Golb v. Attorney General of the State

Filing

OPINION, the order of the district court is affirmed in part and reversed in part, by DJ, PNL, RR, FILED.[2114534] [16-452, 16-647]

Case 16-452, Document 131-1, 08/31/2017, 2114534, Page1 of 34

16-0452-pr(L)
Golb v. Attorney General of the State of New York

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2016
(Argued: June 23, 2017

Decided: August 31, 2017)

Docket Nos. 16-0452-pr, 16-0647-pr
- - - - - - - - - - - - - - - - - - - -x
RAPHAEL GOLB,
Petitioner-Appellant-Cross Appellee,
- v.THE ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Respondent-Appellee-Cross Appellant,
- - - - - - - - - - - - - - - - - - - -x
Before:

JACOBS, LEVAL, and RAGGI, Circuit Judges.

Raphael Golb appeals the denial of habeas corpus relief
as to his state court convictions for criminal impersonation
and forgery.

We affirm in part and reverse in part: 1) Golb

was convicted under an overbroad version of the criminal
impersonation statute that has been narrowed by the New York
Court of Appeals, and some of his convictions are therefore
invalid; 2) his First Amendment facial challenge to the
criminal impersonation statute fails; and 3) his First

Case 16-452, Document 131-1, 08/31/2017, 2114534, Page2 of 34

Amendment challenge to the forgery statute as construed by
the New York Court of Appeals succeeds in part and fails in
part.

AEDPA deference applies to the New York courts’

decisions as to the second and third of Golb’s challenges,
but not to the first.
RONALD L. KUBY (Leah M. Busby,
on the brief), New York, New
York, for Appellant Raphael
Golb.

Joel B. Rudin, New York, New
York, for Appellant Raphael
Golb.
VINCENT RIVELLESE, (Alan Gadlin,
on the brief) on behalf of Cyrus
R. Vance, Jr., District
Attorney, New York County, for
Appellee Attorney General of the
State of New York.

DENNIS JACOBS, Circuit Judge:
In the academic debate about who wrote the Dead Sea
Scrolls, petitioner-appellant Raphael Golb (“Golb”) was
deeply committed to the side championed by his father Norman
Golb.

To further his father’s position, Golb wrote several

emails impersonating other scholars in an apparent effort to
at least embarrass proponents of the rival view and, in some
instances, harm their reputations.

A Manhattan grand jury

charged him with, inter alia, multiple counts of criminal

2

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impersonation in the second degree and forgery in the third
degree.

He was convicted of most of those charges and

pursued appeals up through the New York Court of Appeals,
which vacated several convictions and narrowed the scope of
the criminal impersonation statute, but left most of the
convictions intact.
In this federal habeas proceeding, the District Court
for the Southern District of New York (Failla, J.) granted
relief from two of Golb’s convictions, and denied it as to
the other 17.
Golb makes three arguments as to why his surviving
convictions must be vacated.

In opposition, the state

prosecutors argue on the merits and rely on the deference
owed to state courts under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214 (1996).
!

First, Golb invokes Shuttlesworth v. City of

Birmingham, 382 U.S. 87 (1965), arguing that his
impersonation convictions must be vacated if the jury
might have relied on the impermissibly overbroad
literal terms of the statute that the Court of Appeals
subsequently narrowed.

We owe no AEDPA deference on

3

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this question because the New York Court of Appeals did
not answer it “on the merits.”

28 U.S.C. § 2254(d).

We conclude that four of Golb’s criminal impersonation
convictions must be vacated under Shuttlesworth, but
that five of them are so reliably supported by the
evidence that they survive.
!

Second, Golb argues that the criminal

impersonation statute is facially unconstitutional.

We

do owe AEDPA deference as to this challenge, and we
conclude that the New York courts’ resolution of this
issue was not so unreasonable as to require habeas
relief.
!

Third, Golb argues that the criminal forgery

statute is unconstitutionally overbroad.

We conclude

that the statute, as interpreted by the trial court and
the Court of Appeals, is so clearly overbroad as to be
facially unconstitutional notwithstanding AEDPA
deference.

We narrow the statute to save it, and grant

the habeas petition as to some (but not all) of the
forgery convictions.

4

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I
This case arises from a protracted academic debate
about who wrote the Dead Sea Scrolls, ancient documents
discovered in the 1940s and 1950s in a group of caves near
Jerusalem.

Most academics think that they were written by a

Jewish sect called the Essenes who reportedly lived nearby
(the “Essene Theory”), while the defendant’s father Norman
Golb, a professor at the University of Chicago, argues that
they had many disparate authors and were hidden in caves
when Roman armies attacked Jerusalem in 70 A.D. (the “Golb
Theory”).
The defendant is not a Scrolls scholar, but he has
devoted much time to advocating for his father’s theory
online.

His anonymous and pseudonymous advocacy raises no

issue here.

But one of Golb’s email tactics was to

impersonate other Scrolls scholars.

The surviving criminal

counts in this case are based on ten such emails, in which
Golb impersonated, variously, Frank Cross, Lawrence
Schiffman, and Jonathan Seidel--all scholars of the Scrolls.
We review the three impersonations in turn.
In mid-2008, Bart Ehrman, a proponent of the Essene
Theory, was invited to lecture at a museum exhibit about the

5

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Scrolls.

Golb wrote an anonymous blog post arguing that

Ehrman should not have been invited and criticizing the
Essene Theory.

Golb also created an email address

([e-mail]) which he used to impersonate Frank
Cross, a well-known Scrolls scholar who has taught at
Harvard and Wellesley.

Using that email address, Golb sent

emails to four scholars at the University of North
Carolina–-the host of the exhibit--which contained a link to
his blog post and stated: “It looks like Bart [Ehrman] has
gone and put his foot in his mouth again . . . I’m seeing
this crop up everywhere on the web.”

Joint App’x at 1066.

The email was signed “Frank Cross.”
In the fall of 2008, the Jewish Museum in New York City
invited Professor Lawrence Schiffman of New York University,
also a proponent of the Essene Theory, to lecture at its
exhibit on the Scrolls.

Golb published an article using the

pseudonym “Peter Kaufman” which accused Schiffman of
plagiarizing some of Norman Golb’s work.

The same day, Golb

created the email address “[e-mail]” and
sent the following message to four of Schiffman’s graduate
students, including a link to the “Peter Kaufman” article
accusing Schiffman of plagiarism:

6

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Miryam, Sara, Cory, Ariel,
Apparently, someone is intent on exposing a minor
failing of mine that dates back almost fifteen
years ago.
You are not to mention the name of the scholar in
question to any of our students, and every effort
must be made to prevent this article from coming
to their attention. This is my career at stake.
I hope you will all understand.
http://www.nowpublic.com/culture/plagiarism-and-de
ad-sea-scrolls-did-nyu-professor-snitch-chicago-hi
storians-work1
Lawrence Schiffman
Id. at 1130.
The next day, Golb sent another message from the
[e-mail] email address, this time to every
member of Schiffman’s department at NYU, again attaching a
link to the “Peter Kaufman” accusatory article:
Dear colleagues,
Apparently, someone is intent on exposing a minor
failing of mine that dates back almost fifteen
years ago.
Every effort must be made to prevent this article
from coming to students’ attention. This is my
career at stake. I hope you will all understand.
http://www.nowpublic.com/culture/plagiarism-and-de
ad-sea-scrolls-did-nyu-department-chairman-pilferchicago-historian-s-work
1

This link leads to the article Golb wrote under the
pseudonym “Peter Kaufman.”
7

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Lawrence Schiffman
Id. at 1139.
More emails from the Schiffman address went to the Dean
and Provost of NYU, asking what the putative writer could do
to “counter charges of plagiarism that have been raised
against me,” and conceding “[i]t is true that I should have
cited Dr. Golb’s articles when using his arguments, and it
is true that I misrepresented his ideas.”

Id. at 1137.

Golb’s email to the Dean was then forwarded by Golb to NYU’s
student newspaper, with the added exhortation: “I must ask
you not to publish a word about this.”

Id. at 1136.

A few months later, a Scrolls exhibit opened at the
Royal Ontario Museum.

Golb created the email address

“[e-mail]” and used it to ask the Museum’s
Board of Trustees whether Norman Golb would be invited to
lecture, while also calling a previous public statement by
the Museum’s curator “shockingly obscurantist.”
1039-41.

Id. at

The prosecutors contend that Golb’s use of

“seidel.jonathan” was an attempt to impersonate a Professor
of Judaic Studies at the University of Oregon.

Golb-as-

Seidel then emailed the exhibit’s curator to ask whether she
would respond to Golb’s father’s critique of the exhibit.
8

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Similar emails from the same address were dispatched to
dozens of Scrolls scholars; those, however, added an
unfavorable critique of Norman Golb’s work.

A Manhattan grand jury charged Golb in a 51-count
indictment.

The only convictions now before us, and the

only counts we discuss, are nine for criminal impersonation
in the second degree and ten for forgery in the third
degree.

(An explanation of which emails correspond to each

count is in the margin.)2

The criminal impersonation

2

Count 7 (criminal impersonation) and count 8
(forgery) are based on an August 4, 2008 email impersonating
Schiffman which can be found at Joint App’x 1130. Count 10
(impersonation) and count 11 (forgery) are based on an
August 5, 2008 email impersonating Schiffman which can be
found at Joint App’x 1139. Count 13 (impersonation) and
count 14 (forgery) are based on a different August 5, 2008
email impersonating Schiffman which can be found at Joint
App’x 1137. Count 16 (impersonation) and count 17 (forgery)
are based on yet another August 5, 2008 email impersonating
Schiffman which can be found at Joint App’x 1138. Count 19
(impersonation) and count 20 (forgery) are based on an
August 6, 2008 email impersonating Schiffman which can be
found at Joint App’x 1142. Count 25 (impersonation) and
count 27 (forgery) are based on a November 22, 2008 email
impersonating Seidel which can be found at Joint App’x 103941. Count 31 (forgery) is based on a November 24, 2008
email impersonating Seidel which can be found at Joint App’x
1044. Count 33 (impersonation) and count 35 (forgery) are
based on another November 24, 2008 email impersonating
Seidel which can be found at Joint App’x 1045. Count 37
(impersonation) and count 39 (forgery) are based on a
December 6, 2008 email impersonating Seidel which can be
9

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statute provides:
A person is guilty of criminal impersonation in
the second degree when he . . . [i]mpersonates
another and does an act in such assumed character
with intent to obtain a benefit or to injure or
defraud another[.]
N.Y. Penal Law § 190.25(1).

The forgery statute provides:

A person is guilty of forgery in the third degree
when, with intent to defraud, deceive or injure
another, he falsely makes, completes or alters a
written instrument.
N.Y. Penal Law § 170.05.

At trial, Golb sought jury instructions defining
several statutory terms, including ”injure,” but the jury
charge offered no definitions of “injure” or of “deceive.”
The jury convicted Golb on 14 counts of criminal
impersonation and ten counts of forgery, and the First
Department affirmed all of those convictions.

960 N.Y.S.2d

66 (1st Dep’t 2013) (“Golb I”).
The New York Court of Appeals entered an order
accepting the appeal.

20 N.Y.3d 1099 (2013) (“Golb II”).

Golb argued to that court that the absence of limiting jury
instructions made the criminal impersonation and forgery
found at Joint App’x 1064. Count 46 (impersonation) and
count 47 (forgery) are based on a July 20, 2008 email
impersonating Cross which can be found at Joint App’x 1066.

10

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statutes unconstitutionally overbroad.

The majority agreed

with Golb “that the statutory terms ‘injure’ and ‘benefit’
cannot be construed to apply to any injury or benefit, no
matter how slight,” but they “conclude[d] that injury to
reputation is within the ‘injury’ contemplated by Penal Law
§ 190.25.”

23 N.Y.3d 455, 465 (N.Y. 2014)(“Golb III”)

(emphasis in original).

Given that ruling, the majority

found sufficient evidence that the emails impersonating
Schiffman, Seidel, and Cross were sent “with intent to do
real harm.”

Id. at 466.

Nine of the 14 surviving criminal

impersonation convictions were therefore affirmed; the other
five, based on the creation of the fake email accounts, or
on other insubstantial email conduct, were vacated.

Id.

The ten forgery convictions were affirmed in a single
paragraph that did not purport to narrow the statute.
at 468.

Id.

Then-Chief Judge Lippman partially dissented on the

ground that the First Amendment required vacatur of all the
criminal impersonation and forgery convictions.

Id. at 469-

71 (Lippman, C.J., dissenting).
Golb’s subsequent motion for reargument in the Court of
Appeals contended that, under Shuttlesworth, 382 U.S. 87, he
was entitled to a new trial on the criminal impersonation

11

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counts because he was tried using an overbroad version of
the statute that the Court of Appeals had subsequently
narrowed.

The Court of Appeals denied the motion for

reargument saying nothing more than “Motion for reargument
denied.”

24 N.Y.3d 932 (N.Y. 2014) (“Golb IV”).

On remand,

the trial court rejected the Shuttlesworth argument on
procedural grounds and resentenced Golb to two months in
prison on the surviving convictions.

The First Department

also rejected the Shuttlesworth argument on procedural
grounds, 5 N.Y.S.3d 46 (1st Dep’t 2015) (“Golb V”), and the
Court of Appeals denied leave to appeal, 26 N.Y.3d 929 (N.Y.
2015) (“Golb VI”).
Golb then filed this federal habeas petition.

The

district court granted relief as to two criminal
impersonation counts, denied relief as to the seven other
criminal impersonation counts, and denied relief as to the
ten forgery counts.

No. 15-cv-1709, 2016 WL 297726

(S.D.N.Y. Jan. 21, 2016) (“Golb VII”).

The parties cross-

appeal.

II
AEDPA instructs federal courts in habeas cases to give

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great deference to state court decisions when those
decisions are “on the merits.”

28 U.S.C. § 2254(d). In such

cases, we may grant a habeas petition only if the state
court decision:
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
Id.

The standard is deliberately “difficult to meet and

highly deferential,” Contreras v. Artus, 778 F.3d 97, 106
(2d Cir. 2015) (internal punctuation omitted), and permits
the grant of habeas “in cases where there is no possibility
fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme] Court’s precedents.”
Harrington v. Richter, 562 U.S. 86, 102 (2011).
However, this deference arises only as to “any claim
that was adjudicated on the merits in State court
proceedings.”

28 U.S.C. § 2254(d).

The question whether

Golb’s various claims were “adjudicated on the merits” in
the New York courts requires considerable analysis.

Two

Supreme Court cases provide most of the governing law on

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whether state court decisions were decided on the merits.
In Harrington, 562 U.S. 86, the Supreme Court said that a
state court had adjudicated a claim “on the merits”
notwithstanding that the appeal was rejected in a singlesentence summary order.

As the Court explained, a state

court need not give reasons for rejecting a claim:
When a federal claim has been presented to a state
court and the state court has denied relief, it
may be presumed that the state court adjudicated
the claim on the merits in the absence of any
indication or state-law procedural principles to
the contrary. The presumption may be overcome
when there is reason to think some other
explanation for the state court’s decision is more
likely.
Id. at 99-100 (internal citations omitted).

The presumption

was not overcome in that case, and the Court did not specify
what it might take to do so.
Two years later, in Johnson v. Williams, 568 U.S. 289
(2013), the Court considered the petition of a defendant who
had argued parallel state and federal claims to the state
court. Although the state court explicitly rejected only the
state claim, the Supreme Court held that AEDPA deference was
nevertheless owed on the federal claim because there were
any number of reasons the state court might not have felt
the need to explicitly mention a federal claim when

14

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rejecting a collateral attack or an appeal.

Id. At 293.

However, the Court made clear that the presumption that
claims were adjudicated on the merits is “strong” but “not
irrebuttable”: a footnote cited Baldwin v. Reese, 541 U.S.
27, 29 (2004) for the proposition that, “when a defendant
does so little to raise his claim that he fails to fairly
present it in each appropriate state court, the []
presumption is fully rebutted.”

Id. at 302 n.3 (internal

citation and quotation marks omitted).
Accordingly, when a

state court denies a claim that

was squarely presented, there is a strong presumption that
the denial is “on the merits.”

On the other hand, there is

no such automatic presumption if the petitioner failed to
squarely present the claim in state court.

We might still

conclude that a state court rejected an argument on the
merits even if a petitioner did not raise it–-a court might
sua sponte raise and reject a claim, for example–-but no
presumption arises.
Ordinarily, such a rule does a petitioner no good.
Exhaustion requirements and procedural default rules prevent
a petitioner from securing de novo habeas review of federal
claims not properly raised before the state court.

15

In an

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unusual case, however, a petitioner may pass between
obstacles--as in Golb’s Shuttlesworth claim.

Golb’s direct

appeal briefs failed to squarely present the Shuttlesworth
claim to the Court of Appeals because his Shuttlesworth
claim first came into being when that court issued its
opinion narrowing the criminal impersonation statute in Golb
III.

By its nature, a Shuttlesworth claim will usually

arise only “where a State Supreme Court narrows an
unconstitutionally overbroad statute.”
U.S. 103, 118 (1990).

Osborne v. Ohio, 495

This is therefore the rare case in

which there is both no failure of exhaustion and no
presumption that the Court of Appeals rejected the federal
claim on the merits.
The prosecutors advance two reasons why we nevertheless
owe AEDPA deference on the Shuttlesworth claim.

First, they

argue that the Court of Appeals implicitly raised and
rejected any Shuttlesworth claim on its own in Golb III by
upholding certain criminal impersonation counts of
conviction under its narrowed construction.

We are not

persuaded.
If Golb III rejected a Shuttlesworth challenge sua
sponte, we would expect it to reference Shuttlesworth

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directly or indirectly.

It does not.

In limiting the scope

of the statute, the Court of Appeals found “sufficient
evidence to support the jury’s finding that defendant’s
emails impersonating Schiffman, Seidel and Cross were more
than a prank intended to cause temporary embarrassment or
discomfiture, and that [Golb] acted with intent to do real
Golb III, 23 N.Y.3d at 466.

harm.”

That wording does not

respond to the Shuttlesworth question.

Sufficiency under a

curtailed version of the statute does not bear upon whether
we are sure “that defendants are convicted under the statute
as it is subsequently construed and not as it was originally
written,” as Shuttlesworth requires.
118.

Osborne, 495 U.S. at

It is the difference between whether a reasonable jury

could have convicted given the right instruction, and
whether there is assurance beyond a reasonable doubt that a
jury would have done so.
U.S. 18, 24 (1967).

See Chapman v. California, 386

We cannot conclude that Golb III

rejected the Shuttlesworth claim “on the merits.”
The prosecutors also point out that Golb explicitly
raised a

Shuttlesworth claim in an unsuccessful motion for

reargument based on the Court of Appeals’ narrowed
interpretation.

According to the prosecutors, Golb IV’s

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rejection of that motion in four words--“Motion for
reargument denied”–-is a decision “on the merits.”

However,

in the New York Court of Appeals (a court of discretionary
jurisdiction), the “denial of a motion for leave to appeal
is not equivalent to an affirmance and has no precedential
Calandra v. Rothwax, 65 N.Y.2d 897, 897 (N.Y.

value.”
1985).

The rule is the same in the United States Supreme

Court: “the denial of a writ of certiorari imports no
expression of opinion upon the merits of the case.”

Teague

v. Lane, 489 U.S. 288, 296 (1989) (internal quotation marks
and citation omitted).

By analogy, the Court of Appeals’

discretionary denial of rehearing was not a decision “on the
merits,” and we accordingly owe no deference on the
Shuttlesworth claim.
We reach a different conclusion as to Golb’s facial
challenges to the criminal impersonation and forgery
statutes.

Golb squarely presented his facial challenges to

the Court of Appeals in his first set of briefs.

Although

that court’s opinion in Golb III did not explicitly say why
it rejected those challenges, “[w]hen a state court rejects
a federal claim without expressly addressing that claim, a
federal habeas court must presume that the federal claim was

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adjudicated on the merits[.]”

Johnson, 568 U.S. at 301.

That presumption can sometimes be rebutted, id., but Golb
has not done nearly enough to rebut it here.

When a state

court rejects a constitutional claim without explanation, as
here, our job is to “determine what arguments or theories
supported or . . . could have supported [] the state court’s
decision,” and then “ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme] Court.”

Harrington, 562 U.S. at 102 (emphasis

added).

III
Golb raises three challenges to his convictions.

The

first, based on Shuttlesworth, is not subject to AEDPA
deference.

It succeeds as to some of his criminal

impersonation counts and fails as to others.

The second, a

facial challenge to the criminal impersonation statute, must
overcome AEDPA deference.

That challenge fails entirely.

The third, a facial challenge to the forgery statute, must
also overcome AEDPA deference.

But because the statute as

interpreted by the Court of Appeals is unconstitutionally

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overbroad, we narrow it and grant the habeas petition as to
five of the ten forgery convictions.

A.

The Shuttlesworth Claim
In Shuttlesworth, an African-American civil rights

leader was convicted after a bench trial of violating a
broad anti-loitering law.

Shuttlesworth, 382 U.S. at 89.

Two years later in a separate case, the Court of Appeals of
Alabama construed the statute narrowly, thereby avoiding
constitutional overbreadth.

See Middlebrooks v. City of

Birmingham, 170 So.2d 424 (Ala. Ct. App. 1964).

Meanwhile,

Shuttlesworth’s ensuing appeal of his conviction worked its
way to the United States Supreme Court.

The Court held that

the anti-loitering statute, as narrowed by the Alabama
Court, was constitutional.

But it also ruled that

Shuttlesworth’s own conviction must be vacated: “Because we
are unable to say that the Alabama courts in this case did
not judge the petitioner by an unconstitutional construction
of the ordinance, the petitioner’s conviction under [the
loitering statute] cannot stand.”
at 92.

Shuttlesworth, 382 U.S.

The Supreme Court has since clarified that holding:

“Shuttlesworth, then, stands for the proposition that where

20

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a State Supreme Court narrows an unconstitutionally
overbroad statute, the State must ensure that defendants are
convicted under the statute as it is subsequently construed
and not as it was originally written.”
118.

Osborne, 495 U.S. at

But how sure must courts be that a petitioner was

“convicted under the statute as it is subsequently construed
and not as it was originally written”?

Id.

In a habeas

case, the standard of review is whether “the constitutional
violation had a substantial and injurious effect or
influence in determining the jury’s verdict.”

Jackson v.

Conway, 763 F.3d 115, 140 (2d Cir. 2014) (internal quotation
marks and citation omitted).
The prosecutors here argue that Shuttlesworth applies
only when a State Supreme Court narrows a statute on
constitutional grounds, whereas the New York Court of
Appeals narrowed the statute on state law grounds (not
because of the First Amendment).

They misread both the

Court of Appeals’ opinion and Shuttlesworth itself.

While

the majority opinion did not explicitly cite the First
Amendment in narrowing the criminal impersonation statute,
Golb’s arguments about the statute were based on the First
Amendment, the dissent was about the First Amendment, and

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the majority did not explain its result on a ground of state
law.

The most reasonable way to read the opinion is as a

narrowing construction to save the statute from violating
the First Amendment.

In any event, the Bill of Rights has

more than one Amendment.

Even if the Court of Appeals had

narrowed the statute on a state law ground, a conviction
under a statute that never criminalized the conduct of
conviction would violate the Fifth Amendment right to Due
Process.
The criminal impersonation statute criminalizes
“[i]mpersonat[ing] another . . . with intent to obtain a
benefit or to injure or defraud another.”
§ 190.25(1).

N.Y. Penal Law

The trial court, over objection, declined to

define “injure” for the jury, allowing the jurors to convict
for any conceivable interpretation of what it means to
intend to “injure.”

The Court of Appeals found that the

term “cannot be construed to apply to any injury;” it is
limited to intent to cause 1) “a tangible, pecuniary
injury,” 2) “interfere[nce] with governmental operations,”
or 3) harm to “reputation.”
(emphasis in original).

Golb III, 23 N.Y.3d at 465-66

The Shuttlesworth inquiry in this

case is whether the difference in interpretation between the

22

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Court of Appeals and the trial court might reasonably have
led to Golb’s wrongful conviction on any of the criminal
impersonation counts.

Those counts can be grouped into four

categories.
1.

Five counts are based on emails sent under the name

Lawrence Schiffman.

In these emails, Golb-as-Schiffman

confessed to plagiarism and misrepresentation, and asked
recipients, including a student newspaper, to supress the
facts of his misdeeds in order to protect him.

These emails

were clearly sent with the intent to damage Schiffman’s
reputation.

Indeed, Golb sent the Schiffman emails at the

same time that he emailed NYU administrators from a separate
pseudonymous account requesting that they investigate the
possible plagiarism--with the result that those
administrators pursued the allegations of misconduct.

As

Golb acknowledged during his trial, plagiarism “is one of
the more serious forms of unethical conduct anybody can
engage in in the academic world.”

Joint App’x at 643.

The

only alternate theory Golb puts forward is that the jury
might have convicted on the theory that he simply intended
to embarrass Schiffman; but that is too implausible to
require a grant of habeas relief.

23

See Jackson, 763 F.3d at

Case 16-452, Document 131-1, 08/31/2017, 2114534, Page24 of 34

140.

The district court denied habeas as to these

convictions, and we affirm.
2.

Two counts are based on emails sent under the name

Jonathan Seidel, disparaging Golb’s father.

(The emails

refer to Norman Golb and his views as “filth.”
at 1045, 1064.)

Joint App’x

The defendant’s intent in sending these

emails is obscure: Golb-as-Seidel sent other emails
seemingly relying on Seidel’s good repute.

We therefore

lack sufficient confidence that the jury convicted based on
the narrower meaning of “injure,” as opposed to a mere
desire to antagonize.

The district court granted the habeas

petition as to these convictions, and we affirm its
judgment.

See Jackson, 763 F.3d at 142(stating that habeas

relief is proper where the court has “grave doubt about
whether a trial error . . . had substantial and injurious
effect or influence in determining the jury’s verdict . . .”
(internal quotation marks omitted)).
3.

A single count is based on an email that Golb sent

under the name Jonathan Seidel to the Royal Ontario Museum’s
Board of Trustees.

The email asked whether the Museum

intended to have Golb’s father lecture at an exhibit about
the Scrolls.

The district court upheld this conviction on

24

Case 16-452, Document 131-1, 08/31/2017, 2114534, Page25 of 34

the theory that Golb intended to get a benefit--a speaking
role for his father–-rather than that Golb intended to
injure.

That is possible, but the email also attacks

various individuals in a way likely to cause consternation,
rather than any tangible, pecuniary, or reputational impact.
The jury may well have impermissibly convicted Golb on this
count under the theory that he intended to cause annoyance
rather than a culpable injury.

We therefore reverse the

judgment of the district court and grant the habeas petition
as to this conviction.
4.

A single count is based on an email Golb sent under

the name “Frank Cross” which said that “Bart has gone and
put his foot in his mouth again.”

Joint App’x at 1066.

The

district court upheld this conviction on the theory that it
was intended to hurt Professor Bart Ehrman’s reputation.
But the email is so mild and puerile that it might have been
intended to embarrass Ehrman without actual injury to his
reputation, and at no point in the trial did the prosecutors
argue that it was intended to hurt Ehrman.

In light of our

substantial concern that the jury impermissibly convicted
Golb on this count based on the overbroad interpretation of
injure, we therefore reverse the judgment of the district

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court and grant the habeas petition as to this conviction.

B.

Golb’s Facial Challenge to the Criminal Impersonation
Statute
We owe AEDPA deference on Golb’s facial challenge to

the constitutionality of the criminal impersonation statute,
see supra at 18-19, an issue we reach because five criminal
impersonation convictions survive Shuttlesworth review.
Golb argues that the statute is unconstitutional both
because it is overbroad and because the narrowing of it–-by
including damage to reputation as an “injury”–-makes it
unconstitutionally vague.
We reject the overbreadth challenge.

A statute is

facially overbroad
if it prohibits a substantial amount of protected
speech. The doctrine seeks to strike a balance
between competing social costs. On the one hand,
the threat of enforcement of an overbroad law
deters people from engaging in constitutionally
protected speech, inhibiting the free exchange of
ideas. On the other hand, invalidating a law that
in some of its applications is perfectly
constitutional—-particularly a law directed at
conduct so antisocial that it has been made
criminal—-has obvious harmful effects. In order to
maintain an appropriate balance, we have vigorously
enforced the requirement that a statute’s
overbreadth be substantial, not only in an absolute
sense, but also relative to the statute’s plainly
legitimate sweep. Invalidation for overbreadth is
strong medicine that is not to be casually
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Case 16-452, Document 131-1, 08/31/2017, 2114534, Page27 of 34

employed.
United States v. Williams, 553 U.S. 285, 292–93 (2008)
(internal citations and quotation marks omitted; emphasis in
original).
Golb implicitly concedes that the criminal
impersonation statute constitutionally criminalizes some
core conduct; there is no doubt that the state may properly
forbid (for example) impersonating a pawnshop customer in
order to redeem an object of value.

But he argues that

there are categories that the statute improperly
criminalizes: in particular, some types of satire and
parody.

Specifically, he argues that the statute is

facially overbroad because it would criminalize hypothetical
parodies that the Constitution protects.
The First Amendment protects parody, see Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), but Golb
misunderstands the genre.

While it is true that a parody

enjoys First Amendment protection notwithstanding that not
everybody will get the joke, it is also true that parody
depends on somebody getting the joke; parody succeeds only
by its recognition as parody.

An author who intends to fool

everyone may be pulling a prank or perpetrating a hoax, but

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Case 16-452, Document 131-1, 08/31/2017, 2114534, Page28 of 34

the result is not a parody.

Parody thus differs from

“impersonat[ion]” as the term is used in the criminal
impersonation statute.
And even if we did accept Golb’s understanding of
parody, an overbreadth challenge succeeds only if a statute
“prohibits a substantial amount of protected speech.”
Williams, 553 U.S. at 292 (emphasis added).

The overbreadth

must “be substantial, not only in an absolute sense, but
also relative to the statute’s plainly legitimate sweep.”
Id. (emphasis in original).

The criminal impersonation

statute has substantial legitimate sweep, and Golb’s
argument is limited to parody with the intent to injure.
That overbreadth would be insufficient to invalidate the
statute; in any event, a parodist caught up in prosecution
could bring an as-applied challenge to conviction.

Finally,

we owe AEDPA deference on the overbreadth challenge, and it
is certainly not the case that the statute is clearly
unconstitutionally overbroad.3
Nor is it unconstitutionally vague.
3

“[T]he

Insofar as Golb argues that the statute was overbroad
as applied to him, we agree with the Court of Appeals that
the statute was not unconstitutionally applied with regard
to the remaining criminal impersonation convictions related
to the Schiffman emails. The evidence of Golb’s intent to
harm Schiffman’s reputation was overwhelming.
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void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.”
U.S. 352, 357 (1983).

Kolender v. Lawson, 461

A fairminded jurist could find that

the Court of Appeals’ interpretation is sufficiently welldefined to meet both elements, and that is enough to compel
AEDPA deference.

See Harrington, 562 U.S. at 102.

The statute criminalizes impersonation with the intent
to harm another’s reputation.

Reputation is not so elusive

a concept that the ordinary person would fail to understand
it, particularly in a professional context (such as this
one) where the potential injury is evident.

Nor is the

statute so ill-defined that every fairminded jurist would
find that it allows prosecutors to arbitrarily determine
whether or not individuals have committed criminal
impersonation.

The criminal impersonation statute

criminalizes a large swath of conduct, but it is fairly
clear what conduct falls within.

A fairminded jurist could

easily conclude that the prosecutorial power it affords is

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broad but not arbitrary.4

Because the criminal impersonation statute is not
unconstitutionally vague or overbroad, the five convictions
which survived our Shuttlesworth review stand.

C.

Golb’s Facial Challenge to the Forgery Statute
We owe AEDPA deference on Golb’s facial challenge to

the constitutionality of the forgery statute, which
criminalizes “falsely mak[ing], complet[ing] or alter[ing] a
written instrument” when done “with intent to defraud,
deceive or injure another.”

N.Y. Penal Law § 170.05.

The

Court of Appeals affirmed those counts on the ground that
Golb “deceived people,” Golb III, 23 N.Y.3d at 468, and the
holding treats the phrase “intent to [] deceive” to mean an
intent to make another believe something that is false,
regardless of whether there was intent to cause any possible
harm.

Id.

Such a boundless interpretation renders the

4

Golb also cites Skilling v. United States, 561 U.S.
358 (2010), for the proposition that any statute
criminalizing an intangible harm is automatically vague. He
misreads the case. Skilling actually relied on the Supreme
Court’s assessment that the “honest-services decisions
preceding McNally [v. United States, 483 U.S. 350 (1987)],”
were “not models of clarity or consistency.” Skilling, 561
U.S. at 405 (emphasis added). In Skilling, the Court hewed
closely to those cases’ core interpretations of the statute
at issue so as to avoid constitutional questions.
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Case 16-452, Document 131-1, 08/31/2017, 2114534, Page31 of 34

statute so overbroad that any fairminded jurist would find
it unconstitutional.

Pseudonymous product reviews would be

criminalized, as would the use of false names by corporate
or governmental whistleblowers to avoid detection and
retaliation.

Even the use of a pen-name is sometimes a

benign deception.

George Sand, George Eliot, and Currer

Bell were noms de plume used to deceive readers into
believing that they were men; under the Court of Appeals’
interpretation, the authors could all be prosecuted.
Clearly established federal law is to the contrary:

“[g]reat works of literature have frequently been produced
by authors writing under assumed names. . . .

[A]n author’s

decision to remain anonymous, like other decisions
concerning omissions or additions to the content of a
publication, is an aspect of the freedom of speech protected
by the First Amendment.”

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334, 341-42 (1995).

Because the Court of Appeals’

interpretation of the statute violated “clearly established
Federal law, as determined by the Supreme Court of the
United States,”–-i.e., in McIntyre–-that interpretation is
unconstitutional despite AEDPA deference.
§ 2254(d)(1).

31

28 U.S.C.

Case 16-452, Document 131-1, 08/31/2017, 2114534, Page32 of 34

A statute, however, is not unconstitutional on its face
because a single possible interpretation of it is
unconstitutional.

Another reading of this statute is more

plausible, and it has the virtue of being constitutional.
New York’s forgery law criminalizes acting “with intent to
defraud, deceive or injure.”
definitions.

The verb “deceive” has several

Its broadest, most common meaning, which the

Court of Appeals adopted, is to “cause to believe what is
false.”

“Deceive,” The New Shorter Oxford English

Dictionary (1993).

Another definition (albeit more narrow

and more rare) is to “cheat, defraud, [or] deprive of by
deception.”

Id.

Three rules of statutory interpretation

counsel adoption of that narrower, less common definition.
First,“if an otherwise acceptable construction of a statute
would raise serious constitutional problems, and [] an
alternative interpretation of the statute is fairly
possible, we are obligated to construe the statute to avoid
such problems.”

I.N.S. v. St. Cyr, 533 U.S. 289, 299–300

(2001) (internal citations and quotation marks omitted).
broader reading of “deceive” makes the statute
unconstitutional, while the narrower reading saves it.
Second, in the statute, “deceive” appears in series with

32

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“defraud” and “injure.”

Under the interpretative canon

noscitur a sociis, the word “deceive” is deemed to share
relevant characteristics with “defraud” and “injure,” both
of which entail harm.

Third, “ambiguity concerning the

ambit of criminal statutes should be resolved in favor of
lenity.”

Rewis v. United States, 401 U.S. 808, 812 (1971).

The Court of Appeals affirmed Golb’s forgery
convictions on the basis of deception, Golb III, 23 N.Y.3d
at 468, but the jury instructions on forgery failed to
define the term.

An uninstructed jury would likely

understand “deceive” in its commonest definition: to “cause
to believe what is false,” without the stipulation of harm.
That unconstitutionality requires scrutiny of the forgery
convictions.

Five of the forgery convictions were based on

emails falsely attributed to Schiffman, and those
convictions survive because the evidence so clearly supports
Golb’s intent to deceive and cause injury.

As to the other

five forgery convictions, however, it is so likely that the
jury applied the law in an unconstitutional way to convict
Golb that habeas relief is required.
Accordingly, we affirm the district court as to counts
8, 11, 14, 17, and 20; and we reverse (and grant the habeas

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petition) as to counts 27, 31, 35, 39, and 46.

CONCLUSION
For the foregoing reasons, the order of the district
court is AFFIRMED IN PART and REVERSED IN PART.

34