PORTLAND, Maine — A federal prosecutor said Monday that the 2002 New Hampshire phone-jamming scheme did not end with James Tobin, a former GOP strategist who lives in Bangor.
U.S. Trial Attorney Andrew Levchuk said that at least four other people could be charged with lying to investigators, as Tobin has been.
Levchuk did not name anyone but said that individuals in addition to Tobin, 48, and two others who pleaded guilty and served prison terms had “prior knowledge” of the plan to make repeated hang-up calls to Democratic get-out-the-vote phone banks more than six years ago.
The prosecutor, who works in the Public Integrity Division of the U.S. Department of Justice’s Criminal Division in Washington, also said that he believed Tobin had told a “superior” about the plan.
His comments came at the end of an hour-long hearing before U.S. District Judge George Z. Singal on a motion by Tobin’s defense team to dismiss two counts that allege Tobin lied to the FBI during an interview in October 2003. The indictment charging Tobin with two counts of making false statements to investigators was handed up last October by a federal grand jury in Portland.
Defense attorneys have moved to dismiss the indictments, claiming a second prosecution of Tobin is “vindictive” and because the charges were not properly submitted to the grand jury.
Tobin pleaded not guilty to the charges on Nov. 5 and remains free on personal recognizance bail.
Levchuk declined after the hearing to comment on the case, citing a policy that prevents federal prosecutors from discussing pending cases with the media. He referred questions to a Justice Department public relations official, who did not immediately return a request for comments late Monday afternoon.
Williams and Connolly — Tobin’s Washington, D.C., law firm, which is being paid by the Republican National Committee — has a strict policy against talking to reporters. Tobin has steadfastly maintained his silence since his alleged involvement in the phone-jamming plot became public five years ago.
Levchuk appeared Monday to be offering Tobin a thinly veiled plea offer in answer to a question from the judge. The prosecutor said that if Tobin was convicted of one of the charges, the other might be dismissed. He also said that the government would not seek a sentence outside the federal sentencing guideline range of zero to six months.
Investigators 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.
Tobin was convicted in December 2005 by a federal jury in Concord, N.H., of being part of that conspiracy but acquitted on the more serious charge of violating residents’ constitutional right to vote. The 1st U.S. Circuit Court of Appeals in Boston overturned his conviction in 2007. The appellate court found that the telephone harassment statute was not a good fit for what Tobin had been convicted of doing.
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 allege 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.
The new charges were presented to the grand jury less than a month before the five-year statute of limitations expired. If Levchuk could have charged more individuals without Tobin’s cooperation, presumably he already would have sought indictments against them.
The same five-year statute of limitations that applied to Tobin would apply to the individuals Levchuk referred to at the hearing. The prosecutor did not say, however, when the FBI interviewed the four other people he claims could be charged.
In answer to a question from Singal about the government keeping the current charges “in your back pocket,” Levchuk admitted Monday that the new charges would not have been filed if Tobin’s conviction had been upheld. Levchuk also said that the manual all federal prosecutors must follow recommends that they file the “most serious provable charges” and not all the charges possible.
Tobin Romero, the defense attorney who has handled all of the motions in both cases, said that charging Tobin in Maine is, in essence, punishing him for pursuing his constitutional right to appeal the case. Romero said that under existing case law, Singal must presume that the prosecution is vindictive because the current charges were filed after Tobin successfully attacked his conviction and the government has admitted that it brought the subsequent charges only because it lost the appeal.
Levchuk countered that vindictive prosecution would apply only if the new charges against Tobin had carried a more severe penalty than the previous ones. The maximum penalty for making false statements to investigators is five years.
The maximum sentence in the New Hampshire case was 10 years on the charge of interfering with voting rights, the charge Tobin was found not guilty of, and up to five years in prison on the other charges. He was sentenced to 10 months in prison and ordered to pay a $10,000 fine but remained free while his appeal was pending.
There is no timetable under which Singal must issue his decision, but he said Monday that he would render a decision “quickly.”
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