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Golb v. Attorney General of State of New York

United States Court of Appeals, Second Circuit

August 31, 2017

RAPHAEL GOLB, Petitioner-Appellant-Cross Appellee,
v.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, Respondent-Appellee-Cross Appellant,

          Argued: June 23, 2017

         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.

          Before: JACOBS, LEVAL, and RAGGI, Circuit Judges.

          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 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 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.

         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 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:

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-historians-work[1] 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 ...

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