Latest phone-jamming funny biz shows up in court documents

by: Betsy Devine

Mon Oct 22, 2007 at 12:04:20 PM EDT

Amazingly, even under Paul Hodes's threat of Congressional oversight and the (occasional) spotlight of national press, the Justice Department continues to slow-walk  the 2002 NH phone-jamming "investigation."

The latest trick seems to be keeping Andrew Levchuk, the hard-working federal prosecutor the federal prosecutors overseeing the case of James Tobin busy elsewhere with nearly full-time demands. Recent court documents (quotes below the fold) make this clear.

This is of course the same Justice Department that assigned exactly one FBI agent to work part-time investigating the phone-jamming and then prevented said agent from following any leads that led to Washington, DC.

The Pretrial Report* in mid-July noted that Tobin's defense attorneys would file their next motion on September 14, 2007--the Department of Justice would then get exactly four weeks to file a reply.

So how did the Department of Justice get ready to meet this agreed-upon deadline? It sent Andrew Levchuk one member of its Tobin legal team to try a different case, up in Alaska, and keeping him busy up there through the end of September. That takes care of the first two weeks he had available to work on the reply. Then they assigned Andrew Levchuk work and travel for other cases during October 1 - 5 and 9 - 12.

October 12, by the way, is the date the Levchuk and his team were do to submit their carefully detailed reply to Tobin's defense brief.

Do you think the DOJ has assigned Mr. Levchuk enough time to work on this complicated and hotly contested matter? Fortunately, James Tobin's legal defense team is more than happy to let the US Department of Justice postpone this long-delayed case for another two weeks.

* From Criminal No. 04-cr-216-1-SM "PRETRIAL ORDER":

The court of appeals has construed the applicable statute, 47 U.S.C. § 223(a)(1)(D), as requiring the government to prove "an intent to provoke adverse reactions in the called party," in order to obtain a conviction for making or causing the telephone of another to ring, with the intent to harass any person at the called number. An intent to disrupt telephonic communication, alone, is not enough. The government says Tobin had that intent to provoke adverse reactions and it is exercising its prosecutorial discretion to proceed with a retrial. The court of appeals went on to identify two critical and arguably alternative legal constructions of the intent element of the statute, but declined to decide which is correct, instead remanding the case for further proceedings.

As the court of appeals has put it: "[Does] 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? * * * There are good arguments on both sides; and the outcome may determine whether there will be a new trial or an end to the prosecution."

The parties will submit detailed legal memoranda thoroughly briefing their respective positions with regard to the critical legal issue identified by the court of appeals, and shall propose and support a jury instruction consistent with their respective positions on the issue.

The defendant's brief shall be filed on or before September 14, 2007. The government's brief shall be filed on or before October 12, 2007. Reply briefs shall be filed on or before October 26, 2007.

** From Criminal No. 04-216-01-SM "GOVERNMENT'S ASSENTED-TO MOTION TO EXTEND TIME TO RESPOND TO MOTION FOR JUDGMENT OF ACQUITTAL"

Tobin filed his motion on September 14, 2007. One of the government attorneys who tried this case was in trial in the District of Alaska on that date and did not return to the office full time until this week. [This motion was filed on Thursday, October 4, 2007.] The undersigned is on case-related travel this week and the during the week of October 9-12. The government thus needs the additional time to research and respond to the arguments in Tobin's motion.