McClure v. Ashcroft

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).

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 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.

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 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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