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) ______________ 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

2 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.Background 1

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

3 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. T