Tobin’s dismissal headed for appeal

Posted March 18, 2009, at 9:01 p.m.

PORTLAND, Maine — Prosecutors will appeal to the 1st U.S. Circuit Court of Appeals in Boston a federal judge’s dismissal of the latest charges against a former GOP political organizer.

It will be the third time James Tobin, 48, of Bangor and his legal team have been to the appeals court since he was accused of being part of a conspiracy in New Hampshire in 2002 to jam opponents’ get-out-the-vote phone lines.

The notice of appeal was filed late Tuesday in U.S. District Court in Portland. Arguments in the appeal are not expected to be scheduled until the fall.

Last month, U.S. District Judge George Z. Singal agreed with Tobin’s attorneys that bringing charges of lying to investigators in federal court in Maine nearly three years 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.”

Tobin was indicted last 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.

He 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 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.

Williams and Connolly, the Washington, D.C., law firm representing Tobin, has a strict policy against talking to reporters. Tobin’s legal fees were paid by the Republican National Committee, according to reports previously published in the Bangor Daily News, until his conviction. Since then, Tobin has been responsible for his own legal fees, according to sources familiar with the case.

Andrew Levchuk, the lead prosecutor who has been involved in the case for nearly six years, works in the Public Integrity Section of the U.S. Department of Justice. It is the policy of that office not to comment on cases until they have been resolved.

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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