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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 VIRGI N I SLANDS (D.C. Cr. No. 3

- 05

- cr

- 0006 4

- 001 ) Chief Judge: Hon. Curtis v. Gómez 1 District Judge: Hon. Raymond Finch 2

______________
Argued May 13, 2014

1 Judge Wilma A. Lewis is the curren t 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

- 3 8 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) (“Sect ion 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 s hown that his tria l 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 app ly in this case precludes any grant of the relief sought

. B y virtue of trial
counsel ’s failure to preserve the First Amendment challenge, however, the prejudice prong of the Strickland test is
satisfied. Because t he 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 d etermine whether the performance of Vanterpool’s trial counsel did indeed fall
below the Strickland standard.

I. FACTS AND PROCEDURAL HISTORY

I n May 2004, Jacqueline Webster expressed a desire to
end her relationship with Earl Vanterpool because Vanterpool
had become possessive and called her frequently. Despite4 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 n umerous calls to Webster’s phone

, and started sending her faxes. Vanterpool would, at times, call W ebster
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 speak ing 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 o f his behavior, the Government of the U.S. Virgin Islands (“ Government ”) brought four charges against Vanterpool: (1) one count of harassment by telephone

occur ring 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) a nd 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. Code5 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
S uperior 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 curi am opini on, 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 is6 plain error. See United States v. Marcus , 560 U.S. 258, 26 2 (2010). Because this standard substantially limits the type of scrutiny that w e m ay 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 t imely raised in district

court. Fed. R. Crim. P. 52(b) (“P lain 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 t he 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 Cour t 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 D istrict C ourt 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 first7 time on appeal. See , e.g. , United States v. Dedman , 527 F.3d 577, 5 92 (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 o r obvious under current law . . . [or] so egregious and obvious as to make the trial judge and prosecutor derelict in permi tting it, despite the defendant’ s failure to object.”) (internal quotation marks omitted) ; United States v. Wright

, 466 F.2d 1256, 12 59 (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 fin d these case s 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 chal lenged 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 Fift h 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
conside r 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
f ell below the standard of effectiv e assistance in violation of
the Sixth Amendment of the Constitution of the United
States

.

W e 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 t here had only been one reported case citing
Section 706 at the time of the trial for the pr esent 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 chal lenge 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 a ppeal 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 ge neral 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 add ed). 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 discharg ed 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 predi ctive 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 dis charged” when Vanterpool completed
his three

- year probation. 7

This leaves remand as the prudential route. It is worth noting here that o ur general aversion to entertaining a claim for ineffective assistance on direct appeal is to (1) benefit
from the tri al 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 Cou rt’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 emphas ized 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

p etitioner 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 rationale s 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 n ot 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 cons titutional 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 consider ation of ineffective assistance claims on direct appeal. However, w here, as here, a district

court most probably would not have the opportunity to fact

find on collateral attack, there is no principled reason to follow a discretionary procedure that we de veloped 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 direct12 appeal should be curtailed in order to give effect to the statutory restriction upon a defendant’s ability to launch a
second collateral c hallenge to his conviction.”); United States
v. Leone , 215 F.3d 253, 257 (2d Cir. 2000) (“[W]e choose to
exercise our discretion to re mand 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 two

part 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
bel ow 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,
36 6 (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 pr obability 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 to13 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 quotatio n marks omitted). “This s tandard ‘is not a stringent one[.] ’” Jermyn v. Horn

, 266 F.3d 257, 282 (3d Cir.
20 01) (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 S ection 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 perfo rmance of counsel prong [.]” United States v. Booth

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

.

9 Although we find that this theory is sufficie nt 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 . . . a bridging 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. 2 34, 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 t hat 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 o verbreadth challenge to show that there would have been a reasonable proba bility that the out come would have been different.

The constitutional guarantees of freedom of speech
forbid the s tates to punish the use of words or language n ot 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 Amendme nts.” People of Virgin Islands v. Brodhurst , 14 8 F.2d 636, 643 (3d Cir. 1945).15 unconditionally guaranteed and speech which may legitimately be regulated, su ppressed, 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 sp eech, 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 ass ault . . . 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 fail ed to specify that the requi site ensuing conversation must contain harassing language

. This Court rejected such a claim , reasoning that the statute’s specific intent requirement render ed unconvincing Lampley’s claim, since it has long been true that “ [ w ] here the16 punishment imposed i s 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 Sta tes , 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, u nlike the federal te lephone
harassment statute, the Virgin Islands statute seeks to regulate not only conduct associated with the use of the telephone, but also “written communications.” 11 T he Virgin Islands statute

, moreover, regulates not only conduct “solely intending to
h arass” but any conduct “intending to harass,” broadly

sweep ing to regulate a wide variety of expressive speech. 12

11 The record makes clear that Count s III and IV are charges for “ writing in a manner likely to ha rass 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 pers on at the number called [.]” Lampley , 573 F.2d at 791 ( quoting 47 U.S.C. § 223 (1)(D) (1976) (internal quotati on 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 a s 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. R ev. 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 F irst 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, unple asant discourse
that still fall s 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
int ercourse, and are and should be below the cognizance of the law.”). The S tate 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 Const itution, 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 ground s 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

. B y virtue of his trial counsel’s failure to

preserve a viable First Amendment chall enge, Vanterpool has
satisfied the second prong of the Strickland test.

3

. Trial Counsel’s Performance19 “[T]he proper measure of attorney performance remains simply reasonableness under prevailing professional
norms.” Wiggins v. Smith , 539 U.S. 510, 52 1 (2003) (internal quotation marks o mitted). 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 co nduct 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 o mitted).

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 “s hould 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 do ne 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 other20 jurisdictions at the time of the trial that found similar statutes
unconstitutional. See, e.g.

, United States v. Popa , 1 87 F.3d 672, 674

- 7 8 (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 assistan ce 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 person al 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, 10 89 (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 with21 a number of cases from other jurisdictions upholding the constitutionality of similar statutes, 14 coul d have suggested to reasonably competent trial counsel that a First Amendment challenge would be unsuccessful

. If Vanterpool’s counsel had considered the issue, an d had determined from either a
merit s

- 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 sub

standard. 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 i n this record for Vanterpool to

me et the first prong , we fin d 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 conduc t constituted a violation of Section 706 . Critical to his p osition 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 whe ther, 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) ; s ee 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

s ufficiency 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, 2 18

- 19 (3d Cir. 19 99)).

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 ev en 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 G overnment has presented sufficient
evidence that Vanterpool violate d 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.