UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 04-cr-216-01-SM

Opinion No. 2005 DNH 161

James Tobin,

O R D E R

Defendant is charged in count one of the superseding

indictment with conspiracy to injure and oppress New Hampshire

citizens in the free exercise of their right to vote in a federal

election, in violation of 18 U.S.C. § 241. Among other things,

that statute makes it unlawful for

two or more persons [to] conspire to injure, oppress,

threaten, or intimidate any person in any State . . .

in the free exercise or enjoyment of any right or

privilege secured to him by the Constitution or laws of

the United States.

Defendant moves to dismiss count one on grounds that § 241

did not provide him with fair notice that the acts he is accused

of committing would violate the statute’s prohibitions. The

“fair warning requirement” serves the principle that “no man

shall be held criminally responsible for conduct which he could

not reasonably understand to be proscribed.” Bouie v. City of

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Columbia, 378 U.S. 347, 351 (1964) (quoting United States v.

Harriss, 347 U.S. 612, 617 (1954)). It requires “fair warning

. . . in language that the common world will understand, of what

the law intends to do if a certain line is passed. To make the

warning fair, so far as possible the line should be clear.” 

McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.).

The superseding indictment describes the charged conspiracy

as one intent upon injuring or oppressing the free exercise of

voting rights. The alleged means by which defendant sought to

achieve that goal was disruption of telephone communications, on

election day, between eligible voters on the one hand, and both

the New Hampshire Democratic Party and the Manchester

Professional Firefighters Association, on the other. The state

party and the firefighters association were offering voters

election-day transportation to the polls. Defendant allegedly

sought to disrupt the telephone lines to impede or prevent voters

who needed transportation from getting to the polls, by making it

difficult or impossible for them to obtain transportation from

the party or firefighters (the overarching goal being to prevent

voters from casting votes for Democratic candidates in the

federal election). Defendant says, in essence, that nothing in

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§ 241, or court decisions construing it, or defining rights

protected under federal law, gave him fair warning that the right

to vote includes a “right to the privately-sponsored convenience

at issue here - a free ride to the polls.” But defendant

describes the dispositive legal issue far too narrowly.

In United States v. Lanier, 520 U.S. 259 (1997), the Supreme

Court (Souter, J.) again acknowledged the facial breadth of § 241

and its substantive analogue, § 242, noting as to both:

Thus, in lieu of describing the specific conduct it

forbids, each statute’s general terms incorporate

constitutional law by reference, and many of the

incorporated constitutional guarantees are, of course,

themselves stated with some catholicity of phrasing. 

The result is that neither the statutes nor a good many

of their constitutional referents delineate the range

of forbidden conduct with particularity.

Id. at 265 (citations omitted). But, the court observed, “[w]hen

broad constitutional requirements have been ‘made specific’ by

the text or settled interpretations, willful violators ‘certainly

are in no position to say that they had no adequate advance

notice that they would be visited with punishment . . . . [t]hey

are not punished for violating an unknowable something.’” 

Lanier, 520 U.S. at 267 (quoting Screws v. United States, 325

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U.S. 91, 104 (1945)). The earlier Screws decision, the court

noted, limited prosecutions under § 242 (and, necessarily, § 241)

to acts injuring or oppressing rights that have been “‘made

specific’ by the time of the charged conduct.” Id. (citing

United States v. Kozminski, 487 U.S. 931, 941 (1988)).

In gauging whether prior decisions give reasonable warning

that the charged conduct violates constitutional rights, it is

not necessary, as defendant seems to suggest, to identify prior

decisions that “applied the right at issue to a factual situation

that is ‘fundamentally similar.’” Lanier, 520 U.S. at 269. 

Rather, it is sufficient if earlier decisions give reasonable

warning that the charged conduct would violate specific

constitutional rights. Id. (citations omitted). In that regard,

“general statements of the law are not inherently incapable of

giving fair and clear warning, and in other instances a general

constitutional rule already identified in the decisional law may

apply with obvious clarity to the specific conduct in question,

even though ‘the very action in question has [not] previously

been held unlawful.’” Lanier, 520 U.S. at 271 (citing Anderson

v. Creighton, 483 U.S. 635, 640 (1987)).

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The standard against which a “fair notice” challenge to

prosecution under § 241 is properly measured, then, is an

inherently practical one. “[A]ll that can usefully be said about

criminal liability under [§ 241] is that it may be imposed for

deprivation of a constitutional right if, but only if, ‘in the

light of pre-existing law the unlawfulness [under the

Constitution is] apparent.’ Where it is, the constitutional

requirement of fair warning is satisfied.” Lanier, 520 U.S. at

271 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Here, the constitutional right at issue is fundamental - the

right to vote. It is a right unquestionably established and

guaranteed by the Constitution and “hence is one secured by it to

those citizens and inhabitants of the state entitled to exercise

the right.” United States v. Classic, 313 U.S. 299, 314 (1941)

(citing, inter alia, Ex Parte Yarbrough (The Ku Klux Cases), 110

U.S. 651 (1884); United States v. Mosley, 238 U.S. 383 (1915)). 

Like § 242, § 241 “applies to the deprivation of the

constitutional rights of qualified voters to choose

representatives in Congress.” Classic, 313 U.S. at 328 (holding

predecessor of § 242 applicable to deprivation of right to have

votes counted in primary election). And, “[o]bviously included

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within the right to choose, secured by the Constitution, is the

right of qualified voters within a state to cast their ballots

and have them counted at Congressional elections.” Classic, 313

U.S. at 315 (citations omitted).

Indeed, in Classic the Supreme Court reiterated what was by

then clearly established law:

Section 19 [a predecessor of § 241] makes it a

crime to conspire to “injure” or “oppress” any citizen

“in the free exercise . . . of any right or privilege

secured to him by the Constitution.” In Ex Parte

Yarbrough, supra, as we have seen, it was held that the

right to vote in a Congressional election is a right

secured by the Constitution, and that a conspiracy to

prevent the citizen from voting or to prevent the

official count of his ballot when cast, is a conspiracy

to injure and oppress the citizen in the free exercise

of a right secured by the Constitution within the

meaning of § 19 [§ 241].

Classic, 313 at 321 (emphasis supplied) (footnote omitted). So,

the “fair warning” issue turns generally on whether a person of

ordinary intelligence would know that the acts charged would

violate specific constitutional rights. Or, with reference to

the allegations in the superseding indictment, whether a person

of ordinary intelligence would understand that participating in

an agreement, or conspiracy, whose purpose is to prevent

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qualified persons from freely exercising their right to vote,

would violate § 241. Plainly, a reasonable person would

understand that the right to vote is a right protected by the

Constitution. He or she would also understand that knowingly

joining a conspiracy with the specific intent to impede or

prevent qualified persons from exercising the right to vote is

conduct punishable under § 241.

Whether the government can meet its high burden of proof

beyond a reasonable doubt in this case remains to be seen. The

government, for example, might not prove the existence of such an

agreement, or defendant’s knowing participation in it. But, the

superseding indictment unambiguously seeks to impose § 241

liability for conduct amounting to an unlawful agreement to

willfully “injure” or “oppress” citizens in the free exercise or

enjoyment of the specific constitutionally protected right to

vote, an offense about which defendant had fair warning. The

specific means chosen by the alleged conspirators to achieve

their goal of suppressing the number of votes cast for Democrats

- jamming telephone lines of organizations providing qualified

voters in need of transportation with rides to the polls (voters

that would otherwise likely not vote) - is not significant in the

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fair warning context. It is no defense that legal precedent does

not specifically hold that an agreement to interfere with voters’

ability to get rides to the polls qualifies as injury or

oppression of the right to vote under § 241; it is sufficient for

due process purposes that precedent makes it perfectly clear that

a conspiracy specifically aimed at impeding or preventing the

free exercise of voting rights is unlawful. See United States v.

Ehrlichman, 546 F.2d 910, 921 (D.C. Cir. 1976).

Conclusion

That a conspiracy or agreement to interfere with the free

exercise of the right to vote would violate § 241 is established

in the prior decisions of the Supreme Court. Fair warning is

given by the statute and decisional law that such conduct is

prohibited. That the tactics chosen to support the strategy -

cutting off an available means of transportation to polling

places, for the purpose of keeping qualified persons from voting

- might be described as an indirect rather than a direct assault

on the free exercise of Constitutionally protected rights, is of

little consequence. Nor can defendant properly assert that he

was denied “fair warning” of the criminal nature of his alleged

conduct simply because the method chosen to prevent qualified

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voters from casting their ballots was novel or unique. It is not

the novelty of the means employed, or the originality of the

scheme devised, that “fair notice” speaks to, but the purpose of

the conspiracy or the object of the conduct. Here, the alleged

purpose of the charged conspiracy was to injure or oppress any

person in the free exercise of the right to vote. Such conduct

is plainly prohibited by § 241. If the government can prove

defendant participated in that agreement, he can be held liable

under § 241.

The gravamen of the conspiracy offense charged in the

superseding indictment is an unlawful agreement - an agreement to

interfere with voting rights - not its eventual success or

failure, and not the specific ways or means employed to achieve

the conspiracy’s purpose. And, the “general constitutional rule

already identified in the decisional law” - the unlawfulness of

interfering with the right to vote - applies “with obvious

clarity to the specific conduct in question,” Lanier, 520 U.S.

at 271. The defendant’s assertion that he did not have “fair

notice” that his alleged conduct violates § 241 is without merit.

The motion to dismiss Count 1 (document no. 78) is DENIED.

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

November 30, 2005

cc: Andrew Levchuk, Esq.

Lily N. Chinn, Esq.

Nicholas A. Marsh, Esq.

Brian T. Tucker, Esq.

Bradley J. Bondi, Esq.

Dane Butswinkas, Esq.

Dennis M. Black, Esq.

Tobin J. Romero, Esq.

Peter G. Beeson, Esq.

U.S. Marshal

U.S. Probation

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