GOVERNMENT OF THE VIRGIN ISLANDS v. EARL A. VANTERPOOL, Appellant
No. 13-4400
United States Court of Appeals for the Third Circuit
September 12, 2014
KIMBERLEY L. SALISBURY, ESQ., Office of Attorney General of Virgin Islands, Department of Justice, Thomas, USVI, Counsel for Appellee.
RENDELL, FUENTES, GREENAWAY, Circuit Judges
OPINION OF THE COURT
(September 12, 2014)
GREENAWAY, Circuit Judge
Earl Vanterpool was prosecuted and convicted under
While we find that the First Amendment challenge would have beеn viable had it been raised during trial, the plain error standard that we are obligated to apply in this case precludes any grant of the relief
I. FACTS AND PROCEDURAL HISTORY
In May 2004, Jacquеline Webster expressed a desire to end her relationship with Earl Vanterpool because Vanterpool had become possessive and called her frequently. Despite this issue, the two continued to be in contact with each other and did not officially end their relationship until November 2004.
After the end of the relationship, Vanterpool continued to make numerous calls to Webster‘s phone, and started sending her faxes. Vanterpool would, at times, call Webster as often as six or seven times an hour. (App. 49, 52.) Webster informed Vanterpool that she wanted him to stop communicating with her, to no avail.
Following her unsuccessful attempts to stop Vanterpool‘s communications, Webster went to the police station to file a report. At the police station, Webster was assisted by Sergeant Boynes of the Virgin Islands Police Department. While Webster was speaking with Boynes at the station, Vanterpool called her multiple times. During one such call, Webster handed the phone to Sergeant Boynes, who informed Vanterpool that he was not supposed to be calling Webster and that if he continued to call her, he would be arrested. Vanterpool continued to contact Webster through both phone and fax.
As a result of his behavior, the Government of the U.S. Virgin Islands (“Government“) brought four charges against Vanterpool: (1) one count of harassment by telephone occurring on or about January 6, 2005, in violation of
Vanterpool and Webster both testified at the ensuing bench trial presided over by Judge Brenda Heller of the Superior Court of the Virgin Islands. The Superior Court found Vanterpool guilty on all four counts; thereafter, Vanterpool filed a timely appeal. The Appellate Division of the District Court of the Virgin Islands (“District Court“), in a per curiam opinion, affirmed Vanterpool‘s convictions. Vanterpool filed this timely appeal.
II. JURISDICTION
The District Court had jurisdiction under
III. ANALYSIS
A. First Amendment Challenge
Vanterpool argues that Section 706 is unconstitutional under the First Amendment of the Constitution of the United States. Section 706, in relevant parts,
The Supreme Court has elaborated upon the “clear or obvious” standard in the seminal case of United States v. Olano, 507 U.S. 725, 731-37, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). There, the Court clarified that a “court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Id. at 734. Applied to the present case, if the statute was unconstitutional, then the District Court would have committed error when it applied the statute; but even so, we could reverse only if the error were plain under current law.
While this Court has not expressly commented on this issue, our sister circuits have denied relief when an appellant has raised a constitutional challenge to a statute for the first time on appeal. See, e.g., United States v. Dedman, 527 F.3d 577, 592 (6th Cir. 2008) (“[T]he district court did not commit plain error in applying the Arkansas marriage statute even assuming that the statute is unconstitutional.“); United States v. Gore, 154 F.3d 34, 42-43 (2d Cir. 1998) (“[E]rror is plain if it is clear or obvious under current law . . . [or] so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant‘s failure to object.“) (internal quotation marks omitted); United States v. Wright, 466 F.2d 1256, 1259 (2d Cir. 1972) (“It is fair to say that the facial unconstitutionality of the wiretap statutе does not leap from the pages of the United States Reports. The question is ‘at least sufficiently close’ to take it out of the realm of plain error.“). We find these cases to be persuasive.3
B. Ineffective Assistance of Counsel Claim
Vanterpool argues that his trial lawyer‘s performance fell below the standard of effective assistance in violation of the Sixth Amendment of the Constitution of the United States.
We first discuss whether we will review the ineffective assistance claim on direct appeal, given that this Court, in general, does not entertain a claim of ineffective assistance of counsel on direct appeal. See, e.g., United States v. Givan, 320 F.3d 452, 464 (3d Cir. 2003). Among the reasons that such a claim is not usually cognizable on direct appeal is the very important fact that there will not, in the typical case, exist a record developed enough to assess the efficacy of defense counsel. See United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002).
Although we re-affirm this Court‘s general practice, we find that the unique circumstances here warrant review on direct appeal. Specifically, Vanterpool is unlikely to meet the “in custody” requirement to bring a collateral habeas petition pursuant to a
This leaves remand as the prudential route. It is worth noting here that our general aversion to entertaining a claim for ineffective assistance on direct appeal is to (1) benefit from the trial court‘s fact finding; and (2) protect the defendant from prematurely bringing the claim, thereby sparing him from having res judicata attach to the ineffective assistance claim. See United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997) (“This Court‘s reluctance to consider ineffective assistance claims on direct аppeal stems, of course, from the fact that such claims are very unlikely to find any factual support in the trial record and an adverse determination on direct appeal will be res judicata in any subsequent collateral attack.“).
Here, neither rationales apply: a trial court‘s fact finding is only available on direct appeal, and there is no risk of res judicata applying since collateral relief is unavailable. Indeed, while this Court has not spoken much on this subject, other circuits have recognized that restrictions on the defendant‘s ability to seek habeas reliеf constitute grounds to review ineffectiveness claims on direct appeal. See, e.g., United States v. Doe, 365 F.3d 150, 153 (2d Cir. 2004) (“AEDPA‘s restrictions on a prisoner‘s ability to seek more than one federal habeas petition presented ‘a significant reason’ not to dismiss ineffective assistance claims raised on direct review in favor of collateral attack under section 2255.“). The inability of Vanterpool to challenge his conviction on collateral attack is a matter of critical importance here. If an ineffective assistance claim is unavailable both on direct appeal and collаteral attack, we are essentially eviscerating a constitutional right by a way of tolerating instances where an individual would get convicted under a presumably unconstitutional state statute, leaving him with no recourse.
We emphasize that we are not abandoning our typical practice of eschewing consideration of ineffective assistance claims on direct appeal. However, where, as here, a district court most probably would not have the opportunity to fact-find on collateral attack, there is no principled reason to follow a discretiоnary procedure that we developed to ensure11*
that factual records are developed before we review ineffective assistance claims. Cf. United States v. Rashad, 331 F.3d 908, 911, 356 U.S. App. D.C. 323 (D.C. Cir. 2003) (“[W]e reject the Government‘s premise that our remand practice on direct appeal should be curtailed in order to give effect to the statutory restriction upon a defendant‘s ability to
Thereforе, we proceed to review the merits of Vanterpool‘s ineffective assistance of counsel claim.
1. Right to Counsel: Overview
The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel playing a role that is critical to the ability of the adversarial system to produce just results. See Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Supreme Court has set forth a two-part test for evaluating the claim that he was denied his Sixth Amendment right to effective assistance of counsel. First, “the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Id. at 688; see also Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). This inquiry “is necessarily linked to the practice and expectations of the legal community.” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). But a “fair assessment of attorney performance requires [us] to evaluate the conduct from counsel‘s perspective at the time.” Strickland, 466 U.S. at 689.
Second, a defendant must prove prejudice. The defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. That requires a “substantial,” not just “conceivable,” likelihood of a diffеrent result. See Cullen v. Pinholster, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011) (internal quotation marks omitted). “This standard ‘is not a stringent one[.]’ ” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001)
(quoting Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999)). We examine the prejudice prong first, followed by the reasonableness prong.8
2. Prejudice
Of various theories offered by Vanterpool, the theory that ineffective assistance resulted from his counsel‘s failure to “challenge the constitutionality of Section 706” deserves our scrutiny.9 (See Appellant Br. 28.)
The First Amendment, applicable to the U.S. Virgin Islands through the Organic Act,10 states that “Congress shall make no
Vanterpool makes three constitutional challenges to Section 706 under the First Amendment. First, Vanterpool argues that the statute was unconstitutionally vague as applied to him. Second, Vanterpool argues that the statute was unconstitutionally vague on its face. Finally, he argues that the statute was unconstitutionally overbroad. Of these challenges, we only need to analyze the overbreadth challenge to show that there would have been a reasonable probability that the outcome would have been diffеrent.
The constitutional guarantees of freedom of speech forbid the states to punish the use of words or language not within “narrowly limited classes of speech....” Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn[,]” Speiser v. Randall, 357 U.S. 513, 525, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958), “[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprоtected speech and not be susceptible to application to protected expression. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Nat‘l Ass‘n for Advancement of Colored People v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). To prevail upon such a challenge, especially in a case involving conduct as well as speech, the overbreadth of the statute “must not only be real, but substantial,” in relation to the legitimate coverage of the statute. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973).
The Government points to our precedent in United States v. Lampley to uphold the constitutionality of Section 706. Lampley, which involved a person charged under the federal telephone harassment statute,
Here, the record indicates that the letters sent by Vanterpool are forms of written communications that fall within the category of protected speech. (See, e.g., App. 150 (“I still love you and thanks. I forgive you like the Lord forgive [sic] us in order to make it into his Kingdom.“).) Vanterpool‘s communications do not fall into one of the defined categories of unprotected speech such as defamation, incitement, obscenity, or child pornography.13 Ashcroft v. Free Speech Coal., 535 U.S. 234, 246, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002). Nor do they constitutе unprotected “true threats,” because they are not “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 344, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). Rather, they are the kind of communicative speech that implicates the First Amendment. See Jed Rubenfeld, First Amendment‘s Purpose, 53 STAN. L. REV. 767, 770, 777 (2001). Indeed, Vanterpool‘s faxed letters are at best communications people might find distasteful or discomforting. While the Government has
undoubtedly a legitimate interest in protecting persons against unwarranted invasion of privacy by others, see, e.g., Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the Supreme Court has also made very clear that such сommunications are fully protected speech. See Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.“).
Section 706 is especially repugnant to the First Amendment because past romantic relationships or family conflicts often lead to unsatisfactory, unpleasant discourse that still falls under the protection of the First Amendment. See United States v. Darsey, 342 F. Supp. 311, 314 (E.D. Pa. 1972) (“Up to a point these are the normal risks of human intercourse, and are and should be below the cоgnizance of
Therefore, hаd Vanterpool‘s attorney raised the issue to the trial court, Section 706 would likely have been found unconstitutional. By virtue of his trial counsel‘s failure to preserve a viable First Amendment challenge, Vanterpool has satisfied the second prong of the Strickland test.
3. Trial Counsel‘s Performance
“[T]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (internal quotation marks omitted). A fair assessment of counsel‘s performance requires that every effort be made to eliminate the distorting effects of
hindsight, reconstruct the circumstances of counsel‘s сhallenged conduct, and evaluate the conduct from counsel‘s perspective at the time. See Marshall v. Hendricks, 307 F.3d 36, 105-06 (3d Cir. 2002). Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation marks omitted).
The reasonableness of counsel‘s performance is to be evaluated from counsel‘s perspective at the time of the allеged error and in light of all the circumstances. Id. at 689. In making the competency determination, the court “should keep in mind that counsel‘s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.” Id. at 690. Because that testing process generally will not function properly unless defense counsel has done some investigation into the prosecution‘s case and into various defense strategies, the Supreme Court has stated that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691.
There are several competing factors at play here. In favor of Vanterpool‘s position, there were cases from other jurisdictions at the time of the trial that found similar statutes unconstitutional. See, e.g., United States v. Popa, 187 F.3d 672, 674-78, 337 U.S. App. D.C. 411 (D.C. Cir. 1999) (holding that the federal telephone harassment statute was unconstitutionally vague); Walker v. Dillard, 523 F.2d 3, 4 n.1 (4th Cir. 1975) (holding that the Virginia statute making it illegal to “curse or abuse anyone, or use vulgar, profane, threatening or indecent language over any telephone” was facially overbroad). This fact is important beсause this Court has held that counsel‘s failure to raise a personal-use argument at
readily available to him.“). Thus, if trial counsel‘s failure to raise a First Amendment challenge is attributable to an ignorance of the law, Vanterpool would have a valid ineffective assistance claim. As the Supreme Court recently re-affirmed, “[a]n attorney‘s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” Hinton v. Alabama, 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1 (2014).
Undermining Vanterpool‘s claim, on the other hand, is our precedent in Lampley construing a similarly-worded (yet substantively different) federal statute. United States v. Lampley, 573 F.2d 783 (3d Cir. 1978). This case, along with a number of cases from other jurisdiсtions upholding the constitutionality of similar statutes,14 could have suggested to reasonably competent trial counsel that a First Amendment challenge would be unsuccessful. If Vanterpool‘s counsel had considered the issue, and had determined from either a merits-based or strategic standpoint that the challenge to the statute should not be pursued, we might have greater difficulty in concluding that his representation was substandard. We cannot, however, determine this on the record provided to us given that the facts necessary for the consideration of this issue were not explored at trial and are in need of further development. Therefore, because we find that there are not sufficient facts in this record for Vanterpool to meet the first prong, we find that remand is appropriate.
C. Sufficiency of the Evidence
Vanterpool argues that there was insufficient evidence to permit the jury to find that Vanterpool‘s conduct constituted a violation of Section 706. Critical to his position is the argument that the government “failed to prove that Vanterpool had the requisite ‘intent to harass or alarm another person[.]’ ” (Appellant Br. 47.)
This argument is unavailing. Under Supreme Court precedent, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In reviewing the sufficiency of the evidence, “we must view the evidence in the light most favorable to the Government[.]” United States v. Pearlstein, 576 F.2d 531, 534 (3d Cir. 1978). As this Court has pronounced, a district court‘s verdict will be overturned “only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt.” United States v. Miller, 527 F.3d 54, 62 (3d Cir. 2008) (quoting United States v. Thayer, 201 F.3d 214, 218-19 (3d Cir. 1999)).
IV. CONCLUSION
For the reasons set forth above, we will vacate and remand this case for further proceedings in accord with this opinion.