17-4032
United States v. Sergentakis

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 13th day of December, two thousand nineteen.

PRESENT:
           DENNIS JACOBS,
           SUSAN L. CARNEY,
           MICHAEL H. PARK,
                       Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                               v.                                                  No. 17-4032

KRIS SERGENTAKIS,

           Defendant-Appellant.
_______________________________________

FOR DEFENDANT-APPELLANT:                                  Lawrence Gerzog, Esq.,
                                                          New York, NY.*




 *We grant Gerzog’s motion to withdraw as counsel. See Mot. for Counsel to Be Relieved, United States v.
Sergentakis, No. 17-4032 (2d Cir. Nov. 18, 2019), Dkt. 119.
FOR APPELLEE:                                              George Turner, Sarah K. Eddy, United
                                                           Assistant United States Attorneys, for
                                                           Geoffrey S. Berman, United States
                                                           Attorney for the Southern District of New
                                                           York, New York, NY.

        Appeal from a judgment of the United States District Court for the Southern District
of New York (Román, J.).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on December 12, 2017, is
AFFIRMED.

        Kris Sergentakis appeals from a judgment of conviction for retaliating against a
witness, in violation of 18 U.S.C. § 1513(e), entered after a guilty plea. Sergentakis contends
that his retaliatory conduct was constitutionally protected speech, and thus that the United
States District Court for the Southern District of New York (Román, J.) erred when it
denied his motion to dismiss the indictment on First Amendment grounds. He preserved
this ground for appeal. We assume the parties’ familiarity with the underlying facts,
procedural history, and arguments on appeal, to which we refer only as necessary to explain
our decision to affirm.

        This Court reviews constitutional questions de novo. See United States v. Awadallah, 349
F.3d 42, 51 (2d Cir. 2003).1 We are “free to affirm an appealed decision on any ground that
finds support in the record.” Ronan Assocs. v. Local 94-94A-94B, Int’l Union of Operating Eng’rs,
24 F.3d 447, 449 (2d Cir. 1994).

        The First Amendment of the U.S. Constitution provides that “Congress shall make
no law . . . abridging the freedom of speech.” U.S. Const. amend. I. But “it is well
understood that the right of free speech is not absolute,” and “[t]here are certain well-
defined and narrowly limited classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire,


 1Unless otherwise noted, this order omits all internal quotation marks and citations in text quoted from case
law.


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315 U.S. 568, 571-72 (1942). Subject to certain conditions, defamation is one such
recognized category of unprotected speech. See, e.g., Beauharnais v. Illinois, 343 U.S. 250, 254-
55 (1952). The District Court determined that the speech in question was defamatory, and
therefore unprotected, because it consisted of false statements of fact about a private
individual. We agree.

       As an initial matter, the statements Sergentakis made are untrue, see App’x at 33
(explaining that “[t]he U.S. Postal Inspection Service spoke with [the victim], and reviewed
law enforcement records and databases, and confirmed” the falsity of Sergentakis’s
assertions), and Sergentakis does not argue otherwise on appeal. Further, the statements are
actionable in the defamation context because they are either “precise, literal,” and
“objectively capable of being proved true or false,” or because they “impl[y] the allegation of
undisclosed defamatory facts.” Kelly v. Schmidberger, 806 F.2d 44, 48 (2d Cir. 1986) (“The
distinction between fact and opinion is . . . critical in determining whether a defamatory
statement may be actionable.”); see also Restatement (Second) of Torts § 566 (“A defamatory
communication may consist of a statement in the form of an opinion, but a statement of this
nature is actionable only if it implies the allegation of undisclosed defamatory facts as the
basis for the opinion.”).

       Sergentakis insists that he had no responsibility “to guarantee the truth” of what he
asserted. New York Times Co. v. Sullivan, 376 U.S. 254, 279 & n.19 (“Even a false statement
may be deemed to make a valuable contribution to a public debate . . . .”). That might be
correct if the victim were a public figure, but he is not. Individuals can merit public-figure
status either “for all purposes and in all contexts,” or “for a limited range of issues.” Gertz v.
Robert Welch, Inc., 418 U.S. 323, 351 (1974). Given the absence of “clear evidence of general
fame or notoriety in the community, and pervasive involvement in the affairs of society,” we
cannot conclude that the victim in this case is an all-purpose public figure. Id. at 352.

       Nor can we conclude that the victim is a limited public figure in the context of the
instant litigation. We employ a four-part test for determining whether an individual is a
limited-purpose public figure:



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       A defendant must show that the plaintiff has: (1) successfully invited public
       attention to his views in an effort to influence others prior to the incident that
       is the subject of litigation; (2) voluntarily injected himself into a public
       controversy related to the subject of the litigation; (3) assumed a position of
       prominence in the public controversy; and (4) maintained regular and
       continuing access to the media.

Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-37 (2d Cir. 1984); see also Biro v. Conde Nast, 622
F. App’x 67, 69 (2d Cir. 2015) (explaining that we apply Lerman test to determine whether an
individual is a limited-purpose public figure). The victim here did none of those four things.
Cf. Gertz, 418 U.S. at 345 (“Hypothetically, it may be possible for someone to become a
public figure through no purposeful action of his own, but the instances of truly involuntary
public figures must be exceedingly rare. . . . More commonly, those classed as public figures
have thrust themselves to the forefront of particular public controversies in order to
influence the resolution of the issues involved.”). At most, the victim could be considered a
public figure for the limited purpose of commentary about the charitable organization he
once ran. That observation does not aid Sergentakis, however, because the statements that
form the basis of his conviction do not relate to the victim in his capacity as the leader of a
charitable organization; they relate to the victim in his capacity as a private person. See
generally App’x 18-20 (Indictment); Compl., United States v. Sergentakis, No. 15-cr-0033 (NSR)
(S.D.N.Y. Jan. 7, 2015), ECF No. 2. Accordingly, the statements are not protected speech.

                                              * * *

       For the reasons set forth above, the District Court’s judgment is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk of Court




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