23-6256 United States v. Hilliard

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 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 2nd day of August, two thousand twenty-four.

PRESENT: ALISON J. NATHAN, MARIA ARAÚJO KAHN, Circuit Judges, RICHARD K. EATON, Judge.* _____________________________________

United States of America,

Appellee,

v. 23-6256

Tyquan Hilliard,

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

Tawanna Hilliard,

Defendant-Appellant.

_____________________________________

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.

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.

Defendant-Appellant Tawanna Hilliard appeals from her conviction and

2 sentence for witness retaliation and conspiracy to commit witness retaliation, in

violation of

(e) and (f), and for obstruction of justice and

conspiracy to obstruct justice, in violation of

(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 5-9 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

3 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

(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

4 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 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.

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,

(2010)

(cleaned up); see Giboney v. Empire Storage & Ice Co.,

(1949); Friend

v. Gasparino,

(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,

(2d Cir. 2007) (cleaned up).

1 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.

5 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,

(quoting Giboney,

). Speech is unprotected when, as here, it is “the

very vehicle of the crime itself[.]” Gagliardi,

(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,

(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

6 could have been drawn in its favor.”

(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.”

(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

2 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,

(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.”

(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.

7 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.

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,

(2d Cir. 2018). An

overbreadth claim is a special kind of facial challenge that allows litigants to

8 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,

(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 the statute’s lawful sweep.”

(quotation marks omitted). “In the absence of a lopsided ratio, courts must

handle unconstitutional applications as they usually do—case-by-case.”

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

9 disproportionate” to its “lawful sweep.” Hansen,

. To the extent

any applications of Section 1513(e) might raise First Amendment questions, “as-

applied challenges can take it from here.”

.

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,

(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.,

, 498–99 (1982). And vagueness analysis is especially

“stringent” when a statute impinges on speech. Holder v. Humanitarian L.

Project,

, 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

10 unconstitutionally vague.” See United States v. Houtar,

(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,

(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.”

(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,

.

11 II. Challenges to the Obstruction Counts

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,

. But even if

it did not, we find no error with the district court’s instructions. Hilliard was

charged and convicted under

(c), which covers anyone who

“corruptly . . . obstructs, influences, or impedes any official proceeding, or

attempts to do so[.]”

(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,

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

defined to include various federal proceedings including “a proceeding before .

. . a Federal grand jury.”

(a)(1)(A). The obstructed proceeding

“need not be pending or about to be instituted at the time of the offense,”

§

12 1512(f)(1), but must be “reasonably foreseeable to the defendant,” United States

v. Pugh,

(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.

(g)(1); see Pugh,

.

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

13 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,

(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.”

(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

14 was thus foreseeable that an official proceeding, such as a grand jury proceeding,

would follow. Cf. Pugh,

(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,

, 590–91 (2d Cir. 2015), abrograted on other

grounds by Ciminelli v. United States,

(2023).

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,

(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

15 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.

. Hilliard therefore cannot sustain the “heavy burden” of her sufficiency

challenge. United States v. Krivoi,

(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 court has acted arbitrarily or

irrationally.” United States v. Nektalov,

(2d Cir. 2006) (quotation

16 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,

(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

17 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,

(2d Cir. 2021)

(explaining the general inadmissibility of “good acts” evidence).

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

18 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

19 applying the enhancement was harmless. United States v. Feldman,

(2d Cir. 2011); see United States v. Jass,

(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.

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

20