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Modifying defendant’s probation conditions for expressing his opinion about his probation sentence was constitutionally permissible

In U.S v. Serrapio, the defendant asked the court of appeals to hold that the district court’s modifications to his federal probation sentence violated his rights under the Double Jeopardy Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the First Amendment. After his federal conviction, Serrapio was sentenced to 3 years of probation (with a number of conditions, including four months of home confinement with electronic monitoring and 250 hours of community service) violating 18 U.S.C. § 871 for threatening to shoot the President Barack Obama during his 2012 visit to the University of Miami. Serrapio spoke to a reporter for his college newspaper. He told her 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 of people showed up to see the kid who threatened to kill the President.” After the district court learned of these comments, the district court issued a notice setting a hearing concerned a status conference relating to a modification of probation. When the parties appeared as schedules, the district court said that it had set the hearing because it was “certain” that Serrapio did not understand what probation meant. After stating that it had the authority to modify the conditions of probation pursuant to 18 U.S.C. § 3563(c), the district court modified the conditions to include 45 days in a halfway house and one year of home confinement with electronic monitoring. The district court did not increase the three-year term of probation that it had initially imposed. In this appeal,

The first issue addressed by the court of appeals was whether the appeal moot. The court concluded that it was as to the 45-day halfway house term which had been served. They reach a different result as to the one-year period of home confinement, for which he suffered collateral consequences as a result of that modification. The district court ordered Serrapio to pay the costs of electronic monitoring for the additional eight months of home confinement and because he incurred a financial expense due to the district court’s modification of the home confinement condition of probation, the appeal is not moot.

Serrapio contends that this modification violated the Double Jeopardy Clause of the Fifth Amendment, which that provide that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”. Significantly, the “Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment. The modification did not violate the Double Jeopardy Clause because it did not upset any legitimate expectations held by Mr. Serrapio as to the finality of the conditions of probation, as it was authorized by statute and was based on Mr. Serrapio’s post sentencing conduct.

The court of appeals rejected Serrapio’s claim that district court erred in not providing him with the sort of the process required in probation revocation proceedings under Rule 32.1(b) of the Federal Rules of Criminal Procedure, and that Rule 32.1(c), the provision governing modifications of probation, is unconstitutional because it does not provide the same procedural requirements as Rule 32.1(b).
Finally, the court disagreed with his argument that the district court violated his First Amendment rights by increasing the term of home confinement with electronic monitoring and concluded there was no constitutional violation.