United States v. Tobin

United States Court of Appeals
For the First Circuit
No. 08-1340

UNITED STATES OF AMERICA,

Appellant,

v.

JAMES TOBIN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

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

Before
Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.

Andrew Levchuk, Department of Justice, Criminal Division,
Public Integrity Section, with whom William M. Welch II, Chief,
Department of Justice, Criminal Division, Public Integrity Section,
Nicholas Marsh, Department of Justice, Criminal Division, Public
Integrity Section, Michael DuBose, Chief, Department of Justice,
Criminal Division, Computer Crime and Intellectual Property
Section, and Albert Rees, Department of Justice, Criminal Division,
Computer Crime and Intellectual Property Section, were on brief for
appellant.
John G. Kester with whom Dane H. Butswinkas, Tobin J. Romero,
Jonathan Kravis and Williams & Connolly LLP were on brief for
appellee.

January 7, 2009
 BOUDIN, Circuit Judge. The government's appeal in this

case presents the question of whether 47 U.S.C. §

223(a)(1)(D)(2000), which criminalizes "mak[ing] or caus[ing] the

telephone of another repeatedly or continuously to ring, with

intent to harass any person at the called number," requires a

subjective purpose to harass, or whether it suffices that the

caller can foresee that the victim will feel abused or distressed.

The factual and procedural background can be briefly summarized.

James Tobin served as New England Regional Director of

the Republican National Committee and Regional Political Director

for the National Republican Senatorial Committee. During a visit

to New Hampshire prior to the 2002 general election, Tobin spoke

with Charles McGee, Executive Director of the New Hampshire

Republican State Committee, who proposed a scheme to disrupt the

New Hampshire Democratic Party's operations on Election day.

Tobin gave McGee the contact details of an acquaintance,

Allen Raymond, who owned a telephone business which served

candidates and campaigns. Tobin called Raymond to tell him to

expect McGee's call. McGee and Raymond subsequently spoke and e-

mailed on several occasions to plan how telemarketers would tie up

the phone lines of Democratic Party offices and the firefighters

union in order to disrupt their efforts to provide free rides to

the polls.

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 On Election Day, this phone jamming scheme was called off

by John Dowd, McGee's direct superior. But before Dowd's

instructions were fully communicated, nearly 1,000 telephone calls

were placed to five Democratic Party numbers and a firefighters

union, and the operation successfully jammed the recipients'

telephone lines for two hours. The evident purpose of the endeavor

was to paralyze the Democratic get-out-the-vote efforts by tying up

their telephones.

Raymond and McGee both pled guilty to violating 47 U.S.C.

§ 223(a)(1)(C)(2000), which focuses on completed phone calls rather

than ringing.1 Tobin was tried in December 2005 on several

different counts. The jury convicted Tobin of one count of

conspiracy, 18 U.S.C. § 371 (2000), and one count of aiding and

abetting, id. at § 2, both related to the making of repeated

harassing phone calls, 47 U.S.C. § 223(a)(1)(D); but the jury

acquitted him of conspiring to interfere with constitutional

rights, 18 U.S.C. § 241. He was sentenced to ten months in jail.

Tobin appealed, arguing that the jury had been

erroneously instructed and claiming that an acquittal should have

been ordered based on insufficient evidence. We agreed that the

1
This provision punishes one who "makes a telephone call or
utilizes a telecommunications device, whether or not conversation
or communication ensues, without disclosing his identity and with
intent to annoy, abuse, threaten, or harass any person at the
called number or who receives the communications." The government
indicted Tobin on this count as well but voluntarily dismissed it
during Tobin's trial.

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instruction had been overbroad--in effect, licensing conviction

wherever there was "any repeat calling done in bad faith." United

States v. Tobin, 480 F.3d 53, 58 (1st Cir. 2007). But we declined

to order an acquittal, noting that a critical issue of statutory

construction, not fully developed by either side on appeal, would

likely affect whether Tobin could be prosecuted. The conviction

was vacated and the case remanded to the district court.

On remand, the district judge considered, as the remand

contemplated, whether it suffices under subsection (D) to know that

the called party will feel abused or distressed. Tobin, 480 F.3d

at 61-62. To the contrary, the district judge concluded that "a

specific purpose to cause emotional upset in a person at the

telephone number called" was required and, finding that the

government had insufficient evidence to meet this mens rea

requirement, entered a judgment of acquittal. United States v.

Tobin, 545 F. Supp. 2d 189, 192 (D.N.H. 2008).

The government now appeals, arguing that section

223(a)(1)(D)'s "intent to harass any person at the called number"

does not require purpose but only knowledge of probable

consequences. Tobin, who defends the district court's reading,

also offers a threshold objection: he notes that the government may

not appeal a criminal case "where the double jeopardy clause of the

United States Constitution prohibits further prosecution," 18

U.S.C. § 3731, and argues that this is just such a case.

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 Tobin does not argue, nor could he under governing

precedent,2 that double jeopardy protection attached immediately

upon this court's reversal of his trial conviction and therefore

barred a remand for further proceedings. Rather, Tobin relies on

the district court's judgment of acquittal on remand as the event

that triggered protection against further proceedings. Tobin

argues that once a district court has entered a judgment of

acquittal, double jeopardy bars the government's appeal.

Double jeopardy jurisprudence is as much a creature of

history and judicial precedent as of logic. One established rule

is that an acquittal of a defendant because the evidence offered by

the prosecution is insufficient, ordered by the judge after the

jury has been empaneled, effectively bars an appeal even though a

jury has never spoken. Smith v. Massachusetts, 543 U.S. 462

(2005). But in this case, the district court's "acquittal" was

before any new impanelment, so another established rule disposes of

Tobin's argument here: jeopardy (here, after a vacatur of a

conviction and a remand) does not attach until a jury has been

sworn.

See United States v. Carpenter, 494 F.3d 13, 26 (1st Cir.
2

2007)("where the first conviction was vacated for legal error, not
insufficiency of evidence, the concept of continuing jeopardy rules
out a double jeopardy claim based on purported insufficiency of
evidence at the first trial") (internal quotation marks and
citation omitted). Accord United States v. Scott, 437 U.S. 82, 90-
91 (1978); United States v. Recio, 371 F.3d 1093, 1106 (9th Cir.
2004); United States v. Pearl, 324 F.3d 1210, 1214 (10th Cir.
2003).

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 In Serfass v. United States, 420 U.S. 377, 392 (1975)

(internal citations omitted)(emphasis added), the Supreme Court

declared:

It is, of course, settled that “a verdict of
acquittal . . . is a bar to a subsequent
prosecution for the same offence.” But the
language of cases in which we have held that
there can be no appeal from, or further
prosecution after, an "acquittal" cannot be
divorced from the procedural context in which
the action so characterized was taken. The
word itself has no talismanic quality for
purposes of the Double Jeopardy Clause. In
particular, it has no significance in this
context unless jeopardy has once attached and
an accused has been subjected to the risk of
conviction.

Applying this principle, Serfass explained: "[T]he

courts have found it useful to define a point in criminal

proceedings at which the constitutional purposes and policies are

implicated by resort to the concept of 'attachment of jeopardy.' In

the case of a jury trial, jeopardy attaches when a jury is

empaneled and sworn." Serfass, 420 U.S. at 388 (citation omitted).

This is mechanical and perhaps arbitrary, but it is the line that

the Supreme Court has drawn and the circuits have followed. See,

e.g., United States v. Frye, 372 F.3d 729, 734 (5th Cir. 2004);

United States v. Dilg, 700 F.2d 620, 624 n.2 (11th Cir. 1983).

Ordinarily district judges in a criminal jury case have

no occasion to weigh the evidence before a jury is impaneled. They

do sometimes dismiss indictments (e.g., because of alleged

insufficiency of the charge), see United States v. McInnis, 601

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F.2d 1319, 1322-23 (5th Cir. 1979); United States v. Greater

Blouse, Skirt & Neckwear Contractors Ass'n, 228 F. Supp. 483, 486-

87 (S.D.N.Y. 1964), but double jeopardy does not in such cases bar

appeal by the government--jeopardy never having attached. See

Serfass, 420 U.S. at 389. Similarly, despite the use of the term

"acquittal," jeopardy had not yet attached here when the district

judge acted;3 of course, jeopardy had attached when the original

jury was impaneled but the remand had wiped that slate clean.

The procedure followed by the district judge was perhaps

unorthodox since acquittals are normally ordered only after

evidence has been presented, but the government does not complain

of that; nor does it claim in its brief either that a reasonable

jury could have convicted on the present evidence under the

subjective-purpose reading the judge gave to the statute, or that

it had other evidence unknown to the district judge. It merely

disputes the district judge's reading of the statute, just as Tobin

did on the prior appeal.

This brings us to the merits of the appeal. "Few areas

of criminal law pose more difficulty than the proper definition of

the mens rea required for any particular crime." United States v.

Bailey, 444 U.S. 394, 403 (1980). We review pure questions of

3
Even after jeopardy has attached (or, in this case,
reattached), just what constitutes an "acquittal" by the trial
judge in a jury case does not necessarily depend on the label
chosen by the judge. See Smith, 543 U.S. at 468; Gonzalez v.
Justices of Mun. Court of Boston, 420 F.3d 5 (1st Cir. 2005)

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statutory interpretation de novo, United States v. Jaca-Nazario,

521 F.3d 50, 56 (1st Cir. 2008), and properly begin with the

statutory language, id., but in this instance the wording of the

critical phrase--"with intent to harass any person at the called

number" is inconclusive.

Although the word "intent" can often mean with

"knowledge" that a particular result will follow, it sometimes

instead requires a "purpose" to bring about a specific end. E.g.,

United States v. Houlihan, 937 F. Supp. 75, 76 (D. Mass. 1996)

("intent to retaliate" in 18 U.S.C. § 1513 requires proof either of

"sole and abiding purpose" or "purpose . . . mixed in with other

purposes"). To avoid this confusion, the ALI Model Penal Code

chose to avoid the term "intent," identifying knowledge or purpose

as the more exact identifiers. See Wechsler, The Challenge of a

Model Penal Code, 65 Harv. L. Rev. 1097 (1952). Legislatures,

however, have remained attached to the term.

Nor does the structure of section 223(a)(1)(D) clearly

delineate just what state of mind Congress sought to specify as the

scienter requirement here. The other subsections are variously

worded; but the first three--(A), (B) and (C)--involve suspicious

or even malign conduct (obscene calls, child pornography, non-

disclosure of identity). Thus, it thus makes sense to read their

intent requirement as satisfied by mere knowledge of consequences;

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by contrast, causing a phone to ring multiple times is not

inherently vicious.4

The fifth provision, (E), is addressed primarily to one

who "makes repeated telephone calls . . . during which conversation

ensues, solely to harass," and (interpolating "in order to" from

context) this provision does appear to look to purpose rather than

knowledge. But the inference for subsection (D) is uncertain: one

could stress in Tobin's favor that, as with ringing, the conduct is

not necessarily wicked, or one could contrast the "solely to"

phrasing with (D) and draw an inference against Tobin's position.

Neither inference is clearly stronger than the opposite.

Finally, legislative history is not helpful. The main

aim of the statute was to criminalize phone calls placed to harass

or frighten the receiver--in particular war veterans and their

families. E.g., 114 Cong. Rec. 4933 (1968). Concern over obscene

calls to women was also voiced. See, e.g., 111 Cong. Rec. 26477

(1965). Phone jamming does not seem to have been a principal

concern and the few scattered references to phone lines being tied

up involved what appears to have been purposive harassment. E.g.,

id. at 26,476, 26,477; 114 Cong. Rec. 4933.

4
Subsection (A) condemns calls that are obscene or involve
child pornography made "with intent to annoy, abuse, threaten, or
harass another person" and knowledge in such cases has been found
sufficient. See ApolloMedia Corp. v. Reno, 19 F. Supp. 2d 1081,
1096 (N.D. Cal. 1998); see also United States v. Eckhard, 466 F.3d
938, 947-48 (11th Cir. 2006) (rejecting defendant's objection that
the jury was not instructed to require specific intent).

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 We are therefore cast back on more general

considerations. For most crimes "intent" in the sense of knowledge

is enough, see Bailey, 444 U.S. at 404; for example, when a

defendant points a gun at the victim's head and pulls the trigger,

the knowledge that death will result is ordinarily sufficient. But

the distinction sometimes matters; this can be especially so for

conduct which may be defensible only if done for a benevolent

purpose (a doctor swabbing a wound may foreseeably cause

considerable pain) or where bad purpose magnifies the harm (e.g.,

racially motivated crimes).

There is nothing inherently wicked or even suspect about

multiple phone calls, even when the repeated phone calls and

resultant ringing are annoying or distressing to someone who

refuses to answer. Imagine repeated calls to warn that a fire is

sweeping the neighborhood. Or, suppose repeated calls to sell a

product or to solicit a contribution--where ringing is suffered

rather than taking the phone off the hook for all calls. Nothing

in subsection (D) suggests that it was designed to mediate such

difficult problems.

The government assured us at oral argument that it can

distinguish such cases. But we are not willing to construe over-

generously a criminal statute to cover cases that should not be

made criminal in the hope (usually but not invariably borne out)

that prosecutors will exercise restraint in the interest of common

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sense. The district court's original bad-faith instruction showed

full awareness of the problem when it interpolated a bad faith

requirement, but its solution was not in the statute (and itself

turned on a relatively vague concept).

By contrast, reading the statute to require a "purpose"

to harass solves the problem. A number of states, although by no

means all, do construe their own harassment statutes in this

fashion, e.g., Galloway v. State, 781 A.2d 851, 870-71 (Md. 2001);

it conforms with our own reading of subsection (E) which deals with

the counterpart problem where the phone is answered rather than

left to ring; and while it does not extend the statute to some

thoroughly bad conduct--such as the scheme in this case--a proper

statute could easily be written to do so.

Some states have statutes that forbid deliberate

disrupting of communication, e.g., Me. Rev. Stat. Ann. tit. 5, §

4684-B(2) (2008). But not all states have such laws and, given the

integrated character of the national telephone network, it is

perhaps surprising that no federal statute provides similar

protection. The apt solution is not to stretch out of shape a law

about harassment by ringing, but for Congress to prescribe such

deliberate interference by whatever means.

We need not invoke the rule of lenity, see United States

v. Godin, 534 F.3d 51, 61 (1st Cir. 2008), for this is not a

typical case of ultimate ambiguity which requires choosing the more

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lenient reading. Rather, the misfit between the statute and the

conduct is obvious, but alternative constructions can fairly be

considered. It is only when the implications of the broader

reading are thought through that the choice between the two

readings becomes clear--not to achieve undeserved leniency in this

case, but to avoid a construction that would be affirmatively

dangerous in others.

If the government claimed that it had evidence that Tobin

had a purpose to harass, it would likely be entitled to a trial on

the issue--subject always to the risk of directed verdict after it

closed if the evidence were insufficient. But the government has

conceded in its brief--and plausibly so--"that harassment was not

[Tobin's] subjective purpose," and we accept its concession that

assuming the statute requires proof of purpose (and we so hold),

"Tobin prevails, and this case ends."

Affirmed.

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