United States v. Serrapio
| Decision Date | 18 June 2014 |
| Docket Number | No. 12–14897.,12–14897. |
| Citation | 754 F.3d 1312 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Joaquin Amador SERRAPIO, Jr. a.k.a. Jay Valor, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Wifredo A. Ferrer, Lisa Tobin Rubio, Kathleen Mary Salyer, Seth Michael Schlessinger, Anne Ruth Schultz, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.
Benjamin Samuel Waxman, Alan Shelley Ross, Robbins Tunkey Ross Amsel Raben & Waxman, P.A., Miami, FL, for Defendant–Appellant.
Appeal from the United States District Court for the Southern District of Florida.
Before MARTIN and JORDAN, Circuit Judges, and BAYLSON,* District Judge.
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.”
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, 64 S.Ct. 113, 88 L.Ed. 41 (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.
In February of 2012, Mr. Serrapio posted two messages on Facebook threatening to shoot President Obama during his then-upcoming visit to the University of Miami. One of the messages—the one that formed the basis for his guilty plea to violating 18 U.S.C. § 871—was as follows:
The district court sentenced Mr. Serrapio on August 22, 2012, to three years of probation with certain conditions, including four months of home confinement with electronic monitoring and 250 hours of community service. The district court also imposed a mandatory assessment of $100. No one appealed the district court's sentence.
On September 11, 2012, Miami–Dade College's newspaper, The Reporter, published an article by Karla Barrios entitled “Serrapio Calls Facebook Obama Threat ‘Funny.’ ” The article quoted Mr. Serrapio as saying that he thought the ordeal was humorous, that it was “pretty funny to me and my friends,” and that he could not be imprisoned “in my own house.” Mr. Serrapio, who was a member of a rock band, was also quoted as saying that a Ms. Barrios' article noted that Mr. Serrapio had taken a more remorseful tone in an article he had written for the same newspaper.
The article Mr. Serrapio wrote for The Reporter was entitled “The Biggest Mistake of My Life,” and was published next to and on the same day as the article written by Ms. Barrios. In his own article, Mr. Serrapio said that he had posted the Facebook threats with the intent of being sarcastic, but the Secret Service believed he might be serious, and the threats had led to his criminal conviction. He explained that he spent several days in custody, that he had to undergo a mental health evaluation and a polygraph test, and that he faced a sentence of five years in prison. Luckily, he said, the district court had been fair in sentencing him. He said that he was now a convicted felon at the age of 21, and that it had been a “difficult journey.” He hoped that “young people understand words are not just words anymore,” and that “they should not use social media to post negative comments, threatening words, or compromising pictures,” for “posts are available for the world to see and your words and/or your pictures will follow you for the rest of your life.”
The very next day, September 12, 2012, the district court issued a notice setting a hearing on September 18, 2012. The notice indicated only that the hearing concerned a status conference relating to a modification of probation. See generallyFed.R.Crim.P. 32.1(c)(1) ().
When the parties appeared as scheduled, the district court said that it had set the hearing because it was “certain” that Mr. Serrapio did not understand what probation meant. The district court explained that it was concerned about the interview that Mr. Serrapio had given to The Reporter, though it had determined that he had not violated the conditions of his probation, and clarified that the hearing was not for a revocation of probation.
Mr. Serrapio, on his own and through his attorney, addressed the district court's concerns, explaining that he indeed took his offense and sentence seriously and that his quoted statements were taken out of context. Mr. Serrapio explained that Ms. Barrios, a reporter from The Reporter, contacted him by phone and asked him several questions. Mr. Serrapio answered the questions, not knowing they would eventually be quoted in the article. Mr. Serrapio's attorney pointed to the “Biggest Mistake of My Life” article as evidence of his client's understanding of the seriousness of the situation.
Mr. Serrapio's attorney also said that he had attempted to speak with Ms. Barrios and Manolo Barco, the newspaper's faculty adviser, prior to the hearing, but had not been able to do so. Mr. Barco returned his call, but declined to comment. Neither Ms. Barrios nor Mr. Barco were subpoenaed, and as a result neither one was present at the hearing.
After Mr. Serrapio had engaged in a colloquy with the district court, his attorney made several legal arguments in opposition to any modification of the probationary sentence. First, he argued that, because Mr. Serrapio had already begun serving his term of probation (including the home confinement portion) and had paid the $100 assessment, any modification of the sentence would constitute double jeopardy absent a revocation of probation. Second, he asserted that if the district court modified the sentence, it would be punishing Mr. Serrapio for the exercise of his free speech rights.
The district court was not persuaded by the assurances and answers of Mr. Serrapio or the arguments of his attorney. After stating that it had the authority to modify the conditions of probation pursuant to 18 U.S.C. § 3563(c), the district court told Mr. Serrapio it was “time that [he] understand that there [are] consequences for [his] actions, and [that] this is serious [.]” It then modified the conditions to include 45 days in a halfway house and one year of home confinement with electronic monitoring, with that one-year period to begin upon Mr. Serrapio's release from the halfway house. The district court allowed Mr. Serrapio to continue attending school, and placed him on curfew from 10 p.m. to 6 a.m. The district court did not increase the three-year term of probation that it had initially imposed.
Mr. Serrapio did not seek or obtain a stay of the district court's modification of the conditions of his probation, and has by now completed those modified conditions; he has served the 45–day term in the halfway house and the one year of home confinement with electronic monitoring. A logical question, therefore, is whether this appeal is moot. We conclude that it is as to the 45–day halfway house term but not as to the one year of home confinement with electronic monitoring.
“A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Service Employees Int'l, 567 U.S. ––––, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (internal quotation marks omitted). “[W]hen a defendant challenges only an expired sentence, [there is] no ... presumption [that collateral consequences exist], and the defendant must bear the burden of identifying some ongoing ‘collateral consequence’ that is ‘traceable’ to the challenged portion of the sentence and ‘likely to be redressed by a favorable judicial decision.’ ” United States v. Juvenile Male, ––– U.S. ––––, 131 S.Ct. 2860, 2864, 180 L.Ed.2d 811 (2011) (citation and italics omitted). Mr. Serrapio's sentence is not completely expired, as his three-year term of probation does not end until August of 2015. Nevertheless, the Supreme Court's decision in Juvenile Male is instructive because Mr. Serrapio is challenging only the completed conditions of his probation, and not the length of his ongoing probationary term.
As to the 45–day halfway house term, we hold that the appeal is moot....
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