United States v. Joy Edwards ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0428n.06
No. 18-3541
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 16, 2019
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE
JOY EDWARDS, ) SOUTHERN DISTRICT OF
) OHIO
Defendant-Appellant. )
BEFORE: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Joy Edwards made numerous derogatory
posts on Facebook about a confidential informant who testified against her brothers during their
criminal trial. The Facebook posts revealed the informant’s identity and called him—among other
things—a “snitch.” Edwards was indicted on a single count of retaliating against a witness in
violation of 18 U.S.C § 1513(e). At a bench trial, the district court found that the informant
suffered harm as a result of these Facebook posts and that the posts were intended to retaliate
against the informant. Edwards was convicted and sentenced to short terms of prison and lesser
forms of confinement. Edwards appeals. We affirm.
I.
In 2015, D.B. agreed to work with law enforcement as a confidential informant against two
brothers in the town of Steubenville, Ohio. These two brothers, Fred and David McShan, were
suspected of running a drug-trafficking operation. D.B. wore audio and video surveillance
No. 18-3541, United States v. Edwards
equipment while performing controlled buys from the McShan brothers. As a result of D.B.’s
assistance, law enforcement indicted the McShan brothers on multiple charges, including
conspiracy to possess with intent to distribute heroin. D.B. also testified at the McShan brothers’
trial.
The trial took place in Columbus, Ohio, 150 miles from Steubenville. D.B. testified in an
open, public courtroom. A number of Steubenville residents attended the trial. During the trial,
United States Marshals had to remove several of the McShan brothers’ relatives and friends from
the courtroom for recording witness testimony and taking pictures of witnesses, including D.B.,
on the stand. A jury found both brothers guilty and the district court sentenced Fred to 288 months
in prison and David to 74 months in prison.
Several months after the trial, Steubenville residents began posting on the social-media
website Facebook pictures of D.B testifying at the trial. Among the people to do so was Joy
Edwards, a sister of the McShan brothers. Over the course of several days, some of her online
activity included:
• Re-posting another user’s photo of D.B. on the witness stand and calling him a
“snitch” in the comments section
• Commenting on her own post saying “f*** him,” “Look at that bitch ass snitch
lips! They are crack up and ashey white from running it so much! His bitch ass
needs some WD40!”
• Re-posting another user’s doctored photo of D.B. holding a t-shirt with a police
badge on it
• Re-posting another user’s photo of D.B. with the caption “stop snitching” over
it, to which Edwards added, “Snitch ass bitch”
• Commenting on her own post in response to another user’s question about the
identity of D.B., saying, “This guy is snitching! He snitched on my brothers!
And lied about everything!”
• Re-posting another user’s photo of D.B. with the caption “Snitching like a
bitch”
• Re-posting another user’s picture featuring hands in police handcuffs with the
caption “Man up . . . Shut your mouth. Take the charge and don’t snitch.”
• “Liked” numerous other users’ posts of similar material
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Edwards did not capture any photos of D.B. at the trial, nor did she create any of the images
herself. She primarily re-posted others’ images and added her own captions. Her Facebook page
was set to “Public,” meaning that any one of her more than 600 Facebook friends could share her
posts and anyone on Facebook could view them. These Facebook posts by Edwards and others
revealed and broadcast D.B.’s name, nickname, location, family members, and his cooperation
with law enforcement—in addition to generating numerous other derogatory comments by other
persons in the Steubenville area.
After the nearly week-long flurry of Facebook posts regarding D.B., the government
indicted Edwards on one count of retaliating against a witness in violation of 18 U.S.C. § 1513(e).
The government did not indict any other persons. Edwards moved to dismiss the indictment,
arguing that § 1513(e) violates the First Amendment, is unconstitutionally vague, and is
unconstitutionally overbroad. The district court denied the motion to dismiss, holding that §
1513(e) is consistent with the Supreme Court’s ruling in Virginia v. Black, 538 U.S. 343 (2003),
because it requires as an element of the crime “proof that the defendant intended to retaliate.”
Summarizing the order, the district court said, “[i]t is the scienter requirement of the statute that
renders it constitutional.”
Edwards waived her right to a trial by a jury. At the bench trial, the government called
three witnesses. U.S. Marshal Denzler testified about the process of investigating Edwards’
Facebook posts. DEA Special Agent Heufelder testified that law enforcement considers the label
“snitch” to be a threat to its informants. D.B. testified about how his life changed after the
Facebook posts, including his increased difficulty in seeing his children, decreased employment
opportunities in the area, and his fear for his safety and for the safety of his family. At the close
of the government’s arguments, Edwards did not present a defense, and instead orally moved for
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judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The district court denied
the motion and found Edwards guilty under § 1513(e), sentencing her to three months in prison,
followed by three months in a halfway house, three months of home detention, and three years on
supervised release.
On appeal, Edwards makes three claims challenging her conviction. Edwards argues that,
(1) there was insufficient evidence to support her conviction; (2) § 1513(e) is unconstitutionally
vague; (3) she was selectively prosecuted by the government.
II.
A.
First, Edwards argues that there was insufficient evidence for her conviction and therefore
the district court erred in denying her Rule 29 motion. “Although we review the district court’s
denial of [a motion for judgment of acquittal] de novo, we must affirm its decision if the evidence,
viewed in the light most favorable to the government, would allow a rational trier of fact to find
the defendant guilty beyond a reasonable doubt.” United States v. Canan, 48 F.3d 954, 962 (6th
Cir. 1995). Section 1513(e) of the witness retaliation statute states:
Whoever knowingly, with the intent to retaliate, takes any action harmful to any
person, including interference with the lawful employment or livelihood of any
person, for providing to a law enforcement officer any truthful information relating
to the commission or possible commission of any Federal offense, shall be fined
under this title or imprisoned not more than 10 years, or both.
18 U.S.C. § 1513(e). Edwards concedes that she knowingly took an action and that D.B. has
suffered harm. However, Edwards complains that there was insufficient evidence to find beyond
a reasonable doubt that (a) she took the action with intent to retaliate, and that (b) her actions were
the cause of D.B.’s harm.
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Intent.1 Intent may, and generally must, be proven with circumstantial evidence. United
States v. Ross, 502 F.3d 521, 530 (6th Cir. 2007). There is no question that Edwards’s posts were
in response to D.B.’s testimony. She repeatedly referred to D.B. as a “snitch” and a “rat.” When
asked in the comments section by a friend who D.B. was,2 Edwards shot back that he “snitched on
[her] brothers” and that she thought he lied about them. She also posted that “His bitch ass needs
some WD40!”
The district court found credible the government witness’s testimony about the increased
risk of harm associated with the label “snitch.” The trier of fact “is free to infer the intent to
retaliate from the natural consequences likely to flow from the defendant’s actions.” United States
v. Stoker, 706 F.3d 643, 646 (5th Cir. 2013). Given the context of the Facebook posts, particularly
the negative comments about D.B. that were generated by the posts, a rational trier of fact could
easily conclude beyond a reasonable doubt that someone who continued to engage in that activity
intended the foreseeable negative consequences. Indeed, the district court found that “there is no
competing or other purpose for which Defendant’s postings were made, other than to retaliate.”
Edwards counters with three arguments. First, Edwards draws attention to the statute’s
lack of definition for “retaliate.” But “when a word is not defined by statute, we normally construe
it in accord with its ordinary or natural meaning.” Smith v. United States, 508 U.S. 223, 228
(1993). Second, Edwards complains everything she communicated online was both accurate and
already public knowledge. Again, this has nothing to do with whether Edwards intended to
retaliate against D.B by disseminating allegedly true and accurate information. Third, Edwards
points out that she did not create any of the content she shared. However, Edwards was convicted
1
The government argues that the issue of intent was forfeited because it was not included with specificity in the Rule
29 motion at trial. While that appears to be true, the record also shows that the government conceded that the intent
element was “what the whole case is about” when discussing the Rule 29 motion orally with the district court judge.
2
In context, the commenter was basically asking Edwards, “Why are you posting this?”
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for using the content to spread awareness of D.B.’s performance, not for creating the content at
hand—which is, again, irrelevant to the question of her intent in sharing the content. Fourth,
Edwards claims that “she never advocated any retaliatory conduct (physical violence or otherwise)
against [D.B.].” However, § 1513(e) does not require that a defendant expressly advocate
retaliation. It rather applies to “[w]hoever knowingly, with intent to retaliate, makes any action
harmful” to a government witness. 18 § U.S.C. § 1513(e). There is evidence upon which a rational
trier-of-fact could find retaliatory intent, and Edwards does nothing to call into question the
sufficiency of that evidence as to the intent element of § 1513(e).
Causation. Edwards concedes D.B. suffered harm from the collective Facebook posts. But
because numerous other people posted (often much worse) things about D.B., Edwards argues, her
posts alone cannot be sufficient evidence to establish that she caused D.B.’s harm. Unfortunately
for Edwards, federal criminal law does not employ a several liability standard. Indeed, the statute
clearly applies to “Whoever . . . takes any action harmful to any person . . . .” 18 U.S.C. § 1513(e).
In this case, there was evidence of close temporal proximity between Edwards’ Facebook posts
and the subsequent harm suffered by D.B., making it possible for a rational trier of fact to
determine that § 1513(e)’s causation element was satisfied. Although D.B. conceded that some
Steubenville residents knew about his cooperation with the government before Edwards posted on
Facebook, he also claimed that “[w]hen the photos got posted, that’s when mostly the drama picked
up.” D.B. testified that he received “a lot of friend requests” from strangers on Facebook after
Edwards posted, which caused him to feel “a little intimidated” and to doubt whether he “could
safely return to Steubenville.” He also feared for the safety of his family, especially given that his
little sister received a threat after Edwards posted on Facebook in May of 2017. In light of these
concerns, D.B. reduced the frequency of his family visits and refrained from living with family
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members in Steubenville. Viewing this testimony in the light most favorable to the government,
there was sufficient evidence for a rational trier of fact to conclude that Edwards caused D.B.’s
harm by sharing the posts on Facebook.
B.
Next, Edwards argues that § 1513(e) is unconstitutionally vague. We review de novo
questions of law. United States v. Hill, 167 F.3d 1055, 1063 (6th Cir. 1999). A statute is
unconstitutionally vague if it “fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits” or if the statute “authorizes or even
encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732
(2000). Criminal statutes are held to a higher standard than civil statutes. Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). In criminal statutes, “a
scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of
notice to the complainant that his conduct is proscribed.” Id.
As to the notice component of her vagueness challenge, Edwards argues that “an ordinary
person would not likely realize that he is subject to criminal prosecution for everyday activity on
Facebook.” We disagree. The statute prohibits the taking of “any action harmful to any person.”
18 U.S.C. § 1513(e). This is plain, common language. Hill, 530 U.S. at 732. None of the words
used is particularly complex or exclusive to arcane legal texts. An ordinary person can understand
that posting on Facebook falls under “any action.” Indeed, Edwards has no trouble in her brief
paraphrasing even the most advanced word of the statute, “retaliate,” using more common
language: “to get revenge.” Furthermore, the scienter requirements of “knowingly” and “with
intent to retaliate” dramatically narrow the universe of possible offending activity such that an
ordinary person has notice of what conduct is prohibited. See Hill, 530 U.S. at 732; see also
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Village of Hoffman Estates, 455 U.S. at 499. Is the language of the statute potentially sweeping?3
Absolutely. But is it vague such that an ordinary person could not understand what conduct it
prohibits? No.
As to the enforcement component of her vagueness challenge, Edwards argues that “one
need to look no further than this case” for evidence of arbitrary enforcement. Edwards complains
that many others engaged in similar or worse behavior, but she alone was prosecuted—evidence
of arbitrary enforcement, she argues. She also claims she was “[s]ingl[ed] out . . . for prosecution
just because she is related to the McShan brothers”—evidence of discriminatory enforcement, she
argues. However, Edwards unwittingly highlights the flaw in this argument. The government
must prove beyond a reasonable doubt that an offender had an “intent to retaliate” in order to
prevail on a § 1513(e) prosecution. In common parlance, “to retaliate” is to return injury for
perceived injury. It could be difficult for the government to prove that these Facebook postings
by a person unrelated to the McShan brothers and thus unaffected by D.B.’s testimony were done
to “retaliate” against D.B. Not so with Edwards. Family relations have long been recognized in
law to be extensions of the personal domain in all kinds of contexts. See Salman v. United States,
137 S. Ct. 420, 429 (2016) (holding that gifts to family relatives accrue to personal benefit). The
government has broad discretion to choose among its potential cases which to bring for
prosecution. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). That the government chose to
bring only its strongest § 1513(e) case is unremarkable, and certainly not evidence of arbitrary
enforcement.
3
Edwards abandoned her First Amendment overbreadth claim on appeal. Nothing in this opinion should be construed
to comment on whether § 1513(e) is overbroad or violative of the First Amendment. That issue was neither brought
nor briefed before us.
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C.
Finally, Edwards argues that the government selectively prosecuted her. A claim of
selective or vindictive prosecution must be made on a motion before trial. Fed. R. Crim. P.
12(b)(3)(A)(iv). Here, it was not. Because this claim is first raised on appeal, we review for plain
error. United States v. Soto, 794 F.3d 635, 654–55 (6th Cir. 2015) (holding that untimely 12(b)(3)
motions raised for the first time on appeal are subject to plain error review). “Plain error exists
where there is (1) error (2) that was obvious or clear, (3) that affected [the] defendant’s substantial
rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”
United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018) (internal quotation marks and
citations omitted). “Accordingly, plain error is a standard that is extremely deferential to the
district court, and it should be found sparingly, only in exceptional circumstances, and solely to
avoid a miscarriage of justice.” Id. (internal quotation marks omitted).
“A selective-prosecution claim is not a defense on the merits to the criminal charge itself,
but an independent assertion that the prosecutor has brought the charge for reasons forbidden by
the Constitution.” United States v. Armstrong, 517 U.S. 456, 463 (1996). Among those forbidden
reasons are a defendant’s “race, religion, or the desire to prevent the exercise of [the defendant’s]
constitutional rights.” United States v. Hazel, 696 F.2d 473, 474 (6th Cir. 1983). In order to
succeed on a selective-prosecution claim, the defendant must “present clear evidence” that (1) the
government had a discriminatory intent, and (2) that the prosecutorial policy had a discriminatory
effect. Armstrong, 517 U.S. at 465 (internal quotation marks omitted). See also United States v.
Jones, 159 F.3d 969, 976 (6th Cir. 1998).
Edwards claims that her exercise of her First Amendment rights on Facebook was the
motivation for her prosecution, and because she was the only person among many other people
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engaged in “similar or worse activity” to have been prosecuted, she must have been selectively
prosecuted. Edwards misunderstands the nature of a proper selective-prosecution claim.
Selective-prosecution occurs when impermissible considerations motivate the prosecution
of an individual but otherwise “similarly situated individuals” who could have been charged “were
not similarly prosecuted.” Jones, 159 F.3d at 977. Specifically, those impermissible
considerations must be unrelated to the criminal acts for which the person was prosecuted. A valid
selective-prosecution claim might arise, for example, if a group of individuals conspired to rob a
bank but only the racial minority among them was prosecuted; or if a number of protestors were
trespassing on private property but the only protestor who was prosecuted was known to be a vocal
critic of the local police department.
With Edwards, there is no such dynamic. Of course, by virtue of her prosecution, Edwards
was selected for it. And yes, as the government agrees, it prosecuted her because of her Facebook
posts. But her Facebooks posts were not the “motivation” for her being prosecuted for an
otherwise unrelated crime—her Facebook posts were the crime. It is hardly remarkable that in
response to the flurry of online activity endangering D.B., the government indicted only the person
against whom the government had the strongest case. Furthermore, Edwards makes no claim that
the government’s selection of her was in bad faith, nor does she produce any “clear evidence” that
would have satisfied her burden had she brought a timely 12(b)(3) motion, let alone one we review
for plain error.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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