District judge clears Tobin
2/18/09 | 13 comments

District judge clears Tobin


Lying charges ‘vindictive’
By Judy Harrison
BDN Staff

PORTLAND, Maine — A federal judge on Wednesday dismissed the most recent charges against James Tobin, 48, of Bangor that alleged he lied to the FBI about his role in a phone jamming scheme on Election Day 2002 in New Hampshire.

U.S. District Judge George Z. Singal agreed with attorneys for the former GOP political organizer that bringing the charges in U.S. District Court in Maine after he had been vindicated on far more serious ones in New Hampshire qualified as a vindictive prosecution.

“The vindictive prosecution doctrine imposes critical ‘constitutional limits’ upon the exercise of prosecutorial discretion,” Singal wrote in his 12-page decision. “Those limits protect all current and future criminal defendants, including those whose conduct may be properly described as ‘insidious’ or ‘thoroughly bad.’ And by filing more severe charges following Tobin’s successful appeal without sufficient justification, the government exceeded those here.”

Singal issued his ruling less than two weeks after holding a hearing in Portland on the defense attorneys’ motion to dismiss the indictment.

Prosecutors have 14 days to decide whether to appeal the decision to the 1st Circuit Court of Appeals in Boston. Efforts to reach attorneys with the Public Integrity Section of the U.S. Justice Department were unsuccessful Wednesday.

Efforts to reach Tobin also were unsuccessful. He has steadfastly maintained his silence since his involvement in the phone jamming plot became public four years ago.

Williams and Connolly, the Washington, D.C., law firm representing Tobin, has a strict policy against talking to reporters. Tobin’s legal fees have been paid by the Republican National Committee, according to reports previously published in the Bangor Daily News.

Tobin was indicted in October by a federal grand jury in Portland on two counts of lying to the FBI during an interview on Oct. 14, 2003. The charges were brought just days before the statute of limitations would have prevented prosecutors from making them.

On Nov. 5, Tobin pleaded not guilty to the charges in federal court in Portland.

Tobin was convicted in December 2005 by a federal jury in Concord, N.H., of being part of a conspiracy to jam phone lines in the 2002 election but acquitted on the more serious charge of violating residents’ constitutional right to vote.

The 1st U.S. Circuit Court of Appeals overturned his conviction in 2007. It found that the telephone harassment statute was not a good fit for what Tobin had been convicted of doing.

In their motion to dismiss the most recent charges against Tobin, his attorneys argued that all their client did in appealing his conviction was exercise his constitutional right.

“The government has devoted substantial resources to this prosecution, which has received much public attention,” the defense motion said. “The case has lasted more than four years, required one trial and two appeals. But because Mr. Tobin committed no crime, the government has nothing but disappointment to show for its extensive efforts.”

Tobin’s attorneys argued in their motion to dismiss that prosecutors had the opportunity to charge him with lying to investigators in December 2004 in New Hampshire when he was indicted by a federal grand jury in that state on two counts of telephone harassment. The government made a strategic decision not to do so, according to the motion.

Singal, a former Bangor resident who was appointed to the bench in 2000 by President Clinton, agreed.

“A loss on appeal may occasion the consideration of new charges,” he wrote, “but it cannot justify the government’s decision to bring those charges. To rebut a presumption of vindictiveness, the government must offer more.”

Andrew Levchuk, the lead prosecutor who has been involved in the case for nearly six years, hinted at the hearing on Feb. 9 that the new charges were filed in an effort to get Tobin to cooperate. Singal rejected that argument too.

“Finally,” he wrote, “the government suggests without elaboration that this prosecution serves its long-held objective of inducing Tobin’s cooperation. But the desire to encourage cooperation can be offered to justify most prosecutions, legitimate and vindictive alike. Such generic explanations, unaccompanied by any demonstration that Tobin’s cooperation is genuinely needed or otherwise unavailable, will not redeem an ‘inherently suspect’ indictment.

“In conclusion, the government has failed to satisfy its burden of identifying objective facts that dispel the appearance of vindictiveness,” the judge concluded.

Federal prosecutors alleged that Tobin conspired in October 2002 with Charles “Chuck” McGee, then-executive director of the New Hampshire Republican Party, and Allen Raymond, a GOP campaign consultant based near Washington, D.C., to make repeated hang-up phone calls to Democratic campaign offices around the state and the office of the Manchester, N.H., firefighters union. Their intent, according to federal prosecutors, was to keep people seeking rides to the polls on Nov. 5, 2002, from getting through to volunteers.

McGee and Raymond both testified against Tobin. Both pleaded guilty to charges of telephone harassment. McGee served seven months in federal prison. Raymond served three months.

The latest charges against Tobin alleged that he lied when he told the FBI that it was McGee’s idea to contact Raymond for assistance in executing the plan. Tobin also lied, according to the indictment, when he told the FBI that Raymond and McGee already had spoken when Tobin talked with Raymond about the plan.

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Comments
13 comments on this item
On 2/19/09 at 12:26 AM, JWBooth wrote:         Repeated separate thumbs down will cause comment to be hidden

Lying to the FBI is serious enough to send Martha Stewart to the slammer, but if you're one of the party elite, it's no big deal.

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On 2/19/09 at 4:32 AM, concerned1 wrote:         Repeated separate thumbs down will cause comment to be hidden

Want to bet the Judge is republican too?

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On 2/19/09 at 5:14 AM, elijoseph wrote:         Repeated separate thumbs down will cause comment to be hidden

Singal was appointed to the bench in 2000 by President Clinton. THIS PERVERSION OF OUR ELECTORAL PROCESS SHOULD NOT GO UNPUNISHED!!!!

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On 2/19/09 at 6:38 AM, Larryt39 wrote:         Repeated separate thumbs down will cause comment to be hidden

Come on now, let's dig up some more charges again Tobin. After all the prosecutor's must have little to do with their daily duties. Obviously, this whole issue has been a vindictive one, especially after their having lost the big one. Tobin has been through hell, while the feds play their games, at taxpayers expense, of course. One has to wonder what other much more serious issues have been placed on the back burner, while these jokers did their dirty deeds against Tobin? Great decisions by the federal judge, and no I don't know Mr. Tobin. Larry T. Doughty, South Brewer..larrytdoughty@yahoo.com..www.ourstory.com/larrytdoughty/

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On 2/19/09 at 10:21 AM, choppahdave wrote:         Repeated separate thumbs down will cause comment to be hidden

With two Washington DC lawyers, what did you think was going to happen? This guy's connected big-time.

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On 2/19/09 at 10:23 AM, choppahdave wrote:         Repeated separate thumbs down will cause comment to be hidden

Exscuse me . ... a Washington DC LAW FIRM.

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On 2/19/09 at 10:29 AM, freedomfighter wrote:         Repeated separate thumbs down will cause comment to be hidden

Crooks always stick together.

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On 2/19/09 at 11:46 AM, Beelzebubba wrote:         Repeated separate thumbs down will cause comment to be hidden

It's high time that the Republican Party be outlawed in the USA, all it's registered members rounded up and sent to internment camps for re-education.

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On 2/19/09 at 1:26 PM, CeeBlue wrote:         Repeated separate thumbs down will cause comment to be hidden

Beezlebubba -- : if Fearful Leader has his way it will happen - and soon.

The press thinks it has already happened comrade .

Power to The People dude !

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On 2/19/09 at 2:05 PM, AmberLee wrote:         Repeated separate thumbs down will cause comment to be hidden

JW you are always so cinical, but I guess your name says it all????

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On 2/19/09 at 3:18 PM, JimMacy wrote:         Repeated separate thumbs down will cause comment to be hidden

Hm-m-m,

Let's see, last time I checked the government hadn't totally removed the Constitution from the people.

and then there is the Fifth Amendment. If you don't want to talk to the investigators you could do one of two things, maybe three things.

1) You have the right to remain silent. Unfortunately most do have the ability.

2) Invoke the Fifth Amendment. It was put into the law for the protection of the INNOCENT as well as the guilty. Cops (yup, FBI too) are allowed to lie to you and to use what you say against you. They are NOT required to use what you tell them to HELP you. In fact, in court, the prosecutor would more than likely object if the defense asked a cop what the defendant said that might exonerate him (her).

3) Ask for an attorney and don't say any more.

So what is the crime? lying or saying anything at all?

Problem is, many people think they can say just enough to get away with something, but the fact is that if you are being questioned, you are being suspected of the problem.

No, I'm not an attorney, and I'm not giving legal advice or counsel, but I did spend 16 years in the Superior Court system in California interviewing criminals and reporting to the court.

If any attorney's would like to jump in, I'll just take a back seat and let them go for it.

In any event, Tobin is guilt of stupidity or arrogance or ...?

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On 2/19/09 at 7:27 PM, GeraldWeinand wrote:         Repeated separate thumbs down will cause comment to be hidden

JimMacy:

You, and others, may find the opinion written by Steven J. McAuliffe, Chief Judge of the 1st District Court of New Hampshire, the court that granted Tobin's acquittal, of interest (in part):

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 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.

Source (pdf warning): http://www.ca1.uscourts.gov/pdf.opinions/06-1883-01A.pdf

----

I want to make sure that you understood one sentence in particular, and so I'm going to post it again:

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.

---

You see, he didn't intend to "harass" anyone, but only that he intended to disrupt a GOTV effort and suppress votes. Two very different things under the law.

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On 2/23/09 at 1:24 PM, skichic wrote:         Repeated separate thumbs down will cause comment to be hidden

Perhaps Tobin is innocent. At last I checked, people are innocent until proven guilty. Look, the guys has been through 6 years of court case with multiple judges, appeals courts, and ajuries--they have ALL said he's innocent--are you people trying to say that our ENTIRE justice system (all appointed by Clinton no less) is wrong? Its pretty pathetic when you think about it, your all so bitter with resentment, you cant take it when someone is actually innocent and proven innocent--let it rest!

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