Petition for Writ of Certiorari — Tawanna Hilliard, Petitioner v. United States

Supreme Court briefOct 30, 2024

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IN THE

Supreme Court of the United States

TAWANNA HILLIARD

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

EZRA M. SPILKE

Counsel of Record

LAW OFFICES OF EZRA SPILKE

1825 Foster Avenue, Suite 1K

Brooklyn, New York 11230

ezra@spilkelaw.com

Tel: (718) 783-3682

Counsel for Petitioner Tawanna Hilliard

QUESTIONS PRESENTED

Section 1513(e) of Title 18 of the United States Code prohibits “tak[ing] any

action harmful to any person, including interference with the lawful employment or

livelihood of any person, for providing to a law enforcement officer any truthful

information relating to the commission or possible commission of any Federal

offense” “with the intent to retaliate.”

The questions presented in this Petition are:

1. Whether § 1513(e) is facially overbroad in that, as interpreted by the court of

appeals, the statute can be violated by mere speech alone.

2. Whether a conviction under § 1513(e) is unconstitutional as applied to a

person who was convicted under that law for assisting in the publication online of

the post-arrest interviews of two informants without any further non-speech

conduct.

3. Whether § 1513 is unconstitutionally vague in that its prohibition against

“any action harmful,” even with a retaliatory intent, fails to provide adequate notice

of what the law prohibits and encourages arbitrary and discriminatory enforcement.

-i-

LIST OF PARTIES TO THE PROCEEDING

Tawanna Hilliard, petitioner on review, was the appellant below.

The United States of America, respondent on review, was the appellee below.

PROCEEDINGS BELOW

To counsel’s knowledge, all proceedings directly related to this petition include:

•

United States v. Hilliard, No. 23-6256 (2d Cir. Aug. 2, 2024).

•

United States v. Hilliard, No. 18 Cr. 581 (E.D.N.Y. Mar. 30, 2023).

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TABLE OF CONTENTS

QUESTIONS PRESENTED............................................................................................ i

LIST OF PARTIES TO THE PROCEEDING ............................................................... ii

PROCEEDINGS BELOW .............................................................................................. ii

TABLE OF AUTHORITIES .......................................................................................... iv

OPINION BELOW ......................................................................................................... 1

JURISDICTION ............................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1

STATEMENT OF THE CASE ....................................................................................... 1

REASONS FOR GRANTING THE WRIT ..................................................................... 3

I. The Second Circuit Misapplied This Court’s Decision in Giboney v.

Empire Storage & Ice Co. ....................................................................................... 3

II.

Section 1513(e)’s Prohibition against “Any Action Harmful” Fails to

Provide Adequate Notice of What the Law Prohibits and encourages

Arbitrary and Discriminatory Enforcement ..................................................... 9

CONCLUSION ............................................................................................................. 11

APPENDIX

Summary Order

U.S. Court of Appeals for the Second Circuit

Filed Aug. 2, 2024 .............................................................................................. 1a

Memorandum and Opinion

U.S. District Court for the Eastern District of New York

Filed July 18, 2022 ............................................................................................. 7a

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TABLE OF AUTHORITIES

Cases

Counterman v. Colorado, 600 U.S. 66 (2023) ............................................................ 5, 7

Dubin v. United States, 599 U.S. 110 (2023) ............................................................... 11

Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) .......................................... 3

Hill v. Colorado, 530 U.S. 703 (2000) ............................................................................ 9

Johnson v. United States, 576 U.S. 591 (2015) ............................................................. 9

Lanzetta v. New Jersey, 306 U.S. 451 (1939)................................................................. 9

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ............................................ 6

Small v. United States, 544 U.S. 385 (2005) ................................................................. 8

United States v. Camick, 796 F.3d 1206 (10th Cir. 2015) ............................................ 9

United States v. Hansen, 599 U.S. 762 (2023)............................................................... 4

United States v. Hilliard, No. 23-6256, 2024 WL 3634201 (2d Cir. Aug. 2, 2024) .. 3, 5

United States v. Osinger, 753 F.3d 939 (9th Cir. 2014) ................................................ 5

United States v. Sryniawski, 48 F.4th 583 (8th Cir. 2022) ........................................... 4

Van Buren v. United States, 593 U.S. 374 (2021) ....................................................... 10

Yates v. United States, 574 U.S. 528 (2015) .................................................................. 9

Statutes

Colo. Rev. Stat. § 18-3-602(1)(c) (2022).......................................................................... 7

Other Authorities

Sup. Ct. R. 10(a) .............................................................................................................. 8

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OPINION BELOW

The court of appeals’ summary order (Pet. App. 1-6) is unpublished but

available at 2024 WL 3634201.

JURISDICTION

The judgment of the court of appeals was entered on August 2, 2024 (App. 1).

This petition intends to seek review of the order dated August 2, 2024, by the

Second Circuit Court of Appeals in case No. 23-6256. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the United States Constitution provides in

pertinent part: “Congress shall make no law . . . abridging the freedom of speech.”

The Fifth Amendment to the United States Constitution provides in

pertinent part: “No person shall . . . be deprived of life, liberty, or property, without

due process of law.”

STATEMENT OF THE CASE

Petitioner was tried in the district court on charges of witness tampering,

witness harassment, witness retaliation and obstruction of justice. The jury

acquitted Petitioner of tampering and harassment but convicted her of witness

retaliation and obstruction of justice.

Petitioner challenges her conviction and sentence on charges of witness

retaliation and conspiracy to commit witness retaliation, under 18 U.S.C. § 1513(e)

and (f), and obstruction of justice and conspiracy to obstruct justice, under 18 U.S.C.

-1-

§ 1512(c)(2) and (k). Petitioner’s case centers on her actions related to two YouTube

videos she helped publish that depicted cooperating witnesses involved in a law

enforcement investigation into criminal activities of the 5-9 Brims gang, of which

her son was a member.

The events leading to her conviction began when Petitioner’s son was

arrested on state charges, alongside another gang member and the gang member's

girlfriend, following a robbery. Both the gang member and his girlfriend cooperated

with the authorities, providing information on the gang’s activities. Video

recordings of their interviews were subsequently disclosed to Petitioner’s son’s

attorney in the state proceedings. No protective order was entered in that case, and

thus no restriction on sharing the state’s disclosures. Acting on her son’s request,

Petitioner acquired these recordings from his lawyer and, eventually, coordinated

with others to upload them online. The videos were titled “NYC Brim Gang Member

SNITCHING!” and “NYC Brim Gang Member Girlfriend SNITCHING.” Upon her

conviction, the district court sentenced Hilliard to a term of 33 months in prison to

be followed by supervised release.

Petitioner filed as-applied and overbreadth challenges to the retaliation law,

18 U.S.C. § 1513(e), in the district court, as well as a challenge to that statute on

vagueness grounds. The district court denied the motions.

The Court of Appeals for the Second Circuit affirmed the district court by

summary order. That court had jurisdiction under 28 U.S.C. § 1291.

-2-

As to the as-applied challenge, the court concluded that Petitioner’s

uploading of the videos was speech integral to criminal conduct and thus

unprotected. As to overbreadth, the court held that § 1513(e)’s lawful applications

were not substantially disproportionate to applications that would violate the First

Amendment. As to vagueness, the court concluded that § 1513(e) provided

Petitioner with fair notice that assisting in the publication of the videos with the

intent to retaliate against them would violate the law.

REASONS FOR GRANTING THE WRIT

The Second Circuit Misapplied This Court’s Decision in Giboney v.

Empire Storage & Ice Co.

The decision of the court of appeals relied on its conclusion that the speech

was “the very vehicle of the crime itself.” United States v. Hilliard, No. 23-6256,

2024 WL 3634201, at *2–3 (2d Cir. Aug. 2, 2024) (quoting United States v.

Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007)). But, although the court of appeals

relied on this Court’s decision in Giboney v. Empire Storage & Ice Co., 336 U.S. 490

(1949), it applied a looser standard than Giboney provided.

In Giboney, this Court held that it is not “an abridgement of freedom of

speech . . . to make a course of conduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means of language, either spoken,

written, or printed.” 336 U.S. at 502 (emphasis added). In that case, the Court

upheld an injunction against picketing by an ice peddlers’ union in Missouri.

Critical to the Court’s decision was that the union’s “sole, unlawful immediate

objective” was to convince an ice company to break the law by refusing to sell to

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nonunion businesses. Id.; see also id. at 498 (“sole immediate object”); id. at 501

(“sole immediate purpose”).

But Giboney is patently inapplicable here. The speech-integral doctrine

applies only if the offending speech is “part” of some other unlawful non-speech

conduct. Id. at 502. That is, the government cannot properly invoke the exception

unless there is some unlawful conduct other than the speech to which the speech is

integral. In solicitation and aiding-and-abetting cases, for example, speech that

solicits or facilitates a particular criminal act is integral to the underlying unlawful

activity. See, e.g., United States v. Hansen, 599 U.S. 762, 783 (2023) (cleaned up)

(“We have applied [the speech-integral-to-unlawful-conduct exception] many times,

including to the promotion of a particular piece of contraband, solicitation of

unlawful employment, and picketing with the sole, unlawful and immediate

objective of inducing a target to violate the law.”). But here, neither the statute nor

the jury instructions required the jury to find that the illegal conduct involved

anything beyond the publication of the videos. And the government expressly

invited the jury to convict Petitioner for her communications alone. Because the

jury was not required to find any unlawful conduct to which Petitioner’s speech was

integral, Giboney does not apply.1

1 See, e.g., United States v. Sryniawski, 48 F.4th 583, 588 (8th Cir. 2022) (“Congress

may not define speech as a crime, and then render the speech unprotected by the

First Amendment merely because it is integral to speech that Congress has

criminalized. To qualify as speech integral to criminal conduct, the speech must be

integral to conduct that constitutes another offense that does not involve protected

speech, such as antitrust conspiracy”); United States v. Osinger, 753 F.3d 939, 954

-4-

Even when some unlawful activity other than speech is at issue, Giboney

imposes a stricter intent requirement than the recklessness standard that this

Court articulated for true threats in Counterman v. Colorado, 600 U.S. 66 (2023).

Specifically, Giboney requires proof that the defendant’s “sole immediate purpose”

was unlawful. 336 U.S. at 501. Without this limitation, the speech-integral

exception would threaten to criminalize speech lacking any unlawful intent merely

because it has some superficial connection to unlawful activity.

Here, the jury was not required to find Petitioner’s “sole immediate purpose”

was to further some unlawful activity. Indeed, the district court instructed the jury

that “The intent to retaliate need not have been the only reason so long as it was a

substantial motivating behind the defendant's actions.” JA 1564 (emphasis added).2

And Petitioner advanced a non-retaliatory purpose at trial which formed

Petitioner’s central defense and was supported by recorded phone calls introduced

into evidence. Specifically, Petitioner’s son informed her in those calls that the

informant was attempting to divert attention from himself by claiming that

Petitioner’s son, rather than he, was the informant. The defense maintained that

the videos were published in order to discredit the informant in his efforts to

slander Petitioner’s son. See Hilliard, 2024 WL 3634201, at *2 (describing

Petitioner’s defense). Far from finding that retaliation was Petitioner’s sole,

(9th Cir. 2014) (Watford, J., concurring) (“If a defendant is doing nothing but

exercising a right of free speech, without engaging in any non-speech conduct, the

exception for speech integral to criminal conduct shouldn’t apply.”).

2 This citation is to the joint appendix filed in the court of appeals.

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immediate purpose, the jury could have credited the defense and at the same time

convict her for witness retaliation because it needed only to find that retaliation

was only one of Petitioner’s intentions.

The reliance of the court of appeals on the speech-integral doctrine here was

especially misplaced where a finding that petitioner intended to incite violence,

intimidation or any other unlawful act was not necessary to Petitioner’s conviction.

In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), Mississippi merchants

sought damages for an NAACP-organized boycott against the organization and its

officers, including Charles Evers. Evers warned boycott violators, “If we catch any of

you going in any of them racist stores, we're gonna break your damn neck.” Id. at

902 (internal quotation marks omitted). The organization publicized names of those

who violated the boycott, and some experienced violent retaliation, creating an

“atmosphere of fear.” Id. at 904. This Court acknowledged that Evers's remarks

“might have been understood as . . . intending to create a fear of violence.” Id. at

927. But the Court explained that listeners' reactions were irrelevant to the

constitutional protection afforded speech. Evers “did not transcend the bounds of

protected speech” because his advocacy was not “directed to inciting or producing

imminent lawless action,” id. at 928-929 (emphasis added), and there was no

evidence that “any [speaker] specifically intended to further an unlawful goal,” id.

at 925 n.68 (emphases added).

Here, Petitioner’s conviction under § 1513(e) required a finding only that

Hilliard engaged in “any action harmful” to the informants no matter how

-6-

insignificant, including embarrassment or harm to reputation. The government was

free to argue to the jury that Petitioner wanted to violently harm the informants, as

indeed the government did. But, in acquitting Hilliard of every count that required

the government to prove that she used harassment, intimidation or threats, the jury

flatly rejected the notion that Hilliard intended violent harm. Thus, it is not just

possible but likely that the jury found that the intended effect of the publication of

the videos was to annoy and embarrass the informants or damage their reputations.

As § 1513(e) was interpreted by the court of appeals, such an intent falls within the

statute’s broad sweep. But it is also protected speech because, as Giboney instructs,

some unlawful activity other than the speech itself must be involved.

Mere emotional distress, even if caused for the purpose of retaliation, cannot

be the unlawful activity that removes First Amendment protection. This Court’s

reasoning in Counterman is instructive here. At issue in that case was Colorado’s

stalking statute. The statute made it unlawful to “[r]epeatedly . . . make[] any form

of communication with another person” in “a manner that would cause a reasonable

person to suffer serious emotional distress and does cause that person . . . to suffer

serious emotional distress.” Colo. Rev. Stat. § 18-3-602(1)(c) (2022); Counterman,

600 U.S. at 70. This Court held that when the state prosecutes someone based on a

theory that their speech amounted to a “true threat,” the state must prove that “the

defendant had some subjective understanding of the threatening nature of his

statements.” Counterman, 600 U.S. at 69.

-7-

Although, unlike the stalking statute in Counterman, § 1513(e) arguably

requires proof of a subjective mental state – intent to retaliate – the harm can be

minimal, as it likely was in this case. Under Counterman, speech merely meant to

cause emotional distress is protected should the speech be prosecuted under a

harassment or stalking statute. According to the court of appeals in this case,

however, the same speech loses its protection merely because the prosecution chose

to use the retaliation statute. Making constitutional protection of speech contingent

on the prosecution’s decision of which offense to charge is absurd. Cf. Small v.

United States, 544 U.S. 385, 387 (2005) (interpreting the phrase “convicted in any

court” in the federal gun possession statute, 18 U.S.C. § 922(g), to encompass only

domestic, not foreign, convictions in order to avoid anomalies caused by the contrary

interpretation).

Certiorari is appropriate when “a United States court of appeals . . . has

decided an important federal question in a way that conflicts with relevant

decisions of this Court.” Sup. Ct. R. 10(a). Here, the court of appeals misapplied

Giboney, and its decision conflicts with Claiborne Hardware.

The decision also chills large amounts of speech. Any criticism of a

government witness that results in that witness’s emotional distress or even

embarrassment can be punished by up to ten years’ imprisonment. And the power

to punish the speaker rests entirely with the government. If a United States

Attorney’s Office disapproves of the manner in which one of its witnesses has been

criticized, it alone wields the authority to censure that speech, which is what

-8-

happened here. Certiorari should be granted to reinstall the bedrock, free-speech

protections that the Constitution requires.

II.

Section 1513(e)’s Prohibition against “Any Action Harmful” Fails to

Provide Adequate Notice of What the Law Prohibits and encourages

Arbitrary and Discriminatory Enforcement

For similar reasons, this case raises significant issues regarding the Fifth

Amendment’s requirement to provide notice to the accused and to avoid inviting

arbitrary enforcement. Due Process demands that the Government provide clear

notice of what it commands or forbids. Lanzetta v. New Jersey, 306 U.S. 451, 453

(1939). Thus, a statute is unconstitutionally vague if it “fails to provide people of

ordinary intelligence a reasonable opportunity to understand what conduct it

prohibits” or if the statute “authorizes or even encourages arbitrary and

discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000).

Granted, one may conceive of legitimate applications of a witness retaliation

statute, such as workplace retaliation for whistleblowing, which motivated the

inclusion of § 1107 of the Sarbanes-Oxley Act of 2002 (“SOX”). See Yates v. United

States, 574 U.S. 528, 540-41 (2015) (describing the placement in the United States

Code of various criminal provisions of SOX); United States v. Camick, 796 F.3d

1206, 1220 n.7 (10th Cir. 2015) (“18 U.S.C. § 1513(e) is a codification of section 1107

of the Sarbanes–Oxley Act of 2002, which Congress enacted to prevent the type of

corporate fraud that led to the collapse of Enron Corporation.”). But this Court’s

“holdings squarely contradict the theory that a vague provision is constitutional

merely because there is some conduct that clearly falls within the provision’s

grasp.” Johnson v. United States, 576 U.S. 591, 602 (2015) (emphasis in original).

-9-

By its plain terms, § 1513(e) – in particular the actus reus “any action

harmful” – punishes a “breathtaking amount” of legitimate activity. Van Buren v.

United States, 593 U.S. 374, 393 (2021). Section 1513(e) can be used to punish

anyone who does anything likely to bring about any delay, emotional distress,

annoyance or loss of reputation no matter how insignificant. Thus, filing suit

against a witness, slashing their tires, littering on their lawn, making a noise

disturbance at their place of business, are all punishable under § 1513(e).

To take the example of this case, the informant’s reputation in a gang that

forbids its members from cooperating with law enforcement was no doubt harmed

when he was exposed as an informant. The code of his criminal enterprise forbade

it. Surely, the Fifth Amendment does not permit criminal punishment on the basis

of a person’s damaged reputation among other criminals. But the jury in this case

was permitted to convict on those grounds. The government explicitly urged the

jury to convict on that basis. JA 1373-74 (“The second element of witness retaliation

that the Government has to prove is that the defendant’s action or actions were

harmful. You’ve seen harm to both Khalif and Sasha. Harm to their reputations,

but more importantly, harm to their safety.”). There is no reason to believe that,

having acquitted Petitioner of making threats or harassing the witnesses in this

case, the jury then found that she threatened their physical safety.

Justice Gorsuch’s comments on the aggravated identity theft statute, 18

U.S.C. § 1028A, apply with equal force here:

Depending on how you squint your eyes, you can stretch (or shrink)

[§ 1028A’s] meaning to convict (or exonerate) just about anyone.

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Doubtless, creative prosecutors and receptive judges can do the same.

Truly, the statute fails to provide even rudimentary notice of what it

does and does not criminalize. We have a term for laws like that. We

call them vague. And “[i]n our constitutional order, a vague law is no

law at all.”

Dubin v. United States, 599 U.S. 110, 133 (2023) (Gorsuch, J., concurring) (quoting

United States v. Davis, 588 U.S. 445, 447 (2019)). Because it does not set limits on

the standard of conduct it proscribes, § 1513(e) is unconstitutionally vague.

The government’s evidence in this case showed nothing more than a loss of

reputation or, at most, a non-specific apprehension over physical harm. Petitioner’s

conviction should not stand.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

EZRA SPILKE

Law Offices of Ezra Spilke

1825 Foster Avenue, Suite 1K

Brooklyn, NY 11230

T: 718-783-3682

ezra@spilkelaw.com

October 31, 2024

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Appendix

United States v. Hilliard, Not Reported in Fed. Rptr. (2024)

2024 WL 3634201

Only the Westlaw citation is currently available.

United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee,

Tyquan HILLIARD, Defendant,

Tawanna Hilliard, Defendant-Appellant.

23-6256

August 2, 2024

Appeal from a March 15, 2023 judgment of the United States

District Court for the Eastern District of New York (Chen,

J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the district court is AFFIRMED.

Attorneys and Law Firms

FOR DEFENDANT-APPELLANT: Ezra Spilke, Law

Offices of Ezra Spilke, Brooklyn, NY; Paula J. Notari, The

Law Office of Paula J. Notari, New York, NY.

FOR APPELLEE: Nicholas J. Moscow (David C. James,

Lindsey R. Oken, on the brief), Assistant United States

Attorneys, for Breon Peace, United States Attorney for the

Eastern District of New York, Brooklyn, NY.

PRESENT: ALISON J. NATHAN, MARIA ARAÚJO

KAHN, Circuit Judges, RICHARD K. EATON, Judge.*

SUMMARY ORDER

*1 Defendant-Appellant Tawanna Hilliard appeals from her

conviction and sentence for witness retaliation and

conspiracy to commit witness retaliation, in violation of 18

U.S.C. § 1513(e) and (f), and for obstruction of justice and

conspiracy to obstruct justice, in violation of 18 U.S.C. §

1512(c)(2) and (k). We assume the parties’ familiarity with

the underlying facts, procedural history, and issues on

appeal, to which we refer only as necessary to explain our

decision.

Hilliard's conviction arose from her role in helping post to

YouTube two videos of witnesses cooperating with federal

authorities who were investigating criminal activity by the 59 Brims gang. Hilliard's son, a member of the gang, had been

arrested along with another gang member and that gang

member's girlfriend on state charges after a robbery. The

other gang member and his girlfriend cooperated with a

federal officer and video recordings of their interviews were

produced to counsel for Hilliard's son in the state criminal

proceedings. At the request of her son, Hilliard obtained the

recordings from her son's lawyer and coordinated with gang

members to post the videos online with titles referring to

“NYC Brim Gang Member SNITCHING!” and “NYC Brim

Gang Member Girlfriend SNITCHING.” Gov't App'x at 278;

App'x at 282. The videos quickly garnered thousands of

views, causing at least one of the witnesses to receive violent

threats and to have to be moved by federal agents for her

own safety.

After Hilliard was convicted, the district court sentenced her

principally to 33 months’ incarceration. On appeal, Hilliard

raises various challenges to her conviction and argues that

her sentence is procedurally unreasonable because the

district court erroneously applied the sentencing

enhancement under Sentencing Guidelines § 2J1.2(b)(1)(B).

We reject each of Hilliard's arguments and so affirm the

district court's judgment.

I. Challenges to the Witness Retaliation Counts

The jury convicted Hilliard of witness retaliation under 18

U.S.C. § 1513(e), which makes it a crime to “knowingly,

with the intent to retaliate, take[ ] any action harmful to any

person, including interference with the lawful employment

or livelihood of any person, for providing to a law

enforcement officer any truthful information relating to the

commission or possible commission of any Federal

offense[.]”

Hilliard argues that she was unconstitutionally convicted for

speech protected under the First Amendment—her uploading

of the videos.1 In the alternative, she argues that even if her

own activity in this case was not constitutionally protected

United States v. Hilliard, Not Reported in Fed. Rptr. (2024)

speech, Section 1513(e) is facially overbroad. And she

further argues that Section 1513(e) is unconstitutionally

vague. We are not persuaded by any of these challenges to

the witness retaliation statute.

*2 We begin with Hilliard's as-applied First Amendment

argument, which fails for the simple reason that Hilliard's

uploading the videos in these circumstances was unprotected

speech. “From 1791 to the present ... the First Amendment

has permitted restrictions upon the content of speech in a few

limited areas,” which “historic and traditional categories”

include “speech integral to criminal conduct.”

United

States v. Stevens, 559 U.S. 460, 468 (2010) (cleaned up); see

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498

(1949); Friend v. Gasparino, 61 F.4th 77, 89 (2d Cir. 2023).

Thus, “speech is not protected by the First Amendment when

it is the very vehicle of the crime itself.”

United States v.

Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007) (cleaned up).

In this case, by convicting Hilliard, the jury found that she

intentionally retaliated and conspired to retaliate against

witnesses and that her “speech was an integral part of the

retaliation.” App'x at 1549. Because the First Amendment

“does not ‘extend[ ] its immunity to speech or writing used

as an integral part of conduct in violation of a valid criminal

statute,’ ” Hilliard's conviction does not raise a First

Amendment problem. Friend, 61 F.4th at 89 (quoting

Giboney, 336 U.S. at 498). Speech is unprotected when, as

here, it is “the very vehicle of the crime itself[.]”

Gagliardi, 506 F.3d at 148 (quotation marks omitted).

To the extent Hilliard argues that her speech was not actually

integral to any witness retaliation, we analyze that argument

as a challenge to the sufficiency of the evidence and reject it.

See United States v. Hunt, 82 F.4th 129, 135 (2d Cir. 2023)

(“Where, as here, a defendant contends that the evidence did

not establish that his speech was [in a category of

unprotected speech], he challenges the sufficiency of the

evidence supporting his ... conviction.”).

We evaluate sufficiency challenges “deferentially, construing

the evidence in the light most favorable to the government,

crediting every inference that could have been drawn in its

favor.” Id. (quotation marks omitted). Under that standard of

review, we will affirm a conviction if “any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. (quotation marks omitted).2

There was ample evidence for the jury to find that Hilliard

knowingly took actions harmful to the witnesses with

retaliatory intent, and that her speech was an integral part of

that intentional conduct. The jury was presented with

evidence that Hilliard was familiar with the Brims and their

practice of punishing cooperators with violence. That

evidence

included

gang-related

documents

and

correspondence found at her apartment, as well as her own

notes on the videotaped interviews that memorialized one

witness's concern that “[t]hey are gonna get me if I write

statements.” App'x at 590; see Gov't App'x at 290. As the

district court reasoned, even Hilliard's defense—that she

wanted to expose the witnesses as cooperators to rebut a

rumor that her son was cooperating, because her son was in

danger for being thought a cooperator—implicitly

demonstrated that she knew just how dangerous and harmful

it was to be thought of as a “snitch” by gang members.

*3 All this, combined with the fact that Hilliard coordinated

the dissemination of the interview recordings with gang

members and used a gang-related account name to post

them, supports the jury's finding that Hilliard intended what

she knew would likely follow from her actions. There was

sufficient evidence to find that Hilliard's speech was simply a

means by which she furthered and carried out a course of

intentional retaliation against the witnesses, thus falling

comfortably within the category of unprotected speech

integral to criminal conduct.

Hilliard also argues that, even if Section 1513(e) was

constitutionally applied to her, the statute is facially

overbroad. We review overbreadth claims de novo. See

United States v. Thompson, 896 F.3d 155, 161 (2d Cir. 2018).

An overbreadth claim is a special kind of facial challenge

that allows litigants to whom a statute can be lawfully

applied to nonetheless seek invalidation of the law because it

“prohibits a substantial amount of protected speech relative

to its plainly legitimate sweep.”

United States v. Hansen,

599 U.S. 762, 770 (2023) (quotation marks omitted).

Because overbreadth doctrine is “strong medicine that is not

to be casually employed,” for a law to be overbroad its

“unconstitutional applications must be realistic, not fanciful,

and their number must be substantially disproportionate to

United States v. Hilliard, Not Reported in Fed. Rptr. (2024)

the statute's lawful sweep.” Id. (quotation marks omitted).

“In the absence of a lopsided ratio, courts must handle

unconstitutional applications as they usually do—case-bycase.” Id.

Hilliard fails to justify the use of such strong medicine here.

The witness retaliation statute can be validly applied to all

manner of non-speech retaliatory conduct: from physical

violence, to harm to a witness's property, to firing a witness

from a job. It can also be validly applied to various forms of

unprotected speech, such as reckless true threats. Given the

broad scope of its lawful applications, Section 1513(e) is not

facially overbroad. Even if Hilliard could hypothesize

realistic potential applications of the law that would violate

the First Amendment, she cannot demonstrate that they are

“substantially disproportionate” to its “lawful sweep.”

Hansen, 599 U.S. at 770. To the extent any applications of

Section 1513(e) might raise First Amendment questions, “asapplied challenges can take it from here.”

Id. at 785.

Nor does Hilliard succeed on her vagueness argument, which

she appears to advance as both an as-applied and a facial

challenge. A law is unconstitutionally vague in violation of

due process “if it (1) fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or (2) is so

standardless that it authorizes or encourages seriously

discriminatory enforcement.”

Brokamp v. James, 66 F.4th

374, 403 (2d Cir. 2023) (quotation marks omitted). Criminal

statutes are generally held to a higher standard than civil

statutes regarding vagueness. See

Vill. of Hoffman Ests. v.

Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498–99 (1982).

And vagueness analysis is especially “stringent” when a

statute impinges on speech.

Holder v. Humanitarian L.

Project, 561 U.S. 1, 19 (2010) (quotation marks omitted). On

the other hand, “perfect clarity and precise guidance have

never been required even of regulations that restrict

expressive activity.” Id. (cleaned up). In reviewing vagueness

challenges de novo we “presume that acts of Congress are

not unconstitutionally vague.” See

United States v.

Houtar, 980 F.3d 268, 273 (2d Cir. 2020).

“[W]e first consider [Hilliard's] as-applied challenge because

a ‘plaintiff who engages in some conduct that is clearly

proscribed cannot complain of the vagueness of the law as

applied to the conduct of others,’ ” a rule that “ ‘makes no

exception for conduct in the form of speech.’ ”

Brokamp,

66 F.4th at 403 (quoting

Holder, 561 U.S. at 20).

Hilliard's conduct is clearly covered by Section 1513(e). The

jury found that Hilliard knowingly retaliated against the

witnesses for providing truthful information to a law

enforcement officer, by publicly branding them as “snitches”

in a way intentionally designed to call the Brims’ attention to

their cooperation with the government, to enable the gang to

meet such cooperation with violent punishment. The statute's

language readily provides fair notice that this conduct

violates its prohibition against knowingly taking “any action

harmful” against a witness “with the intent to retaliate.” 18

U.S.C. § 1513(e). And since Hilliard's conduct is clearly

proscribed by Section 1513(e), she cannot mount a challenge

to its vagueness as applied to others. See

Brokamp, 66

F.4th at 403.

II. Challenges to the Obstruction Counts

*4 Hilliard argues that the court erroneously instructed the

jury on her obstruction charges and that there was

insufficient evidence to convict on those charges. Neither

argument succeeds.

Plain error review applies to Hilliard's jury instruction claim,

because she did not object to the instructions below. See

Hunt, 82 F.4th at 138. But even if it did not, we find no error

with the district court's instructions. Hilliard was charged and

convicted under 18 U.S.C. § 1512(c), which covers anyone

who “corruptly ... obstructs, influences, or impedes any

official proceeding, or attempts to do so[.]” 18 U.S.C. §

1512(c)(2). The provision covers obstruction in the form of

“impairing the availability or integrity” of “things used in an

official proceeding,” including not just “records, documents,

or other objects” but also “witness testimony or intangible

information.”

Fischer v. United States, 144 S. Ct. 2176,

2186 (2024) (cleaned up). The term “official proceeding” is

defined to include various federal proceedings including “a

proceeding before ... a Federal grand jury.” 18 U.S.C. §

1515(a)(1)(A). The obstructed proceeding “need not be

pending or about to be instituted at the time of the offense,”

id. § 1512(f)(1), but must be “reasonably foreseeable to the

defendant,” United States v. Pugh, 945 F.3d 9, 21 (2d Cir.

2019) (quotation marks omitted). Finally, the government

need not prove that the defendant knew that the relevant

proceeding was or would be a federal one. 18 U.S.C. §

1512(g)(1); see Pugh, 945 F.3d at 21.

United States v. Hilliard, Not Reported in Fed. Rptr. (2024)

Hilliard contends that the court should have instructed the

jury that the government had the burden to prove that “she

knew that there was an ‘official proceeding,’ ” and that she

“knew that the proceeding was specifically before a grand

jury[.]” Appellant's Br. at 54–55. But the statute requires

neither knowledge of a pending proceeding nor knowledge

that a proceeding is or will be federal. To the extent that

Hilliard argues that the indictment in this case specifically

charged her with obstructing a proceeding she knew to be

federal, we disagree. Consistent with the statute, the

indictment charged her with obstructing an official

proceeding, which in fact turned out to be federal.

Hilliard also challenges the sufficiency of the evidence

supporting her conviction on the obstruction charges,

claiming that the evidence at most showed that Hilliard knew

of or reasonably foresaw a law enforcement investigation,

and did not intentionally direct any obstructive conduct at an

official proceeding before a grand jury. In essence, her claim

is that there was insufficient evidence to satisfy the nexus

requirement of the statute. As we have explained, Section

1512(c)(2) requires “a ‘nexus’ between the defendant's

conduct and the pending, or foreseeable, official

proceeding.” Pugh, 945 F.3d at 21 (quotation marks

omitted). This is satisfied when “the defendant's acts have a

relationship in time, causation, or logic with the judicial

proceedings,” meaning that the defendant's conduct “must

have the natural and probable effect of interfering with the

due administration of justice.” Id. at 22 (quotation marks

omitted).

There was enough evidence for the jury to find this required

link between Hilliard's conduct and a reasonably foreseeable

federal grand jury proceeding. From watching (and taking

notes on) the videotaped interviews, Hilliard knew that there

was a federal investigation into a pattern of criminal activity

related to the Brims and that the government had received

significant cooperating testimony about that activity. She

also knew that her son and the witnesses had already been

arrested by state authorities for some of the same conduct

that was being federally investigated as part of a larger

pattern of criminal activity. It was thus foreseeable that an

official proceeding, such as a grand jury proceeding, would

follow. Cf. Pugh, 945 F.3d at 22 (reasoning that defendant's

knowledge of a citizen criminally charged for attempting to

join ISIS supported the inference that a similar proceeding

was foreseeable to him for his similar conduct). The fact that

“every inquiry from [federal law enforcement] might not

render a grand jury investigation reasonably foreseeable is of

no avail” to Hilliard, because in these circumstances “there

was sufficient evidence of foreseeability in this case.”

United States v. Binday, 804 F.3d 558, 590–91 (2d Cir.

2015), abrograted on other grounds by

Ciminelli v.

United States, 598 U.S. 306 (2023).

*5 Finally, sufficient evidence supports a finding that

Hilliard's retaliation—effectively placing a target on the

witnesses’ backs in retaliation for their cooperation with the

government—had “the natural and probable effect” of

interfering with the reasonably foreseeable grand jury

investigation. Pugh, 945 F.3d at 22 (finding that destruction

of devices “to impair their use [as evidence] in a reasonably

foreseeable

official

proceeding”

satisfied

nexus

requirement).

“Viewed in the light most favorable to the government, and

drawing all reasonable inferences in its favor, as we must,”

the evidence was sufficient for the jury to conclude that

Hilliard foresaw an official proceeding and retaliated against

witnesses in order to impede use of their testimony in that

proceeding. Id. at 23. Hilliard therefore cannot sustain the

“heavy burden” of her sufficiency challenge.

United

States v. Krivoi, 80 F.4th 142, 155 (2d Cir. 2023) (quotation

marks omitted).

III. Evidentiary Challenges

Hilliard also argues that the district court wrongly admitted

unfairly prejudicial gang-related evidence and wrongly

excluded as irrelevant evidence that the video recordings of

the interviews Hilliard posted were not subject to a

protective order. Evidence is relevant if “it has any tendency

to make a fact more or less probable than it would be without

the evidence,” and the fact is “of consequence in determining

the action,” but relevant evidence may be excluded if “its

probative value is substantially outweighed” by a risk of

(among other things) “unfair prejudice.” Fed. R. Evid. 401,

403.

We review a district court's evidentiary rulings “for abuse of

the district court's broad discretion, reversing only when the

United States v. Hilliard, Not Reported in Fed. Rptr. (2024)

court has acted arbitrarily or irrationally.”

United States v.

Nektalov, 461 F.3d 309, 318 (2d Cir. 2006) (quotation marks

omitted). Our “highly deferential” review acknowledges “the

district court's superior position to assess relevancy and to

weigh the probative value of evidence against its potential

for unfair prejudice.” United States v. Gabinskaya, 829 F.3d

127, 134 (2d Cir. 2016) (quotation marks omitted).

Here, the district court did not abuse its discretion with

respect to either category of evidence. Hilliard emphasizes

the potentially unfair prejudicial impact of gang-related

evidence, highlighting testimony from an ex-Brims member

about crimes the gang committed and the fact that he was

shot for being a suspected cooperator, as well as testimony

interpreting gang-related documents and terms. But evidence

about Hilliard's familiarity with the Brims and about how

that gang treats cooperators was clearly relevant to Hilliard's

intent in bringing the witnesses’ cooperation with the

government to gang members’ attention. It was highly

probative of what she knew would happen if she exposed

their cooperation to gang members, and therefore of what

she may have intended in doing so. Additionally, evidence of

the Brims’ criminal activity was relevant to establishing the

basis for the federal investigation and eventual grand jury

proceeding that Hilliard obstructed. While Hilliard

complains generally about the potential unfair prejudice of

evidence associating her with a criminal gang, she fails to

show that the district court abused its broad discretion.

Nor did the district court abuse its discretion in deciding to

exclude evidence that the videotaped interviews were not

subject to a protective order in the state proceedings against

Hilliard's son, absent any evidence that Hilliard was aware of

this fact. Hilliard was not charged with violating a protective

order. Whether or not the recordings were subject to a

protective order is a fact that, standing on its own, does not

make any element of Hilliard's charged offenses more or less

likely to be true. As the district court put it, there were

“many rules she probably didn't violate, but it's not an issue

in this case.” App'x at 321; cf.

United States v. Dawkins,

999 F.3d 767, 792 (2d Cir. 2021) (explaining the general

inadmissibility of “good acts” evidence).

*6 Importantly, the district court allowed that Hilliard could

discuss her awareness of the lack of a protective order as

relevant to her intent, supporting an argument that she

thought she was doing nothing wrong in posting the videos

online. But the court determined—correctly—that the mere

fact that the videos were not covered by a protective order

was irrelevant “[w]ithout some connection to Ms. Hilliard

herself.” App'x at 322. Simply put, it was not of consequence

to the charged offenses that she did not also commit some

other violation.

IV. Sentencing Challenge

Finally, Hilliard challenges the procedural reasonableness of

her sentence, arguing that the district court wrongly applied a

sentencing enhancement for an offense that “involved

causing or threatening to cause physical injury to a person, or

property damage, in order to obstruct the administration of

justice[.]”

U.S.S.G. § 2J1.2(b)(1)(B). The district court

applied this enhancement because it found that Hilliard's

posting the videos constituted an implicit threat to the

witnesses, in order to interfere with the grand jury

investigation. Hilliard argues that these findings were clearly

erroneous, but we need not resolve that dispute because any

error was clearly harmless.

The court unequivocally stated that it “would have given [the

same] sentence regardless of the applicable advisory

guidelines range.” App'x at 1727. This “unambiguous

indication” assures us that any potential error in applying the

enhancement was harmless. United States v. Feldman, 647

F.3d 450, 459 (2d Cir. 2011); see

United States v. Jass,

569 F.3d 47, 68 (2d Cir. 2009) (“confidently” finding

harmless error where “the district court unequivocally stated

that it would impose the same 65-year sentence” regardless

of a sentencing enhancement dispute).

***

We have considered Hilliard's remaining arguments on

appeal and find them to be without merit. Accordingly, we

AFFIRM the judgment of the district court.

All Citations

Not Reported in Fed. Rptr., 2024 WL 3634201

United States v. Hilliard, Not Reported in Fed. Rptr. (2024)

Footnotes

Judge Richard K. Eaton, of the United States Court of International Trade, sitting by designation.

Contrary to the government's argument, we conclude that Hilliard did not waive this argument by failing to raise it in

the district court. In her motion to dismiss the (operative) superseding indictment, Hilliard argued not only that

Section 1513(e) is facially overbroad but also that it was “unconstitutional as applied” to her. See Gov't App'x at 28,

31-33.

Hilliard argues that we should apply the constitutional facts doctrine, under which courts “conduct an independent

review of the record ... to be sure that the speech in question actually falls within the unprotected category[.]” Hunt,

82 F.4th at 135 (cleaned up). We do not think the doctrine needs to be applied here, because the determination of

whether Hilliard's speech was integral to her criminal conduct does not involve “elusive constitutional standards” and

is more an “ordinary question[ ] of fact” than one “implicat[ing] legal principles.” Id. at 136 (quotation marks

omitted). But we do not need to resolve this dispute because, even if we reviewed the record without any deference to

the jury's findings, we would still conclude that the government proved beyond a reasonable doubt that Hilliard's

speech was integral to her retaliation.

End of Document

United States v. Hilliard, Slip Copy (2022)

2022 WL 2803356

Only the Westlaw citation is currently available.

United States District Court, E.D. New York.

UNITED STATES of America,

Tawanna HILLIARD, Defendant.

19-CR-358 (S-1) (PKC)

Signed July 18, 2022

Attorneys and Law Firms

Drew Godfrey Rolle, Jennifer M. Sasso, Nicholas Moscow,

Nathan Daniel Reilly, Government Attorneys, Lindsey Oken,

United States Attorney's Office, Brooklyn, NY, Nathan

Daniel Reilly, Government Attorney, Morrison & Foerster

LLP, New York, NY, for United States of America.

Ezra Spilke, Law Offices of Ezra Spilke, PLLC, Brooklyn,

NY, Paula J. Natori, Attorney at Law, Madison, NJ, Paula

Jaclyn Notari, The Law Office of Paula J. Notari c/o Meister

Seelig & Fein LLP, New York, NY, for Defendant.

harass witnesses, witness harassment, conspiracy to obstruct

justice, obstruction of justice, and unauthorized computer

access. (Indictment, Dkt. 1.) On February 23, 2022, the

Government filed a Superseding (S-1) Indictment against

Defendant, adding charges of conspiracy to retaliate against

witnesses and witness retaliation against two witnesses, John

and Jane Doe, for their provision of truthful information to a

law enforcement officer about the actual or possible

commission of a federal crime, in violation of 18 U.S.C. §

1513(f) and 18 U.S.C. § 1513(e) (collectively, “Counts 1 and

2”). (See Superseding Indictment, Dkt. 72, 1–2.)

On March 25, 2022, Defendant filed a motion to dismiss

Counts 1 and 2, arguing that 18 U.S.C. § 1513(e) (“Section

1513(e)”) is unconstitutionally vague and overbroad.

(Defendant's Memorandum of Law in Support of Motion to

Dismiss (“Def.’s Mot.”), Dkt. 84.) The Government filed its

opposition to the motion to dismiss on April 4, 2022.

(Government's Memorandum of Law in Opposition to the

Defendant's Motion to Dismiss (“Gov. Opp.”), Dkt. 92.) On

April 5, 2022, the Court denied Defendant's motion to

dismiss Counts 1 and 2, indicating that “[a] written decision

will follow.” (4/5/2022 Dkt. Order.)1

DISCUSSION

MEMORANDUM & OPINION

PAMELA K. CHEN, United States District Judge:

*1 The Court memorializes and further explains the

reasoning behind its April 5, 2022, decision denying

Defendant's Motion to Dismiss Counts One and Two of the

Superseding (S-1) Indictment, which charges Defendant,

respectively, with conspiracy to engage in witness retaliation

and witness retaliation, in violation of 18 U.S.C. §§ 1513(f)

and 1513(e). (4/5/2022 Dkt. Order.)

BACKGROUND

Defendant Tawanna Hilliard was indicted on August 8,

2019, in a seven-count indictment on charges of conspiracy

to tamper with witnesses, witness tampering, conspiracy to

I. Legal Standards

Vagueness and overbreadth challenges “are distinct concerns,

the first implicating the Due Process Clause[s] and the latter

the First Amendment.”

United States v. Farhane, 634 F.3d

127, 136 (2d Cir. 2011) (citations omitted). A vagueness

challenge to a statute can be brought either as an “asapplied” challenge or a facial challenge. An as-applied

challenge is “often raised as [a] defense[ ] to individual

prosecutions,” in which a criminal defendant “asserts that a

law cannot constitutionally be applied to [their] individual

circumstances.”

Copeland v. Vance, 893 F.3d 101, 110 (2d

Cir. 2018) (citations omitted). A facial vagueness challenge,

on the other hand, claims “that a statute is so fatally

indefinite that it cannot constitutionally be applied to

anyone.” Id.

United States v. Hilliard, Slip Copy (2022)

A. Vagueness Challenges

“A statute can be impermissibly vague for either of two

independent reasons.”

Hill v. Colorado, 530 U.S. 703,

732 (2000). First, a statute is unconstitutionally vague “if it

fails to provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits.” Id.

Second, a statute can be unconstitutionally vague “if its

vagueness makes the law unacceptably vulnerable to

‘arbitrary enforcement.’ ” United States v. Demott, 906 F.3d

231, 237 (2d Cir. 2018) (quoting

Kolender v. Lawson, 461

U.S. 352, 357–58 (1983)). Therefore, “all vagueness

challenges—whether facial or as-applied—require [an]

answer two separate questions: whether the statute gives

adequate notice, and whether it creates a threat of arbitrary

enforcement.”

Farrell v. Burke, 449 F.3d 470, 485 (2d

Cir. 2006). The Second Circuit has held that district courts

presented with both as-applied and facial vagueness

challenges to a statute should analyze the as-applied

argument first, because a facial challenge on vagueness can

“depend[ ] upon whether the challenged regulation was

constitutional as applied to the plaintiff.” Id.

*2 When a statute is challenged under the first vagueness

ground (i.e., the notice ground), courts must conduct an

“objective inquiry” to determine “whether the law presents

an ordinary person with sufficient notice of or the

opportunity to understand what conduct is prohibited or

proscribed, not whether a particular plaintiff actually

received a warning that alerted him or her to the danger of

being held to account for the behavior in question.”

Copeland, 893 F.3d at 114 (quotations and citations omitted).

Courts have also found that a statute's “scienter requirement

may mitigate a law's vagueness, especially where the

defendant alleges inadequate notice.” See

id. at 121

(quotations and citations omitted).

As for challenges based on the second vagueness ground

(i.e., the arbitrary and discriminatory enforcement ground), a

court should reject such a challenge if it finds “either (1) that

a statute as a general matter provides sufficiently clear

standards to minimize the risk of arbitrary enforcement or (2)

that, even without such standards, the conduct at issue falls

within the core of the statute's prohibition, so that the

enforcement was not the result of the unfettered discretion

that law enforcement officers and factfinders might have in

other, hypothetical applications of the statute.” Thibodeau v.

Portuondo, 486 F.3d 61, 67–68 (2d Cir. 2007).

B. Overbreadth Challenges

A different analysis applies for overbreadth challenges.

Whereas a vagueness challenge can be either facial or asapplied, all First Amendment overbreadth challenges are

necessarily facial challenges. See United States v. Thompson,

896 F.3d 155, 162–63 (2d Cir. 2018). This is because “an

overbreadth challenge by its nature assumes that the measure

is constitutional as applied to the party before the court.”

Farrell, 449 F.3d at 498. A court's “first step in [an]

overbreadth analysis is to construe the statute,” since “it is

impossible to determine whether a statute reaches too far

without first knowing what the statute covers.”

United

States v. Williams, 553 U.S. 285, 293 (2008). The next step is

to determine whether the statute, as construed, “criminalizes

a substantial amount of protected expressive activity.”

Id.

at 297. A statute is facially invalid for overbreadth if its

“application to protected speech [is] substantial” both “in an

absolute sense” and “relative to the scope of the law's plainly

legitimate applications.” See

Virginia v. Hicks, 539 U.S.

113, 119–20 (2003); see also

City of Houston, Tex. v. Hill,

482 U.S. 451, 458 (1987) (“Only a statute that is

substantially overbroad may be invalidated on its face.”).

Because of this high standard, “overbreadth challenges to

statutes that primarily target conduct, rather than speech or

conduct ‘necessarily associated with speech’ ” will “ ‘rarely,

if ever,’ succeed.”

United States v. Thompson, 141 F.

Supp. 3d 188, 199 (E.D.N.Y. 2015) (quoting

Hicks, 539

U.S at 124). Examples of “conduct necessarily associated

with speech” include picketing or demonstrating.

Hicks,

539 U.S. at 124. Lastly, the party challenging the statute on

overbreadth grounds “bears the burden of demonstrating”

that the statute is unconstitutionally overbroad.

Id. at 122.

II. 18 U.S.C. § 1513(e) Is Not Unconstitutionally Vague

Defendant

contends

that

Section

1513(e)

unconstitutionally vague, “both facially and as applied.”

(Def.’s Mot., Dkt. 84, 5.) Defendant's entire vagueness

argument is presented in three paragraphs and can be

distilled into two separate points. First, Defendant claims

that “the ordinary person does not understand that posting a

United States v. Hilliard, Slip Copy (2022)

video on the internet of a witness's post-arrest statement is

subject to criminal penalties.” (Id., Dkt. 84, 5.) The Court

construes this as a facial vagueness challenge based on the

“adequate notice” ground. Separately, Defendant asserts that

“[t]he danger of arbitrary enforcement is illustrated by this

very case,” (id., Dkt. 84, 6), which the Court understands as

an-applied challenge premised on the “arbitrary and

discriminatory enforcement” ground of vagueness.

*3 As explained above, district courts generally start by

analyzing as-applied vagueness challenges. See

Farrell, 449 F.3d at 485 (citations omitted). Defendant's asapplied argument is spare to the point of being impossible to

discern. Defendant's argument is premised on a single fact,

i.e., that she “had a career” as a “federal employee,” and a

single assertion, i.e., that the Government “offers no

evidence that she was unsatisfactory in her performance of

that job or that she was found to be untrustworthy.” (Def.’s

Mot., Dkt. 84, 6.)

These two points utterly fail to inform the Court's primary

inquiry: whether the statute provides sufficiently clear

standards to minimize the risk of arbitrary enforcement. See

Thibodeau, 486 F.3d at 67–68. Section 1513(e) makes it a

crime to “knowingly, with intent to retaliate, take[ ] any

action harmful to any person, including interference with the

lawful employment or livelihood of any person, for

providing to a law enforcement officer any truthful

information relating to the commission or possible

commission of any Federal offense....” 18 U.S.C. § 1513(e).

Defendant does not identify specific parts of the statute that

supposedly encourage or authorize discriminatory or

arbitrary enforcement. In fact, Congress made clear in

enacting Section 1513(e) that only defendants who act “with

intent to retaliate” against witnesses, and specifically

witnesses who have provided truthful information about

federal criminal activity, can be prosecuted under this statute.

See 18 U.S.C. § 1513(e). Furthermore, the Government

cannot charge individuals with violating Section 1513(e)

unless the allegedly criminal actions were “harmful,” which

explicitly includes “interference with ... lawful employment

or livelihood.” Id. These are the types of “clear standards

[that] minimize the risk of arbitrary enforcement,” such that

the Court cannot find that the statute is unconstitutionally

vague. Thibodeau, 486 F.3d at 67–68; see also United States

v. Nursey, No. 15–CR–112, 2015 WL 7074570, at *4 (M.D.

Ala. Aug. 7, 2015) (similarly interpreting Section 1513(e) as

not being void for vagueness).

Furthermore, Defendant's alleged criminal conduct falls

within “the core of the statute's prohibition.” Thibodeau, 486

F.3d at 67–68. In its superseding indictment and motions in

limine, the Government alleged that Defendant violated

Section 1513(e) by posting videos of John and Jane Doe,

who were arrested with Defendant's son after all three fled

from the commission of a robbery of a cellular telephone

store. (See Superseding Indictment, Dkt. 72, 1–2;

Government's First Motion in limine (“Gov. motion in

limine”), Dkt. 79, 8–9.) The Government also alleged that

Defendant's posting of the videos, which were of John and

Jane Doe's post-arrest statements to law enforcement, led to

death threats against John and Jane Doe, (Gov. motion in

limine, Dkt. 79, 11), and that the decision to tag individuals

and characterize their actions as “snitching” is part of the

“overwhelming evidence” the Government had gathered of

Defendant's intent to retaliate, (id., 20). Based on the

language of the statute and the Government's allegations as

of April 5, 2022, the Court is convinced that Defendant's

alleged criminal actions are exactly the type of conduct that

Section 1513 is intended to prohibit. Therefore, the

Government's decision to prosecute Defendant for conspiring

to violate, and violating, Section 1513 “was not the result of

the unfettered discretion that law enforcement officers and

factfinders might have in other, hypothetical applications of

the statute.” Thibodeau, 486 F.3d at 67–68.

*4 Defendant's facial vagueness challenge fares no better.

Defendant's motion not only fails to identify any specific

words or phrases in the statutory provision that are vague,

but relies solely on a law review article to support her

position that Section 1513(e) fails to adequately notify “the

ordinary person” of the conduct it prohibits. (See Def. Mot.,

Dkt. 84, 5–6) (citing Eugene Volokh, Crime-Facilitating

Speech, 57 Stan. L. Rev. 1095, 1207 (2005).) A law

professor's legal commentary is, of course, no substitute for

binding case law, and this Court does not find it to be even

persuasive authority on how ordinary people would

understand Section 1513 or whether it is unconstitutionally

vague. Further, neither party has identified any decisions

finding that Section 1513(e) is unconstitutionally vague

because it fails to provide adequate notice of the prohibited

conduct. (See Def. Mot., Dkt. 84, 5–6; see also Gov. Opp.,

United States v. Hilliard, Slip Copy (2022)

Dkt. 92, 6–7 (explaining that Defendant “has not identified a

single case in which a court held that taking retaliatory

action against whistleblowers [in violation of 18 U.S.C. §

1513] is constitutionally protected, and the government is

aware of none”).)

Indeed, both parties cite the Sixth Circuit decision in United

States v. Edwards, which rejected a similar argument that a

defendant was not on notice that posting pictures on

Facebook of a cooperating witness testifying during trial

could violate Section 1513(e) because of the statute's vague

language. See

783 F. App'x 540 (6th Cir. 2019) (“Edwards

I”). The panel in Edwards I rejected the defendant's

vagueness challenge, finding that the language of Section

1513(e) uses “plain, common language,” such that “[a]n

ordinary person can understand that posting” pictures

identifying a cooperating witness on the Internet would be

“harmful action” that falls within the ambit of the statute.

Id. at 542, 545. Furthermore, the Sixth Circuit concluded that

the statute's scienter requirements “dramatically narrow[ed]

the universe of possible offending activity,” which would

provide even more notice to an ordinary person as to the

conduct that would be actually criminalized under Section

1513(e).

Id. at 545.

The Sixth Circuit's analysis of Section 1513(e) is not only

persuasive, but consistent with the Second Circuit's

precedents on analyzing lack-of-notice vagueness

challenges. See, e.g.,

Copeland, 893 F.3d at 121 (“To be

sure, a statute's scienter requirement may mitigate a law's

vagueness, especially where the defendant alleges inadequate

notice.”) (brackets and quotations omitted). This Court finds

that an ordinary person reviewing the language of Section

1513(e) would be on notice that the conduct alleged in

Counts 1 and 2 of the Superseding Indictment, i.e., posting

videos online of co-defendants’ post-arrest statements to law

enforcement officers implicating a co-conspirator and/or

fellow gang member, coupled with naming those codefendants and characterizing their actions as “snitching,” is

prohibited by Section 1513(e).

Accordingly, the Court rejects Defendant's facial and asapplied vagueness challenges to the Section 1513(e) crimes

charged in Counts 1 and 2 of the Superseding (S-1)

Indictment.

III. 18 U.S.C. § 1513(e) Is Not Unconstitutionally

Overbroad

Defendant argues that Section 1513(e) “sweeps too broadly

by outlawing clearly protected expression that belongs in the

public sphere.” (Def.’s Mot., Dkt. 84, 3.) However, as the

Government points out, Defendant “does not identify any

constitutionally problematic application of the statute.” (Gov.

Opp., Dkt. 92, 4.) The fact that Defendant fails to put forth

any protected expressions that this statute would criminalize

is not surprising, given the overall statutory construction.

Section 1513(e) requires the Government to prove beyond a

reasonable doubt that a defendant (1) knowingly acted

against a person who provided truthful information to law

enforcement about a federal crime; (2) that such action was

taken with intent to retaliate against the person providing

such information; and (3) that the act was harmful to either

that person or other persons. See United States v. Edwards,

291 F. Supp. 3d 828, 832 (S.D. Oh. 2017) (similarly

construing the language of Section 1513(e)). The plain

language of the statute makes clear that defendants violate

this law if they acted “knowingly” and “with intent to

retaliate.” In other words, the conduct must be intentionally

threatening to the victim, which, as a general matter,

removes it from the protections of the First Amendment. See

United States v. Santos, 801 F. App'x 814, 816 (2d Cir. 2020)

(summary order) (finding that “[a]lthough [statute

prohibiting threats against public officials] criminalizes

certain speech, the Supreme Court has held that the First

Amendment does not afford protection to speech that

constitutes a ‘true threat.’ ”) (quoting

Watts v. United

States, 394 U.S. 705, 708 (1969)). The scienter requirements

in Section 1513(e) “weigh[ ] heavily against a conclusion

that the statute is overbroad” because they “dramatically

narrow the universe of possible offending activity.” See

United States v. Edwards, 2020 WL 9607176, at *3 (6th Cir.

2020) (“Edwards II”). Another strong indication that the

statute is not overbroad is the fact that the language of

Section 1513(e) is not “specifically addressed to speech or to

conduct necessarily associated with speech (such as

picketing or demonstration).”

Hicks, 539 U.S at 124.2 The

Supreme Court has advised that overbreadth challenges are

rarely successful against statutes that are not focused on

speech or speech-related activities, see id., and the Court

finds that Section 1513(e) is no exception.

10a

United States v. Hilliard, Slip Copy (2022)

*5 The remaining points in Defendant's motion are no more

persuasive. After citing to Edwards I and another out-ofcircuit case in which criminal prosecution was brought under

Section 1513(e),

United States v. Snow, No. 19-CR-18,

2022 WL 252183 (W.D. Va. Jan. 26, 2022), Defendant

summarily concludes that a “substantial number of the

statute's applications are unconstitutional.” (See Def. Mot.,

Dkt. 84, 5). This argument is as incorrect as it is brief and

conclusory. In neither case did the defendants successfully

challenge the constitutionally of Section 1513(e). See Mot. to

Dismiss, Snow, No. 19-CR-18, Dkts. 120, 126 (seeking to

dismiss some claims, but not the claim relating to Section

1513(e);

Edwards I, 783 F. App'x at 545 n.3 (explaining

that “[n]othing in this opinion should be construed to

comment on whether § 1513(e) is overbroad or violative of

the First Amendment” because the “issue was neither

brought nor briefed before” the panel in Edwards I); see also

Edwards II, 2020 WL 9607176, at *3 (finding that defendant

“Edwards has not made a substantial case that Section

1513(e) is overbroad”). Other cases cited by Defendant are

also inapposite as those cases involve charges brought under

completely unrelated statutes, such as state laws

criminalizing witness retaliation. (See Def. Mot., Dkt. 84, 5

(citing

Lee-Purvis v. Pennsylvania, 314 F. Supp. 3d 665

(E.D. Pa. 2018), in which the defendant was charged with

and convicted of, inter alia, violating Pennsylvania's witness

retaliation statute).)

substantial amount of[,] protected expressive activity,” see

Williams, 553 U.S. at 297, and accordingly has failed to

show that this statute is unconstitutionally overbroad.4

CONCLUSION

*6 For the reasons stated herein, this Court finds that 18

U.S.C. § 1513(e) is neither unconstitutionally overbroad nor

unconstitutionally vague. Defendant's motion to dismiss

Counts 1 and 2 of the Superseding Indictment is accordingly

denied.

All Citations

Slip Copy, 2022 WL 2803356

Another section of Defendant's brief cites to a litany of

Supreme Court opinions that recite uncontested principles of

First Amendment law, none of which pertain to the

overbreadth doctrine. (See Def. Mot., Dkt. 84, 3–4.) For

example, Defendant asserts that the Supreme Court in

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982),

already “settled the issue that even speech intended to cause

economic harm is constitutionally protected.” (Def. Mot.,

Dkt. 84, 4.) Defendant fails to address, however, that

Claiborne involved an economic boycott over racial

discrimination by white merchants, which is the type of

peaceful political “expression on public issues [that] has

always rested on the highest rung of the hierarchy of

First

Amendment values[,]” Claiborne, 458 U.S. at 913—not

intentionally threatening conduct as alleged here.3 The Court

finds that Claiborne is plainly inapplicable to this case and

that Defendant has otherwise failed to satisfy her burden of

showing that Section 1513(e) criminalizes any, no less “a

11a

United States v. Hilliard, Slip Copy (2022)

Footnotes

The Court recites only those facts necessary to resolve this Motion, and relies only on those facts that were known to

the Court as of April 5, 2022.

The same is true for the other subsections of 18 U.S.C. § 1513. Courts have recognized that Congress’ purpose in

enacting the statute that included 18 U.S.C. § 1513(a)–(d) was “to strengthen existing legal protection for victims and

witnesses of federal crimes,” many of whom cooperate with law enforcement at their “own risk.” See, e.g.,

United

States v. Ferrugia, 604 F. Supp. 668, 675 (E.D.N.Y. 1985) (citations omitted).

Furthermore, the fact that “harm” under Section 1513(e) includes economic harm, namely, “interference with lawful

employment or livelihood”—which is what Defendant appears to be obliquely referencing in her argument—does not

make the statute constitutionally overbroad. See Edwards, 2020 WL 9607176, at *2 (rejecting similar arguments

about overbreadth of Section 1513(e) based on Claiborne).

In the overbreadth challenge, Defendant relies once again on the law review article by Professor Volokh who asserts

that “publishing the names of crime witnesses can help the public evaluate whether witnesses’ stories are credible or

not.” (See Def. Mot., Dkt. 84, 3.) Yet, the article is again unhelpful to Defendant because the conduct alleged here

goes far beyond simply publishing the names of crime witnesses. The Government alleges that John and Jane Doe

were not mere bystanders or third-party crime witnesses or victims, but were co-conspirators of Defendant's son (see

Gov. motion in limine, Dkt. 79, 8–9); that Defendant posted their videotaped post-arrest statements to law

enforcement, not just their names (id., 19); and that, at least as to John Doe, there is “overwhelming” evidence that

Defendant's actions were motivated by a desire to retaliate or otherwise harm him (id., 20). Therefore, the law review

article, even if the Court were to give it any weight, describes a far more innocuous situation than the facts alleged in

this case.

End of Document

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.