UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

Nos. 19-1640 & 20-3448 _______________

UNITED STATES OF AMERICA

v.

HO KA TERENCE YUNG, Appellant. _______________

On Appeal from the United States District Court for the District of Delaware (D.C. No. 1:17-cr-00014-001) District Judge: Honorable Leonard P. Stark _______________

Argued: January 12, 2022

Before: RESTREPO, BIBAS, and ROTH, Circuit Judges

(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 _______________

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 nar- rowly 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.

2 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 con- tent 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 re- vealed 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 inter- viewer of groping, bigotry, and threatening professional retal- iation. And in reports to the Better Business Bureau, he ac- cused 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

3 claimed, “like[d] it when a man puts his hand around [her] throat and threaten[s] [her] with a knife” and “gun” before forc- ing her to have sex. JA 168. Because of Yung’s antics, the in- terviewer’s family got hundreds of phone calls from men seek- ing sex with the interviewer, his wife, or their son. “[Y]ou pick up the phone and the first thing they ask is