*2
WEIS,
1974, а felony,
Circuit
in violation of
Before GIBBONS and
18 U.S.C.
MEANOR,*
Judge.
875(c)
District
Judges,
making repeated
and with
harass-
ing
interstate calls
May
between
OF THE COURT
OPINION
and February
offense,
a petty
violation of
ap-
On
MEANOR,
Judge.
District
*3
pellant’s motion, the case was transferred
Appellant,
Lampley, appeals
Franklin D.
from the Western District of Wisconsin to
judgment
a
conviction entered in
of
the Eastern
of Pennsylvania
District
on
Court for the
United States District
20,
May
1975.
Pennsylvania on one
District of
Eastern
17, 1975,
On June
threatening
appellant
making
of
a
interstate
filed a
count
of 18
motion to dismiss
II of
telephone call
violation
U.S.C.
count
the indictment
875(c),1
making
vague.
anonymous
one count of
insufficient and
The Govеrn
§
harassing
calls in
telephone
agreed
interstate
viola- ment
II
count
was inartfully
223(1)(B)
of
and seven
August 26,
tion
47'U.S.C.
drawn.
Accordingly,
1975,
§
a
harassing
making
interstate tele-
counts
16-count superseding indictment was re
ensued in
calls which conversation
phone
by
grand
turned
a
jury
the Eastern Dis
223(1)(D).2
47
violation of
We
§
U.S.C.
trict of Pennsylvania charging violations of
counts,
appellant’s
on all
affirm
18
875(c)
U.S.C.
and
§
U.S.C.
we discuss
contentions
appellant’s
but
223(1)(B)
(1)(D).
and
§§
Specifically,
constitutionality
to the
and construction
I,
charged
counts
II and V
threatening calls
the propriety
of a
U.S.C.
and
§
to Richard Hatlen in violation of 18 U.S.C.
conjunc-
charge in
lesser-included offense
875(c).
charged
§
Count IV
a threatening
with an
on 18
tiоn
instruction
U.S.C.
call to the
Attorney
in the Western
875(c).
§
Wisconsin,
District of
also in violation of
875(c).
VI,
III,
VII, VIII, IX, X,
§
Counts
XII, XIII, XV
charged repeated
and XVI
1975,
harassing calls
13,
to Richard and
February
grand
On
federal
Elizabeth
Hatlen in violation
223(1)(D).
in the Western District of Wisconsin
of U.S.C.
jury
§
repeated
Count XIV
charging
charged
harassing
a two-count indictment3
returned
threatening
Simmons,
with
to Mrs.
appellant
making
Mary
tele-
contrary
to
August 5,
charged
call to Richard Hatlen
XI
anonymous
Count
*
Meanor,
(C)
Judge
H. Curtis
District
makes or
causes
of anoth-
Jersey, sitting by desig-
repeatedly
continuously
ring,
er
for the District of New
or
to
with
any person
intent
to harass
nation.
the called
number; or
(D)
calls,
repeated telephone
during
makes
875(с) provides:
18 U.S.C. §
1.
ensues, solely
which conversation
to harass
any
Whoever transmits in interstate commerce
any person
number;
at the called
or
containing any
kidnap
communication
threat
to
(2) knowingly permits any telephone under
injure
any person
any
or
threat
any purpose pro-
his control
to be used for
another,
$1,000
shall be fined
more than
or
not
section,
by
hibited
this
shall be fined not
imprisoned
years,
not
five
or
more than
both.
imprisoned
$500
more than
or
not more than
provides:
months,
U.S.C.
six
or both.
Whoever—
represented
3. This indictment
the second time
(1) in the District of Columbia or in inter-
charges
brought
criminal
have been
foreign
state or
communication
meаns of
against appellant
telephone.
misuse of
for
telephone—
7,
July
1971,
Attorney
On
the United States
comment,
(A)
request, suggestion
makes
the Western
Wisconsin
District of
filed a crimi-
obscene,
lewd,
proposal
or
lascivi-
against
charging
nal
him
information
conduct
ous,
indecent;
filthy, or
subject
similar
is the
to that which
of the in-
call,
(B)
whether or
makes a
Lampley’s
Upon
agreement
stant
case.
ensues,
disclosing
conversation
without
his
making harassing
undergo
cease
calls and to
abuse,
identity
annoy,
psychiatric treatment,
with intent
the United States Attor-
threaten,
any person
ney
of harass
at the called
caused that information to be dismissed on
number;
September 5, 1972.
1975,
through
March
an
made
of 47
in violation
Hatlens
calls to the
week
average
per
of 10-12 calls
to the
223(1)(B).
Hatlen home.
I, II
III
counts
On October
speedy
trial.
operator
make
Lampley
for lack
would often
as-
were dismissed
granted the
calls,
court
operator
and while the
placed
March
sisted
On
pursuant
to U.S.C.
call,
motion
he would
Government’s
shout obscenities over
On
competency determination.
4244 for a
or
operator’s
you ready
voice
ask “Are
a psychia-
talk,”
on the basis
speak
March
my daughter,
“Can I
Lampley
judge
trial
found
addition,
report,
trist’s
Judy.”
place
would
stand trial.
competent to
“my wife,
Lamp-
collect calls to
Elizаbeth
ley,”
when
Hatlen
Elizabeth
refused to
post-
numerous
July
On
after
accept charges,
she could hear the
request
at the
the trial date
ponements of
speaking
background.
defense,
trial
proceeded
case
*4
through
of the indict-
XVI
counts IV
Hatlen,
on
husband,
Richard
Elizabeth’s
and
grant-
were
acquittal
of
Judgments
ment.
Simmons,
mother,
Mary
Elizabeth’s
also be-
IV, X,
and XIII. On
XII
counts
to
appellant’s spleen.
came the focus of the
1976,
guilty
2,
jury
the
returned
August
1974,
5,
August
appellant placed
On
the
a
counts, convicting
remaining
the
verdicts on
call to the Hatlens wherein Richard heard
V,
count,
felony
and
count
a
Lampley on
appellant
operator,
the
shout over thе
“I
VIII,
XIV,
VII,
IX, XI,
VI,
XV and
counts
have
hired
wife to
your
you.”
been
kill
Judge Becker
September
XVI. On
This
appel-
threat constituted the basis of
year
a five
term
appellant
the
to
sentenced
lant’s
on
V.
count
like
count V and
concurrent
probation
of
on
In 1974 and
Mrs.
received
Simmons
remaining
the
terms
on
probationary
harassing
a
of
calls
the
multitude
counts.
Rock,
appellant
her home in Hollow
Ten
at
9,1975,
January
Lampley
nessee. On
called
II
m.,
a.
her at least three times—1:30
2:05 a.
a
The
in this ease constitute
bizarre
facts
m.
2:10 a. m. Each time Lampley
and
in
tale of a romantic
obsession.
Simmons,
spoke a few
and Mrs.
words
Tennessee,
Nashville,
appellant briefly
the
voice, hung up.
his
recognizing
After the
her
Elizabeth Hatlen before
mar-
dated
call,
her
third
Mrs. Simmons took
off
terminating
riage,
after a
relationship
their
the
This
calls was the basis
hook.
series of
an
relationship
The
had
endur-
few weeks.
appellant’s
of
conviction under count XIV.
however,
appellant,
ing
the
for in
effect on
defense,
own
Taking the stand in his
in
the summer of
he called Elizabeth
testified
after 1971 he had
that
Wisconsin,
Evansville,
where she lived with
Hatlens,
one call
made
to
the one
and their four
her
Richard Hatlen
husband
August 5,
to Richard on
but he denied
appellant
told her that he
children. The
The
threatening Richard’s life.
thrust of
mind,
he
her out of his
that
get
could not
prosecution
Lampley’s defense was that his
rough 17
for which she
spent
years
a
had
part
was
of a
plot
the result
on
of the
that he wanted to see her
fault and
Hatlens,
Attorney,
the United
States
refused, he told
that
she
her
again. When
Department
Justice,
of
the Federal Bureau
life
make
miserable for her.
he would
Investigation,
of
and the United
Dis-
appellant
launched from his
Thereupon,
trict
expos-
Court
silence his activities in
telephonic
Pennsylvania
home
a
assault
ing corruption
government.
others,
a
unleashing
and
Hatlens
barrage
subsequently
incessant and
abu-
of
Ill
continued, with
calls which
sive
intermission,
During
1975.
The
has raised several
into
periods of
questions
question
appeal, May
constitutionality
this
and
period
First,
he
January
construction of
through
December
harassing
of the
Since
that
is violative
conversation
asserts
is
save the
necessary to
section from
specify
it fails to
unconsti
Amendment because
First
tutionality,
since the proscription
requisite ensuing
conversation
to harass in
intended
which no abusive
harassing
Without
language.
contain
must
is
language is
consistent with
.used
both
reasons,
may be
requirement, he
one
such
congressional
intent and
language
mere
communi-
attempt
for a
convicted
223(1)(D),
district court
re
properly
speech,
right
violation of the
free
cate in
appellant’s request
fused
to charge on the
therefore,
charge
and,
the court’s failure
harassing
necessity
language.
require-
harassing
is
conversation
reversal.
ground
to conviction is
ment
section’s specific
The
re
intent
quirement
unconvincing
renders
appellant’s
claimed, nor could
has not
223(1)(B)
second claim that
(D)
§§
so,
beyond the
successfully do
it is
he
unconstitutionally vague.
It
long
has
been
Congress
criminal
impose
power
true that
s
interstate
placement
on the
sanction
Court, indeed,
recognized
has
[t]he
harass,
or annoy.
calls to
abuse
requirement
specific
of a
intent to do
speech enjoys
protection
all
Not
prohibited
may
act
avoid those conse-
amendment, Chaplinsky
Hamp
v. New
first
quences
accused which may other-
shire,
vague
wise
render
or indefinite statute
enacting
(1942),
and in
L.Ed.
.
invalid.
.
.
the punish-
[W]here
Congress
compelling
had a
interest
ment
imposed
only for an
knowing-
act
*5
from
protection of
innocent
individuals
ly done with the purpose of doing that
fear,
annoyance
abuse or
at the hands of
prohibits,
the statute
the accused
who
not to
persons
employ
telephone,
the
cannot
said to
be
suffer
from lack of
communicate,
unjustifiable
but for other
warning
knowledge
or
that the act which
H.R.No.1109,
See
Interstate and
motives.
he
a
does is
violation of law.
Committee,
Commerce
Foreign
U.S.Codе
States,
91,
Screws v. United
325 U.S.
101-
Admin.News,
(1968);
and
Cong.
p. 1915
02,
65
(1945).
S.Ct.
It is
caller,
operator
appellate
may
court
avoid the
at the behest
resolution of
call
legal
agent
affecting
of the caller
issues
less than
acting as the
all of the
contacting
party
called.
counts in an indictment where at least one
purposes of
upheld
intent
count has been
acts with sole
and the
the caller
sentences
Where
agent,
are
harass,
spoken through
Hirabayashi
his
concurrent.
the words
v. United
States,
85,
81,
readily
1375,
attributable
operator,
(1943);
Congress
intention of
L.Ed. 1774
was not the
United States v. Cury,
him.
It
337,
(3d
telephonic
1963).
who abuses
313 F.2d
Cir.
permit
The doc-
liability under
trinе clearly
discretion,
to evade
involves a matter
communication
States,
placing only Barnes v.
223(1)(D) by
the device of
United
necessary,
operator-assisted
(1973),
calls. Nor is
n.
93 S.Ct.
789 V,8 felony on 18 predicated States, count Sansone count 85 875(c), wrongfully the trial court S.Ct. (1965). L.Ed.2d 882 U.S.C. § Govern request Virgin for a lesser-in- ment of appellant’s Carmona, denied Islands v. charge (3d 47 U.S.C. F.2d 1970). cluded offense under Cir. Sansone pro 223(1)(B). prohibits The latter statute vides that § dis- making call without . a case where some of the [i]n threat- closing identity one’s with intent to elements charged crime themselves en. crime, constitute a lesser defendant, if the evidence justifie[s] it . . . [is] 875(c) proscribes the transmission Section entitled to an instruction which would any “in communi- interstate commerce [of] permit finding guilt of the lesser kidnap any any cation threat containing . . (Citation offense . omitted) person injure threat A lesser-included offense in- 223(1)(B) provides another.” that it Section is only struction proper where call, is a wheth- crime “make charged greater requires offense the jury ensues, er or not without dis- conversation a disputed to find factual element which closing identity and with intent [one’s] required is not for conviction of the less- abuse, threaten, annoy, any per- or harass er-included offense. at number.” The son the called maximum 875(c) $1,000 is a sanction under fine 349-50, at 1009. A under years’ imprisonment, five while that lesser-included offense charge is inappropri- 223(1)(B) is a fine and six months’ where, $500 upon ate examination of the rele- imprisonment. The defense a re- submitted statutes, appears vant the offense quest charge9 the lesser-included of- be claimed to lesser-included contains an rejected grounds fense which was additional element part of the allegedly there was no evidence of the dis- “without inclusive offense. Government of Virgin closing 223(1)(B). identity” element of § Parrilla, Islands v. (3d F.2d Cir. 1977); Government of Virgin Islands v. agree We was not enti- Smith, F.2d (3d 1977). Cir. requested tled to the offense lesser-included charge. The which determining test The appellant 223(1)(B) asserts that § is may 31(c), verdicts a return jury 875(c). under Rule lesser-included within However, thus, F.R.Cr.P., and, should offenses the former offense element, contains an charge, included set forth of identity, non-disclosure which is not re- judge erroneously appellant’s although trial denied the his § convictions upon prosecutor’s motion for a mistrial proba- have been affirmed because violation of attempt during summation to draw an adverse subject appellant considerably tion would ato inference from the defense’s call a fаilure to greater prison felony term for the than for the witness; (2) court-appointed certain 223 offenses. to call counsel’s refusal certain witnesses *7 appellant important whom deemed his de- to following request 9. The defense made the to incompetency fense constituted enti- counsel charge: tling trial; (3) appellant to new the regard V, you With to Counts IV if and trial; right speedy was denied his to a left with a reasonable doubt whether the (4) judge disqual- that the trial should have allegedly spoken by words Mr. against ified himself on account of bias the by recited indictment were in fact said appellant. argu- We the note latter three him, but that he made both by ments wеre raised counsel for the question California, 738, calls in in pursuant interstate commerce and to Anders v. 386 U.S. 1396, disclosing identity (1967). 87 L.Ed.2d did so without S.Ct. 18 493 his with the threatening person intent the at the called 8. The concurrent sentence doctrine does number, (if you then find each of these ele- operate jurisdictional bar to consideration of beyond doubt) you may ments a reasonable convictions, challenges although to him of convict an offense 47 under one valid sen conviction is and concurrent )(B) 223(1 “Making which I shall refer to as imposed. Mary tences have been Benton v. Telephone A Call With The Intent To Threat- 784, land, 787-91, 2056, 23 395 U.S. 89 S.Ct. en.” (1969). appropriate L.Ed.2d 707 Here it is to challеnge felony appellant’s consider to the 790 by submit, argu- holding, indefensibly I that the Appellant’s latter. the
quired under
element is not
expiration
petitioner’s
that the non-disclosure
the
sentence
ment
223(1)(B) offense
for a
required
always
appeal
the
from the criminal
mooted
con
lesser-in-
hence,
223(1)(B) can be
and,
conviction,
tempt
though
govern
even
convincing.
judge
The trial
is not
cluded
Pierre
testify
ment intended to force St.
to
to
request
defense’s
refused
properly
grand jury, thereby raising
before another
charge.
possibility
subsequent
Hirabayashi,
In
and sentence.
Court
from will be af-
judgment appealed
deciding
avoided
whether American citizens
firmed.
by military
рlaced
could
order be
in concen
GIBBONS,
(concurring in
Judge
Circuit
camps solely
tration
because of their race or
part).
dissenting
part and
nationality. The Court held that because
defendant,
the American citizen
a senior at
majority’s opinion except to
join in the
I
University Washington,
had received
that we should not
that it holds
the extent
a concurrent
whether
the counts
sentence for violation of a
question
reach
order,1
the Hatlens are
repeated
unnecessary
calls to
curfew
it was
alleging
lawful
to
respectfully
I
dissent from
multiplicitous.
failing
consider whether his conviction for
majority’s
upon Hirabayashi
reliance
report
tо
camp
to
concentration
was
1375,
States,
320
63 S.Ct.
U.S.
United
Hirabayashi’s
valid. The
merit of
con
(1943),
dispose
of that
L.Ed. 1774
87
that,
holding
by
current sentence
resort
Moreover, I have considered
contention.
device,
ing to that
the Court avoided the
multiplicity contention
appellant’s
explicitly overruling
worse courses of
Ex
Therefore, I dis-
it to be meritorious.
find
2,
parte Milligan,
(4 Wall.)
71 U.S.
18 L.Ed.
affirming Lamp-
judgment
sent from the
(1867),
explicitly endorsing
or of
281
ley’s conviction on all of
counts.
power
military authorities
place
camps
American citizens
concentration
I. THE CONCURRENT SENTENCE
on account of their race or national ances
DOCTRINE
try.
Term, 1942,
not a vin
The October
With a return
normalcy,
the twin dis
Suрreme
jurispru
tage year for the
Court’s
were,
Hirabayashi
asters of St. Pierre and
rights
process
individual
and due
dence of
submit,
LaVallee,
repudiated in Carafas v.
Preoccupied with a threat
of law.
234,
1556,
391 U.S.
88 S.Ct.
prefer speculation to eliminate about collat- site specific intention. distinguishing Thus, legal consequences. eral I would hold feature of proscribes is that always that a has standing defendant use, e., i. a course of conduct —and not challenge appeal validity con- single Lampley calls. contends that realists, legal suggest, viction. For that is government’s arbitrarily indictment divided really what v. York Sibron New means. the single proscribed course of conduct But possible even if we search for collateral separate statute into eleven courses of legal consequences, consequences such conduct. readily apparent Accordingly, here. we contention, Pursuant to that multiplicity challenge should consider the brought a compel motion to merits. to elect among multiplicitous counts under Nor am I we should Multiplicity convinced that attach refers to the prac States, tice charging to the footnote in Barnes single commission n.6, 37 offense in more count. than one See Unit *9 Corp., v. Allied Chemical Second, repeated States calls must be made (E.D.Va.1976). should F.Supp. 122 It be “solely to harass” and merely not to “an- is the distinguished duplicity, which abuse, threaten, noy, or harass” as in the single of two offenses in a count. joining case anonymous phone of call under Starks, v. United States F.2d See 223(1)(B). (3d 1975). n.5 Cir. The vices of 116 & v. Darsey, United States 342 F.Supp. (1) may result in are: that it multiplicity (E.D.Pa.1972). offense; (2) sentences for the same Of the eleven charging repeated counts may have an psychological that adverse telephone case, calls in the instant all re many that jury by suggesting on the effect ferred calls from a telephone Down in place, see Federal Wright, took offenses ingtown, Pennsylvania. All but one re (1969 and Procedure Practice specific (608- ferred to calls to a number (3) negative that it ed.); and creates more 4976) Evansville, in Wisconsin. The re 992— produces of convictions record and thus maining count referred to calls to a differ legal likelihood of conse greater collateral (901-986-3160) Rock, ent number in Hollow A multiplicity problem usually quences. The Tennessee. Hollow Rock engaged when a defendant has arises belongs Simmons, number to Mrs. continuing repeated illegal or conduct Hatlen, mother Elizabeth object attempts in indictment its Lampley’s peculiar obsession. The Evans sepa that course of conduct into to divide Wisconsin, ville, number distinguishable belongs to Eliza illegal acts. If the rate agree beth Hatlen. with majority that the acts consti court finds defendant’s XI, conduct, that Count illegal charging repeated one course calls tuted number, Mrs. remedy compel prose is to Simmons’s appropriate sets forth a dis multiplicitous to elect among cution tinct offense. But all of the other counts Seе, g., e. Univer repeated counts. refer calls to Mrs. Hatlen’s Corp., I. T. Credit 218, 220, sal C. 14, 1974, number May between and March 227, 229, (1952) (§ 15 16, L.Ed. 260 Except III, for Count punishes Fair Labor of the Standards Act “repeated” charges calls May “on or about separate of conduct “course rather than 1974,” on or May 16, about each course”). such items in dealing of the counts with “repeated” calls to the Evansville number refers to such a statute explicitly When refers to a calls on or about a specific Nothing date. offense, course of conduct as the the test in the superseding suggests indictment why multiplicity obviously be even should calls on regarded these dates were sepa stringently applied more in contexts than episodes. rate The evidence establishes such as Fair Labor Act. No Standards many there were other single isolated call could be a calls on dates not mentioned violation Nor would series indictment. The Hat isolated, testimony lens’ Judge strongly suggests unrelated calls suffice. they regarded has as fol- phone Newcomer construed all calls between 1974, March, May, lows: including calls on dates not indictment, mentioned in the First, “repeated”. calls must be continuing as one harassment. Hatlen repeated court takes Mrs. this to mean always testified that there enough were ten proximity close to another about per to twelve calls week. Trial rightly single episode, Transcript, called a and not at 107-08. Mr. Hatlen by periods years. or testified that separated of months calls ten repeated- averaged condition both calls a requires throughout This week cogniza- period. as an element Trial legally Transcript, ness at 120. charge, Many and at placed ble the same time insures of these calls were as “collect” courts will not with be flooded to “Elizabeth Lampley” “Judy complaints growing single out un- Lampley” of a and thus did appear pleasant acquaintance. call with some Lampley’s telephone bills. The evidence *10 appear which did not that the calls was unable to suggests prepare an effective defense. bill for his Down Lampley’s telephone government on The would have us construe Pennsylvania, telephone bridged ingtown, Lampley’s vagueness motion as a motion to the dates select intervals between the time duplicitous cure a complaint and thus as a separate prosecu government concession that he had made multiple sepa- separate The dates set forth tion. rate offending series of phone calls. For separate epi of the indictment counts two reasons I cannot accept govern- nothing more than the dates of sodes argument. First, ment’s it misstates the Lampley’s billed to number. thrust of Lampley’s vagueness motion. Second, even if permitted finding government’s Clearly argument the evidence accurately calls a week between average an of ten characterized Lampley’s motion, of 1975 May of 1974 and March constituted the fact that he made the motion would not illegal proscribed by course of conduct an relieve the of its burden of nothing But either in the in- charging and establishing how many sepa- suggests the record or in dictment rate courses of place. conduct took courses of Lampley engaged in several con- Since the court charged, that the jury Hatlen directed toward Mrs. rather duct should treat each series of calls separately, appearing just than one. The dates on jury never considered whether there do not turn a continu- Lampley’s phone bill single was a course of conduct. But the ing separate course of conduct into court charge did that in order to convict the distinguishable acts. If there had been a count, defendant jury had to significant lapse of time between series of find calls and a sole intent to ha- calls, if the motivation for one series rass. Thus the verdict necessarily required had differed in some manner from the moti- finding on all the elements of another, objects vation for or if the 223(1)(D) offense. Ordinarily, because of different, might harassment had been the possibility jury prejudice arising possible separate to treat the series of calls from more charges, numerous the remedy separate episodes. But here the motiva- for the failure grant a motion to elect tion, Lampley’s obsessive fixation Mrs. among multiplicitous counts would be a affection, object Hatlen as an was con- new instance, trial. In this however, the addition, constantly stant. the calls fo- same evidence of calls would object as the cused on Mrs. Hatlen have been admissible even if the election harassment, they By never ceased. motiоn granted. had been Lampley’s only contrast, way the calls to Mrs. Simmons defense was that he did not make the calls. her rather her were intended harass than Under these circumstances I would con- Thus, daughter. grew while those calls out clude that while his convictions on more the same diseased fixation as the calls to than one stand, count should not Hatlens, they part were not same one such conviction can survive and no new illegal course of conduct. required. trial is government urges that we should judgment would vacate the of sentence Lamp- the district court’s denial of consider 223(1)(D) counts, on all but two of the ley’s among motion to elect the counts in but would otherwise affirm. superseding indictment because he had moved earlier to dismiss Count II of the
original indictment. That count had
charged making with harass- defendant
ing phone May calls to the Hatlens between February argument
based his motion on the wording
from the of the indictment he was pattern
unable to determine the of conduct charged
with which he had been and thus