US v. Tobin, No. 06-1883. This case deals with the “telephone harassment” statute. I.e. You can’t "make[] or cause[] the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number." 47 U.S.C. § 223(a)(1)(D) (2000). But what makes it interesting is that the defendant is not just a middle-to-upper-class person, but the “New England Regional Director of the Republican National Committee.” Indeed, the political blogs picked up on the First Circuit’s decision regarding his bail earlier, and they called the First Circuit all sorts of names. But, those blogs didn’t really capture the facts. Anyway, the defendant was accused of screwing up the Democrat’s call center on election day.
Anyway, it seems that “Just as the polls were opening on election day, [Charles McGee, Executive Director of the New Hampshire Republican State Committee] direct superior, John Dowd, ordered the operation called off.” Ironically, “McGee then attempted to contact Raymond. However, for approximately 85 minutes, the phones at the targeted numbers rang almost continuously and the six telephone lines were blocked by repeated hang-up phone calls made by the firm that Raymond [the guy with the technical know-how] had earlier retained.”
The First sides with the defendant on the issue of what it means to “harass” under the statute, and concludes that the District Court’s use following jury instruction unjustifiably broadened the statute:
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. So, for example, it is possible to intentionally cause the telephone of another to ring repeatedly and yet not violate the law if the caller is trying, in good faith, to contact someone at the number called.
The First concludes that, “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.” Therefore, just repeat calling done in bad faith “is to enlarge the scope of the statute.” Nevertheless, “The motive for the calls was unjustifiable, they were made in bad faith, and their effect was (in the words of the instruction) to prevent ‘in a substantial and not a trivial way the ability of persons at the called numbers to communicate with others.’“
But, the First doesn’t give him an outright acquittal. Instead, the First analyzes whether there was enough of an agreement to constitute a conspiracy, and whether the evidence was good enough to show his intent, differentiating between knowledge of consequences and desire to achieve them. (There is a lot of stuff in here for criminal practitioners.) The First concludes that “In sum, we think a jury could convict Tobin under subsection (D) on the evidence presented at the trial unless a purpose to harass is required; the purpose issue, not developed by either side on appeal, is left for remand.”
I won’t say it, but someone else will: Isn’t it funny that the First only decides to seriously attack the government’s view of conspiracy when a upper-middle-class GOP operative is involved.
Predictably, the political blogs don't seem to care about the specifics. (Also see Votelaw). DotD comments here.
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