Second Circuit Criminal Law Blog

Circuit Rejects “Listening Circle” Release Condition For Defendant Who Threatened To Assassinate Member of Congress

In United States v. Carlineo, the Second Circuit (Parker, Lohier, Menashi) vacated a special condition of supervised release requiring the defendant to participate in a restorative justice program, concluding both that the condition was impermissibly vague, and that it improperly delegated excessive authority to the Probation Office. 

In 2019, Mr. Carlineo called the office of Congresswoman Ilhan Omar, and, while on the phone with a staffer, claimed that the congresswoman was a terrorist and threatened to shoot her.  Carlineo, expressing hatred of “radical Muslims” in government, subsequently admitted to law enforcement that he made the threat, and admitted that he had guns in his home.  He was arrested, and ultimately pled guilty to threatening a federal official and to being a felon in possession of a firearm. 

In advance of Mr. Carlineo’s sentencing, the district court received, among other submissions, a letter from the founder of “Partners in Restorative Initiatives,” a program that provides community sentencing alternatives to criminal defendants (the “Program”).  The letter generally suggested possible “restorative justice options” for the court to consider in sentencing Mr. Carlineo, including a “sentencing circle,” “listening circle,” and community service.  The Probation Office had never previously evaluated or approved the Program, and neither that office nor the district court appears to have had any prior experience or familiarity with it.  Further, as the Second Circuit explained, “there are no apparent licensing, certification, or objective standards that govern and define” the Program.

The district court sentenced Mr. Carlineo to a year and a day’s imprisonment.  Additionally, the court imposed as a special condition of supervised release that Mr. Carlineo participate in the Program, including by taking part in “a sentencing circle” and “listening circle” and “listen[ing] to stories about Muslim refugees or people who suffered from violence [for] being Muslim.”  Carlineo appealed, challenging the condition on three grounds: that it (1) was vague; (2) improperly delegated authority to the Probation Office; and (3) was not reasonably related to his offenses of conviction. 

The Second Circuit, reviewing for abuse of discretion, agreed with Mr. Carlineo’s first two challenges and declined to address the third.  As to vagueness, the panel reiterated that a defendant “has a due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct is prohibited,” but concluded that the challenged condition “failed to inform Carlineo of even the broad contours of the prohibited (and required) conduct.”  Rather, the condition “leave[s] a reasonable person guessing” as to the Program’s requirements—for example, what would constitute successful participation in a “sentencing circle” or “listening circle”—and as to the conduct triggering a violation of the condition.  As to impermissible delegation, the Second Circuit emphasized that the district court, not the Probation Office, has “exclusive authority to set conditions of supervised release,” but that “[t]he Program is sufficiently ill-defined so that, in supervising Carlineo, the Probation Office would need to fill in too many blanks,” with the result that “the Probation Office, and not the district court, would be deciding the extent of Carlineo’s punishment.”

Carlineo is the latest in a line of Second Circuit decisions examining supervised release conditions more searchingly, but this decision likely was an easy one, given the apparent absence of information about any specifics of the Program, and the district court’s and Probation Office’s unfamiliarity with it.  To be sure, district courts should consider restorative justice options, which in some cases may be superior to the more traditional forms of sentencing.  That said, the Second Circuit seems to want these programs to be better defined so that defendants understand their obligations (a violation of supervised release can be punished with imprisonment) and so that the sentence is imposed by the district court and implemented by the Probation Office. 

By Bonita L. Robinson and Harry Sandick