Like others before him, Joaquin Serrapio, Jr. learned the hard way that whatever one says to a reporter may later appear in print. After being sentenced to three years of probation (with a number of conditions, including four months of home confinement with electronic monitoring and 250 hours of community service) for threatening to shoot President Barack Obama during his 2012 visit to the University of Miami, Mr. Serrapio spoke to a reporter for his college newspaper. Among other things, he told the reporter that his ordeal had been “pretty funny,” that he could not be imprisoned in his “own house,” and that a lot of good had come out of his case, including for his rock band, as a “lot people showed up [to one of his shows] to see the kid who threatened to kill the [P]resident.”What do you think? Was Judge Cooke too harsh or right on?
The district court, upon learning of these comments, apparently took to heart Justice Frankfurter’s observation that “probation grew out of a realization that to make the punishment fit the criminal requires wisdom seldom available immediately after conviction.” Roberts v. United States, 320 U.S. 264, 273 (1943) (Frankfurter, J., dissenting). Although it did not revoke Mr. Serrapio’s three-year term of probation, the district court modified the conditions of probation to include 45 days in a halfway house and one year of home confinement with electronic monitoring.
In this appeal, Mr. Serrapio asks us to hold that these modifications violated his rights under the Double Jeopardy Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the First Amendment. With the benefit of oral argument, we conclude that, on this record, the district court’s actions were constitutionally permissible.
Mr. Serrapio told Ms. Barrios that the whole ordeal “was pretty funny” to him and his friends, suggesting that he did not really understand the gravity of his offense. He also commented that he could not be imprisoned in his “own house,” indicating that he viewed the home confinement aspect of the original sentence as little more than an inconvenience. And he noted, apparently with some satisfaction, that his rock band had benefited from the publicity surrounding his arrest: “[A] lot of good has come out of this, even for my music . . . I had a show that Saturday and a lot of people showed up to see the kid who threatened to kill the [P]resident[.]”
To the district court, these post-sentencing comments were relevant to the conditions of probation because they indicated that Mr. Serrapio did not grasp the seriousness of his conduct and did not think much of the probationary sentence he had received. See 18 U.S.C. § 3553(a)(2)(A)-(B) (in determining what sentence to impose, court “shall consider,” among other things, the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, and afford adequate deterrence to criminal conduct); 18 U.S.C. § 3563(b) (providing that court has discretion to impose special conditions of probation so long as they are reasonably related to the factors set forth in § 3553(a)(1) and (a)(2)). Mr. Serrapio does not argue that the district court erred in so finding, and on this record that finding did not violate the First Amendment.
Simply stated, Mr. Serrapio was not punished for any abstract beliefs. See, e.g., United States v. Stewart, 686 F.3d 156, 167 (2d Cir. 2012) (rejecting First Amendment challenge to sentence based in part on the defendant’s public comments, which expressed a lack of remorse, because those comments were “legally relevant to a determination of the appropriate sentence to impose”); Kapadia v. Tally, 229 F.3d 641, 648 (7th Cir. 2000) (“Nothing in the Constitution prevents the sentencing court from factoring a defendant’s statements into sentencing when those statements are relevant to the crime or to legitimate sentencing considerations.”).
Wednesday, June 18, 2014
Unlike MDC's newspaper, I won't quote you without permission
Here's another Judge Cooke case, where the defendant got into trouble for making statements after his sentencing to a reporter. The issue in the case was whether changing the terms of probation, without an actual violation, was permitted. Here's Judge Jordan, for the Court (Jordan, Martin, & Baylson) in U.S. v. Serrapio: