MANCHESTER, N.H. (AP) – A federal appeals court has upheld the acquittal of a former Republican National Committee official charged in the GOP phone-jamming scheme in New Hampshire’s 2002 election.

James Tobin of Bangor, Maine, had been convicted in 2005 of federal charges of conspiring in, and aiding, a scheme to disrupt election day get-out-the-vote efforts by the state Democratic Party and a firefighters union. Telephone banks were jammed by hundreds of hang-up calls.

Last year, U.S. District Judge Steven McAuliffe cleared Tobin, ruling Tobin’s role did not fit the specific telephone harassment statute which he had been convicted of violating. An appeals court turned down the government appeal of McAuliffe’s ruling this week.

Tobin helped perpetrate the scheme that state GOP executive director Charles McGee admitted master-minding and carrying out. He put McGee in touch with former political consultant Allen Raymond, who, hired a telemarketer to jam the Democratic and union telephones on Election Day.

McGee and Raymond served time in prison after pleading guilty to similar charges.

McAuliffe wrote that he had been “constrained” by the wording of the appeals court’s 2007 decision remanding Tobin’s conviction to conclude that Tobin’s role did not fit the telephone harassment statute because hang-up calls did not fit the appeals court’s interpretation of the law’s definition of “harassment.”

The U.S. Court of Appeals in Boston rejected the Justice Department appeal of McAuliffe’s ruling, saying the department did not convince it that the federal telephone harassment statute covered Tobin’s actions.

The three-member panel said a violation of the statute in question required a finding that the specific purpose of the hang-up calls was to harass the recipients of the calls.

“We are not willing to construe over-generously a criminal statute to cover cases that should not be made criminal in the hope (usually but not invariably borne out) that prosecutors will exercise restraint in the interest of common sense,” the panel ruled.

But the court said the phone-jamming was “thoroughly bad conduct,” noted that some states have statutes “that forbid deliberate disrupting of communications” and said it was surprised there is no similar federal law.

“The apt solution,” the court ruled, “is not to stretch out of shape a law about harassment by ringing (a phone),” but Congress to write a more specific law.

Tobin had been sentenced to 10 months in prison, but never served time.

Meanwhile, Tobin has been indicted in Maine on charges of lying to the FBI about the phone-jamming. Tobin’s lawyers say he is the victim of vindictive prosecution. A trial is tentatively scheduled for next month.


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