Tobin indicted for making false statements to an FBI agent

Sean:

Tobin was NOT acquitted - his conviction was overturned by an appeals court and his case remanded for retrial. It's hard to imagine that partisan politics are playing a role here, since the GOP is in charge of Justice.

But let me ask you - will you be surprised if Mr. Tobin receives a pardon in the next couple of months? Nothing partisan there I'm sure.

Facts are funny things. You can read the entire opinion from the 1st District Court here. It is of interest, since the defense that Tobin offered - that he meant to simply jam the phone lines of those called, not harass them - is actually a clever one, as the law only speaks to "harassment".

In any case, Tobin asked the Court to acquit him of the charge - it did not. The last few paragraphs are clear in that regard:

Obviously Tobin knew that the scheme if carried out would disrupt communication; but, as we have already noted, Tobin may not have cared one bit about the subjective reaction of the persons at the receiving end. So the question is whether a jury could think that Tobin "had to" foresee the consequent reactions (or be willfully blind to them, which is also enough, United States v. Rivera-Rodriguez, 318 F.3d 268, 272 (1st Cir. 2003)), and to us the answer is yes.

Much less need be said about the adequacy of the evidence on the aiding and abetting count. That Tobin assisted in the substantive crime is patent; his call to Raymond was integral to the accomplishment of the scheme. The question again is of intent: "The state of mind required for conviction as an aider and abettor is the same state of mind as required for the principal offense." United States v. Valencia, 907 F.2d 671, 680 (7th Cir. 1990).

If a jury could find that Tobin intended to harass, it could easily convict him of aiding and abetting; the crime does not have the agreement element that complicated matters for the government on the conspiracy count. The intent to harass element is far more debatable but what we have already said about that applies equally to the aiding and abetting count: if only knowledge of the effects is required, a jury could find the requisite intent.

In sum, we think a jury could convict Tobin under subsection (D) on the evidence presented at the trial unless a purpose to harass is required; the purpose issue, not developed by either side on appeal, is left for remand. We think it fair to add that despite the unattractive conduct, this statute is not a close fit for what Tobin did. If the government thinks this a recurring problem, it better seek an amendment.

The judgment of conviction and sentence is reversed; the case is remanded to the district court for further proceedings consistent with this opinion.

It is so ordered.

Ah yes, you are correct - Tobin was acquitted for exactly the reason I stated above - he was charged with trying to harass those that he called, not tie up their phone lines on election day. As I wrote - very clever.

The conclusion from Judge McAuliffe:

Given the applicable definition of “harass” as used in subsection (D), and given this court’s conclusion that the intent element requires the prosecution to prove that Tobin joined in the conspiracy to jam Democratic and firefighter union telephones for the purpose of provoking, or meaning to provoke, adverse reactions in the called parties, it is plain that the evidence presented was insufficient to support a jury finding of guilt beyond a reasonable doubt. The evidence introduced at Tobin’s trial was adequate to establish that Tobin knowingly and intentionally associated himself with the plan to disrupt the get-out-the-vote effort, meaning and intending to disrupt telephone communications for the purpose of suppressing the number of votes cast for Democratic candidates. But, while deliberate disruption, vote suppression, and electoral success for his party were his goals, there was no evidence that Tobin specifically intended to provoke adverse emotional reactions in the people at the telephone numbers called. At least the evidence presented could not support such a finding beyond a reasonable doubt, as the court of appeals recognized.

Since the statute has been held not to reach deliberate disruption of telephonic communications, and because the evidence presented does not support guilt beyond a reasonable doubt with respect to an essential element of the charged offense — intent to harass — the convictions for conspiracy to violate, and aiding abetting a violation of subsection (D) cannot stand.

Tobin’s motion for judgment of acquittal (document no. 217) is, therefore, granted.

SO ORDERED.

Thanks for your help - you really can't make this stuff up.

All of you can reach your own decision as to whether you would have had an "adverse emotional reaction" if you knew that this was happening to you.

Sean,

How can you excuse lying under oath? It is an affront to all citizens of the United States and our system of justice. Mr. Tobin is indicted for lying - it is pretty clear that he lied while he was under oath.

His lies dragged this case on for way too long.

Direct your anger at the person who incited this case because he lied about his involvement.

Sincerely,
Another Person Who Has Been Following This Case.

I'm not entirely sure when Gerald decided that Allen Raymond was a credible source...or the rest of you. What else do you believe him on? This indictment is based largely on statements Raymond made at trial. And what incentive could he possible have for accusing higher ups, besides a lighter sentence and better deal for himself?

Come on people, just because an indictment has been filed doesn't mean it is true, and in this particularly case I am particularly inclined to think Tobin is being harrassed by petty prosecutors.

Just look at the timing: the indictment was brought just before the statute of limitations ran, and just before the ct of appeals is likely to uphold Tobin's acquittal, and just before Sununu is up for re-election.

It is easy enough for partisan hacks on both sides to convince themselves that whoever is of another party must be guilty of everything. If Tobin' a Republican, then he's probably a bad person is the mentality too often. Likewise, these GOP thugs are going out of their way to paint Obama and his staffers as criminals, traitors, etc. As an independent, I get really sick of it. Try using objectivity from time to time, and ignoring your unhealthy partisan urges. That goes for all sides. And so my point is that corruption needs to be taken down, but not by corrupt forces within government but by objective public servants. Otherwise the net is cast too wide, and we take down people who didn't do anything wrong, just to send a message that is neither appropriate nor justified

I haven't followed the Tobin case closely. But I did read Allen Raymond's book HOW TO RIG AN ELECTION. Without knowing the other side of the story, his version of events did seem plausible and credible.

In any case, it's a quick read and a compelling tale.

I've been trying to figure Raymond out. His behaviour seems irrational- why would one participate in a process to rig an election then write a book about it? A simple explaination is that Raymond gets to star in his our memoire. This is important because he just sold the movie rights for his book to Fox Searchlight Studio.

If one were to sell the rights to Hollywood, he better tell an exciting tale. Embellishment is the grease that keeps the gears of Hollywood churning. The reality is more mundane. Raymond's story is less Confessions of a Political Operative and more lies people tell to steal the spotlight (or Searchlight, if you will).

All this is to say that Allen Raymond is not a relable source for anything.