U.S. v . Tobin 04-CR-216-SM 02/21/08
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States
v. Crim. N o . 04-cr-216-1-SM
Opinion N o . 2008 DNH 042
James Tobin
O R D E R
In May of 2005, a federal grand jury returned a superceding
indictment charging James Tobin with various crimes stemming from
his involvement in a politically-motivated scheme to disrupt the
telephone communications of both the New Hampshire Democratic
Party and the Manchester firefighter’s union on election day in
2002. M r . Tobin served as New England Regional Director of the
Republican National Committee. The Democratic Party and the
union were involved in “get out the vote” efforts, offering
voters free rides to the polls. Tobin was charged, among other
things, with conspiracy to violate the civil rights of voters, in
violation of 18 U.S.C. § 241; conspiracy to “make[] or cause[]
the telephone of another repeatedly or continuously to ring, with
intent to harass any person at the called number,” in violation
of
47 U.S.C. § 223(a)(1)(D); and aiding and abetting the
violation of
47 U.S.C. § 223(a)(1)(D).
The primary object of the charged conspiracies and
subsection (D) violation was to suppress the number of votes cast
for Democratic candidates. That objective was to be accomplished
by jamming phone lines to prevent voters needing a ride to the
polls from getting through to those providing rides. On December
1 5 , 2005, a petit jury returned verdicts acquitting Tobin of the
first count (conspiracy to violate civil rights), but finding him
guilty of the two counts under subsection 223(a)(1)(D).
Tobin appealed those convictions to the United States Court
of Appeals for the First Circuit, asserting that the jury had not
been properly instructed on the meaning of “intent to harass,” as
that phrase is used in subsection 223(a)(1)(D). As noted, that
subsection makes it a criminal offense to “make[] or cause[] the
telephone of another repeatedly or continuously to ring, with the
intent to harass any person at the called number” (emphasis
supplied). At Tobin’s criminal trial, the jury was instructed as
follows:
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A person uses the telephone to harass another if he or
she intentionally employs the phone in a way that is
not meant as a good faith effort to communicate with a
person at the number called and is done with an
unjustifiable motive [If] the caller causes
the telephone of another to ring repeatedly and the
caller is doing so for reasons other than a good faith
effort to communicate with someone at the number
called, the law deems such conduct to be harassing.
S o , in the context of this case, the word harass means
and describes conduct that is intentionally designed
not to communicate, but instead to impede, distract,
disrupt or undermine, in a substantial and not a
trivial way, the ability of persons at the called
numbers to communicate with others and to effectively
go about their business.
United States v . Tobin, 480 F.3d 5 3 , 55 (1st Cir. 2007) (quoting
the criminal jury instructions). In practical effect, the jury
instruction included within the meaning of “harass” activities
undertaken in bad faith and designed to disrupt telephonic
communications.
On appeal, the court of appeals determined that the jury
instruction gave “harass” too broad a meaning, thus expanding the
statute’s reach unduly. The court also concluded that the
prosecution’s proposed construction of “harass” was too broad,
and that the defendant’s proposed construction was too narrow.
The appellate court construed the term “harass,” as it is used in
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subsection ( D ) , to mean “provoke adverse [emotional] reactions in
the called party.” Id. at 5 8 . Disruption of telephonic
communications, without proof of an intent to harass (as defined
by the court of appeals), was held to be outside the reach of
subsection ( D ) .
The court of appeals also recognized another critical legal
issue, related to the word “intent” as it is used in subsection
(D):
Did an intent to harass exist if Tobin merely knew that
anger and upset were almost certain to result from the
carrying out of the scheme with its repeated ringing
and blocking of communications? Or must Tobin have had
a subjective purpose (i.e., an aim or desire) to cause
the subject to feel harassed?
Id. at 60 (emphasis in original). Although the court of appeals
chose not to resolve that controlling question of law (because
the parties did not brief it sufficiently), the court did hold
that if the statute requires a purpose to harass (as opposed to a
more generalized recognition that adverse emotional reactions
would be a foreseeable consequence of repeated hang-up calling),
the evidence produced at trial was, as a matter of law,
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insufficient to sustain a conviction, and Tobin would be entitled
to judgment of acquittal. Id. at 6 0 , 6 2 .
The court of appeals vacated Tobin’s convictions and
remanded the case for further proceedings. Consequently, it
falls to this court, at least in the first instance, to resolve
the controlling legal question left unanswered by the court of
appeals. But, because authoritative resolution of the question
remains with the court of appeals, and to avoid putting either
the government or defendant through another, perhaps unnecessary,
trial, this court advised the parties that should the issue be
decided against defendant, the court would certify the legal
question in support of an interlocutory appeal, before convening
a retrial.1
1
Defendant has filed a notice of appeal, interlocutory in
character, from the final pretrial order scheduling trial, even
though the final pretrial order made it clear that trial would
not go forward without defendant first being afforded an
opportunity to file an interlocutory appeal if the intent issue
was resolved against him. If resolved in defendant’s favor, the
trial would not go forward for different reasons. While,
ordinarily, docketing a notice of appeal divests the district
court of jurisdiction over the underlying case, that is not so
when a litigant purports to appeal a plainly unappealable order.
In such a case “the trial court may treat the appeal for what it
is — a sham — and continue to exercise jurisdiction over the
case.” United States v . Mala, 7 F.3d 1058, 1061 (1st Cir. 1993).
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As noted in the First Circuit’s opinion, this is a close
call and there are good arguments on both sides. The outcome is
important in deciding whether there will be a new trial or an end
to the prosecution. Id. at 60-61. The First Circuit noted that
the “statute’s language could be read to embrace both [a purpose
to harass in the emotion-provoking sense, and knowledge that
harassment will assuredly result from the repeated calls] and one
starts with the presumption that knowledge is enough.” Id. at
61. But, as the court also pointedly noted, “there are arguments
for a different result here.” Id.
In the context of this prosecution, the arguments for a
different result here (i.e., requiring proof of a “purpose” to
cause emotional upset, rather than merely “knowledge” that such
upset is likely to occur) are persuasive. The legislative
history is not decidedly favorable either way and is hardly
conclusive with respect to Congressional intent, but it does
suggest that the basic evil the statute seeks to prevent is the
use of repeated phone calls to upset the persons called. It also
suggests that the statute was not directly aimed at preventing
the disruption of communications or phone jamming (which Congress
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could have criminalized in unmistakable language, as several
states have done). And, if mere knowledge of the likelihood of
adverse emotional reaction to repeated calling were sufficient to
meet the intent element, one can easily imagine a host of diverse
species of calls that, literally, would come within the statute’s
reach, yet have completely legitimate (non-harassing) purposes
(e.g., sales calls; collections; fund-raising). Hence, Chief
Judge Boudin’s comment that “[t]he need to interpolate a
qualification could argue for a ‘purpose’ reading.” Id. at 6 1 .
In other words, some qualifications or exceptions would have to
be read into a mere knowledge requirement to exclude legitimate
repeated calling that still would likely provoke adverse
emotional reactions in those called. Otherwise, legitimate use
of the telephone would be subject to criminal prosecution.
The difficulty is that most instances of repeated calling
can be expected to “provoke an adverse emotional reaction” of
some sort in the person called, and virtually every effort to
disrupt telephonic communications by making repeated calls in
sufficient numbers to jam phone lines will be understood to
provoke an adverse emotional reaction in those whose activities
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have been disrupted. “Harass” as used in subsection (D) has been
held not to encompass simple telephone disruption, unaccompanied
by an intent (at some level) to provoke adverse emotional
reactions in the persons called.
We think that a Congress that sought to reach and
outlaw attempts wrongfully to disrupt communications
would have used quite different language (e.g.,
“impede” access or use, “disrupt”), along the lines of
state statutes that are expressly so aimed [footnote
omitted].
In sum we think that to equate harassment with any
repeat calling done in bad faith is to enlarge the
scope of the statute. We read subsection (D) to
require an intent to provoke adverse reactions in the
called party and hold that a bad motive of some other
kind standing alone is not enough. There might be good
reason for a federal statute directed to simple,
deliberate disruption but that is a matter for Congress
to determine.
Id. at 57-58.
There is little point in extended discussion here, because
the issue is close and it is purely a question of law, which, as
a practical matter, will ultimately be decided by the court of
appeals upon de novo review. The parties have extensively and
capably briefed and argued the critical issue, as well as other
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related issues specified by this court,2 and the call still
remains a close one.
Having thoroughly considered the issue and having carefully
reviewed the court of appeals’ opinion, as well as the legal
memoranda submitted by and oral argument of the parties, the
pertinent case law, and the statute’s legislative history, the
court concludes that, to violate subsection 223(a)(1)(D), one
2
The court raised an issue regarding possible judicial
estoppel, which would preclude the government from now contending
that Tobin did intend to provoke adverse emotional reactions,
under either a purpose or knowledge requirement, because the
government seemingly conceded at trial that it did not contend
that Tobin ever meant to cause any anxiety or distress among
recipients of the phone jamming calls. See, e.g., United States
v . Urso, 369 F. Supp. 2d 2 5 4 , 264 (E.D.N.Y. 2005) (“However,
there is a clear consensus that among the courts that have
applied the doctrine of judicial estoppel to criminal proceedings
that prosecutors should be barred from arguing a different theory
of liability in a second prosecution only where the government’s
trial theories are ‘inherently factually contradictory’ and thus
are ‘irreconcilable’ [citation omitted].”) The court also raised
the issue of whether, even if knowledge (rather than purpose) was
sufficient to satisfy the intent element, adverse emotional
reaction was a consequence of the defendant’s conduct that was so
attenuated and distant that it should not be considered an object
of the charged conspiracy. See, e.g., United States v . Goldberg,
105 F.3d 7 7 0 , 774 (1st Cir. 1997) (Boudin, J.) ( “ . . . [W]e leave
untouched the general precept, namely, that mere collateral
effects of jointly agreed-to activity, even if generally
foreseeable, are not mechanically to be treated as an object of
the conspiracy.”) The parties briefed those issue as well, but
they are not dispositive and need not be resolved.
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must have a specific purpose to cause emotional upset in a person
at the telephone number called. In other words, it is not enough
merely to foresee that emotional upset is a likely consequence of
repeated calls. Instead, the actor must purposely seek to cause,
or must desire to cause an adverse emotional reaction in a person
at the called number. That aim or purpose need not be the sole
aim or purpose, but it must be an aim or purpose.
Given this court’s determination that the statute does
require a subjective purpose to cause an adverse emotional
reaction in the person repeatedly called, and given the court of
appeals’ holding that, as a matter of law, the evidence produced
at Tobin’s trial was insufficient to prove that he harbored such
an intent, see Tobin, 480 F.3d at 6 2 , the court is constrained to
conclude that Tobin is entitled to judgment of acquittal.
Parenthetically, the court notes that the court of appeals
observed that prosecution of Tobin under subsection (D) was not a
good “fit” despite his “unattractive conduct.” While I would not
describe Tobin’s conduct in so benign a way, I do agree that
prosecution under subsection (D) is not a good fit since the
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court of appeals has construed “harass” to mean “provoke an
adverse emotional reaction,” and the term does not cover
disruption of telephone communications standing alone or
resulting from any other bad motive. Although the government has
plausibly explained its trial position in a manner consistent
with continued prosecution under the now applicable definition of
“harass,” still, it bears noting that, from this court’s
perspective, the government did not seriously contend, at any
point, that Tobin’s conduct ever involved an intent to cause an
adverse emotional reaction in anyone. His objective, like that
of his charged co-conspirators, was dispassionate and insidious:
to suppress as many votes for Democratic candidates as possible
by sabotaging efforts to get citizens with transportation
problems rides to polling places — citizens who the conspirators
thought would largely vote for Democratic candidates. The jury
acquitted Tobin of conspiracy to deprive citizens of their
constitutional right to vote and, as the means used to impede the
get out the vote effort (disruption) does not fall within the
reach of “harass,” and the bad motive was not to cause emotional
upset, continued prosecution (even should the court of appeals
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ultimately determine that the less stringent knowledge standard
should apply) remains a poor fit under subsection ( D ) .
Conclusion
Given the applicable definition of “harass” as used in
subsection ( D ) , and given this court’s conclusion that the intent
element requires the prosecution to prove that Tobin joined in
the conspiracy to jam Democratic and firefighter union telephones
for the purpose of provoking, or meaning to provoke, adverse
reactions in the called parties, it is plain that the evidence
presented was insufficient to support a jury finding of guilt
beyond a reasonable doubt. The evidence introduced at Tobin’s
trial was adequate to establish that Tobin knowingly and
intentionally associated himself with the plan to disrupt the
get-out-the-vote effort, meaning and intending to disrupt
telephone communications for the purpose of suppressing the
number of votes cast for Democratic candidates. But, while
deliberate disruption, vote suppression, and electoral success
for his party were his goals, there was no evidence that Tobin
specifically intended to provoke adverse emotional reactions in
the people at the telephone numbers called. At least the
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evidence presented could not support such a finding beyond a
reasonable doubt, as the court of appeals recognized.
Since the statute has been held not to reach deliberate
disruption of telephonic communications, and because the evidence
presented does not support guilt beyond a reasonable doubt with
respect to an essential element of the charged offense — intent
to harass — the convictions for conspiracy to violate, and aiding
abetting a violation of subsection (D) cannot stand.
Tobin’s motion for judgment of acquittal (document n o . 217)
i s , therefore, granted.
SO ORDERED.
Steven J./McAuliffe
^hief Judge
February 2 1 , 2008
cc: Bradley J. Bondi, Esq.
Dane Butswinkas, Esq.
Dennis M . Black, Esq.
Kenneth C . Bartholomew, Esq.
Tobin J. Romero, Esq.
Steven M . Gordon, Esq.
Peter G. Beeson, Esq.
Andrew Levchuk, Esq.
Nicholas A . Marsh, Esq.
Albert C . Rees, Jr., Esq.
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