Tobin attorneys claim vindictive prosecution

Posted Dec. 21, 2008, at 9:24 p.m.

PORTLAND, Maine — Defense attorneys for a former GOP political organizer cited vindictive prosecution in asking a federal judge to dismiss charges that James Tobin, 48, of Bangor lied to investigators about his role in a phone jamming scheme on Election Day 2002 in New Hampshire.

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

Tobin pleaded not guilty to the charges on Nov. 5 in U.S. District Court in Portland.

In a motion filed late Friday, Tobin’s legal team claimed that prosecutors’ decision to indict their client on charges in Maine after he has been vindicated on far more serious ones in New Hampshire meets the standard set in other cases for vindictive prosecution.

Tobin was convicted in December 2006 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.

The motion filed Friday stated, “‘To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort,’” quoting a previous court decision.

What Tobin did, according to his legal team, was exercise his right to appeal his conviction to the 1st U.S. Circuit Court of Appeals in Boston.

“The government has devoted substantial resources to this prosecution, which has received much public attention,” the 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 a motion to dismiss that prosecutors had the opportunity to charge Tobin with lying to investigators in December 2004 in New Hampshire when he was indicted on counts of telephone harassment by a federal grand jury in that state. The government made a strategic decision not to do so, according to the motion.

“[The government] charged Mr. Tobin with alleged false statements only after he went to trial, was convicted, and successfully attacked those convictions,” the defense motions argued.

Prosecutors from the U.S. Justice Department in Washington, D.C., have refused to comment on the case, citing a policy that prevents federal prosecutors from discussing pending cases with the media.

Williams and Connolly, Tobin’s law firm that is being paid by the Republican National Committee, has a strict policy against talking to reporters. Tobin has steadfastly maintained his silence since his involvement in the phone-jamming plot became public four years ago.

Although a three-judge panel in Boston found that the telephone harassment statute used to prosecute Tobin in New Hampshire was not a close fit for what he was accused of doing, prosecutors were back before the appellate court in Boston on Nov. 3 arguing for a new trial on the conspiracy case. The appellate court has not issued a decision in the case.

Two years ago, the 1st Circuit left open one portion of the case. It sent back to U.S. District Court in Concord, N.H., the question of whether Tobin’s intent was to harass voters rather than to jam Democrats’ phone lines on Election Day 2002. U.S. District Judge Steven McAuliffe ruled that prosecutors had no evidence that Tobin’s intent had been to harass callers, and dismissed the case.

Investigators believed Tobin conspired in October 2002 with Charles “Chuck” McGee, the 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.

The new charges allege that Tobin 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 had already spoken when Tobin talked with Raymond about the plan.

Tobin’s legal team also filed a motion Friday asking that the charges in Maine be dismissed because no transcript of the interview was presented in October to the grand jury and the indictment is not specific about the questions FBI agents asked Tobin or what his answers to those questions were.

The government has until Jan. 9 to reply to the motions.

Tobin’s trial on the charges is tentatively scheduled to be held in February before U.S. District Judge George Singal in federal court in Portland.

If convicted, he faces up to five years in federal prison and a fine of up to $250,000.

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