2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-12-2014

Government of the VI v. Earl Vanterpool

Precedential or Non-Precedential: Precedential

Docket No. 13-4400

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Government of the VI v. Earl Vanterpool" (2014). 2014 Decisions. Paper 953.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/953
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 13-4400

___________

GOVERNMENT OF THE VIRGIN ISLANDS

v.

EARL A. VANTERPOOL,

Appellant

______________

ON APPEAL FROM THE DISTRICT COURT 

OF THE VIRGIN ISLANDS

(D.C. Cr. No. 3-05-cr-00064-001)

Chief Judge: Hon. Curtis v. Gómez1

District Judge: Hon. Raymond Finch2

______________

Argued May 13, 2014

 

1

Judge Wilma A. Lewis is the current Chief Judge of the 

District Court of the Virgin Islands.

2 While Judge Julio A. Brady, Judge of the Superior Court, 

Division of St. Croix, sat on the panel that considered this 

matter, he retired before the decision was issued.
2

______________

Before: RENDELL, FUENTES, GREENAWAY, JR., Circuit 

Judges.

(Opinion Filed: September 12, 2014)

Kyle R. Waldner, Esq. [ARGUED]

Quintairos, Prieto, Wood & Boyer

Suite 10

1000 Blackbeard’s Hill

St. Thomas, VI 00802

Counsel for Appellant

Kimberley L. Salisbury, Esq. [ARGUED]

Office of Attorney General of Virgin Islands

Department of Justice

34-38 Kronprindsens Gade

GERS Complex, 2nd Floor

St. Thomas, VI 00802

Counsel for Appellee

_____________

OPINION

_____________
3

GREENAWAY, JR., Circuit Judge.

Earl Vanterpool was prosecuted and convicted under

V.I. Code Ann. tit. 14, § 706(1) (“Section 706”) for obsessive 

phone calls and faxes to his ex-girlfriend, Jacqueline Webster. 

On appeal, we are asked to consider three issues: (1) whether 

Section 706 is unconstitutional under the First Amendment; 

(2) whether Vanterpool has shown that his trial counsel’s 

performance amounted to an ineffective assistance of counsel

under the Sixth Amendment; and (3) whether there was 

sufficient evidence in the record to support Vanterpool’s 

multiple convictions.

While we find that the First Amendment challenge 

would have been viable had it been raised during trial, the 

plain error standard that we are obligated to apply in this case 

precludes any grant of the relief sought. By virtue of trial 

counsel’s failure to preserve the First Amendment challenge, 

however, the prejudice prong of the Strickland test is 

satisfied. Because the record is insufficiently developed for 

us regarding whether trial counsel’s performance fell below 

professional norms, we shall remand and order that an 

evidentiary hearing be held to determine whether the 

performance of Vanterpool’s trial counsel did indeed fall

below the Strickland standard. 

I. FACTS AND PROCEDURAL HISTORY

In May 2004, Jacqueline Webster expressed a desire to 

end her relationship with Earl Vanterpool because Vanterpool

had become possessive and called her frequently. Despite 
4

this issue, the two continued to be in contact with each other 

and did not officially end their relationship until November 

2004. 

After the end of the relationship, Vanterpool continued 

to make numerous calls to Webster’s phone, and started 

sending her faxes. Vanterpool would, at times, call Webster 

as often as six or seven times an hour. (App. 49, 52.) 

Webster informed Vanterpool that she wanted him to stop 

communicating with her, to no avail.

Following her unsuccessful attempts to stop 

Vanterpool’s communications, Webster went to the police 

station to file a report. At the police station, Webster was 

assisted by Sergeant Boynes of the Virgin Islands Police 

Department. While Webster was speaking with Boynes at the 

station, Vanterpool called her multiple times. During one 

such call, Webster handed the phone to Sergeant Boynes, who 

informed Vanterpool that he was not supposed to be calling 

Webster and that if he continued to call her, he would be 

arrested. Vanterpool continued to contact Webster through 

both phone and fax.

As a result of his behavior, the Government of the U.S. 

Virgin Islands (“Government”) brought four charges against

Vanterpool: (1) one count of harassment by telephone 

occurring on or about January 6, 2005, in violation of V.I. 

Code Ann. tit. 14, § 706(1) and V.I. Code Ann. tit. 16, § 

91(b)(10); (2) one count of harassment by telephone 

occurring on or about December 21, 2004, in violation of V.I. 

Code Ann. tit. 14, § 706(1) and V.I. Code Ann. tit. 16, § 

91(b)(10); (3) one count of harassment by written 

communication occurring on or about January 6, 2006, in 

violation of V.I. Code Ann. tit. 14, § 706(1) and V.I. Code 
5

Ann. tit. 16, § 91(b)(10); and (4) one count of harassment by

written communication on or about December 21, 2004, in 

violation of V.I. Code Ann. tit. 14, § 706(1) and V.I. Code 

Ann. tit. 16, § 91(b)(10). 

Vanterpool and Webster both testified at the ensuing 

bench trial presided over by Judge Brenda Heller of the 

Superior Court of the Virgin Islands. The Superior Court

found Vanterpool guilty on all four counts; thereafter, 

Vanterpool filed a timely appeal. The Appellate Division of 

the District Court of the Virgin Islands (“District Court”), in a 

per curiam opinion, affirmed Vanterpool’s convictions. 

Vanterpool filed this timely appeal. 

II. JURISDICTION 

The District Court had jurisdiction under V.I. Code 

Ann. tit 4, § 33 and this Court has jurisdiction under 28 

U.S.C. § 1291 and 48 U.S.C. § 1613a(c). 

III. ANALYSIS

A. First Amendment Challenge 

Vanterpool argues that Section 706 is unconstitutional 

under the First Amendment of the Constitution of the United 

States. Section 706, in relevant parts, criminalizes the actions 

of anyone who “with intent to harass or alarm another person 

. . . communicates with a person, anonymously or otherwise, 

by telephone, or by telegraph, mail or any other form of 

written communication, in a manner likely to harass or 

alarm[.]” V.I. Code Ann. tit. 14, § 706(1). It is uncontested 

that this constitutional challenge was not raised in the 

proceedings below, and therefore, the standard of review is 
6

plain error. See United States v. Marcus, 560 U.S. 258, 262

(2010). Because this standard substantially limits the type of 

scrutiny that we may apply to Vanterpool’s First Amendment 

challenge, we now review the plain error standard in detail. 

Federal Rule of Criminal Procedure 52(b) provides a 

court of appeals with a limited power to correct errors that 

were forfeited because they were not timely raised in district 

court. Fed. R. Crim. P. 52(b) (“Plain errors or defects 

affecting substantial rights may be noticed although they were 

not brought to the attention of the court.”). Under this 

standard, “an appellate court may, in its discretion, correct an 

error not raised at trial only where the appellant demonstrates 

that (1) there is an ‘error’; (2) the error is ‘clear or obvious, 

rather than subject to reasonable dispute’; (3) the error 

‘affected the appellant’s substantial rights, which in the 

ordinary case means’ it ‘affected the outcome of the district 

court proceedings’; and (4) ‘the error seriously affect[s] the 

fairness, integrity or public reputation of judicial 

proceedings.’” United States v. Marcus, 560 U.S. at 262.

The Supreme Court has elaborated upon the “clear or 

obvious” standard in the seminal case of United States v. 

Olano, 507 U.S. 725, 731-37 (1993). There, the Court 

clarified that a “court of appeals cannot correct an error 

pursuant to Rule 52(b) unless the error is clear under current 

law.” Id. at 734. Applied to the present case, if the statute 

was unconstitutional, then the District Court would have 

committed error when it applied the statute; but even so, we 

could reverse only if the error were plain under current law.

While this Court has not expressly commented on this 

issue, our sister circuits have denied relief when an appellant 

has raised a constitutional challenge to a statute for the first 
7

time on appeal. See, e.g., United States v. Dedman, 527 F.3d 

577, 592 (6th Cir. 2008) (“[T]he district court did not commit 

plain error in applying the Arkansas marriage statute even 

assuming that the statute is unconstitutional.”); United States 

v. Gore, 154 F.3d 34, 42-43 (2d Cir. 1998) (“[E]rror is plain if 

it is clear or obvious under current law . . . [or] so egregious 

and obvious as to make the trial judge and prosecutor derelict 

in permitting it, despite the defendant’s failure to object.”)

(internal quotation marks omitted); United States v. Wright, 

466 F.2d 1256, 1259 (2d Cir. 1972) (“It is fair to say that the 

facial unconstitutionality of the wiretap statute does not leap 

from the pages of the United States Reports. The question is 

‘at least sufficiently close’ to take it out of the realm of plain 

error.”). We find these cases to be persuasive.

3

Here, even if the Virgin Islands statute is 

unconstitutional, it was far from being “clear under current 

law.” See Olano, 507 U.S. at 734. From a review of reported 

cases, it appears that Section 706 had never been challenged 

before, let alone construed by a court at the time of 

 

3 While there has been an instance where a court of appeals 

was satisfied that a constitutional challenge to a statute 

satisfied the plain error standard, see United States v. 

Knowles, 29 F.3d 947, 950-52 (5th Cir. 1994), that case is 

easily distinguishable. In that case, the Fifth Circuit issued 

United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1993) 

while Knowles was being appealed. Unlike the circumstances 

at issue here, the Supreme Court had expressly left this 

question open. See Olano, 507 U.S. at 734 (“We need not 

consider the special case where the error was unclear at the 

time of trial but becomes clear on appeal because the 

applicable law has been clarified.”).
8

Vanterpool’s trial.

4

Therefore, the plain error review standard 

does not permit us to reach the constitutional challenge.5 

B. Ineffective Assistance of Counsel Claim 

Vanterpool argues that his trial lawyer’s performance

fell below the standard of effective assistance in violation of 

the Sixth Amendment of the Constitution of the United 

States. 

We first discuss whether we will review the ineffective 

assistance claim on direct appeal, given that this Court, in 

general, does not entertain a claim of ineffective assistance of 

 

4

It appears that there had only been one reported case citing 

Section 706 at the time of the trial for the present case. That 

case, however, did not construe the statute because the claim 

on the complaint relating to the statute was dismissed. See

James v. James, No. 1987/342, 1988 WL 142612 (D.V.I. 

Dec. 19, 1988).

5 We do not suggest that a constitutional challenge to a statute 

can never succeed on plain error review, but only that, in this 

instance, the unconstitutionality of the statute was 

insufficiently clear for us to strike it down under the plain 

error standard. Cf. United States v. Cole, 567 F.3d 110, 117 

(3d Cir. 2009) (“Neither the absence of circuit precedent nor 

the lack of consideration of the issue by another court 

prevents the clearly erroneous application of statutory law 

from being plain error.”) (internal citation and quotation 

marks omitted). Also, it should be self-evident that nothing 

that we pronounce today forecloses future litigants from 

challenging the constitutionality of the statute. 
9

counsel on direct appeal. See, e.g., United States v. Givan,

320 F.3d 452, 464 (3d Cir. 2003). Among the reasons that 

such a claim is not usually cognizable on direct appeal is the 

very important fact that there will not, in the typical case,

exist a record developed enough to assess the efficacy of 

defense counsel. See United States v. Jake, 281 F.3d 123, 

132 n.7 (3d Cir. 2002). 

Although we re-affirm this Court’s general practice, 

we find that the unique circumstances here warrant review on 

direct appeal. Specifically, Vanterpool is unlikely to meet the 

“in custody” requirement to bring a collateral habeas petition 

pursuant to a 28 U.S.C. § 2254 claim.6 The Supreme Court 

has interpreted the statutory language under § 2254 as 

requiring that the habeas petitioner be “in custody” under the 

conviction or sentence under “attack at the time his petition is 

filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) 

(emphasis added). Here, Vanterpool is no longer “in 

custody” within the meaning of the habeas statute. 

Vanterpool was never incarcerated, as his sentence was 

suspended, and he presumably completed probation in 2008. 

Moreover, his restraining order was fully discharged when 

Vanterpool completed his probation. The controlling Virgin 

Islands Code provides that “[t]he defendant’s liability for any 

fine or other punishment imposed as to which probation is 

granted, shall be fully discharged by the fulfillment of the 

terms and conditions of probation.” 5 V.I. Code Ann. tit. 5, § 

3711(a) (emphasis added). Even if we construe an undated

 

6 We do not render an opinion on the availability of habeas, 

but discuss the issue here from a predictive standpoint as part 

of our reasoning as to whether to consider the ineffectiveness 

claim on direct review.
10

trial court restraining order as a permanent restraining order, 

such a “punishment imposed as to which probation is 

granted” was “fully discharged” when Vanterpool completed 

his three-year probation.7

This leaves remand as the prudential route. It is worth 

noting here that our general aversion to entertaining a claim 

for ineffective assistance on direct appeal is to (1) benefit 

from the trial court’s fact finding; and (2) protect the 

defendant from prematurely bringing the claim, thereby 

sparing him from having res judicata attach to the ineffective 

assistance claim. See United States v. Cooke, 110 F.3d 1288, 

1299 (7th Cir. 1997) (“This Court’s reluctance to consider 

ineffective assistance claims on direct appeal stems, of 

course, from the fact that such claims are very unlikely to find 

any factual support in the trial record and an adverse 

 

7 Of course, the “in custody” language has not required that a 

petitioner be physically confined in order to challenge his 

sentence via a habeas corpus petition. In Jones v. 

Cunningham, 371 U.S. 236, 241-42 (1963), for example, the 

Supreme Court held that a prisoner who had been placed on 

parole was still “in custody” under his unexpired sentence. 

However, the Supreme Court has repeatedly emphasized that 

custody requires a showing of “severe restraints on individual 

liberty,” which is unlikely to be found when the sentence 

imposed for the conviction has fully expired. See Maleng v. 

Cook, 490 U.S. at 491 (“We have never held . . . that a habeas 

petitioner may be ‘in custody’ under a conviction when the 

sentence imposed for that conviction has fully expired at the 

time his petition is filed. Indeed, our decision in Carafas v. 

LaVallee, [391 U.S. 234, 238 (1968)] strongly implies the 

contrary.”).
11

determination on direct appeal will be res judicata in any 

subsequent collateral attack.”).

Here, neither rationales apply: a trial court’s fact 

finding is only available on direct appeal, and there is no risk 

of res judicata applying since collateral relief is unavailable. 

Indeed, while this Court has not spoken much on this subject, 

other circuits have recognized that restrictions on the 

defendant’s ability to seek habeas relief constitute grounds to 

review ineffectiveness claims on direct appeal. See, e.g., 

United States v. Doe, 365 F.3d 150, 153 (2d Cir. 2004) 

(“AEDPA’s restrictions on a prisoner’s ability to seek more 

than one federal habeas petition presented ‘a significant 

reason’ not to dismiss ineffective assistance claims raised on 

direct review in favor of collateral attack under section 

2255.”). The inability of Vanterpool to challenge his 

conviction on collateral attack is a matter of critical 

importance here. If an ineffective assistance claim is 

unavailable both on direct appeal and collateral attack, we are 

essentially eviscerating a constitutional right by a way of 

tolerating instances where an individual would get convicted 

under a presumably unconstitutional state statute, leaving him 

with no recourse. 

We emphasize that we are not abandoning our typical 

practice of eschewing consideration of ineffective assistance 

claims on direct appeal. However, where, as here, a district 

court most probably would not have the opportunity to factfind on collateral attack, there is no principled reason to 

follow a discretionary procedure that we developed to ensure 

that factual records are developed before we review 

ineffective assistance claims. Cf. United States v. Rashad, 

331 F.3d 908, 911 (D.C. Cir. 2003) (“[W]e reject the 

Government’s premise that our remand practice on direct 
12

appeal should be curtailed in order to give effect to the 

statutory restriction upon a defendant’s ability to launch a 

second collateral challenge to his conviction.”); United States 

v. Leone, 215 F.3d 253, 257 (2d Cir. 2000) (“[W]e choose to 

exercise our discretion to remand to the district court for 

further fact-finding rather than to dismiss the appeal and force 

the appellant to use up his only habeas petition.”). 

Therefore, we proceed to review the merits of 

Vanterpool’s ineffective assistance of counsel claim. 

1. Right to Counsel: Overview

The Sixth Amendment recognizes the right to the 

assistance of counsel because it envisions counsel playing a 

role that is critical to the ability of the adversarial system to 

produce just results. See Strickland v. Washington, 466 U.S. 

668, 684-85 (1984). The Supreme Court has set forth a twopart test for evaluating the claim that he was denied his Sixth 

Amendment right to effective assistance of counsel. First, 

“the defendant must show that counsel’s representation fell 

below an objective standard of reasonableness.” Id. at 688; 

see also Hill v. Lockhart, 474 U.S. 52, 57 (1985). This 

inquiry “is necessarily linked to the practice and expectations 

of the legal community.” Padilla v. Kentucky, 559 U.S. 356, 

366 (2010). But a “fair assessment of attorney performance 

requires [us] . . . to evaluate the conduct from counsel’s 

perspective at the time.” Strickland, 466 U.S. at 689.

Second, a defendant must prove prejudice. The 

defendant must show that there is a reasonable probability 

that, but for counsel’s unprofessional errors, “the result of the 

proceeding would have been different.” Strickland, 466 U.S. 

at 694. A reasonable probability is a probability sufficient to 
13

undermine confidence in the outcome. That requires a 

“substantial,” not just “conceivable,” likelihood of a different 

result. See Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) 

(internal quotation marks omitted). “This standard ‘is not a 

stringent one[.]’” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 

2001) (quoting Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 

1999)). We examine the prejudice prong first, followed by 

the reasonableness prong.

8

 

2. Prejudice

Of various theories offered by Vanterpool, the theory 

that ineffective assistance resulted from his counsel’s failure 

to “challenge the constitutionality of Section 706” deserves 

our scrutiny.9 (See Appellant Br. 28.)

 

8

This Court has “endorsed the practical suggestion in 

Strickland to consider the prejudice prong before examining 

the performance of counsel prong[.]” United States v. Booth, 

432 F.3d 542, 546 (3d Cir. 2005).

9 Although we find that this theory is sufficient to 

demonstrate the prejudice prong, we also note that the record 

is replete with statements by trial counsel that raise questions 

about his competency. (See, e.g., App. 134 (“I really don’t 

know what to say. Mr. Vanterpool says he wants to have a 

trial so we had a trial.”); App. 135 (“At this point there is no 

real rationality to it. . . . He just seems to be incapable of 

understanding that a person is telling him that they no longer 

want to have contact with him.”).)
14

The First Amendment, applicable to the U.S. Virgin 

Islands through the Organic Act,10 states that “Congress shall 

make no law . . . abridging the freedom of speech . . . .” U.S. 

Const. amend. I. Although the rights guaranteed by the First 

Amendment are not absolute, as a general matter, the 

Government may not limit or prohibit speech. See Ashcroft v. 

Free Speech Coalition, 535 U.S. 234, 245 (2002) (“As a 

general principle, the First Amendment bars the government 

from dictating what we see or read or speak or hear.”).

Vanterpool makes three constitutional challenges to 

Section 706 under the First Amendment. First, Vanterpool 

argues that the statute was unconstitutionally vague as applied 

to him. Second, Vanterpool argues that the statute was 

unconstitutionally vague on its face. Finally, he argues that 

the statute was unconstitutionally overbroad. Of these 

challenges, we only need to analyze the overbreadth

challenge to show that there would have been a reasonable 

probability that the outcome would have been different. 

The constitutional guarantees of freedom of speech 

forbid the states to punish the use of words or language not 

within “narrowly limited classes of speech . . . .” Chaplinsky 

v. New Hampshire, 315 U.S. 568, 571 (1942). Even as to 

such a class, however, because “the line between speech 

 

10 “[T]he Organic Act guarantees to the inhabitants of the 

islands in the very language of the First Amendment to the 

Constitution of the United States the same freedom of speech 

and of the press which is safeguarded to the inhabitants of the 

United States by the First and Fourteenth Amendments.” 

People of Virgin Islands v. Brodhurst, 148 F.2d 636, 643 (3d 

Cir. 1945).
15

unconditionally guaranteed and speech which may 

legitimately be regulated, suppressed, or punished is finely 

drawn[,]” Speiser v. Randall, 357 U.S. 513, 525 (1958), “[i]n 

every case the power to regulate must be so exercised as not, 

in attaining a permissible end, unduly to infringe the 

protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 

304 (1940). In other words, the statute must be carefully 

drawn or be authoritatively construed to punish only 

unprotected speech and not be susceptible to application to 

protected expression. Because First Amendment freedoms 

need breathing space to survive, government may regulate in 

the area only with narrow specificity. Nat’l Ass’n for 

Advancement of Colored People v. Button, 371 U.S. 415, 433 

(1963). To prevail upon such a challenge, especially in a case 

involving conduct as well as speech, the overbreadth of the 

statute “must not only be real, but substantial,” in relation to 

the legitimate coverage of the statute. Broadrick v. 

Oklahoma, 413 U.S. 601, 615 (1973). 

The Government points to our precedent in United 

States v. Lampley to uphold the constitutionality of Section 

706. Lampley, which involved a person charged under the 

federal telephone harassment statute, 47 U.S.C. § 223,

involved a “bizarre tale of a romantic obsession” involving a 

breakup and a launch of “a telephonic assault . . . unleashing a 

barrage of incessant and subsequently abusive telephone 

calls.” United States v. Lampley, 573 F.2d 783, 786 (3d Cir. 

1978). Lampley asserted that the statute violated the First 

Amendment because it failed to specify that the requisite 

ensuing conversation must contain harassing language. This 

Court rejected such a claim, reasoning that the statute’s 

specific intent requirement rendered unconvincing Lampley’s

claim, since it has long been true that “[w]here the 
16

punishment imposed is only for an act knowingly done with 

the purpose of doing that which the statute prohibits, the 

accused cannot be said to suffer from lack of warning or 

knowledge that the act which he does is a violation of law.” 

Id. at 787 (quoting Screws v. United States, 325 U.S. 91, 101-

02 (1945)). 

A close examination of the statutory language of 

Section 706, along with the actual charges brought against 

Vanterpool reveals, however, that Lampley is distinguishable 

from this case. Importantly, unlike the federal telephone 

harassment statute, the Virgin Islands statute seeks to regulate 

not only conduct associated with the use of the telephone, but 

also “written communications.”11 The Virgin Islands statute, 

moreover, regulates not only conduct “solely intending to 

harass” but any conduct “intending to harass,” broadly 

sweeping to regulate a wide variety of expressive speech.12

 

11 The record makes clear that Counts III and IV are charges 

for “writing in a manner likely to harass or alarm her.” (App. 

38 (emphasis added).) 

12 The version of the federal statute discussed in Lampley

criminalized anyone who “makes repeated telephone calls, 

during which conversation ensues, solely to harass any person 

at the number called[.]” Lampley, 573 F.2d at 791 (quoting 

47 U.S.C. § 223 (1)(D) (1976) (internal quotation marks 

omitted). The Virgin Islands statute, on the other hand, 

criminalizes the actions of anyone who “with intent to harass 

or alarm another person . . . communicates with a person, 

anonymously or otherwise, by telephone, or by telegraph, 

mail or any other form of written communication, in a manner 

likely to harass or alarm[.]” V.I. Code Ann. tit. 14, § 706(1).
17

Here, the record indicates that the letters sent by 

Vanterpool are forms of written communications that fall 

within the category of protected speech. (See, e.g., App. 150 

(“I still love you and thanks. I forgive you like the Lord 

forgive [sic.] us in order to make it into his Kingdom.”).) 

Vanterpool’s communications do not fall into one of the 

defined categories of unprotected speech such as defamation, 

incitement, obscenity, or child pornography. 13 Ashcroft v. 

Free Speech Coal., 535 U.S. 234, 246 (2002). Nor do they 

constitute unprotected “true threats,” because they are not 

“serious expression[s] of an intent to commit an act of 

unlawful violence to a particular individual or group of 

individuals.” Virginia v. Black, 538 U.S. 343, 344 (2003). 

Rather, they are the kind of communicative speech that 

implicates the First Amendment. See Jed Rubenfeld, First 

Amendment’s Purpose, 53 Stan. L. Rev. 770, 777 (2001). 

Indeed, Vanterpool’s faxed letters are at best communications 

people might find distasteful or discomforting. While the 

Government has undoubtedly a legitimate interest in 

protecting persons against unwarranted invasion of privacy by

others, see, e.g., Miller v. California, 413 U.S. 15 (1973), the 

Supreme Court has also made very clear that such 

communications are fully protected speech. See Texas v. 

Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock 

principle underlying the First Amendment, it is that the 

 

13 First Amendment protection applies as much to written 

materials sent through the mails, as it does to verbal 

communications. See Lamont v. Postmaster General of the 

United States, 381 U.S. 301, 305 (1965) (stating that “the use 

of the mails is almost as much a part of free speech as the 

right to use our tongues”).
18

government may not prohibit the expression of an idea simply 

because society finds the idea itself offensive or 

disagreeable.”).

Section 706 is especially repugnant to the First 

Amendment because past romantic relationships or family 

conflicts often lead to unsatisfactory, unpleasant discourse 

that still falls under the protection of the First Amendment. 

See United States v. Darsey, 342 F. Supp. 311, 314 (E.D. Pa. 

1972) (“Up to a point these are the normal risks of human 

intercourse, and are and should be below the cognizance of 

the law.”). The State may not abridge one’s First 

Amendment freedoms merely to avoid annoyances. Coates v. 

Cincinnati, 402 U.S. 611, 615 (1971). “The ability of 

government, consonant with the Constitution, to shut off 

discourse solely to protect others from hearing it is, in other 

words, dependent upon a showing that substantial privacy 

interests are being invaded in an essentially intolerable 

manner.” Cohen v. California, 403 U.S. 15, 21 (1971). 

Moreover, the First Amendment protects more than just 

amiable communications. See, e.g., Norwell v. City of 

Cincinnati, 414 U.S. 14, 15-16 (1973). A harassment statute 

should be carefully tailored to avoid constitutional 

vulnerability on the grounds that it needlessly penalizes free 

speech.

Therefore, had Vanterpool’s attorney raised the issue 

to the trial court, Section 706 would likely have been found

unconstitutional. By virtue of his trial counsel’s failure to 

preserve a viable First Amendment challenge, Vanterpool has 

satisfied the second prong of the Strickland test. 

3. Trial Counsel’s Performance
19

“[T]he proper measure of attorney performance 

remains simply reasonableness under prevailing professional 

norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal 

quotation marks omitted). A fair assessment of counsel’s

performance requires that every effort be made to eliminate 

the distorting effects of hindsight, reconstruct the 

circumstances of counsel’s challenged conduct, and evaluate 

the conduct from counsel’s perspective at the time. See 

Marshall v. Hendricks, 307 F.3d 36, 105-06 (3d Cir. 2002). 

Because of the difficulties inherent in making the evaluation, 

a court must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional 

assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged 

action “might be considered sound trial strategy.” Strickland, 

466 U.S. at 689 (internal quotation marks omitted).

The reasonableness of counsel’s performance is to be 

evaluated from counsel’s perspective at the time of the 

alleged error and in light of all the circumstances. Id. at 689. 

In making the competency determination, the court “should 

keep in mind that counsel’s function, as elaborated in 

prevailing professional norms, is to make the adversarial 

testing process work in the particular case.” Id. at 690. 

Because that testing process generally will not function 

properly unless defense counsel has done some investigation 

into the prosecution’s case and into various defense strategies, 

the Supreme Court has stated that “counsel has a duty to 

make reasonable investigations or to make a reasonable 

decision that makes particular investigations unnecessary.” 

Id. at 691. 

There are several competing factors at play here. In 

favor of Vanterpool’s position, there were cases from other 
20

jurisdictions at the time of the trial that found similar statutes 

unconstitutional. See, e.g., United States v. Popa, 187 F.3d 

672, 674-78 (D.C. Cir. 1999) (holding that the federal 

telephone harassment statute was unconstitutionally vague); 

Walker v. Dillard, 523 F.2d 3, 4 n.1 (4th Cir. 1975) (holding 

that the Virginia statute making it illegal to “curse or abuse 

anyone, or use vulgar, profane, threatening or indecent 

language over any telephone” was facially overbroad). This 

fact is important because this Court has held that counsel’s 

failure to raise a personal-use argument at sentencing 

constituted ineffective assistance of counsel based on 

precedents from our sister circuits. See Jansen v. United 

States, 369 F.3d 237, 241, 243-44 (3d Cir. 2004) (“At the 

time of sentencing the Courts of Appeals for the Seventh and 

Ninth Circuits had held that drugs possessed for personal use 

may not be included in calculating a Guideline sentence for 

possession with intent to distribute under U.S.S.G. § 2D1.1. . 

. . The conclusion that counsel’s performance was ineffective 

is not based on hindsight. The decisions [of our sister circuits] 

were readily available to him.”). Thus, if trial counsel’s 

failure to raise a First Amendment challenge is attributable to 

an ignorance of the law, Vanterpool would have a valid 

ineffective assistance claim. As the Supreme Court recently 

re-affirmed, “[a]n attorney’s ignorance of a point of law that 

is fundamental to his case combined with his failure to 

perform basic research on that point is a quintessential 

example of unreasonable performance under Strickland.”

Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).

Undermining Vanterpool’s claim, on the other hand, is 

our precedent in Lampley construing a similarly-worded (yet 

substantively different) federal statute. United States v.

Lampley, 573 F.2d 783 (3d Cir. 1978). This case, along with 
21

a number of cases from other jurisdictions upholding the 

constitutionality of similar statutes,14 could have suggested to 

reasonably competent trial counsel that a First Amendment 

challenge would be unsuccessful. If Vanterpool’s counsel 

had considered the issue, and had determined from either a

merits-based or strategic standpoint that the challenge to the 

statute should not be pursued, we might have greater 

difficulty in concluding that his representation was substandard. We cannot, however, determine this on the record 

provided to us given that the facts necessary for the 

consideration of this issue were not explored at trial and are in 

need of further development. Therefore, because we find that 

there are not sufficient facts in this record for Vanterpool to 

meet the first prong, we find that remand is appropriate. 

C. Sufficiency of the Evidence 

Vanterpool argues that there was insufficient evidence 

to permit the jury to find that Vanterpool’s conduct 

constituted a violation of Section 706. Critical to his position 

is the argument that the government “failed to prove that 

Vanterpool had the requisite ‘intent to harass or alarm another 

person[.]’” (Appellant Br. 47.) 

This argument is unavailing. Under Supreme Court 

precedent, “the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any

 

14 See, e.g., State v. Hagen, 558 P.2d 750, 752 (Ariz. Ct. App. 

1976); see also Wayne F. Foster, Validity, Construction, and 

Application of State Criminal Statutes Forbidding Use of 

Telephone to Annoy or Harass, 95 A.L.R.3d 411 (1979) 

(collecting cases). 
22

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” Jackson v. 

Virginia, 443 U.S. 307, 319 (1979). In reviewing the 

sufficiency of the evidence, “we must view the evidence in 

the light most favorable to the Government[.]” United States 

v. Pearlstein, 576 F.2d 531, 534 (3d Cir. 1978). As this Court 

has pronounced, a district court’s verdict will be overturned 

“only when the record contains no evidence, regardless of 

how it is weighted, from which the jury could find guilt 

beyond a reasonable doubt.” United States v. Miller, 527 

F.3d 54, 62 (3d Cir. 2008) (quoting United States v. Thayer,

201 F.3d 214, 218-19 (3d Cir. 1999)). 

Here, there is enough evidence in this record to find 

that Vanterpool violated Section 706. Vanterpool admitted in 

court that the repeated telephone calls were placed by him, 

and Vanterpool did not contest that these calls and letters 

were sent even after being told by the police and Webster that 

the communications were not welcome. Because the 

reviewing court must treat all of the incriminating evidence as 

true and credible, the Government has presented sufficient 

evidence that Vanterpool violated the statute. See United 

States v. Lore, 430 F.3d 190, 203-04 (3d Cir. 2005). 

IV. CONCLUSION

For the reasons set forth above, we will vacate and 

remand this case for further proceedings in accord with this 

opinion.