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United States v. Waggy

United States District Court, E.D. Washington

August 2, 2017

ROBERT M. WAGGY, Defendant



         THIS MATTER came before the Court on July 24, 2017, for a pretrial conference. Defendant was present and represented by Assistant Federal Defender Benjamin Flick and Assistant Federal Defender Daniel N. Rubin. Assistant U.S. Attorney Timothy J. Ohms represented the United States.


         Defendant was charged by Amended Information[1] on November 23, 2016 with a violation of 18 U.S.C. § 13 and Wash. Rev. Code § 9.61.230. In order to establish a violation of Wash. Rev. Code § 9.61.230, the United States must prove the following elements beyond a reasonable doubt at trial: (1) that Defendant made a telephone call to any other person with the intent to harass, intimidate, torment, or embarrass said person; and (2) in making this call, Defendant used any lewd, lascivious, profane, indecent, or obscene words or language, or suggested the commission of any lewd or lascivious act; or anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or threatened to inflict injury on the person or property of the person called or any member of his or her family or household; and (3) that Defendant was within the Eastern District of Washington while engaged in the prohibited conduct.


         A. Failure to State Offense

         Defendant moves this Court to dismiss the case based on an alleged fatal flaw in the charging document[2]. ECF No. 15. Defendant argues that the charging statute, Wash. Rev. Code § 9.61.230(1), requires that Defendant be charged with forming the specific intent to harass a specific individual, not a general category of persons (i.e. “employees”). Defendant also argues that this lack of specificity violates Fed. R. Crim. P. 7(c)(1) which requires an information to be a plain, concise, and definite written statement of the essential facts constituting the offense. Finally, Defendant argues that the categorical reference to “employees” instead of specific persons raising double jeopardy concerns.

         The United States responds that the phrase used in the information is identical to language that was used in jury instructions in a lower court case that was later upheld as constitutionally sufficient by an en banc review of the Washington State Supreme Court. As to the other concerns raised by Defendant, the United States suggests that if this Court finds it necessary, it can direct the government to file a bill of particulars pursuant to Fed. R. Crim. P. 7(f). The United States argues that this is the proper remedy, not a dismissal of the Information.

         Defendant replies that a bill of particulars would not cure the defects in the Information and requests that, at a minimum, this Court direct the United States to amend the Information to identify the specific people in separate counts.

         Under Wash. Rev. Code § 9.61.230, “the person called must be the same person threatened.” State v. Lilyblad, 177 P.3d 686, 689 (Wash. 2008) (en banc). The Washington State Supreme Court has determined that the proper interpretation of the statute requires that “regardless of how the intent is carried out, the intent to harass must have formed at the same time when the decision is made to use the telephone.” Id. at 691. The purpose behind this logic is that if a call is accepted by the recipient and legitimate conversation ensues, then the call itself is not unwanted nor intrusive and thus is not subject to the kind of conduct contemplated by the statute. Id.

         In State v. Sloan, the Washington Court of Appeals, Division 2, had the occasion to consider the sufficiency of an information charging a defendant with the language “did make a telephone call to Anna Sloan and/or Kandice Shulte.” 205 P.3d 172, 175 (Div. 2 2009). The Court found that information as written contained all essential elements of the statute and the facts supporting those elements and was therefore not constitutionally defective.

         The United States charged Defendant via Second Amended Information on July 27, 2017, after this hearing concluded but before the Court issued its ruling. ECF No. 83. Therefore, IT IS ORDERED, that the motion, ECF No. 48, is DENIED as moot. The Second Amended Information specifies the individuals allegedly called by Defendant, by their first and last initial. The Second Amended Information is adequate if it sufficiently identifies the specific alleged victims, albeit outside of the public record.

         B. Violation of First Amendment

         Defendant requests this Court dismiss the Information against him with prejudice, alleging that the United States is infringing on Defendant's First Amendment rights by charging him for calls made during business hours to a business, not to individuals in their homes, as contemplated by the statute. Defendant asserts that the government's right to control speech in the manner of the statute as issue is limited to the home, where an individual's right to privacy is paramount. Defendant further argues that an expansion of application of this statute to the business sector would result in a dangerous precedent for the future and may deter veterans from complaining about substandard medical care to their sole healthcare provider.

         The United States responds by defending the constitutionality of the statute and asserting a distinction between “harassment” and “speech.” The United States relies on State v. Dyson, in which the Washington Court of Appeals upheld this statute against an overbreadth challenge, reasoning that the statute regulated conduct, not regulating speech itself. The United States also distinguishes the present case from the case cited by Defense in City of Everett v. Moore, 683 P.2d 617 (Div. 11984). The United States argues that Moore is far removed in content from the case at bar and should not bear on this Court's analysis.

         Defendant replies that the United States has failed to show that VA employees have a legitimate expectation of privacy in the workplace. Defendant argues that without a privacy interest, the attempted regulation of speech by the United States violates Defendant's First Amendment Rights.

         The motion to dismiss, ECF No. 47, is DENIED. The telephonic communication alleged in this case is not in a public forum. This characterization justifies the government's interest in regulating the speech in question. First, this is an assimilated crimes charge, meaning that it can only be charged if it is a crime under the law of Washington, and Washington courts have determined telephone conversations to be private. See City of Seattle v. Huff, 767 P.2d 572 (Wash. 1989) (en banc). Second, the United States Supreme Court has said that the First Amendment does not make property “public” simply because it is owned or controlled by the government, nor does the government intend to create a public forum when the nature of the property is inconsistent with expressive activity. Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 802 (1985). ...

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