United States District Court, E.D. Washington
ORDER REGARDING MOTIONS IN LIMINE, MOTIONS TO
DISMISS, AND MOTIONS TO EXCLUDE
T. RODGERS UNITED STATES MAGISTRATE JUDGE
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.
was charged by Amended Information 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.
MOTIONS TO DISMISS
Failure to State Offense
moves this Court to dismiss the case based on an alleged
fatal flaw in the charging document. 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.
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.
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.
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.
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.
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.
Violation of First Amendment
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.
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.
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.
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