Neither a lack of a history of violence nor the First Amendment could prevent former pharmaceutical executive Martin Shkreli, who put up a $5,000 bounty for a strand of Hillary Clinton’s hair, from getting jailed on Wednesday evening after a federal judge revoked his bail.
U.S. District Judge Kiyo Matsumoto of the Eastern District of New York said the fact that Shkreli, who awaits sentencing on three felony counts, presented the bounty to the more than 94,000 people who follow his Facebook page and that he did not clarify that he meant it as satire until hours later shows that he is a “danger to the community.”
“I cannot say with any certainty that the threat has not been taken seriously,” Matsumoto said, who also noted during the hearing that the Secret Service looked into the matter. “He’s demonstrated that he posed a danger to the community.”
Shkreli became well-known in 2015 for increasing the price of an anti-parasitic drug from $13.50 to $750 per pill, but the so-called “Pharma Bro”‘s stock-in-trade since then has been making controversial public statements, especially online.
Among them were statements made near the conclusion of his six-week trial for securities and wire fraud and related conspiracy charges, in which he said he would get to have sex with Teen Vogue columnist Lauren Duca and political pundit Ana Kasparian.
In his effort to keep Shkreli out of a holding cell, Benjamin Brafman said he was “angry” with his client for making the post, but said in papers that it amounted to “constitutionally protected hyperbole.”
“Being inappropriate doesn’t make you a danger to the community,” Brafman argued. “We’re surrounded by inappropriateness on a daily basis.”
He cited the U.S. Supreme Court’s 1969 ruling in Watts v. United States, 394 U.S. 705, in which an Army intelligence officer overheard an 18-year-old man who had just been drafted into military say at a public rally that if he is made to “carry a rifle the first man I want to get in my sights” is President Lyndon Johnson.
The high court ruled in that case that political hyperbole doesn’t necessarily constitute a “true threat.”
Matsumoto said there is no way for Shkreli to know if any of his tens of thousands of followers would take seriously his Sept. 4 comment to grab a hair off of Clinton’s scalp—with follicle attached—while she is on a tour for her newly released book, or that someone might find the offer as a way of achieving “a moment of fame.”
“This is a solicitation of an assault that is not protected by the First Amendment,” Matsumoto said.
Brafman also tried a more recent example: a controversial Twitter post by comedian Kathy Griffin in which she is photographed holding a mask made to look like the severed head of President Donald Trump.
Again, Matsumoto was unswayed.
“Kathy Griffin is a comedian, Donald Trump is president, and they are not convicted of federal felonies and awaiting sentencing,” the judge said.
The standard for allowing a defendant to remain free while awaiting sentencing is high: in 2004, the U.S. Court of Appeals for the Second Circuit found that the statute should be interpreted as a presumption of detention, and the defendant must show by “clear and convincing evidence” that they are neither a flight risk nor a danger to the public.
Shkreli’s past public statements, specifically those about Duca and Kasparian, may have made the hurdle higher. Assistant U.S. Attorney Jacquelyn Kasulis read them aloud in court when it was her turn to argue in support of the prosecutors’ motion to revoke Shkreli’s bail.
“I think this escalating pattern of violence against women is incredibly disturbing,” argued Kasulis, calling Shkreli “reckless” and saying that it is “very clear” that Brafman cannot control his client.
The prosecutors also noted in their papers that people have acted on Shkreli’s public offers in the past—a Princeton University graduate recently took up Shkreli’s offer of a $40,000 scholarship to solve a mathematical proof.
“He doesn’t get it, he doesn’t respect the rule of law and he knows what he is doing,” Kasulis said.
Brafman pleaded for Shkreli to have another chance, for a pledge by his client to stay off of social media or for a few extra days to give Shkreli time to issue a clear statement that his offer was a joke, but Matsumoto made clear that her mind was made up.
“I’ve made my decision,” the judge said.
Shkreli posted a $5 million bail after his December 2015 arrest. He is being held in the Metropolitan Detention Center in Brooklyn.
In brief remarks to reporters after the ruling, Brafman expressed disappointment over the remand.
“She’s the judge and right now we will have to live with this decision,” he said.
In addition to Kasulis, Assistant U.S. Attorneys Alixandra Smith and Girish Srinivasan appeared for the government.
Brafman appeared with Brafman & Associates attorneys Marc Agnifilo, Jacob Kaplan, Andrea Zellan and Teny Geragos.
Shkreli was convicted in August following a six-week trial of two counts of securities fraud and one count of securities fraud conspiracy related to an alleged scheme in which he defrauded investors in two hedge funds he created and paid them back with assets he took from another company he formed.
But he was able to beat five additional counts in the case, including one count of conspiracy to commit wire fraud—which lead defense counsel Brafman called “the heart of the case”—related to the accusation that Shkreli conspired with his ex-counsel Evan Greebel to defraud investors in Retrophin Inc. to pay back investors in hedge funds MSMB Capital Management and MSMB Healthcare.
Shkreli has filed a motion to acquit on one of the three counts, a charge of securities fraud conspiracy, arguing that the government misinformed the jury that Retrophin employees are “affiliates” of the firm.
Shkreli faces up to 20 years in prison. His sentencing date was set for Jan. 16.
Greebel, a former partner with Katten Muchin Rosenman and Shkreli’s co-defendant, is set to go to trial Oct. 18.