In United States v. Lewis, the Second Circuit (per curiam) affirmed the judgment of conviction of Chanette Lewis, who had pleaded guilty to two counts of conspiracy to commit wire fraud in violation of 18 U.S.C. § 371. The Court rejected Lewis’s argument on appeal that the district court erred in failing to read aloud the four special conditions of supervised release at her sentencing because Lewis had explicitly declined the district court’s offer to do so. This holding had previously been addressed only in non-precedential summary orders; by publishing this opinion, the Court reminds appellants of scope of waiver on appeal should a defendant consent to action taken by the district court below.
The Court further rejected Lewis’s arguments that the district court failed to explain its reasoning for imposing the special conditions because those reasons were self-evident in the record. The Court also concluded that the special condition authorizing searches of Lewis’s searches of defendant’s electronic and data storage devices was not impermissibly overbroad.
Background
During the height of the COVID-19 pandemic in New York City, Chanette Lewis operated three fraudulent schemes that took advantage of government resources. In and around April 2020, Lewis was employed by a call center in New York City that helped to handle reservations for the City’s COVID-19 Hotel Room Isolation Program (the “Hotel Program”), which provided patients recovering from the virus, healthcare workers, and other at-risk or sick individuals with free hotel rooms so that they could effectively self-isolate and prevent additional spread of the virus. In her first scheme, Lewis, along with her co-conspirators, used her employment to reserve hotel rooms and sell them to otherwise-ineligible individuals over Facebook, retaining the proceeds of those fraudulent transactions. In order to make these reservations, Lewis used the personal identifiable information of healthcare workers to create false documents so that she could book rooms for ineligible individuals. She received payment through electronic services like Zelle, Cash App, and PayPal.
In her second scheme, also during her time working for the call center, Lewis fraudulently obtained unemployment insurance benefits by submitting an online application falsely claiming she was unemployed due to the pandemic. Lewis also conspired to submit a fraudulent online application on behalf of her incarcerated brother.
Lewis’s third scheme involved creating and submitting false documents in order to help New York City residents obtain, or upgrade, their rental apartments through New York City Housing Authority’s (NYCHA) public-housing program. Obtaining any housing through NYCHA is notoriously competitive, and involves exceptionally long wait times to obtain a unit or to transfer to a larger unit. Lewis learned that NYCHA would expedite its process for crime victims and individuals who had certain medical conditions. Lewis therefore created and submitted to NYCHA false orders of protection (signed, falsely, by a state court judge), false medical letters (signed, falsely, by a medical doctor), and false letters stating the application was a crime victim or witness (signed, falsely, by the Brooklyn District Attorney’s Office). This scheme was advertised on Facebook, and Lewis accepted payment through Cash App.
On December 22, 2022, Lewis pleaded guilty to two counts of conspiring to commit wire fraud in violation of 18 U.S.C. § 371. On February 8, 2024, Lewis appeared for sentencing, during which the district court imposed a 36-month sentence, concurrent on each count—below the Guidelines range of 41 to 51 months—followed by three years of supervised release, as well as restitution and a forfeiture amount. The district court also imposed the mandatory and standard conditions of supervised release, as well as four special conditions of supervised released that were recommended in the U.S. Probation Office’s Pre-Sentencing Report (PSR): that Lewis would (1) provide probation with access to her financial information; (2) obtain the approval of probation before incurring any new credit charges or opening additional lines of credit; (3) participate in an outpatient mental-health treatment program; and (4) submit her person and property, including any computers, electronic communications devices, and data storage devices, to a search by probation upon reasonable suspicion of a violation of a condition of supervised release or any other unlawful conduct (the “four special conditions”).
The Opinion
On appeal, Lewis argued that the district erred by failing to orally pronounce the four special conditions of supervised release during her sentencing proceeding. She also argued that the district court erred by failing to explain the reasons for imposing the four special conditions of supervised release, and that the electronic search condition was overbroad and not narrowly tailored to the case. The Court rejected these arguments.
First, the Court held that Lewis had waived any argument on appeal that the district court had erred by failing to orally pronounce the four special conditions of supervised release. During the sentencing, the district court confirmed that Lewis had read the PSR and did not have any unresolved objections to the report. The district judge then asked, “In view of the fact that the defendant said she has read the entire presentence report, does either counsel want me to read out the conditions?” Lewis’s counsel responded, “No, your Honor.”
An argument on appeal is generally waived when a defendant makes an “intentional decision not to assert a right or acts intentionally in pursuing, or not pursuing, a particular course of action.” United States v. Williams, 930 F.3d 44, 64–65 (2d Cir. 2019) (cleaned up). True waiver is distinct from failure to object to an issue at the district court, which triggers plain error review. True waiver will occur only when a party “actively solicits or agrees to a course of action that [s]he later claims was error.” United States v. Spruill, 808 F.3d 585, 597 (2d Cir. 2015).
Therefore, for the first time in a published decision, the Second Circuit held that “when a defendant . . . declines the district court’s invitation to read aloud a condition of supervised release referenced in the PSR, she waives any argument on appeal that the district court did not orally pronounce that condition.” United States v. Lewis, --- F.4th --- (2d Cir. Jan. 3, 2025).
Second, applying plain error review because of Lewis’s failure to object to any of the special conditions of supervised release, the Court concluded that those conditions were self-evident in the record. Therefore, Lewis’s argument that the district court failed to explain its reasoning in imposing the conditions failed. The Court went through each of the four special conditions, and explained that the reasons justifying those conditions were self-evident in the PSR, Guidelines, or even her own sentencing submission. For example, the Guidelines recommend a condition that requires a defendant to provide probation with access to a defendant’s financials when the court imposes an order for restitution or forfeiture, as it did here. Defense counsel also spoke at length about Lewis’s mental health conditions, justifying the need for mental health treatment during her term of supervised release. And, in light of Lewis’s admitted use of the internet to commit her crimes, as documented in the PSR, a condition permitting probation to search electronics, if they have reasonable suspicion to do so, is both justified and sufficiently narrowly tailored to her crimes. Indeed, because the electronic search requires reasonable suspicion, and because of a defendant’s diminished expectation of privacy while serving a term of supervised release, this condition was reasonably tailored to serve a compelling government interest.
Discussion
The Court’s opinion in Lewis establishes, in a precedential decision, that a defendant cannot have it both ways: if a defendant declines the district court’s invitation to read aloud special conditions of supervised release, he or she loses the ability to argue on appeal that they are entitled to relief because of the district court’s failure to do the exact thing it had offered to do. Although the district court could have just read the conditions into the record in order to comply with the applicable sentencing, it does not follow that the sentence should have been reversed based on this omission invited by the defense.
The panel’s conclusion, to many readers, may appear common sense. The Court appears to have thought so too; indeed, in a footnote, the Court hinted at the potential frivolity of Lewis’s argument by reminding counsel of their “ethical obligation to refuse to prosecute a frivolous appeal.” In any event, the Court’s decision to speak on the issue, outside of a summary order, is a reminder to defendants and their counsel that waiver is real and must be considered on appeal. While the Court in recent years has been loathe to grant Anders motions, when defense counsel claim that there is no non-frivolous issue for appeal, it would appear that in a future case on facts similar to those here, an Anders motion might be granted.
Separately, the Court made clear that where the reasons for special conditions of supervised release are clear in the record, it will not find plain error even if the district court failed to articulate the precise basis for the imposition of those conditions. Indeed, mitigating factors used by defense counsel to argue for a below-Guidelines sentence may themselves provide support for special conditions. A defendant may be better off with a below-Guidelines sentence and the special conditions. And where the subject crime(s) require restitution, or are tethered to internet access, conditions that permit probation information related to financials, or access to electronics, may always be clear in the record. This reasoning, in theory, might also apply if an appellate court was applying an abuse of discretion standard of review.
Many defendants may choose, for better or worse, to adopt a kitchen-sink approach to deciding what issues to raise in a criminal appeal. It can be hard to know what argument will succeed, and defendants often have their own ideas about what arguments their lawyers should present. Before deciding to go the kitchen-sink route, defendants ought to consider whether they have properly raised, or relinquished, those arguments at the district court level. Framed differently, if the defendant in this case wanted to hear the supervised release special conditions on the record, perhaps to lodge an objection to them or to request clarification, she should have declined the Court’s offer to skip this reading.
