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
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
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
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
                               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
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

(frank.cross2@gmail.com) 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 “larry.schiffman@gmail.com” 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
         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

larry.schiffman@gmail.com 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-pilfer-
         chicago-historian-s-work

     1
       This link leads to the article Golb wrote under the
pseudonym “Peter Kaufman.”
                              7
           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

“seidel.jonathan@gmail.com” 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.”    Id. at

1039-41.   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
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 1039-
41. 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
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
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.      Id.

at 468.   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
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


                               12
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



                                13
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 single-

sentence 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
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.    In an



                             15
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.”    Osborne v. Ohio, 495

U.S. 103, 118 (1990).    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



                               16
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

harm.”     Golb III, 23 N.Y.3d at 466.     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.        Osborne, 495 U.S. at

118.     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.     See Chapman v. California, 386

U.S. 18, 24 (1967).     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


                                17
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

value.”     Calandra v. Rothwax, 65 N.Y.2d 897, 897 (N.Y.

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



                                18
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


                                19
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.”     Shuttlesworth, 382 U.S.

at 92.   The Supreme Court has since clarified that holding:

“Shuttlesworth, then, stands for the proposition that where


                                20
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.”    Osborne, 495 U.S. at

118.    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



                               21
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.”    N.Y. Penal Law

§ 190.25(1).    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.”    Golb III, 23 N.Y.3d at 465-66

(emphasis in original).    The Shuttlesworth inquiry in this

case is whether the difference in interpretation between the



                               22
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.     See Jackson, 763 F.3d at



                                23
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.”     Joint App’x

at 1045, 1064.)     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
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



                              25
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

                             26
          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



                                27
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.   “[T]he

     3
      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.
                              28
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.”     Kolender v. Lawson, 461

U.S. 352, 357 (1983).     A fairminded jurist could find that

the Court of Appeals’ interpretation is sufficiently well-

defined 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




                                29
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.
                                   30
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.    28 U.S.C.

§ 2254(d)(1).



                               31
    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.”     The verb “deceive” has several

definitions.   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).        A

broader reading of “deceive” makes the statute

unconstitutional, while the narrower reading saves it.

Second, in the statute, “deceive” appears in series with



                                 32
“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



                              33
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
