District judge clears Tobin

By Judy Harrison, BDN Staff
Posted Feb. 18, 2009, at 9:25 p.m.

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.

http://bangordailynews.com/2009/02/18/news/bangor/district-judge-clears-tobin/ printed on July 31, 2014