United States v. Ho Ka Terence Yung

37 F.4th 70

UNITED STATES of America

v.Ho Ka Terence YUNG, Appellant.

No. 19-1640 & 20-3448

United States Court of Appeals, Third Circuit.

Argued: January 12, 2022

Filed: June 13, 2022

Peter Goldberger [ARGUED], 50 Rittenhouse Place, Ardmore, PA 19003, Edson A. Bostic, Tieffa N. Harper, Federal Public Defender's Office, 800 King Street, Suite 200, Wilmington, DE 19801, Counsel for Appellant

Ruth Mandelbaum [ARGUED], Shawn A. Weede, United States Attorney's Office, 1313 N. Market St., Hercules Building, Suite 400, Wilmington, DE 19801, Counsel for Appellee

Before: RESTREPO, BIBAS, and ROTH, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

The First Amendment limits the government's power to punish offensive or annoying speech. Convicted under a cyber-stalking statute, Ho Ka Terence Yung challenges that law as overbroad. But to avoid this problem, we read the statute narrowly and so will affirm his conviction.

Yung also challenges his restitution order. Yung had waived much of his right to appeal, including any challenge to the restitution order. But enforcing that waiver would threaten the separation of powers, so we must hear Yung's challenge. And because part of the restitution order was not authorized by statute, we will vacate that order.

I. THE SPURNED APPLICANT TURNS CYBERSTALKER

Yung wanted to go to Georgetown Law. He had good grades and strong test scores. So Georgetown invited him to interview with an alumnus. But that interview went poorly. Yung thought his interviewer was insensitive and rude. And a few weeks later, Georgetown rejected him.

Though Yung eventually got into a good law school, Georgetown's rejection still stung. So a year later, he struck back against the interviewer. First, he launched a cyber-campaign: he created fake obituaries for the interviewer's wife and son; social-media profiles littered with Ku Klux Klan content in the interviewer's name; and blog posts as the inter-viewer, bragging about raping women, a boy, and an eight-year-old girl. A Google search of the interviewer's name revealed thousands of similar posts. As a reader of the posts re-marked: "Someone is really out to nail this guy to a cross." JA 219.

Next, Yung filed false reports. Posing as a female Georgetown applicant on law school fora, he accused the interviewer of groping, bigotry, and threatening professional retaliation. And in reports to the Better Business Bureau, he accused the interviewer of sexually assaulting a female associate and berating prospective employees. He "strongly encouraged [the interviewer's employer] to fire this dirty old man." JA 176.

Yung's cyber-harassment spilled over into the real world. Impersonating the interviewer's wife, he published an online ad seeking a sex slave. When one man responded to the ad, Yung ordered him to spy on the family. The wife, another ad claimed, "like[d] it when a man puts his hand around [her] throat and threaten[s] [her] with a knife" and "gun" before forcing her to have sex. JA 168. Because of Yung's antics, the interviewer's family got hundreds of phone calls from men seeking sex with the interviewer, his wife, or their son. "[Y]ou pick up the phone and the first thing they ask is how big is your ... genitalia," the interviewer testified. JA 325. Responding to other sexual ads, strange men even came to the interviewer's home in the wee hours of three consecutive mornings.

This harassment campaign turned the family's life into a "nightmare." JA 295. They were terrified that every strange visitor sought to "rape and murder" them. JA 296. They worked with police to plan safe hiding places in their home in case someone broke in. They disconnected their phone every night and quit walking around the neighborhood. And they feared that they would "never know [normalcy] again." JA 296.

Because the family's son studied at Georgetown, the family informed it of the threat. Georgetown worried that the son would be targeted there too, so it added security.

Eventually, the interviewer hired lawyers and cyber-investigators, "begging" them to track down the puppeteer. JA 162. Working with the FBI, the investigators traced it all back to Yung.

Yung was charged with cyberstalking. 18 U.S.C. §§ 2261A(2)(B) & 2261(b). Faced with a mountain of evidence, he challenged the cyberstalking law as overbroad under the First Amendment. But when that challenge failed, he pleaded guilty. Though he waived most of his right to appeal, he reserved his right to appeal the overbreadth ruling and any sentence above the statutory maximum.

Yung was sentenced to nearly four years in prison plus three years of probation. He was also ordered to pay restitution for the interviewer's investigative costs (nearly $70,000) and Georgetown's security measures ($130,000).

On appeal, Yung revives his overbreadth challenge and contests the restitution order. The government responds that his plea agreement lets him appeal only overbreadth, not restitution. We review each issue de novo. United States v. Gonzalez , 905 F.3d 165, 190 (3d Cir. 2018) ; United States v. Quillen , 335 F.3d 219, 221 (3d Cir. 2003).

II. THE CYBERSTALKING STATUTE IS NOT OVERBROAD

Yung first challenges his conviction under the cyberstalking law. He does not argue that it restricts his protected speech or is improper as applied to him. And he likely could not. The First Amendment does not protect defaming a private person or making "true threats": that is, "serious[ly] express[ing] an intent to commit an act of unlawful violence to" particular people. Virginia v. Black , 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) ; see Chaplinsky v. New Hampshire , 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

Rather than challenge the law as applied, Yung attacks it as overbroad and thus facially invalid. He says it "punishes a substantial amount of [others'] protected free speech." Yung Br. at 18–19 (quoting Virginia v. Hicks , 539 U.S. 113, 118–19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) ).

Overbreadth doctrine is a constitutional anomaly. Ordinarily, litigants lack standing to challenge laws simply because they "may conceivably be applied unconstitutionally to others." Broadrick v. Oklahoma , 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). But we have relaxed that standing requirement in First Amendment cases to stop overbroad laws from chilling protected speech. Id. at 612, 93 S.Ct. 2908.

Yet invalidating a law as overbroad is "strong medicine" that we should use "sparingly." Id. at 613, 93 S.Ct. 2908. Courts must hesitate before stopping the government from prosecuting conduct that it has the power to ban. Id. at 615, 93 S.Ct. 2908. And the overbreadth exception to ordinary standing rules has been cogently criticized. See United States v. Sineneng-Smith , ––– U.S. ––––, 140 S. Ct. 1575, 1583–88, 206 L.Ed.2d 866 (2020) (Thomas, J., concurring). So we will not expand it. Before striking down a law, we must ensure that any over-breadth is both "real" and "substantial." Broadrick , 413 U.S. at 615, 93 S.Ct. 2908. Because we can avoid reading this statute as overbroad, we will. Id. at 613, 93 S.Ct. 2908 ; New York v. Ferber , 458 U.S. 747, 769 n.24, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

A. The statute

Congress enacted the cyberstalking law in 2006 and broadened it in 2013. As amended, it makes a defendant a cyber-stalker if he checks three boxes:

• An act. The defendant must "use[ ] the mail, any interactive computer service or electronic communication service or ... system ..., or any other facility of interstate or foreign commerce" at least twice. 18 U.S.C. § 2261A(2) ; see also § 2266(2).

• An intent. He must have acted "with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person." § 2261A(2).

• A result. Finally, his actions must cause some emotional response. They must either put the target "in reasonable fear of ... death ... or serious bodily injury," or "cause[ ], attempt[ ] to cause, or ... be reasonably expected to cause substantial emotional distress." § 2261A(2)(A), (B). Because Yung pleaded guilty to the emotional-distress result element, we focus on that one.

This is not the first time that we have entertained an overbreadth challenge to the statute. A few years ago, we rejected an overbreadth challenge to the 2006 version of Section 2261A. Gonzalez , 905 F.3d at 190 n.10. But the 2013 amendment broadened its scope. Now the law punishes not only those who intend to harass, but also those who intend to intimidate. Compare 18 U.S.C. § 2261A(2) (2006), with id. (2013). Plus, a defendant no longer has to cause substantial emotional distress. It is enough that his conduct be "reasonably expected to cause" such distress. Compare id. (2006), with id. (2013). Because the revised law reaches further, we must review it again.

The government argues that the act, intent, and result elements limit prosecution to "prohibited actions with a serious criminal intent" that "cause serious harm." Gov't Br. 27; see United States v. Ackell , 907 F.3d 67, 74–77 (1st Cir. 2018) (adopting the government's position). Read that way, there would be no First Amendment problem. Yung counters that the law punishes lots of protected speech.

Ultimately, we reject Yung's argument. True, if read broadly, the statute would punish protected speech. We agree with Yung that the act and result elements are not enough to save it. But if we can, we must read the statute narrowly enough to avoid constitutional problems. And here, a narrow reading of the statute's intent element is plausible. So the statute is not overbroad.

B. The act element captures both conduct and speech

By itself, the act element does not prevent overbreadth. The more speech a law punishes, the likelier it is to be overbroad. Hicks , 539 U.S. at 124, 123 S.Ct. 2191. Here, we reject the government's position that the cyberstalking "statute focuses on conduct, not speech." Gov't Br. at 24. Rather,...