
criminal law.” Id. at 325. The Supreme Court has recognized the
importance of plea agreements to efficiently rendering criminal
judgments:
Disposition of charges after plea discussions
... lead to prompt and largely final
disposition of most criminal cases; it avoids
much of the corrosive impact of enforced
idleness during pre-trial confinement for
those who are denied release pending trial; it
protects the public from those accused persons
who are prone to continue criminal conduct
even while on pretrial release; and, by
shortening the time between charge and
disposition, it enhances whatever may be the
rehabilitative prospects of the guilty....
Santobello v. New York, 404 U.S. 257, 261 (1971) (emphasis added).
The standing doctrine protects final judgments from third-
party collateral attacks. For example, even victims lack standing
to challenge a criminal sentence. United States v. Mindel, 80 F.3d
394 (9th Cir. 1996) (beneficiary of criminal restitution order has
no standing to challenge modification of sentence to rescind
restitution order); United States v. Johnson, 983 F.2d 216 (11th
Cir. 1993) (beneficiary of criminal restitution order has no
standing to challenge revocation of probation when restitution not
paid); United States v. Kelley, 997 F.2d 806, 807-08 (10th Cir.
1993) (victim has no standing to appeal denial of motion to
intervene in criminal proceeding); United States v. Grundhoefer,
16
916 F.2d 788, 791 (2nd Cir. 1990) (“[t]he direct, distinct, and
palpable injury in a criminal proceeding plainly falls only on the
defendant who is being sentenced”). See also Gilmore v. Utah, 429
U.S. 1012, 1013-17 (1976) (majority held defendant knowingly and
intelligently waived all federal rights to challenge conviction and
did not address standing; Burger, C.J. and Powell, J., concurring,
opined that defendant's mother lacked standing to seek a stay of
execution for her son).
Likewise, the Supreme Court has denied standing to parties
challenging, on constitutional grounds, governmental policies to
prosecute individuals for crimes. Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973) (mother of illegitimate child sought order
compelling State to prosecute father under statute requiring
parents to support children). At least one federal circuit has
considered Linda R.S. as supporting the proposition that courts
should avoid the “spread of judicial authority”. Northwest
Airlines, Inc. v. Federal Aviation Administration, 795 F.2d 195,
203 n.2 (D.C. Cir. 1986).
In this regard, the district court enjoined a member of the
executive branch, the Attorney General, from enforcing the special
condition. The Supreme Court has counseled judicial restraint in
impinging on the ability of other branches to carry out their
duties. E.g., Raines, 521 U.S. at 819-20 (“[O]ur standing inquiry
has been especially rigorous when reaching the merits of the
17
dispute would force us to decide whether an action taken by one of
the other two branches of the Federal Government was
unconstitutional.”).
As another example, the Federal Rules of Criminal Procedure
express an aversion to allowing third-party interference with
sentencing. For instance, except for a provision requiring the
district court to address a victim of violence or sexual abuse if
present at sentencing, FED. R. CRIM. P. 32(i)(4)(B), the Rules
contemplate no role for third-parties.
Similarly, the district court has a limited role regarding
plea agreements. It cannot participate in plea discussions. FED.
R. CRIM. P. 11(c)(1). The district court may accept or reject a
plea agreement after one is reached; but, generally, once the court
has accepted the agreement, it may not subsequently reject or
modify it.
As the express terms of Rule 11 reveal, the
district court is barred from intruding upon
negotiations of plea agreements. The court’s
role is limited to the approval or rejection
of an agreement once finalized, and its
options in that regard are few.... Once the
court has accepted a plea agreement, however,
it is, as a general rule, bound by the terms
of that agreement. There is no provision in
the rules allowing a court to reject or modify
an agreement once accepted.
United States v. Ritsema, 89 F.3d 392, 398-99 (7th Cir. 1996)
(collecting cases standing for above proposition and noting one
limited exception: defendant’s fraud) (internal citation omitted;
18
emphasis added). See United States v. Capaldi, 134 F.3d 307, 308
(5th Cir.) (acknowledging rule stated in Ritsema), cert. denied,
524 U.S. 910 (1998).
Rule 11, as amended on 1 December 2002, expressly acknowledges
this proposition. Where the parties agree to a specific sentence,
“such a recommendation or request binds the court once the court
accepts the plea agreement”. FED. R. CRIM. P. 11(c)(1)(C). Further,
subsection (e), “Finality of a Guilty ... Plea”, was added to Rule
11: “After the court imposes sentence, the defendant may not
withdraw a plea of guilty ..., and the plea may be set aside only
on direct appeal or collateral attack”. FED. R. CRIM. P. 11(e).
This section reinforces the finality of accepted guilty pleas and
“makes it clear that it is not possible for a defendant to withdraw
a plea after sentence is imposed”. FED. R. CRIM. P. 11, Advisory
Committee Notes.
Generally, the district court may reduce or modify a sentence
in only four circumstances: (1) on remand, if, on appeal, the
sentence was held to be imposed in violation of the law, 18 U.S.C.
§ 3742; (2) upon a Government motion made within one year of
sentencing, if the defendant provided substantial assistance and a
reduction accords with the sentencing guidelines, FED. R. CRIM. P.
35(b)(1); (3) upon a Government motion more than one year after
sentencing, if the defendant provided information to the Government
not known within one year, which was not useful within one year, or
whose usefulness was not reasonably anticipated within one year,
19
FED. R. CRIM. P. 35(b)(2); and (4) within seven days of sentence
imposition to correct an arithmetical, technical, or other clear
error, FED. R. CRIM. P. 35(a). Before a 1987 amendment to Rule 35,
the district court could correct an “illegal sentence” at any time
or “a sentence imposed in an illegal manner” within 120 days of
imposition. FED. R. CRIM. P. 35(a), Pub. L. No. 98-473 (amended
1987).
In conjunction with the Sentencing Reform Act of 1984,
Congress amended Rule 35. Sentencing Reform Act of 1984, H.J. Res.
648, 98th Cong. § 215(b) (2nd Sess. 1984). “The underlying purpose
was to impose on the new sentencing system a requirement that the
sentence imposed in the public forum during the sentencing hearing
would remain constant, immune from later modification.” United
States v. Lopez, 26 F.3d 512, 517 (5th Cir. 1994) (citing United
States v. Cook, 890 F.2d 672, 674 (4th Cir. 1989)). Further,
Congress rejected a proposal to allow modification of sentences,
within 120 days, based on new factual information. It “believed
that such a change would inject into Rule 35 a degree of post-
sentencing discretion which would raise doubts about the finality
of determinate sentencing that Congress attempted to resolve by
eliminating former Rule 35(a) [allowing modification for illegal
sentences]”. Id. at 519 (citing Rule 35 Advisory Committee notes).
As another example of the need to uphold the finality of
criminal judgments, a person in custody pursuant to a federal
20
sentence may collaterally attack that sentence through a 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. Such
motions must be filed within one year of four listed events, such
as when “the judgment of conviction becomes final”. 28 U.S.C. §
2255. Further, a district court can consider a successive § 2255
motion only if a court of appeals first certifies the motion
concerns: (1) “newly-discovered evidence that” shows “by clear and
convincing evidence that no reasonable factfinder” could find
guilt; or (2) “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable”. Id. Again, these restrictions illustrate
that a district court may disturb final criminal judgments only in
extremely limited circumstances.
Finally, special conditions in criminal judgments often affect
third-party constitutional interests. It is within the court's
discretion, however, to impose them “to the extent that such
conditions involve only such deprivations of liberty or property as
are reasonably necessary [to effectuate sentencing purposes]”. 18
U.S.C. § 3563(b). Section 3563 provides, as an example, requiring
the defendant: (1) to refrain from frequenting certain places or
associating with certain people, § 3563(b)(6); (2) to reside, or
refrain from residing, in certain locations, § 3563(b)(13); or (3)
to refrain from pursuing certain employment, § 3563(b)(5). Each of
these conditions necessarily impinges third-party constitutional
rights of free speech and association. Yet, courts have approved
21
such conditions. E.g., United States v. Phipps, 319 F.3d 177 (5th
Cir. 2003) (supervised release condition prohibiting possession of
sexually-oriented materials); United States v. Paul, 274 F.3d 155
(5th Cir. 2001) (supervised release condition prohibiting visiting
locations frequented by minors), cert. denied, 535 U.S. 1002
(2002).
The district court accepted the plea on 3 August 2001 and
entered a final criminal judgment. By later enjoining the special
condition, it, in essence, rejected the plea after it became final.
Moreover, the district court violated the principles of finality
embodied in, inter alia, the Federal Rules of Criminal Procedure,
case-law holding third-parties lack standing to challenge final
criminal judgments, and principles of judicial restraint and the
separation of powers.
Based on the foregoing, we hold: In a civil proceeding, at
least under circumstances similar to those presented in this
action, a third-party collateral attack on a final criminal
judgment is nonjusticiable. We leave for another day the question
whether circumstances in a given action might be so extraordinary
as to confer justiciability. The present action is not so
extraordinary that we need consider whether principles of finality
and judicial restraint could ever give way. For example, the
district court found that the Government had no improper purpose
for imposing the challenged special condition. As another example,
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discussed supra, associational and other constitutional rights are
commonly disturbed by imposition of criminal judgments. See also,
Froehlich v. State of Wisconsin, 196 F.3d 800, 802 (7th Cir. 1999)
(children of incarcerated mother have no right to challenge her
transfer to distant prison, but stating claim would have been
stronger if shown Government intended to break up family);
Southerland v. Thigpen, 784 F.2d 713, 717 (5th Cir. 1986) (child
not constitutionally entitled to breast feeding by incarcerated
mother). And, the special condition neither requires nor
authorizes the criminal defendant to do, or to refrain from doing,
anything it would not be legally free to do or refrain from doing
in the absence of the special condition.
III.
The permanent injunction against the Government’s enforcing
the plea provision which became part of the special condition in
the final judgment of conviction in United States v. Barbeque, No.
01-CR-153 (E.D. La. filed 13 June 2001), is VACATED; and this civil
action is REMANDED to the district court to be DISMISSED for lack
of jurisdiction. The mandate shall issue forthwith.
INJUNCTION VACATED; REMANDED
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