United States of America v. Evans Samuel Santos Diaz

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-3340
______________
UNITED STATES OF AMERICA
v.
EVANS SAMUEL SANTOS DIAZ,
Appellant
______________
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 3:16-CR-0085-006)
Honorable Malachy E. Mannion, United States District Judge
_________________
Argued October 19, 2022
____________
BEFORE: GREENAWAY, JR., MATEY, and ROTH,
Circuit Judges.
(Filed: April 26, 2023)
______________

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OPINION OF THE COURT
______________
Heidi R. Freese
Federal Public Defender, Middle District of Pennsylvania
Frederick W. Ulrich [ARGUED]
Assistant Federal Public Defender
Tammy L. Taylor
Staff Attorney
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
John C. Gurganus
United States Attorney, Middle District of Pennsylvania
Sean Camoni [ARGUED]
Assistant United States Attorney
309 Federal Building
Scranton, PA 18501
Counsel for Appellees
GREENAWAY, JR., Circuit Judge.
Appellant Evans Samuel Santos Diaz (Santos Diaz or
Appellant) challenges the District Court’s imposition of a no-
contact order prohibiting contact between him and his fiancée,
Ms. Amanda Fernandez (Fernandez). This no-contact order
was imposed during Santos Diaz’s two-year incarceration

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period and during his second two-year supervised release term.
He argues that (a) the District Court lacked authority to impose
this no-contact order during his incarceration and (b) that the
no-contact order was not narrowly tailored, impinging on his
First Amendment right to free speech. He requests that this
Court vacate the no-contact order as it relates to both his term
of incarceration and supervised release period.
The District Court overruled all of Appellant’s
objections to the no-contact order and denied his Motion to
Correct Sentence on the same basis. We will vacate and
remand the no-contact order affecting Appellant’s
incarceration term and affirm the no-contact order as a
condition of his second period of supervised release.
I.Background1
1 On November 17, 2022, the Government filed a letter
pursuant to Rule 28(j) and described that a grand jury returned
an Indictment charging Appellant with Tampering with a
Witness, Corrupt Persuasion in violation of 18 U.S.C. §
1512(b) (Count One), Subornation of Perjury, in violation of
18 U.S.C. § 1622 (Count Two), and Criminal Contempt of
Court, in violation of 18 U.S.C. § 401(3). The Government
describes that Amanda Fernandez would be a potential witness
in the new case with these charges. Appellant responded that
we should not consider this new evidence because a court
cannot consider new evidence or arguments under Rule 28(j)
and that the new judge presiding at Appellant’s initial
appearance can decide the appropriateness of any pre-trial
conditions. We agree. We cannot consider new evidence or
arguments under Rule 28(j). See Beazer East, Inc. v. Mead
Corp., 525 F.3d 255, 264 (3d Cir. 2008) (describing that under

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Santos Diaz was convicted of Conspiracy to Distribute
and Possess With Intent to Distribute Heroin and Cocaine, in
violation of 21 U.S.C. § 846. He was sentenced to 33 months’
incarceration followed by 36 months’ supervised release.
Appellant commenced his 36 months’ release on September
30, 2020. During that period of supervised release, on
September 19, 2021, Scranton Police Officers responded to a
report of a physical, domestic incident involving his then
girlfriend, Fernandez. This was in addition to other violations
of supervised release (possessing and using marijuana). As a
result of these potential violations, the Probation Office
submitted a Petition for a Warrant of Arrest for Appellant.
On September 27, 2021, Santos Diaz appeared before
Magistrate Judge Joseph F. Saporito, Jr. for a probable cause
and detention hearing. Magistrate Judge Saporito released
Santos Diaz, pending final revocation hearing, after hearing
testimony from Fernandez that she was not scared of him and
was planning to stay away from him. Magistrate Judge
Saporito imposed a no-contact condition that restricted Santos
normal circumstances parties cannot present additional
arguments styled in Rule 28(j) letters); DiBella v. Hopkins, 403
F.3d 102, 118 (2d Cir. 2005) (stating that Rule 28(j) could not
be used to submit new evidence to an appeals court) (citations
omitted); Trans-Sterling, Inc. v. Bible, 804 F.2d 525, 528 (9th
Cir. 1986) (describing that Rule 28(j) cannot act as a “back
door” for new evidence not contained in the record).
Regardless, the sentencing judge did not have the benefit of
this new Indictment when deciding whether to impose the no-
contact order at issue in this appeal.

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Diaz’s ability to have any contact with Fernandez during this
time, pending a final revocation hearing in front of the District
Judge. The facts Fernandez testified to in the Detention
hearing were proven false, as discussed in greater depth below.
Upon discovering that Fernandez’s testimony was false,
the Government filed an Unopposed Motion for Stay and a
Motion for Reconsideration of Magistrate Judge Saporito’s
Order Granting Release. Magistrate Judge Saporito ordered
Appellant to be detained until his final revocation hearing in
front of District Judge Mannion.
At the final supervised release violation hearing, Judge
Mannion sentenced Appellant to the statutory maximum of 24
months’ incarceration followed by another two years’
supervised release. He noted that Santos Diaz had pleaded
guilty to Disorderly Conduct instead of more serious domestic
assault charges, but reimposed Magistrate Judge Saporito’s no-
contact order. At this point, Santos Diaz notified Judge
Mannion that he and Fernandez were engaged. Judge Mannion
reiterated that they could not have any contact while he was
incarcerated or during his new term of supervised release.
Santos Diaz moved to correct his sentence under
Federal Rule of Criminal Procedure 35(a), requesting that the
District Court correct its sentence to not restrict his ability to
contact any person while he is incarcerated.2 The District
Court denied this motion, and this appeal followed.
2 For purposes of this appeal, Santos Diaz contests the no-
contact order both while he is incarcerated and subsequently
while he is on supervised release.

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a. Events Surrounding Domestic Incident on September
19, 2021
According to the Petition for a Warrant of Arrest,
Fernandez called the police and reported that she had received
bruises from a male, whom Fernandez did not identify by name
at that time, inside the dwelling. He was later identified as
Santos Diaz. She reported that Appellant had struck her in the
face with an electronic tablet and choked her until she almost
lost consciousness. Appellant took a video of Fernandez
weeping and dialing 911. Appellant posted this video on his
Facebook page. The video displayed Fernandez crying while
Santos Diaz was snickering and laughing at her in the
background.
i.Fernandez’s False Testimony at the Detention and Probable
Cause Hearing on September 27, 2021
The detention and probable cause hearing took place in
front of Magistrate Judge Saporito. Fernandez testified via
phone at this hearing. Specifically, she testified that she did
not remember telling the officers on September 19 that Santos
Diaz assaulted her in the past. She stated that she remembered
nothing because she was suffering from a panic attack. She did
not remember showing the Facebook video to the police
depicting Santos Diaz filming Fernandez crying on the floor.
She testified that she had no intention of living with Santos
Diaz again and that their relationship had terminated. She also
noted that she would report to the District Court or the
Probation Officer if she were ever approached by Appellant
again. When the District Court asked about whether Fernandez
would have fears or concerns if the Court restricted personal
association with Santos Diaz, she replied an unequivocal—
“no.”

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She stated that she would comply “a hundred percent”
if the Magistrate Judge imposed a no-contact order. Yet, she
admitted that she answered Appellant’s phone call when he
was held in custody for the domestic assault charges. She was
unaware of whether Santos Diaz was told at his arraignment
that he was prohibited from having any contact with her. She
recounted that she did not feel threatened by his phone call, and
confirmed that he did not ask her to drop the domestic assault
charges.
ii.Santos Diaz asked Fernandez to Falsely Testify at the
Detention and Probable Cause Hearing
After the Detention and Probable Cause hearing, the
Government obtained recordings of prison phone calls from
Lackawanna County Prison, where Santos Diaz was being
held. The recordings reveal that not only did Santos Diaz
contact Fernandez—even though he was likely prohibited from
doing so because she was the victim in his state court case—
but he also violated the Magistrate Judge’s no-contact order on
the same day. Santos Diaz called Fernandez mere hours after
the no-contact condition was entered.
In fact, Santos Diaz made a series of phone calls to
Fernandez before the Detention and Probable Cause hearing.
He called on September 20, 2021, the day after he was arrested.
He understood that he might have been prohibited from
contacting Fernandez but called her anyway. He directed her
to call various judges’ chambers (state and federal) and request
that no charges be pursued. Santos Diaz made another call on
September 21, 2021. During this phone call, Fernandez
referenced physical abuse by Appellant but stated her desire
for them to be together. A third phone call occurred on
September 22, 2021. During this twenty-minute phone call,

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Appellant told Fernandez that if she loved him, she would
listen to him and recant any statements she made to the police
about the domestic abuse incident. They discussed destroying
the cell phone used to videotape Fernandez on the night of
September 19, 2021.
Santos Diaz continued to make phone calls after the
Detention and Probable Cause hearing, when the no-contact
order was explicitly imposed in federal court. He made the
first phone call at 7:00 p.m. on September 27, hours after the
hearing. Santos Diaz made other phone calls to Fernandez
mainly from other inmates’ accounts. During these calls,
Fernandez was instructed to recant her statement and persuade
her mother not to get involved. Fernandez did not report her
contact with Santos Diaz to Probation or the District Court as
he had instructed her.
On October 5, 2021, Fernandez submitted a letter to the
District Court. Fernandez requested that all charges against
Santos Diaz be dismissed. She said that she acted without
influence from Santos Diaz and was not intimidated by him.
She demanded the District Court dismiss any contact
restrictions between Santos Diaz and her because she thought
they could reconcile.
b. District Court Judge Mannion’s Rulings
i.Final Supervised Release Violation Hearing
Santos Diaz appeared for his final supervised release
violation hearing in front of Judge Mannion on December 6,
2021. Santos Diaz was sentenced to the statutory maximum of
24 months followed by 2 years’ supervised release. Judge
Mannion recounted that there were many violations: the
September 19 domestic incident that resolved with a

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Disorderly Conduct plea in the Court of Common Pleas of
Lackawanna County, testing positive for marijuana several
times, and failing to schedule and appear at substance abuse
sessions. In fashioning Appellant’s sentence, Judge Mannion
focused on Santos Diaz’s breach of trust with the District
Court. Judge Mannion reviewed the video footage and
recorded phone calls from Santos Diaz to Fernandez.
Judge Mannion emphasized that his sentence was
unrelated to the Disorderly Conduct plea in state court. He
relied on Appellant’s criminal history and his violations only
one year into his supervised release period, finding that an
appropriate sentence would act as a deterrent and protect the
community from his activities. Judge Mannion re-imposed the
no-contact order. Santos Diaz could not contact Fernandez
while he was incarcerated or while he was on his second period
of supervised release. Appellant stated that they were engaged.
He did not understand how they could not speak.
ii.Motion to Correct Sentence
After Santos Diaz was sentenced, he moved to correct
his sentence under Federal Rules of Criminal Procedure 35(a).
He argued that the District Court could not restrict his ability
to contact anyone when imprisoned because any authority
about these matters was left to the Federal Bureau of Prisons
(BOP).
The District Court denied the Motion to Correct
Sentence. Judge Mannion ruled that the Court had inherent
authority to impose a post-trial no-contact order even though
neither the Third Circuit nor the Supreme Court of the United
States had considered this issue. Applying reasoning from the
Ninth and Seventh Circuits, Judge Mannion held that there was

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no clear error in imposing such an order because it was
necessary to the administration of justice (protecting
Fernandez as a victim and halting witness tampering). He
denied Appellant’s argument that the District Court did not
follow certain procedures when exercising this inherent
authority.
II.Discussion3
Appellant makes three arguments relevant to this issue
on appeal. First, he argues that Congress’s statutory scheme
forecloses the District Court’s ability to impose a no-contact
order as a part of a term of incarceration. Second, he argues
that the District Court erred in imposing a no-contact order
during his incarceration period because it lacked the inherent
authority to do so, and even if it had authority, it did not adhere
to an appropriate process. Third, he argues that the District
Court abused its discretion in imposing a no-contact order
during his supervised release. While we see no abuse of
discretion in the District Court’s order concerning the terms of
supervised release, we hold the District Court lacked either
statutory or inherent authority to impose the custodial no-
contact order. We address each argument in turn below.
A. No-contact Order as Part of Incarceration
3 The District Court had subject-matter jurisdiction under 18
U.S.C. § 3231. This Court has appellate jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).

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a. Statutory Authority
An appellate court reviews sentences imposed for
violating probation or supervised release for reasonableness.
United States v. Ali, 508 F.3d 136, 142 (3d Cir. 2007). Whether
a district court can impose a specific sentence, such as a no-
contact order, is a legal issue and is reviewed de novo. United
States v. A.M., 927 F.3d 718, 720 (3d Cir. 2019).
Congress created district courts and defined their
judicial power as found in the U.S. Constitution. United States
v. Union Pac. R.R. Co., 98 U.S. 569 (1878). A trial court judge
cannot impose a sentence that is not authorized by statute. In
re Bonner, 151 U.S. 242, 256–58 (1894). Congress has
delegated the authority over incarcerated individuals to the
BOP, as dictated by the passage of the Sentencing Reform Act
of 1984. E.g., 18 U.S.C. §§ 3621–34 (2018). The BOP, under
the Attorney General, is tasked with managing and regulating
all federal prison facilities. 18 U.S.C. § 4042(a)(1) (2018).
In a limited set of circumstances, a court may restrict an
individual’s communication while he or she is incarcerated. 18
U.S.C. § 3582(e) (2018).4 This limited exception allows a
4 The text of this statute reads: “The court, in imposing a
sentence to a term of imprisonment upon a defendant convicted
of a felony set forth in chapter 95 (racketeering) or 96
(racketeer influenced and corrupt organizations) of this title or
in the Comprehensive Drug Abuse Prevention and Control Act
of 1970 (21 U.S.C. § 801 et seq.), or at any time thereafter upon
motion by the Director of the Bureau of Prisons or a United
States attorney, may include as a part of the sentence an order
that requires that the defendant not associate or communicate
with a specified person, other than his attorney, upon a

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court to restrict an inmate’s communication while incarcerated
where the individual communicates to participate in an
unlawful enterprise. Id. This restriction only applies to
inmates convicted of racketeering-influenced and corrupt-
organizations offenses, racketeering itself, or drug felonies. Id.
Alternatively, a district court has the statutory authority
to enter a temporary restraining order (TRO) to protect a
witness or victim. 18 U.S.C. § 1514(a)(1). Under this statute,
the government must move for a TRO and a district court may
grant one without written or oral notice to the adverse party.
Id. at § 1514(a)(2). A district court can either sua sponte or
upon motion by the government issue a protective order to halt
harassment of a victim or witness in a federal criminal case or
investigation. Id. at § 1514(b)(1). A hearing must be held to
issue a protective order if no exigent circumstances can be
shown. Id. at § 1514(b)(2).
Where there is no binding authority, a court must look
towards the text of the statute for specific guidance. Barnhart
v. Sigmon Coal Co., 534 U.S. 438, 450 (2002); Zimmerman v.
Norfolk S. Corp., 706 F.3d 170, 177 (3d Cir. 2013). The
structure of the section of the statute as well as the design of
the statute can help discern the meaning of the statute. United
States v. Thornhill, 759 F.3d 299, 308 (3d Cir. 2014)
(discussing statutory interpretation of supervised release
revocation under 18 U.S.C. § 3583(g) and the Sentencing
Reform Act). “[O]nly if ‘the ordinary meaning of a statute and
showing of probable cause to believe that association or
communication with such person is for the purpose of enabling
the defendant to control, manage, direct, finance, or otherwise
participate in an illegal enterprise.” (emphasis added).

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the statute’s legislative history fail to provide sufficient
guidance to a term’s meaning’” can “[w]e ‘look to other
statutes pertaining to the same subject matter which contain
similar terms.’” FTC v. Shire Viropharma Inc., 917 F.3d 147,
158 (3d Cir. 2019) (quoting Liberty Lincoln-Mercury, Inc. v.
Ford Motor Co., 171 F.3d 818, 823 (3d Cir. 1999)).
Here, there is no statutory authority for a no-contact
order during confinement. As different parts of the Sentencing
Reform Act of 1984 are codified, we look at the two most
relevant statutes, both of which are cited by Appellant.
Beginning with the text, a review of 18 U.S.C. § 3621 suggests
that a district court has no statutory authority to impose a no-
contact order as part of an incarceration sentence. The various
sub-provisions require the BOP, and not the courts, to
designate a prisoner’s facility, 18 U.S.C. § 3621(b), implement
substance abuse treatment, Id. at § 3621(e), or offer other
services such as sex offender programs. Id. at § 3621(f).
Similarly, 18 U.S.C. § 4042, the statute governing the
duties of the BOP, contains analogous mandatory language as
in 18 U.S.C. § 3621. It begins with the phrase that the BOP
“under the direction of the Attorney General, shall . . . .” 18
U.S.C. § 4042 (a)(emphasis added). Shall “express[es] what is
mandatory” or “used to express a command.” Shall, Merriam-
Webster Abridged, https://www.merriam-
webster.com/dictionary/shall (last visited March 31, 2023).
Included in this mandate is a broad authority over all federal
penal and correctional institutions. 18 U.S.C. § 4042(a)(1).
The BOP has executed this Congressional authority by
enacting different regulations governing its oversight of
incarcerated individuals. For example, there is a regulation
outlining when a warden can restrict a prisoner’s
communication and what process must be executed for this to

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occur. See 28 C.F.R. § 540.15 (2018). Looking at the two
statutes separately and together, Congress intended for the
BOP to control conditions of confinement of all incarcerated
individuals.
Besides, a court must find that “such an order is
necessary to prevent and restrain an offense under section
1512. . . or under section 1513 of this title.” 18 U.S.C.
§ 1514(a)(1). The District Court did not find, and the Appellee
did not prove, that Santos Diaz would be convicted of any
offenses under 18 U.S.C. § 1512 or § 1513. No court has
applied this statute in a similar context or used its authority
under this statute to impose a no-contact order.
The other avenue to establish statutory authority is the
exception in 18 U.S.C. § 3582(e). It does not apply here.
According to the plain text of the statute, a sentencing court
can impose a communication restriction upon a motion by the
Director of the BOP or a United States Attorney. 18 U.S.C. §
3582(e). A trial court cannot invoke this statutory authority on
its own accord. See United States v. Allmon, 702 F.3d 1034,
1037 (8th Cir. 2012). This fact points to congressional intent
to provide exclusive authority to the BOP—a court generally
cannot sua sponte impose a communication restriction.
Because no motion was made and the District Court did not
invoke the authority in § 3582(e), the District Court did not
have statutory authority to impose a no-contact order during
Santos Diaz’s incarceration period.
b. Inherent Authority
Federal courts have certain powers that are not created
by statute yet are necessary by virtue of having to manage their
dockets and ensuring cases are disposed of properly.

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Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (citation
omitted). There are a limited set of circumstances in which the
Supreme Court of the United States has recognized the exercise
of this vague authority. Id. For example, a court can discipline
attorneys, id. (citing Ex parte Burr, 9 Wheat 529, 531 (1824)),
can vacate its own judgment if it was the result of a fraud
perpetrated on it, id. at 44, and can bar a defendant if he or she
is disruptive. Id. A court can also act on its own and act where
a case is not prosecuted. Id. at 44. A court can certainly impose
sanctions “for conduct which abuses the judicial process.” Id.
at 45. Relatedly, it is well established that “[a] trial judge
indisputably has broad powers to ensure the orderly and
expeditious progress of trial.” Bitter v. United States, 389 U.S.
15, 16 (1967). This includes a judge’s power to revoke bail.
Id.
Recognizing that it has not defined the parameters of
such inherent authority, the Supreme Court of the United States
has articulated limitations of this power in the civil context.
Dietz v. Bouldin, 579 U.S. 40, 45 (2016) (discussing inherent
authority in relation to recalling a civil jury and amending a
verdict). The Court espoused two key principles in this
respect. Id. First, it is essential for an action employed under
inherent authority to be a “‘reasonable response to the
problems and needs confronting the court’s fair administration
of justice.” Id. (quoting Degen v. United States, 517 U.S. 820,
823–24 (1996)). Second, utilizing inherent authority “cannot
be contrary to any express grant of or limitation on the district
court’s power contained in a rule or statute.” Id. at 46. We
have only applied these two requirements in the context of
forbidding a re-trial and dismissing an indictment. United
States v. Wright, 913 F.3d 364, 371–75 (3d Cir. 2019) (holding
that the district court abused its discretion in barring a re-trial

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and dismissing an indictment under its inherent authority). But
neither we, nor the Supreme Court, have ever found inherent
authority to add terms and conditions to a criminal sentence.
The Government argues that we should follow an
approach developed in a pair of cases from the Ninth and
Seventh Circuits. In Wheeler v. United States, the Ninth
Circuit held that a district court has inherent authority to
impose a no-contact order after trial to protect a witness. 640
F.2d 1116, 1123 (9th Cir. 1981). There a defendant attempted
to persuade a witness to testify on his behalf. Id. at 1118. He
contacted her family and others in this pursuit. Id. He
continued this behavior from prison after trial concluded and
he was convicted. Id. As a result, the witness sought a
protection order from the court, which it granted. Id. The order
prohibited defendant from contacting ten individuals,
including the witness’s family and commanding military
officers. Id. The order essentially restricted defendant’s
mailing privileges while incarcerated to prevent this
communication. Id. Defendant was not notified of the
protection order and was first notified four years after it was
issued. Id.
Defendant unsuccessfully challenged the district court’s
order restricting his mail privileges. Id. at 1123. First, he
claimed that the no-contact order was invalid because it was
levied after trial, and a district court’s power to protect
witnesses was limited to before or during trial. Id. Second, he
argued that the district court exceeded its authority and
interfered with the executive branch’s domain of prison
administration. Id.
The Ninth Circuit rejected both arguments. In rejecting
the first argument, the court found that by protecting witnesses

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after a trial, “the court is encouraging that witness, and other
potential witnesses, to come forward and provide information
helpful to the implementation of justice.” Id. This extended to
general witnesses outside of the specific case. Id. at 1123–24
(comparing protecting witnesses to the protection of jurors
even though trial was over). Protection of witnesses allowed
for no-contact orders even where trial or proceedings had
already ended.5 Id. In finding this, the Ninth Circuit
substituted “administration of justice” for “progress or order of
the trial” as originally described in Bitter. Id. at 1124 n.15.
The court reasoned that the uncommonness of post-trial
witness orders coupled with the need to maintain the
independence of future witnesses justified the shift to this
framing. Id. The no-contact order was not only about the
witness in this specific case but about encouraging other
potential witnesses to provide information that played a role in
achieving justice. Id. at 1123–24. Furthermore, the court held
that the district court did not interfere with the executive
branch’s domain of prison administration. Id. at 1125. There
was no infringement of fundamental constitutional rights. Id.
The district court’s order restricting defendant’s mail-in
privileges because of the no-contact order should deserve
deference like a prison regulation. Id.
The Seventh Circuit has held that a district court has
inherent authority to enact no-contact orders to protect victims
and prevent “reluctant witness[es].” United States v. Morris,
5 The Ninth Circuit remanded on this issue. It found that for
the no-contact order to be valid, it needed to survive a two-part
test developed in another Ninth Circuit case. Wheeler, 640
F.2d at 1124 (citing United States v. Sherman, 581 F.2d 1358
(9th Cir. 1978)).

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259 F.3d 894, 901 (7th Cir. 2001). In Morris, defendant
pleaded guilty to two counts of Traveling Across State Lines
to Engage in a Sexual Act with a Juvenile, in violation of 18
U.S.C. § 2423(b). Id. at 896. At sentencing, the district court
heard testimony that defendant continued contacting the child
victim while defendant was still incarcerated. Id. at 897. He
called her house, wrote her letters, and asked friends to relay
messages. Id. The victim and her family did not want to be
contacted by defendant but did not specifically ask for a no-
contact order. Id. The district court imposed a no-contact
order that required defendant to avoid all contact with the
victim and her family while defendant was in prison. Id.
Relying on the Ninth Circuit’s analysis, the Seventh
Circuit affirmed the district court’s no-contact order while
defendant was incarcerated. Id. at 901. Defendant
unsuccessfully challenged the no-contact order on the same
grounds as the appellant in Wheeler. Id. at 900. Defendant
contended that the district court lacked any type of authority to
impose the no-contact order. Id. The appellate court rejected
this argument. Id. It found that the victim may testify at a
future trial because defendant was trying to withdraw his guilty
plea, putting the situation in a pre-trial context as opposed to
the post-trial context Wheeler had considered. Id. at 901.
Defendant harmed the victim by directly and indirectly
contacting her. Id. Importantly, the no-contact order’s goal
was not to punish defendant, but to protect the victim and her
family. Id. The protection of administration of justice
warranted the use of such order under a court’s inherent
authority even though such orders should be used sparingly.
Id.; but see United States v. Molina, 985 F.2d 576, 576 (9th
Cir. 1993) (Table Op.) (no inherent authority to restrict
appellant’s communication with victim of a crime during

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incarceration but the BOP could treat the order as a
recommendation). The court indeed did not “limit courts in the
exercise of their inherent authority to the protection just of
witnesses who plan to testify,” Dissent Op. 5, but it presumably
did not do so because that specific situation, the one which we
have here, was not presented to the court and there was no
occasion to address it.
Here, there is not sufficient support for the exercise of
inherent authority to impose a no-contact order during Santos
Diaz’s incarceration term. We decline to follow Wheeler’s
reasoning. The notion of “administration of justice,” as
developed in Wheeler, does not impose any parameters on the
exercise of inherent authority. The cases the Ninth Circuit
relied on did not contain this language for a post-trial exercise
of inherent authority. Wheeler, 640 F.2d at 1123. The Ninth
Circuit itself has dictated in which situations “administration
of justice” is sufficient to justify the exercise of inherent
authority. Id. The inexactitude and breadth of this concept
dictates that district courts be disallowed from impeding the
authority of the BOP.6
6 An example to illustrate how this concept can be used by
district courts to dictate outcomes that are explicitly not
allowed. Suppose a sentencing judge labels a defendant as a
miscreant. As a result of that, the sentencing judge orders that
this defendant cannot be held among other incarcerated
individuals simply because of this label because it impedes the
administration of justice. It is evident that a sentencing judge
cannot use his or her authority to reach such a result. Yet,
relying on the logic espoused by Wheeler and Morris would
allow such a result based on inherent authority. We cite no
cases supporting our example because courts seldom rely on

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Particularly, there is nothing to suggest that inherent
authority as a concept should be used to justify corrective
measures7 after trial—such as no-contact conditions during
incarceration.8 The Chambers Court discussed and applied
inherent authority in the civil, not the criminal, context. 501
U.S. at 50–51. The Court in Bitter discussed inherent authority
in a criminal context, but its analysis was limited to the
progress of trial. 389 U.S. at 16. As such, there are no facts
here showing that the exercise of inherent authority was
required to continue the operations of the court. The no-
contact order did not implicate the administration and safety of
jurors as was required during the on-going COVID-19
inherent authority as it is a rare exercise of authority. We agree
that courts cannot impose punishment not authorized by
statute, but inherent authority could allow a court to do just
that, serving as an unfettered source of a power.
7 The Dissent incorrectly argues that we read the no-contact
order to punish Santos Diaz instead of reading it to protect
Fernandez from harassment. We explain in Part A(b) of this
opinion that the same logic of protecting a victim from
harassment, built on Wheeler and Morris, is not applicable
here.
8 Indeed, courts have appropriately resisted the use of inherent
authority to add restrictions to criminal defendants. See, e.g.,
United States v. Zangari, 677 F. 3d 86, 92 (2d Cir. 2012)
(rejecting inherent power to order restitution); United States v.
Blackwell, 81 F.3d 945, 949 (10th Cir. 1996) (rejecting
inherent power to resentence defendants); United States v.
Fahm, 13 F.3d 447, 453–54 (1st Cir. 1994) (same); United
States v. Lewis, 862 F.2d 748, 750 (9th 1988) (same).

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21
pandemic nor did it implicate a defendant being tardy in
returning to trial, as was the case in Bitter, 389 U.S. at 16.
There are no principles set forth that would allow us to
conclude that the substitution of “administration of justice” is
appropriate and even if it is, that it would allow the kind of
disposition that occurred here. If such an exercise of inherent
authority were allowed, a district court could use the
justification of “administration of justice” to impose many
different types of punishment that are not provided for by
federal statute. A district court does not have unfettered
discretion in preventing the administration of justice,
particularly in situations where the statutes delegate specific
authority to the BOP.9 Allowing a court to change a
defendant’s terms of incarceration under the guise of inherent
9 The Dissent’s reliance on United States v. Ward, 131 F.3d
335 (3d Cir. 1997) provides no support for its argument that
we support the exercise of inherent authority in circumstances
such as those presented here. In Ward, we reviewed whether a
court’s imposition of an order requiring a criminal defendant
to undergo blood testing for AIDS when a defendant was
convicted of sexual assault offenses was an appropriate
exercise of the court’s power. 131 F.3d at 337. We recounted
that the district court there based its order on inherent authority,
for the same reason that the Dissent suggests here, “to shield
the criminal justice system from abuses, oppression, and
injustice, and to protect witnesses.” Id. (cleaned up). The
Dissent fails to recognize that we declined to adhere to “the
district court’s reliance on inherent authority” and instead
based our affirmance on a statutory basis grounded in the
Violence Against Women Act. Id. We did not comment on
the parameters of inherent authority there but do so here.

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22
authority does exactly what the Dissent argues it does not:
“explicitly defy a rule, statute, or constitutional provision.”
Dissent Op. 6.
Nor are we persuaded by the reasoning of the Seventh
Circuit, as the Dissent suggests. The facts here are
distinguishable from Morris. That case transformed into a pre-
trial posture because defendant moved to withdraw his guilty
plea and the sentencing court was considering granting that
motion. Morris, 259 F.3d at 901. Any contact between
defendant and victim would then impede her ability to
potentially testify in a future trial. Id. Conversely, here, the
proceedings were completed when Santos Diaz appeared in the
District Court for revocation of his supervised release. The
District Court explicitly recognized that the underlying state
charges were resolved with a Disorderly Conduct plea in the
Court of Common Pleas of Lackawanna County, testing
positive for marijuana several times, and failing to schedule
and appear at substance abuse sessions. Id. There was no
longer a risk of Santos Diaz unduly influencing Fernandez to
be a “reluctant witness,” Morris, 259 F.3d at 901, because there
were no future proceedings where Fernandez would be called
to testify. To state it explicitly: Fernandez was not called into
a subsequent proceeding the way the victim in Morris was
going to be to testify because the underlying state court
proceedings were finished. In such a case where Fernandez
would be called to testify, the court there could separately
impose a no-contact order under the pre-trial posture.
Lastly, we note that a District Court has the authority to
make recommendations to the BOP about Santos Diaz’s
conditions of confinement. See 18 U.S.C. 3582(a); 18 U.S.C.
§ 3621(b); Tapia v. United States, 564 U.S. 319, 331 (2011)
(“A sentencing court can recommend that the BOP place an

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23
offender in a particular facility or program.”); Molina, 985
F.2d at 576 (construing no-contact order during incarceration
as a recommendation to the BOP); United States v. Sotelo, 94
F.3d 1037, 1041 (7th Cir. 1996) (“Although the district court
did not have the authority to impose the blanket
communication restriction at issue in this case, the court
certainly had the option to recommend that the [BOP] impose
such a restriction.”). While there is no basis to invoke the
District Court’s inherent authority on these facts, we leave to
the District Court on remand whether to recommend such a
communication restriction to the BOP.
B. No-contact Order during Supervised Release
We review challenges to special conditions of
supervised release for abuse of discretion. United States v.
Wilson, 707 F.3d 412, 416 (3d Cir. 2013).
Congress has delegated the authority to impose
conditions of supervised release to the federal courts. See 18
U.S.C. § 3583. Relevant here, a district judge may impose a
special condition of supervised release where the condition
meets three elements. Id. at § 3583(d). First, the condition
must be “reasonabl[y] related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).” Id. Second,
the condition must not “involve[]. . . greater deprivation of
liberty than is reasonably necessary for the purposes set forth
in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).” Id. Lastly,
any condition must be “consistent with any pertinent policy
statements issued by the Sentencing Commission pursuant to
28 U.S.C. 994(a).” Id. The plain text of this statute provides
authority for a district judge to impose special conditions—
such as the one here—during one’s period of supervision. See
United States v. Voelker, 489 F.3d 139, 143 (3d Cir. 2007);

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24
Sotelo, 94 F.3d at 1040 n.2 (“A district court does have the
authority to impose a communication restriction as a condition
of supervised release, regardless of the offense of conviction.”
(cleaned up)).
Here, it is indisputable that the District Court had
statutory authority under 18 U.S.C. § 3583(d) to impose such
a special condition during Santos Diaz’s second term of
supervision. We need not belabor this point as Appellant
conceded at Oral Argument that Congress legislated in this
area and his only objection to the condition as it relates to his
supervision is that it allegedly violates his First Amendment
rights. As discussed below, the special condition was
sufficiently connected to the 18 U.S.C. § 3553(a) factors and
satisfies the test laid out by this Circuit.
C. No-Contact Order during Supervised Release is
Narrowly Tailored
In addition to adhering to the parameters outlined in 18
U.S.C. § 3583(d), as discussed prior, “[c]onditions of
supervised release must be supported by some evidence that
the condition imposed is tangibly related to the circumstances
of the offense, the history of the defendant, the need for general
deterrence, or similar concerns.” Voelker, 489 F.3d at 144
(citing United States v. Pruden, 398 F.3d 241, 248–49 (3d Cir.
2005)). While a district court is required to put forward factual
findings justifying special conditions, an appellate court may
affirm a special condition if there is any “viable basis” for the
condition in the record. Id. (quoting United States v. Warren,
186 F.3d 358, 367 (3d Cir. 1999)).
Supervised release conditions can be “substantially
beyond the ordinary restrictions imposed by law on an

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25
individual citizen.” Morrissey v. Brewer, 408 U.S. 471, 478
(1972). Even special conditions that restrict constitutional
rights may be upheld if they meet certain requirements. United
States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999). They will
be upheld if (1) they are directly related to deterring defendant
and protecting the public and (2) are narrowly tailored. Id.; see,
e.g., United States v. Bortels, 962 F.2d 558 (6th Cir. 1992)
(upholding supervised release condition that restricted
individual associating with fiancée because the individual
endangered the community by getting involved in a high-speed
chase to prevent fiancée from getting arrested).
The District Court did not abuse its discretion in
imposing a no-contact special condition as part of Appellant’s
two-year supervised release period. The District Court found,
and the record shows, that sufficient evidence connects this
special condition to the 18 U.S.C. § 3553(a) factors.
The no-contact order prohibited Appellant from directly
or indirectly contacting Fernandez for his two-year supervised
release period. It was first imposed by the Magistrate Judge at
the Probable Cause and Detention hearing. Hours after the
hearing, Appellant placed at least one call to Fernandez despite
the no-contact order. 10 This tracked Appellant’s history and
characteristics of not complying with both federal and state
10 The record is unclear on how many times Santos Diaz called
Fernandez after the Probable Cause and Detention hearing.
Judge Mannion recounted that Appellant made four calls.
Appellant contends that this was a factual error and there was
only one call. Even so, the number of calls does not matter
because Appellant placed at least one call to Fernandez after
being ordered not to contact her at all.

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26
court orders. The condition here prevented Appellant from
obstructing justice and decreased “the possibility of creating a
reluctant or tampered witness in future cases.” App. 71.
Although the Government did not argue this at the
District Court level or on the appeal, there are enough facts to
show that this special condition relates to deterrence and
protection of the public. United States v. Holena, 906 F.3d
288, 291 (3d Cir. 2018) (“Special conditions may not deprive
the defendant of more liberty ‘than is reasonably necessary’ to
deter crime, protect the public, and rehabilitate the defendant.”
(citing 18 U.S.C. § 3583(d)(2))). The no-contact special
condition addressed the circumstances underlying Appellant’s
violation. Although the District Court noted that the sentence
itself was unrelated to the state charge, it was related to
Appellant’s history and characteristics of repeatedly violating
parole and not adhering to any court’s rules (state or federal).
The Magistrate Judge was concerned with the physical
protection of Fernandez in imposing this condition. There was
a concern for Fernandez and how she may be dissuaded from
coming forward as a victim of domestic abuse, as she was
being contacted by Appellant even when he was incarcerated.
Id. This is enough to affirm the special condition. See, e.g.,
United States v. Wilkins, 909 F.3d 915 (8th Cir. 2018)
(upholding special condition prohibiting defendant from
contacting his wife because defendant assaulted her); Bortels,
962 F.2d at 560 (affirming district court’s special condition
preventing appellant from communicating with her fiancé
because it aided in the rehabilitation of appellant and protected
the public).
Nor does Appellant have a valid First Amendment
claim. He implicitly argues that because the no-contact order
is not narrowly tailored, it burdens his fundamental rights

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27
under the First Amendment. Mainly, Appellant relies on this
Court’s published decision in Holena, 906 F.3d at 288. In
Holena, we held that special conditions restricting a
defendant’s use of a computer and the internet were more
restrictive than necessary and thus limited First Amendment
activity unrelated to defendant’s crime. 906 F.3d at 294. This
condition was broader in scope and restricted much more
speech conduct. Id. While Holena is instructive in terms of
having special conditions that are narrowly tailored, the
example does not support Appellant’s argument. There is no
alternative for how the District Court could have narrowed the
condition to achieve the same goals here. The main problem
was the communication itself between Santos Diaz and
Fernandez.
Even if the special condition burdened Appellant’s First
Amendment rights, it survives the Crandon test. It survives the
test for the same reasons addressed above and summarized
here. The no-contact order was imposed by the Magistrate
Judge to ensure that Santos Diaz complied with District Court
orders and, as a result, did not commit any other crimes. See
App. 36 (first releasing Santos Diaz with the no-contact
condition, along with home confinement with electronic
monitoring, because the Magistrate Judge was “troubled by the
fact that there was a reach out from the defendants to the victim
from the prison”); App. 53 (“So the reason why we impose
those orders are for one reason and one reason only, so as
they’re followed . . . . [Y]ou’ve proven to the Court that you
won’t follow orders”). The condition protects the public
because it prevents Santos Diaz from physically seeing
Fernandez and repeating any instance of physical assault.
The condition is limited in scope. Contact between
Appellant and Fernandez is completely prohibited only for two

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28
years, during Appellant’s supervised release period. The
condition only limits Santos Diaz’s contact with one person:
Fernandez. It does not cover other individuals. Still, we note
that the no-contact order does not have to be in place for
Appellant’s entire two-year term of supervised release. He,
himself, or through his Probation Officer, may request that the
District Court modify the conditions of his supervised release.
See 18 U.S.C. § 3583(e). Under this statute, the District Court
can “modify, reduce, or enlarge the conditions of supervised
release” if the factors in 18 U.S.C. § 3553(a) warrant it. Id.
III.Conclusion
For the foregoing reasons, we will vacate and remand
the no-contact order imposed during Appellant’s incarceration
term and affirm the no-contact order imposed as a condition of
his supervised release.

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1
ROTH, Circuit Judge, dissenting in part.
The Majority adopts far too narrow a reading of the
inherent authority of district courts. The Majority correctly
holds that the District Court lacked statutory authority to
impose a no-contact order as a condition of Evan Santos Diaz’s
incarceration. We do not stop, however, with statutory
authority. District courts also have inherent authority to
impose no-contact orders when necessary to protect against
significant interference with the administration of justice.1
Accordingly, where, as here, a district court has acted to avert
two clear threats to the administration of justice, e.g.,
harassment of witnesses and obstruction of justice, it has
inherent authority to do so. The Majority should not have ruled
otherwise. For that reason, I respectfully dissent.
I.
The Supreme Court has repeatedly held that district
courts have “‘equitable powers . . . over their own process, to
prevent abuses, oppression, and injustice’ that are inherent and
equally extensive and efficient.”2 Courts have defined this
amorphous power to include, for example, authority over the
“orderly and expeditious progress of trial,” revocation of bail,
grants of confidentiality orders, and protection of witnesses.3
1 See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991).
2 Gumbel v. Pitkin, 124 U.S. 131, 144 (1888); Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 35 (1984); Bitter v. United
States, 389 U.S. 15, 16 (1976). See also Pansy v. Borough of
Stroudburg, 23 F.3d 772, 785 (3d Cir. 1994).
3 See, e.g., Bitter, 389 U.S. at 16 (holding that courts have
inherent power over their process including the power to

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2
In such scenarios, a district court, even though lacking
statutory authority, may act “with restraint and discretion” in
exercising its inherent authority.4
Neither the Supreme Court nor our Court has
determined whether a district court has inherent authority to
impose a no-contact order as a condition of confinement or as
a sentencing condition, after the trial’s end. However, other
courts of appeals have addressed similar situations and
endorsed a broad reading of inherent authority that allows a
district court to act beyond the end of trial or sentencing.5
revoke bail and remit defendants to custody); Degen v. United
States, 517 U.S. 820, 823 (1996) (noting courts have “certain
inherent authority to protect their proceedings and
judgments”); Wheeler v. United States, 640 F.2d 1116, 1123
(9th Cir. 1981) (recognizing trial courts’ inherent authority to
protect witnesses); United States v. Wind, 527 F.2d 672, 674–
75 & n.2 (6th Cir. 1975) (noting Supreme Court’s recognition
of trial court’s inherent power to revoke bail to “prevent
disruptions caused by threats to witnesses” as “[t]he necessities
of judicial administration prevail”); Pansy, 23 F.3d at 785
(reaffirming district courts’ “inherent equitable power to grant
confidentiality orders”).
4 Chambers, 501 U.S. at 44.
5 See, e.g., Bryson v. United States, 238 F.2d 657, 665 (9th Cir.
1956) (affirming the district court’s prohibition of defendant
communicating with jurors post-trial); Wheeler, 640 F.2d at
1116; United States v. Morris, 259 F.3d 894, 900 (7th Cir.
2001). Several state courts have upheld no-contact orders in
criminal cases under parallel state forms of inherent authority.
See, e.g., Hicks v. Alaska, 377 P.3d 976, 979 (Alaska Ct. App.
2016) (upholding a no-contact order to protect witnesses); New

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3
The Ninth Circuit Court of Appeals in Wheeler v.
United States adopted this broad definition in affirming the
district court’s post-trial imposition of a no-contact order that
prohibited a defendant from using his mail privileges to contact
ten individuals.6 There, the defendant had threatened to call a
witness’s family and employer.7 The district court imposed the
order to protect the witness after trial, holding that the authority
to protect witnesses and jurors, even after the close of trial,
came within the scope of the court’s power to protect the
administration of justice.8 Such protection “encourage[es] . . .
th[e] witness, and other potential witnesses, to come forward
and provide information helpful in the implementation of
justice.”9 As the Majority today rightfully notes, the “no-
contact order was not only about the witness in this specific
case but about encouraging other potential witnesses to provide
information that played a role in achieving justice.”10
The Seventh Circuit Court of Appeals in United States
v. Morris also upheld the district court’s authority to impose a
Hampshire v. Ayoub, No. 218-2017-CR-1636, 2018 WL
324996, at *5 (N.H. Super. Jan. 5, 2018) (upholding a no
contact order to “protect the integrity of the fact-finding
process”).
6 640 F.2d at 1116. Santos Diaz points out that Wheeler
predates the Sentencing Reform Act of 1984. However, he
does not address the fact that similar cases, such as Morris,
came after Congress legislated in this area.
7 Wheeler, 640 F.2d at 1118.
8 Id. at 1123.
9 Id. at 1123–24.
10 Op. at 17.

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4
post-guilt no-contact order.11 Because Morris was adjudicated
guilty without a trial, the victim never testified.12 However,
Morris later sought to withdraw his guilty plea, providing for
the possibility of a future trial in which the victim would
testify.13 Thus, the district court imposed a post-guilt no-
contact order “to protect his victim and her family from further
harassment, and reduce the possibility of creating a reluctant
witness.”14 The court of appeals agreed that these reasons for
imposing the order justified and made proper the exercise of
the power to protect the administration of justice.15
While the Majority takes no clear issue with Morris, it
suggests the court in Wheeler improperly expanded the scope
of inherent authority post-trial.16 I disagree. The court in
Wheeler rightfully noted that the “inherent power to protect
witnesses stems from the indisputably . . . broad powers (of the
trial judge) to ensure the orderly and expeditious progress of a
trial.”17 The logic and purpose of exercising district courts’
inherent authority to protect witnesses—“protection against
abuses, oppression, and injustice”—applies equally post-trial,
as long as courts are restrained in their exercise of such
power.18 In fact, the Supreme Court recently reinforced this
11 259 F.3d at 894.
12 Id. at 901.
13 Id.
14 Id.
15 Id.
16 See Op. at 21–22.
17 640 F.2d at 1123 (quoting Bitter, 389 U.S. at 16).
18 See Gumbel, 124 U.S. at 144. Decades earlier, the Sixth
Circuit used identical language and a similar analytical
framework in extending pretrial courts’ inherent authority to

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5
broad reading, stating that courts may exercise inherent
authority where it is a “reasonable response to the problems
and needs confronting the court’s fair administration of
justice.”19
II.
Turning to the no-contact order in this case, we review
a district court’s imposition of a no-contact order for
reasonableness.20 Based on Morris and Wheeler, it was
reasonable for the District Court here to find that contact with
Amanda Fernandez presented a significant interference with
the administration of justice and that a no-contact order was
necessary to “shield the criminal justice system from ‘abuses,
oppression and injustice’ and to ‘protect witnesses.’”21 As
were the witnesses that the courts protected in Morris and
Wheeler, Fernandez is a witness in a proceeding related to
protect witnesses. United States v. Graewe, 689 F.2d 54, 57
(6th Cir. 1982).
19 Dietz v. Bouldin, 579 U.S. 40, 45 (2016) (emphasis added)
(quoting Degen, 517 U.S. at 823–24).
20 United States v. Bungar, 478 F.3d 540, 542–43 (3d Cir.
2007).
21 See United States v. Ward, 131 F.3d 335, 337 (3d Cir. 1997)
(recognizing that the District Court purported to act on its
inherent authority to “shield the criminal justice system from
‘abuses, oppression and injustice,’ and to ‘protect witnesses’”
but affirming on different grounds); Virgin Islands v. Roberts,
756 F. Supp. 898, 900 (D.V.I. 1991) (noting that courts have
inherent authority to shield “the administration of criminal
justice from ‘abuses, oppression, and injustice’” (citing Bitter,
389 U.S. at 16)).

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6
Santos Diaz’s offenses of assault, harassment, and obstruction
of justice. Santos Diaz previously interfered with the
administration of justice through destruction and theft of
evidence. His phone calls with Fernandez suggest a continuing
pattern of harassment and obstruction. Fernandez lied to the
District Court when discussing her contact with Santos Diaz,
stating that he had not contacted or threatened her when in fact
he had further harassed her and asked her not just to drop
charges against him but to destroy evidence of his assault and
harassment. Despite her claims that she would report Santos
Diaz’s contact with her, Fernandez failed to do so in a timely
manner, instead aiding him by asking that the court dismiss
charges against him. Such conduct demonstrates that Santos
Diaz was continuing to engage in “significant interference with
the administration of justice,” both through obstruction of
justice and through the possibility of turning Fernandez into a
reluctant witness.22
Both the Majority and Santos Diaz note that, unlike in
Morris, Santos Diaz’s assault case has been closed, thus ending
Fernandez’s role as witness in pending proceedings. Morris
does not, however, limit courts in the exercise of their inherent
authority to the protection just of witnesses who plan to testify.
In fact, in Wheeler, the Ninth Circuit Court of Appeals upheld
the no-contact order at issue after the threatened jurors’ roles
had ceased, finding that such an order “would be warranted . .
22 See Morris, 259 F.3d at 894; United States v. Darwish, 755
F. App’x 359, 363 (5th Cir. 2018) (noting that courts have
upheld no-contact conditions imposed “in response to credible
concerns of harassment that would interfere with the
administration of justice”).

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7
. even though the trial was over.”23 Here, Santos Diaz’s
proceedings have also ceased. However, his phone calls to
Fernandez, in which he berates her for her involvement in his
charges and orders her to destroy evidence and withdraw her
claims, demonstrate ongoing obstruction of justice and
harassment and threats to her safety. Thus, based on the
reasoning and analogous facts of both Wheeler and Morris, it
was reasonable for the District Court to impose the no-contact
order as a condition of Diaz’s sentence.
III.
The Majority fears that affirming the District Court’s
imposition of the no-contact order based on the “logic
espoused by Wheeler and Morris” would allow a district court
to abuse the doctrine of inherent authority, imposing conditions
on imprisonment in any scenario in which the court hoped to
punish a defendant or alter an outcome.24 This fear is
unfounded.
While the contours of inherent authority are not well
defined, courts have placed limiting language on its exercise.
For instance, a district court cannot explicitly defy a rule,
statute, or constitutional provision.25 It cannot act simply to
punish nor can it act at all absent exceptional circumstances
23 See 640 F.2d at 1124.
24 See Op. at 20 n.6.
25 Degen, 517 U.S. at 823; Dietz, 579 U.S. at 45 (“[T]he
exercise of an inherent power cannot be contrary to any express
grant of or limitation on the district court's power contained in
a rule or statute.”).

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8
which signal “abuses, oppression, or injustice.”26 Thus, it is
unlikely that a court could repeatedly find that a defendant’s
conduct had presented a “significant interference” in the
administration of justice in such a way that a court could distort
inherent authority into a tool to punish that defendant.
Moreover, while no court has fully defined what “a
significant interference with the administration of justice”
means, courts have outlined several narrow situations that
qualify as “abuses, oppression and injustice.” Two of these
situations are present here: the need to protect witnesses and
the need to prevent obstruction of justice.
Moreover, the Majority has not demonstrated how the
“logic espoused by Wheeler and Morris would allow” a
sentencing court to “impose many different types of
punishment that are not provided for by federal statute.”27 That
is because it would not. Wheeler and Morris, while similar to
this case, are factually distinct from the Majority’s proffered
example: segregation of a prisoner from the general prison
population due to a judge’s arbitrary label. Wheeler and
Morris were decided years ago, but the Majority has not cited
any cases suggesting district courts have abused the precedent
established in those cases.
Indeed, the exercise of inherent authority in this case
serves not to punish, but rather to protect. The Majority’s
analysis is based on a mischaracterization of the no-contact
26 Gumbel, 124 U.S. at 144.
27 See Op. at 20 n.6, 21.

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9
order as a punishment.28 The District Court did not, however,
impose the no-contact order to punish Santos-Diaz. Instead, as
in Morris, in which the no-contact order was imposed to
protect the victim from harassment,29 the court ordered that
Santos Diaz have no contact in order to prevent obstruction of
justice and to protect Fernandez from further harassment.
IV.
In sum, I cannot join the Majority’s limitations on a
district court’s exercise of inherent authority. Because the
District Court properly exercised its inherent authority under
Wheeler, Morris, and related Supreme Court precedent, I
would affirm the judgment of the District Court.
28 See Op. at 20 (noting that “there is nothing to suggest that
inherent authority as a concept should be used to justify
corrective measures after trial—such as no-contact conditions
during incarceration”). The Majority argues that they do not
“read the no-contact order to punish Santos Diaz.” Op. at 20
n.7. However, the Majority cautions that “inherent authority
could allow a court to [impose punishment not authorized by
statute], serving as an unfettered source of power.” Op. 20 at
n.6.
29 259 F.3d at 901. See also Op. 18 (recognizing that in
Wheeler, “[i]mportantly, the no-contact order’s goal was not to
punish defendant, but to protect the victim and her family”).

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