United States v. Greco, 18-3496

938 F.3d 891

UNITED STATES of America, Plaintiff-Appellee,

v.Dino GRECO, Defendant-Appellant.

No. 18-3496

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2019

Decided September 12, 2019

Andrianna D. Kastanek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.

Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL, Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, for Defendant-Appellant.

Before Kanne, Sykes, and Brennan, Circuit Judges.

Sykes, Circuit Judge.

Dino Greco spent more than a decade in prison for blowing up his ex-girlfriend’s car with a pipe bomb. In 2015 he began a term of supervised release, and one of the conditions was that he not break federal, state, or local law. He violated that condition three years later when he posted threatening Facebook messages about a second ex-girlfriend despite a court order not to contact her. A federal judge approved a warrant for Greco’s arrest, and seven months later a second judge revoked his supervised release and ordered a new term of imprisonment, to be followed by a new term of supervised release.

On appeal Greco argues that the court lacked jurisdiction to revoke his supervised release because the warrant wasn’t supported by probable cause. We disagree. The judge received a report explaining how Greco had broken the terms of his release by violating state law, and that was enough to establish probable cause.

Greco also challenges two of the conditions the court imposed for his second term of supervised release. We remand with respect to both so that the lower court can clarify several terms and further explain its reasoning.

I. Background

In 2001 Greco threatened to put a pipe bomb in his ex-girlfriend’s car if she didn’t pay back a debt she owed him. She obtained a protective order, but he put the bomb in her car anyway. The bomb exploded when she opened her driver’s side door, injuring her and destroying her car.

Greco pleaded guilty to manufacturing and possessing an unregistered pipe bomb in violation of 26 U.S.C. §§ 5861(d) and 5861(f). At sentencing the government informed the court that this was the third time in ten years Greco had detonated a pipe bomb to intimidate someone who crossed him. The court then sentenced Greco to 180 months in prison. After that term ended on April 13, 2015, Greco was to remain on supervised release until April 12, 2018. One condition of that release was that he would "not commit another federal, state or local crime."

Greco began dating a different woman during his supervised release, but they soon broke up. When Greco started sending her threatening messages, she too obtained a protective order, which prohibited him from contacting her, directly or indirectly. Rather than stop, he created a Facebook account under a fake name and continued to post threatening messages. Although he didn’t send the messages directly to the ex-girlfriend, he did notify two of her friends to make sure she got the message. The posts included graphic sexual references and threats of violence against the ex-girlfriend and her family. The most concerning were several thinly veiled threats to blow up her house.

On March 8, 2018, the U.S. Probation Office submitted a report to the district court informing it of the ex-girlfriend’s protective order. Later that same day, the Schaumburg Police Department arrested Greco for violating the order. The Probation Office says it submitted another report the following day, March 9, telling the court about the arrest and requesting a warrant to transfer Greco to federal custody after his release by state officials. But this second report never appeared in the district court’s docket until the Probation Office tried to add it during the course of this appeal. Greco insists that the Probation Office never actually submitted the report at the appropriate time.

Judge Pallmeyer was serving as the emergency district judge. She approved the warrant on March 9, the same day the Probation Office says it submitted the second report. That was a Friday. But because of a clerical mistake, the warrant didn’t issue until March 12, the following Monday—a month to the day before Greco’s first term of supervised release would have expired.

Because of several delays, the court did not hold a revocation hearing until November. By that point Judge Leinenweber was presiding, and he found that Greco had broken a term of his supervised release by violating the protective order. The judge imposed 16 months of imprisonment plus 24 months of supervised release.

The judge also added several new conditions to the second term of supervised release, two of which are at issue here. The first condition says: "[I]f the probation officer determines that [Greco] pose[s] a risk to another person (including an organization or members of the community), the probation officer may require [him] to tell the person about the risk." Greco argues on appeal that this condition is unconstitutionally vague, that it unlawfully delegates judicial sentencing authority to someone other than an Article III judge, and that it violates his First Amendment rights. The government agrees that at least some of the language is impermissibly vague and we should remand for clarification. The second condition bars Greco from contacting five individuals: the second ex-girlfriend, the two people she lived with, and the two friends Greco notified about the threatening messages. Greco didn’t object to this condition below, but on appeal he argues that the judge failed to explain why he barred him from contacting four individuals in addition to the ex-girlfriend.

II. Discussion

We review de novo whether the district court had jurisdiction to hold a revocation hearing. See United States v. Maranda , 761 F.3d 689, 693 (7th Cir. 2014). We also review de novo the adequacy of a district court’s explanation for a condition of supervised release. See United States v. Poulin , 809 F.3d 924, 930 (7th Cir. 2016). When a defendant challenges the substance of the condition, we review for abuse of discretion. See United States v. Speed , 811 F.3d 854, 858 (7th Cir. 2016).

A. The district court had jurisdiction to revoke Greco’s release and to impose additional prison time.

By the time the district court revoked Greco’s supervised release and imposed a new term of imprisonment, seven months had passed since the expiration of his original term of supervised release. The supervised-release statute allows district courts to hold delayed hearings, but only in limited circumstances:

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and ... a further term of supervised release, extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation .

18 U.S.C. § 3583(i) (emphasis added). We have held that § 3583(i) ’s warrant requirement "goes to the district court’s subject-matter jurisdiction." Maranda , 761 F.3d at 693.

No one disputes that the court issued a warrant on March 12, exactly one month prior to the expiration of Greco’s term of supervised release. Nonetheless, Greco argues that the court lacked jurisdiction because that warrant was not supported by probable cause.

As we said in United States v. Block a few weeks after oral argument in this case, "we and other courts have at least suggested there is no need" in the § 3583(i) context "for strict compliance with the ... constitutional requirements for arrest warrants." 927 F.3d 978, 983 (7th Cir. 2019) (collecting sources). There we didn’t have to articulate exactly what the statute does require because the government never obtained any formal court order. See id. at 984 (holding only that the statute at the very least requires "formal documents notifying the releasee of the proceedings and requiring him to appear, either under threat of contempt with a summons or by force with a warrant"). While the exact requirements remain unsettled, we have no need to go further here. Even if we assume probable cause is a jurisdictional requirement under § 3583(i), the warrant was still perfectly valid.

According to the government, the Probation Office informed the court on March 9 that Greco had been arrested for violating a protective order. That, in turn, meant he had violated a term of his supervised release—which everyone agrees is enough to establish probable cause for his arrest. The only question is whether the Probation Office submitted the report in the first place.

As Greco has observed, the March 9 report wasn’t added to the lower court’s docket until this appeal was already pending. Prior to oral argument, we issued an order construing the government’s brief as a motion to correct the record on appeal under Rule 10(e) of the Federal Rules of Appellate Procedure. We simultaneously granted that motion and ordered the district court to certify and forward a supplemental record that included the March 9 report. But we asked the parties to be prepared to discuss at oral argument whether we should reconsider that order.

After full review of the matter, we see no reason to reverse course from our preliminary ruling. To start, Rule 10(e)(1) says: "If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly." After the Probation Office’s belated addition of the March 9 report to the lower court’s docket, Greco moved to strike the document from the record. Judge Leinenweber held a hearing in which the parties discussed whether the report was in fact submitted to the court on March 9. At...