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Federal judge dismisses new charges against GOP staffer acquitted of phone jamming

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] A judge for the US District Court for the District of Maine on Wednesday dismissed charges of making false statements against former Republican National Committee regional director James Tobin. Tobin had earlier been convicted in connection with a scheme to jam phone lines to block Democratic voting drives during the 2002 Senate election in New Hampshire, but was later acquitted of the charges on appeal in February 2008. After his acquittal, prosecutors charged Tobin with making false statements in relation to the original investigation, but Tobin challenged the new charges, arguing that they were brought simply because of his successful appeal. Agreeing with Tobin, Judge George Singal dismissed the charges, holding that they constituted vindictive prosecution. Singal wrote that given the circumstances and timing of the new charges, there was a presumption that prosecution was improper and that the government had not successfully rebutted that presumption:"A defendant may establish a vindictive prosecution either (1) by producing evidence of actual vindictiveness or (2) by demonstrating circumstances that reveal a sufficient likelihood of vindictiveness to warrant a presumption of vindictiveness." Although Tobin asserts both actual and presumptive vindictiveness, he emphasizes the latter. Once raised, the government must rebut a presumption of vindictiveness "by showing objective reasons for its charges," such as the discovery of new evidence... In short, these circumstances present a quintessential appearance of vindictiveness. Indeed, the sequence of events alone might well justify a presumption of vindictiveness; courts view quite skeptically the government's decision to file more severe charges following a defendant's successful appeal of his conviction.Former president of Republican consulting group GOP Marketplace Allen Raymond received a five month sentence, and former executive director of the New Hampshire Republican Party Chuck McGee was sentenced to seven months in prison and $2,000 in fines in 2005 in connection with the scheme. McGee admitted that he paid a Virginia telemarketing company more than $15,000 to jam Democratic Party phone lines with computer-generated calls. In 2006, former owner of the telemarketing firm Mylo Enterprises Inc. Shaun Hansen pleaded guilty to two federal counts of conspiracy to commit interstate telephone harassment. A civil lawsuit brought by the New Hampshire Democratic Party against the New Hampshire Republican State Committee was settled in 2006 for $135,000.

Full post as published by JURIST - The Paper Chase on February 20, 2009 (boomark / email).