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 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 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 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
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, 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).
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, 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
6 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
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, 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.
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, 896 F.3d 155, 161 (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, 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 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-by-case.” 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
9 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, “as-
applied 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
10 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.
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, 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. §
12 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.
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, 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
14 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).
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
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.
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 court has acted arbitrarily or
irrationally.” United States v. Nektalov, 461 F.3d 309, 318 (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,
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
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, 999 F.3d 767, 792 (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, 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.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court