United States v. Tobin

United States Court of Appeals
For the First Circuit

No. 06-1883

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES TOBIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Lynch, Circuit Judges.

John G. Kester with whom Dane H. Butswinkas, Tobin J. Romero,
Colleen F. Shanahan and Williams & Connolly LLP were on brief for
appellant.
Andrew Levchuk, Department of Justice, Criminal Division,
Computer Crime and Intellectual Property Section, with whom Martha
Stansell-Gamm, Lily Chinn, Department of Justice, Criminal
Division, Computer Crime and Intellectual Property Section, Edward
Nucci and Nicholas Marsh, Department of Justice, Criminal Division,
Public Integrity Section, were on brief for appellee.

March 21, 2007
 BOUDIN, Chief Judge. A federal statute makes it a

criminal offense to "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).

James Tobin was convicted by a federal jury in New Hampshire of

conspiracy to commit this offense, and of aiding and abetting

another to do so, and now appeals. The events leading to the

conviction are as follows.

In 2002, Tobin was New England Regional Director of the

Republican National Committee. Prior to the November 2002

election, Tobin traveled to New Hampshire to coordinate VIP visits

to the state. During the visit Tobin was approached by Charles

McGee, Executive Director of the New Hampshire Republican State

Committee. There ensued a conversation regarding a plan by McGee

to disrupt the operations of the New Hampshire Democratic Party on

election day.

During this conversation McGee asked for the name of

someone who might be able to assist in a plan of this sort. Tobin

provided the name of Allen Raymond, a longtime acquaintance, who

owned a business that coordinated and designed telephone services

for candidates and campaigns. Tobin and McGee did not speak again,

but Tobin made a telephone call to Raymond to alert Raymond to

expect McGee's call.

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 McGee and Raymond spoke together and e-mailed each other

several more times and agreed upon the means of disruption--

telemarketers would inundate specified numbers with hang-up calls--

and the price for it. McGee asked Raymond to check with legal

counsel, and Raymond thereafter said that he had. None of these

calls or any e-mails were made known to Tobin. McGee provided

Raymond with six telephone numbers: five were for Democratic Party

phones and one was for the firefighters union, which was offering

rides to the polls.

Just as the polls were opening on election day, McGee's

direct superior, John Dowd, ordered the operation called off.

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 had

earlier retained. Later Raymond called Tobin to talk about what

happened, calling again after being contacted by police about the

phone jamming.

On May 18, 2005, a federal grand jury returned a

superseding indictment charging Tobin with crimes stemming from the

phone tie-up in New Hampshire. The indictment charged a violation

of 18 U.S.C. § 241 (conspiracy to violate civil rights); conspiracy

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under 18 U.S.C. § 371 to violate 47 U.S.C. § 223(a)(1)(C), (D);1

and aiding and abetting these last two violations, 18 U.S.C.

§ 2(a).

McGee and Raymond each pled guilty to a violation of 47

U.S.C. § 223(a)(1)(C). McGee served seven months and Raymond's

sentence was reduced to three months after his cooperation at

Tobin's trial. Tobin proceeded to trial, which began on December

6, 2005. At trial the government's principal witnesses were McGee

and Raymond. At the close of the government's case, Tobin moved

for judgment of acquittal. The government then dismissed, with the

district court's permission, all charges relating to section

223(a)(1)(C).

On December 15, 2005, the jury acquitted Tobin on the

first count (conspiracy to violate the rights of voters) and found

Tobin guilty of conspiracy to violate and of aiding and abetting a

violation of section 223(a)(1)(D). Tobin moved unsuccessfully for

judgment of acquittal, arrest of judgment and for a new trial.

Tobin was sentenced on May 17, 2006, to 10 months' imprisonment,

two years' supervised release, and a $10,000 fine.

1
Section 223(a)(1)(C) makes it illegal to "make[] a telephone
call or utilize[] a telecommunications device, whether or not
conversation or communication ensues, without disclosing [one's]
identity and with intent to annoy, abuse, threaten, or harass any
person at the called number or who receives the communications."
Section 223(a)(1)(D)--the "cause repeatedly to ring" offense--is
quoted above.

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 Tobin's first and most far-reaching claim of error

relates to the proper meaning of section 223(a)(1)(D)'s "intent to

harass" requirement. From the outset, the district judge was

concerned that the government was seeking to extend the statute

from one directed at harassment of the called party to one

embracing the disruption of telecommunications systems. In the

end, the judge adopted a compromise, instructing the jury on the

definition of "harass" as follows:

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.

If, however, 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. So, 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.

On appeal, Tobin argues that "harass," in the present

context, means to cause emotional distress in persons at the called

number, that the jury should have been so advised, and that the

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"good faith" and "unjustifiable motive" language greatly broaden

the statute beyond its permissible meaning.2 The government

responds that the attack was not preserved in the district court

and is also without merit.

It is true that Tobin did not ask the district judge to

use the emotional distress language now urged. Understandably

seeking the narrowest reading, Tobin asked the district court (in

objection b. to the instructions) to define the term "harass" to

mean "to threaten or frighten." Tobin's fall-back position on

appeal is less restrictive, and wisely so, since nothing in the

term "harass" limits it to threatening or frightening conduct.

This omission, unless the two versions are very close,

arguably forfeits this claim–-subject always to the plain error

doctrine. Compare United States v. Fuchs, 467 F.3d 889, 900 (5th

Cir. 2006), with Arthur Andersen LLP v. United States, 544 U.S.

696, 708 n.10 (2005). Whether the plain error test could be met

need not be decided because we agree with a companion objection to

the instruction which Tobin fully preserved, namely, that (quoting

his objection f.):

The references to "an unjustifiable
motive" and "reasons other than a good faith
effort to communicate" dilute the intent

2
In a companion argument, Tobin argues that if the statute
were satisfied by the latter two phrases, it would be
unconstitutionally vague in violation of the Fifth Amendment's due
process clause. Our reading of the statute moots this
constitutional argument.

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 requirement, which is a specific intent to
harass, not just any unjustifiable motive or
any reason other than a good faith effort to
communicate.

We side with Tobin on this single issue. The district

judge made a creditable effort to make sense of the perplexing

statute. But in the end, the district court's "unjustifiable

motive" and "good faith" language, used virtually to define "intent

to harass," broadens the statute unduly. In considering the

objection, we are required to consider just what Congress meant by

harassment and the problem is not straightforward.

We begin with statutory language. New Hampshire Hemp

Council, Inc. v. Marshall, 203 F.3d 1, 6 (1st Cir. 2000). Black's

refers to "[w]ords, conduct, or action (usu. repeated or

persistent) that, being directed at a specific person, annoys,

alarms, or causes substantial emotional distress in that person and

serves no legitimate purpose." Black's Law Dictionary 733 (8th ed.

2004). This core conception, echoed in other dictionaries,

suggests that "emotional distress" would itself be too narrow a

reading.3

3
The American Heritage Dictionary (3d ed. 1996) (synonym note)
("Harass and harry imply systematic persecution by besieging with
repeated annoyances, threats, demands or misfortunes."); The Random
House Dictionary of the English Language, Unabridged 870 (2d ed.
1987) ("[T]o disturb persistently; torment, as with troubles or
cares; bother continuously; pester; persecute."); United States v.
Wilson, 796 F.2d 55, 58-59 (4th Cir. 1986), cert. denied, 479 U.S.
1039 (1987) (defining harass as "badger, disturb or pester" in
keeping with the ordinary meaning of the word).

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 Another shade of usage, which the government points to in

defending the instruction, is "harass" in a more tactical sense, as

"to trouble by repeated attacks, incursions, etc., as in war or

hostilities; harry; raid." The Random House Dictionary of the

English Language, Unabridged 870 (2d ed. 1987). But even here the

word "trouble" invites attention to the likely reaction of the

recipient–-a concern borne out by the examples in the legislative

history. E.g., 114 Cong. Rec. 4932, 4933 (1968) (statement of Rep.

Staggers) ("Think . . . of the person called to the telephone

countless times during the day and night only to have the caller

hang up when he answers.").

The legislative history also suggests that a prime motive

of the harassment provisions of the statute--primarily current

subsections (C) and (D)--were harassing calls made to service

personnel and their families during the Vietnam War. See, e.g.,

114 Cong. Rec. 4932, 4933 (1968) (statement of Rep. Kornegay)

("[T]estimony from the Defense Department indicates that harassing

telephone calls are now being used by a perverted few against the

families of our servicemen who are serving overseas, particularly

in Vietnam. These harassments have included everything from false

reports of death or injury, to threats, demands for money for the

Vietcong, and gloating comment on the actual death in combat of

servicemen."). These were, of course, calls designed to make the

recipients miserable--not to tie up the telephone.

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 Admittedly, the government offers two examples in the

legislative history of a prior unenacted version of the statute--

directed only at Washington D.C., but virtually identical to the

version later introduced--that mention the difficulties caused by

the tying up of the telephone.4 But both examples concern calls

primarily of the ordinary harassment variety-–one concerned a

domestic dispute and the other was directed at an employee

personally--even though they also disrupted business operations.

The district court's "bad faith-improper motive"

instruction would include harassing conduct so defined but would

also include almost anything else of which the jury might

disapprove including conduct that was solely designed to interfere

with telephone communications. 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.5 It is also hard to think

4
111 Cong. Rec. 26,476, 26,477 (1965) (statement of Rep.
Whitener) (describing a university's telephone switchboard being
tied up "because of one family's domestic crisis" and two
businesses that "nearly went out of business through telephone
harassment directed not at the firms but at some employee," which
tied up the phone lines).
5
See, e.g., Me. Rev. Stat. Ann. tit. 5, § 4684-B(2) (2006)
("It is a violation of this section for any person . . . to mak[e]
or caus[e] repeated telephone calls to a person or building . . .
with the intent to impede access to a person's or building's
telephone lines or otherwise disrupt a person's or building's
activities."); N.C. Gen. Stat. Ann. § 14-196(a)(4) (West 2000)

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why a Congress seeking to protect access to unimpeded telephone

communication would have been worried only about disruption caused

by ringing (as opposed, for example, to cutting the line or

sabotaging the gear where the drop cable enters the home).

Little circuit precedent exists one way or the other, but

the case closest in point is mildly helpful to Tobin. In United

States v. Bowker, 372 F.3d 365, 382-83 (6th Cir. 2004), rev'd on

other grounds, 543 U.S. 1182 (2005), the Sixth Circuit construed

subsection (C) (note 1, above), to read "harass" to have the same

meaning as companion terms in the subsection (e.g., "abuse,"

"threaten"). Presumptively, subsections (C) and (D) should be read

together. Cohen v. De La Cruz, 523 U.S. 213, 220 (1998).

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 expressly to simple,

deliberate disruption but that is a matter for Congress to

determine.

On our reading, the instruction language was overbroad

and clearly prejudicial to Tobin. The motive for the calls was

("It shall be unlawful for any person . . . [t]o make a telephone
call and fail to hang up or disengage the connection with the
intent to disrupt the service of another.").

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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." The government does not and could not

make a harmless error argument so a remand is required. Neder v.

United States, 527 U.S. 1, 19 (1999).

Tobin says that instead of a new trial we ought to order

an outright acquittal because the evidence was insufficient to

permit a rational jury to convict on either of the two counts of

conviction. United States v. Aponte-Suarez, 905 F.2d 483, 489 (1st

Cir. 1990). The two counts, conspiracy and aiding and abetting,

both relate to the same underlying subsection (D) offense, but they

differ in their elements, and we begin with the conspiracy charge.

The underlying offense requires that someone "make[] or

cause[] the telephone of another repeatedly or continuously to

ring, with intent to harass any person at the called number." The

conspiracy offense occurs if the defendant agreed with another to

commit the crime, whether or not the crime was actually committed.

United States v. Feola, 420 U.S. 671, 694 (1975); Iannelli v.

United States, 420 U.S. 770, 777 (1975). The general conspiracy

statute requires as well an overt act, but such acts occurred in

this case. United States v. LiCausi, 167 F.3d 36, 46 (1st Cir.),

cert. denied, 528 U.S. 827 (1999).

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 Tobin argues that if any agreement occurred to commit the

offense, it was achieved "after all contact" between Tobin and the

others had ceased and that Tobin never agreed to the disruption

plan that forms the basis for the conspiracy charge. The strength

of the argument is that prior to election day, Tobin had only one

pertinent conversation with McGee and one with Raymond, and only

after that did McGee and Raymond work out the concrete details.

But to comprise a conspiracy, a scheme need not be

fleshed out. A drug distribution conspiracy exists once two

persons agree to obtain cocaine and distribute it, even if the

amount, timing, supplier, price and distribution method are all

left open. United States v. O'Campo, 973 F.2d 1015, 1019 (1st Cir.

1992). Nor need the agreement be explicit; the understanding that

comprises the agreement can be inferred from the consolidation of

efforts. Iannelli, 420 U.S. at 778 n.10.

There is a sound basis for this minimalist conception of

agreement, Developments in the Law: Criminal Conspiracy, 72 Harv.

L. Rev. 920, 933-34 (1959), and anyway the law is settled.

Interstate Circuit v. United States, 306 U.S. 208, 226-27 (1939).

For us, the issues are whether the evidence in this case permitted

a rational jury to find beyond a reasonable doubt (1) that a plan

to cause the jamming telephone calls was agreed to by Tobin and (2)

that Tobin also shared the necessary intent as to harassment.

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 McGee testified that he first considered disrupting the

Democratic Party's voter turnout efforts in response to a

Democratic Party protest outside his office in October 2002.

Vendors he contacted were unhelpful and three or four days before

the election, McGee approached Tobin. McGee testified, "I don't

know how much detail I went into with him, but I think I gave him

the essence of the plan or the idea and asked him if he knew

somebody who could help me."

The government then asked McGee, "And the essence of the

idea was disrupting phone lines?" "Yes," McGee replied. "And

making telephone calls to disrupt phone lines?" "Yes." "What does

Mr. Tobin say to you?" "He gives me the name of a gentleman by the

name of Allen Raymond and his phone number." McGee then testified

that Tobin said "something to the effect that he might be able to

help you or he can help you or something like that," adding that if

Tobin had told him "no," he would not have proceeded.

On cross-examination, the defense easily got McGee to

repeat that he was unsure as to the level of detail and to state

that Tobin "did not agree to participate with [McGee] to violate

the law." But the level of detail does not control so long as

Tobin, with the necessary intent to harass, knowingly joined in a

venture to cause the ringing of the phones; and no express

agreement is required for conspiracy. Further, as a general rule,

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ignorance of the law is not a defense to a criminal prosecution.

Cheek v. United States, 498 U.S. 192, 199 (1991).6

Nevertheless, without Raymond's testimony, it is unclear

whether a jury could have found that Tobin knew that the

disruption-–McGee's expressed goal-–was to be caused by repeat

calls, which would or might tie up the phone lines of the

recipient. Raymond filled this gap. After explaining that his

company was a telemarketing broker who hired others to do automated

calls, voter identification calls or voter advocacy calls for

election campaigns, he described his call from Tobin as follows:

Q: What does he say?

A: He says--he tells me that he'd like to talk
to me about a phone project in New Hampshire
and then explains the project to me as to what
it would entail.

Q: And what does he tell you?

A: He tells me that it would entail jamming,
essentially disrupting, democratic party and
affiliated democratic organizations'
efforts to Get-Out-The-Vote on Election Day.

Q: And after he says that, what, if anything,
do you say next?

A: My response is that anything can be done.
Yes, we can probably do it. I related to him

6
Tobin argues (citing, e.g., United States v. Wieschenberg,
604 F.2d 326 (5th Cir. 1979), and United States v. Iennaco, 893
F.2d 394 (D.C. Cir. 1990)), that the discussions he had with McGee
and Raymond could have contemplated only legal means of disruption;
but Raymond testified that jamming by "a large volume of phone
calls" was discussed and, assuming an intent to harass, Tobin took
the risk that a criminal statute would turn out to apply.

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 an example of inadvertent phone jamming which
involves sometimes when you have a large
volume of calls going into one switch,
sometimes you will inadvertently jam the
switch, thus essentially jamming the phone
lines. So my point there is that if it can be
done inadvertently, it can be done
intentionally, and then I tell him that we can
do it, that anything is possible.

This call by Tobin was to introduce McGee to Raymond, and

Tobin had no further contact with either until the plan had been

(briefly) put into effect. But the testimony allowed a jury to

conclude that Tobin knew that the disruption was to be caused by

multiple phone calls made in order to tie up phone lines. The only

remaining question as to agreement is whether a jury could

rationally conclude that Tobin had so far associated himself with

the emerging plan as to make him effectively a party to it.

This is surely a close call. The jamming mechanism

described by Raymond was slightly different than the final version

and Tobin never explicitly endorsed the plan. But nothing in the

evidence or the cases cited to us by Tobin precludes a rational

jury from concluding that Tobin did just enough to be a

conspirator: that he knew the general means by which disruption

would be achieved and agreed to it--indeed, implicitly endorsed it

--by his introductory call and conversation with Raymond.

Tobin relies also on cases saying that "mere presence" at

a conspiratorial event or a "mere introduction" of conspirators is

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not enough.7 But Tobin was not merely present, as in Andujar, 49

F.3d at 22; and in the "mere introduction" case, this court found

no evidence that the defendant "in some sense promote[d] [the

conspiracy], ma[d]e it his own, [had] a stake in the outcome."

Aponte-Suarez, 905 F.2d at 491.

The more difficult question is posed by the intent

requirements. To prove the voluntary participation required for

conspiracy, the government must prove both the intent to agree

(which we have just discussed) and the intent to commit the

substantive offense. United States v. Ortiz, 447 F.3d 28, 32-33

(1st Cir. 2006). Subsection (D) requires both an intent that the

telephone be caused to ring repeatedly or continuously and an

intent "to harass any person at the called number."

Tobin says that no evidence proves that he intended the

repeated calls or telephone ringing. Probably he was indifferent

to the method of jamming, but the intent required as to repeated

ringing is merely knowledge that the use of repeated calls was

contemplated, the repeated ringing being then foreseeable. Raymond

testified that multiple calls were discussed as a method of

jamming; effective jamming over a substantial period could

foreseeably require persistent calling.

7
E.g., United States v. Garcia-Torres, 280 F.3d 1, 4 (1st Cir.
2002); United States v. Andujar, 49 F.3d 16 (1st Cir. 1995);
Aponte-Suarez, 905 F.2d at 491.

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 But an intent to harass was also required; repeat calls

to a fire department to summon help would be lawful. 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? For the former, the evidence is

sufficient; for the latter, arguably not.

Tobin's brief does not directly debate the legal issue,

choosing instead--perhaps for legitimate tactical reasons--merely

to assume that "purpose" is required. The government, adopting a

broader definition of harassment than we accept, bypassed the

problem now posed (if Tobin conspired, assuredly a purpose to jam

could be inferred). There are good arguments on both sides; and

the outcome may determine whether there will be a new trial or an

end to the prosecution.

For centuries, common law judges, and then statute

writers, have used the terms "intend" or "intent" without

distinguishing between knowledge of consequences and a desire to

achieve them. LaFave, Substantive Criminal Law § 5.2(a) (2d ed.

2003); cf. Model Penal Code § 2.02 (1962). For obvious reasons, it

is usually enough that (for example) the defendant knew that

pulling the trigger would kill the person at whom the gun was

aimed. See LaFave, supra, § 5.2(a).

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 Tobin says that subsection (D) defines a "specific

intent" crime and so it does. But "specific intent"–-although

often equated with "purpose"--can as easily describe any additional

intent requirement (whether knowledge or purpose) beyond the mental

state--normally knowledge--required for the actus reus. LaFave,

supra, § 5.2(e). Completed crimes that require "purpose," like

treason, are comparatively rare.

Thus, an "intent to harass" could merely mean a knowledge

that harassment–-in the emotion-provoking sense--will inevitably

occur from the forbidden act, even where, as may be the case here,

Tobin was indifferent to the emotional effect. Perhaps a desire to

harass is morally worse than knowledge that harassment will

assuredly result; but the statute's language could be read to

embrace both and one starts with a presumption that knowledge is

enough.

Nevertheless, there are arguments for a different result

here. The legislative history, already described, suggests that

Congress' incentive to pass the statute was primarily to deal with

calls having the self-evident purpose to harass. Further, making

knowledge enough would leave the problem of calls that could cause

foreseeable annoyance or upset and yet be justified by some

legitimate aim (e.g., to warn a sleeping resident of a fire). The

need to interpolate a qualification could argue for a "purpose"

reading.

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 The arguments we have mustered suggest that the issue may

be close and should not be resolved without briefing. And, since

in this court Tobin has asserted, but not developed, the "purpose"

reading, we are hardly compelled to address the contention. Thus,

the only basis for us to order an acquittal at this stage would be

if a properly-instructed jury could not rationally find that Tobin

knew that the recipients would feel harassed.

Obviously Tobin knew that the scheme if carried out would

disrupt communication; but, as we have already noted, Tobin may not

have cared one bit about the subjective reaction of the persons at

the receiving end. So the question is whether a jury could think

that Tobin "had to" foresee the consequent reactions (or be

willfully blind to them, which is also enough, United States v.

Rivera-Rodriguez, 318 F.3d 268, 272 (1st Cir. 2003)), and to us the

answer is yes.

Much less need be said about the adequacy of the evidence

on the aiding and abetting count. That Tobin assisted in the

substantive crime is patent; his call to Raymond was integral to

the accomplishment of the scheme. The question again is of intent:

"The state of mind required for conviction as an aider and abettor

is the same state of mind as required for the principal offense."

United States v. Valencia, 907 F.2d 671, 680 (7th Cir. 1990).

If a jury could find that Tobin intended to harass, it

could easily convict him of aiding and abetting; the crime does not

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have the agreement element that complicated matters for the

government on the conspiracy count. The intent to harass element

is far more debatable but what we have already said about that

applies equally to the aiding and abetting count: if only knowledge

of the effects is required, a jury could find the requisite intent.

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. We think it fair to

add that despite the unattractive conduct, this statute is not a

close fit for what Tobin did. If the government thinks this a

recurring problem, it better seek an amendment.

The judgment of conviction and sentence is reversed; the

case is remanded to the district court for further proceedings

consistent with this opinion.

It is so ordered.

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