UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States

v. Crim. No. 04-cr-216-1-SM

Opinion No. 2008 DNH 042

James Tobin

O R D E R

In May of 2005, a federal grand jury returned a superceding

indictment charging James Tobin with various crimes stemming from

his involvement in a politically-motivated scheme to disrupt the

telephone communications of both the New Hampshire Democratic

Party and the Manchester firefighter’s union on election day in

2002. Mr. Tobin served as New England Regional Director of the

Republican National Committee. The Democratic Party and the

union were involved in “get out the vote” efforts, offering

voters free rides to the polls. Tobin was charged, among other

things, with conspiracy to violate the civil rights of voters, in

violation of 18 U.S.C. § 241; conspiracy to “make[] or cause[]

the telephone of another repeatedly or continuously to ring, with

intent to harass any person at the called number,” in violation

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of 47 U.S.C. § 223(a)(1)(D); and aiding and abetting the

violation of 47 U.S.C. § 223(a)(1)(D). 

The primary object of the charged conspiracies and

subsection (D) violation was to suppress the number of votes cast

for Democratic candidates. That objective was to be accomplished

by jamming phone lines to prevent voters needing a ride to the

polls from getting through to those providing rides. On December

15, 2005, a petit jury returned verdicts acquitting Tobin of the

first count (conspiracy to violate civil rights), but finding him

guilty of the two counts under subsection 223(a)(1)(D). 

Tobin appealed those convictions to the United States Court

of Appeals for the First Circuit, asserting that the jury had not

been properly instructed on the meaning of “intent to harass,” as

that phrase is used in subsection 223(a)(1)(D). As noted, that

subsection makes it a criminal offense to “make[] or cause[] the

telephone of another repeatedly or continuously to ring, with the

intent to harass any person at the called number” (emphasis

supplied). At Tobin’s criminal trial, the jury was instructed as

follows: 

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A person uses the telephone to harass another if he or

she intentionally employs the phone in a way that is

not meant as a good faith effort to communicate with a

person at the number called and is done with an

unjustifiable motive. . . . . [If] the caller causes

the telephone of another to ring repeatedly and the

caller is doing so for reasons other than a good faith

effort to communicate with someone at the number

called, the law deems such conduct to be harassing. 

So, in the context of this case, the word harass means

and describes conduct that is intentionally designed

not to communicate, but instead to impede, distract,

disrupt or undermine, in a substantial and not a

trivial way, the ability of persons at the called

numbers to communicate with others and to effectively

go about their business.

United States v. Tobin, 480 F.3d 53, 55 (1st Cir. 2007) (quoting

the criminal jury instructions). In practical effect, the jury

instruction included within the meaning of “harass” activities

undertaken in bad faith and designed to disrupt telephonic

communications.

On appeal, the court of appeals determined that the jury

instruction gave “harass” too broad a meaning, thus expanding the

statute’s reach unduly. The court also concluded that the

prosecution’s proposed construction of “harass” was too broad,

and that the defendant’s proposed construction was too narrow. 

The appellate court construed the term “harass,” as it is used in

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subsection (D), to mean “provoke adverse [emotional] reactions in

the called party.” Id. at 58. Disruption of telephonic

communications, without proof of an intent to harass (as defined

by the court of appeals), was held to be outside the reach of

subsection (D).

The court of appeals also recognized another critical legal

issue, related to the word “intent” as it is used in subsection

(D): 

Did an intent to harass exist if Tobin merely knew that

anger and upset were almost certain to result from the

carrying out of the scheme with its repeated ringing

and blocking of communications? Or must Tobin have had

a subjective purpose (i.e., an aim or desire) to cause

the subject to feel harassed? 

Id. at 60 (emphasis in original). Although the court of appeals

chose not to resolve that controlling question of law (because

the parties did not brief it sufficiently), the court did hold

that if the statute requires a purpose to harass (as opposed to a

more generalized recognition that adverse emotional reactions

would be a foreseeable consequence of repeated hang-up calling),

the evidence produced at trial was, as a matter of law,

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1 Defendant has filed a notice of appeal, interlocutory in

character, from the final pretrial order scheduling trial, even

though the final pretrial order made it clear that trial would

not go forward without defendant first being afforded an

opportunity to file an interlocutory appeal if the intent issue

was resolved against him. If resolved in defendant’s favor, the

trial would not go forward for different reasons. While,

ordinarily, docketing a notice of appeal divests the district

court of jurisdiction over the underlying case, that is not so

when a litigant purports to appeal a plainly unappealable order. 

In such a case “the trial court may treat the appeal for what it

is — a sham — and continue to exercise jurisdiction over the

case.” United States v. Mala, 7 F.3d 1058, 1061 (1st Cir. 1993).

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insufficient to sustain a conviction, and Tobin would be entitled

to judgment of acquittal. Id. at 60, 62. 

The court of appeals vacated Tobin’s convictions and

remanded the case for further proceedings. Consequently, it

falls to this court, at least in the first instance, to resolve

the controlling legal question left unanswered by the court of

appeals. But, because authoritative resolution of the question

remains with the court of appeals, and to avoid putting either

the government or defendant through another, perhaps unnecessary,

trial, this court advised the parties that should the issue be

decided against defendant, the court would certify the legal

question in support of an interlocutory appeal, before convening

a retrial.1

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As noted in the First Circuit’s opinion, this is a close

call and there are good arguments on both sides. The outcome is

important in deciding whether there will be a new trial or an end

to the prosecution. Id. at 60-61. The First Circuit noted that

the “statute’s language could be read to embrace both [a purpose

to harass in the emotion-provoking sense, and knowledge that

harassment will assuredly result from the repeated calls] and one

starts with the presumption that knowledge is enough.” Id. at

61. But, as the court also pointedly noted, “there are arguments

for a different result here.” Id.

In the context of this prosecution, the arguments for a

different result here (i.e., requiring proof of a “purpose” to

cause emotional upset, rather than merely “knowledge” that such

upset is likely to occur) are persuasive. The legislative

history is not decidedly favorable either way and is hardly

conclusive with respect to Congressional intent, but it does

suggest that the basic evil the statute seeks to prevent is the

use of repeated phone calls to upset the persons called. It also

suggests that the statute was not directly aimed at preventing

the disruption of communications or phone jamming (which Congress

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could have criminalized in unmistakable language, as several

states have done). And, if mere knowledge of the likelihood of

adverse emotional reaction to repeated calling were sufficient to

meet the intent element, one can easily imagine a host of diverse

species of calls that, literally, would come within the statute’s

reach, yet have completely legitimate (non-harassing) purposes

(e.g., sales calls; collections; fund-raising). Hence, Chief

Judge Boudin’s comment that “[t]he need to interpolate a

qualification could argue for a ‘purpose’ reading.” Id. at 61. 

In other words, some qualifications or exceptions would have to

be read into a mere knowledge requirement to exclude legitimate

repeated calling that still would likely provoke adverse

emotional reactions in those called. Otherwise, legitimate use

of the telephone would be subject to criminal prosecution.

The difficulty is that most instances of repeated calling

can be expected to “provoke an adverse emotional reaction” of

some sort in the person called, and virtually every effort to

disrupt telephonic communications by making repeated calls in

sufficient numbers to jam phone lines will be understood to

provoke an adverse emotional reaction in those whose activities

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have been disrupted. “Harass” as used in subsection (D) has been

held not to encompass simple telephone disruption, unaccompanied

by an intent (at some level) to provoke adverse emotional

reactions in the persons called.

We think that a Congress that sought to reach and

outlaw attempts wrongfully to disrupt communications

would have used quite different language (e.g.,

“impede” access or use, “disrupt”), along the lines of

state statutes that are expressly so aimed [footnote

omitted].

* * *

In sum we think that to equate harassment with any

repeat calling done in bad faith is to enlarge the

scope of the statute. We read subsection (D) to

require an intent to provoke adverse reactions in the

called party and hold that a bad motive of some other

kind standing alone is not enough. There might be good

reason for a federal statute directed to simple,

deliberate disruption but that is a matter for Congress

to determine.

Id. at 57-58.

There is little point in extended discussion here, because

the issue is close and it is purely a question of law, which, as

a practical matter, will ultimately be decided by the court of

appeals upon de novo review. The parties have extensively and

capably briefed and argued the critical issue, as well as other

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2 The court raised an issue regarding possible judicial

estoppel, which would preclude the government from now contending

that Tobin did intend to provoke adverse emotional reactions,

under either a purpose or knowledge requirement, because the

government seemingly conceded at trial that it did not contend

that Tobin ever meant to cause any anxiety or distress among

recipients of the phone jamming calls. See, e.g., United States

v. Urso, 369 F. Supp. 2d 254, 264 (E.D.N.Y. 2005) (“However,

there is a clear consensus that among the courts that have

applied the doctrine of judicial estoppel to criminal proceedings

that prosecutors should be barred from arguing a different theory

of liability in a second prosecution only where the government’s

trial theories are ‘inherently factually contradictory’ and thus

are ‘irreconcilable’ [citation omitted].”) The court also raised

the issue of whether, even if knowledge (rather than purpose) was

sufficient to satisfy the intent element, adverse emotional

reaction was a consequence of the defendant’s conduct that was so

attenuated and distant that it should not be considered an object

of the charged conspiracy. See, e.g., United States v. Goldberg,

105 F.3d 770, 774 (1st Cir. 1997) (Boudin, J.) (“. . . [W]e leave

untouched the general precept, namely, that mere collateral

effects of jointly agreed-to activity, even if generally

foreseeable, are not mechanically to be treated as an object of

the conspiracy.”) The parties briefed those issue as well, but

they are not dispositive and need not be resolved.

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related issues specified by this court,2 and the call still

remains a close one.

Having thoroughly considered the issue and having carefully

reviewed the court of appeals’ opinion, as well as the legal

memoranda submitted by and oral argument of the parties, the

pertinent case law, and the statute’s legislative history, the

court concludes that, to violate subsection 223(a)(1)(D), one

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must have a specific purpose to cause emotional upset in a person

at the telephone number called. In other words, it is not enough

merely to foresee that emotional upset is a likely consequence of

repeated calls. Instead, the actor must purposely seek to cause,

or must desire to cause an adverse emotional reaction in a person

at the called number. That aim or purpose need not be the sole

aim or purpose, but it must be an aim or purpose.

Given this court’s determination that the statute does

require a subjective purpose to cause an adverse emotional

reaction in the person repeatedly called, and given the court of

appeals’ holding that, as a matter of law, the evidence produced

at Tobin’s trial was insufficient to prove that he harbored such

an intent, see Tobin, 480 F.3d at 62, the court is constrained to

conclude that Tobin is entitled to judgment of acquittal.

Parenthetically, the court notes that the court of appeals

observed that prosecution of Tobin under subsection (D) was not a

good “fit” despite his “unattractive conduct.” While I would not

describe Tobin’s conduct in so benign a way, I do agree that

prosecution under subsection (D) is not a good fit since the

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court of appeals has construed “harass” to mean “provoke an

adverse emotional reaction,” and the term does not cover

disruption of telephone communications standing alone or

resulting from any other bad motive. Although the government has

plausibly explained its trial position in a manner consistent

with continued prosecution under the now applicable definition of

“harass,” still, it bears noting that, from this court’s

perspective, the government did not seriously contend, at any

point, that Tobin’s conduct ever involved an intent to cause an

adverse emotional reaction in anyone. His objective, like that

of his charged co-conspirators, was dispassionate and insidious:

to suppress as many votes for Democratic candidates as possible

by sabotaging efforts to get citizens with transportation

problems rides to polling places — citizens who the conspirators

thought would largely vote for Democratic candidates. The jury

acquitted Tobin of conspiracy to deprive citizens of their

constitutional right to vote and, as the means used to impede the

get out the vote effort (disruption) does not fall within the

reach of “harass,” and the bad motive was not to cause emotional

upset, continued prosecution (even should the court of appeals

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ultimately determine that the less stringent knowledge standard

should apply) remains a poor fit under subsection (D). 

Conclusion

Given the applicable definition of “harass” as used in

subsection (D), and given this court’s conclusion that the intent

element requires the prosecution to prove that Tobin joined in

the conspiracy to jam Democratic and firefighter union telephones

for the purpose of provoking, or meaning to provoke, adverse

reactions in the called parties, it is plain that the evidence

presented was insufficient to support a jury finding of guilt

beyond a reasonable doubt. The evidence introduced at Tobin’s

trial was adequate to establish that Tobin knowingly and

intentionally associated himself with the plan to disrupt the

get-out-the-vote effort, meaning and intending to disrupt

telephone communications for the purpose of suppressing the

number of votes cast for Democratic candidates. But, while

deliberate disruption, vote suppression, and electoral success

for his party were his goals, there was no evidence that Tobin

specifically intended to provoke adverse emotional reactions in

the people at the telephone numbers called. At least the

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evidence presented could not support such a finding beyond a

reasonable doubt, as the court of appeals recognized. 

Since the statute has been held not to reach deliberate

disruption of telephonic communications, and because the evidence

presented does not support guilt beyond a reasonable doubt with

respect to an essential element of the charged offense — intent

to harass — the convictions for conspiracy to violate, and aiding

abetting a violation of subsection (D) cannot stand.

Tobin’s motion for judgment of acquittal (document no. 217)

is, therefore, granted. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 21, 2008

cc: Bradley J. Bondi, Esq.

Dane Butswinkas, Esq.

Dennis M. Black, Esq.

Kenneth C. Bartholomew, Esq.

Tobin J. Romero, Esq.

Steven M. Gordon, Esq.

Peter G. Beeson, Esq.

Andrew Levchuk, Esq.

Nicholas A. Marsh, Esq.

Albert C. Rees, Jr., Esq.

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