United States v. Franklin D. Lampley , 50 A.L.R. Fed. 525 ( 1978 )

OPINION OF THE COURT

MEANOR, District Judge.

Appellant, Franklin D. Lampley, appeals from a judgment of conviction entered in the United States District Court for the Eastern District of Pennsylvania on one count of making a threatening interstate telephone call in violation of 18 U.S.C. § 875(c),¹ one count of making anonymous harassing interstate telephone calls in violation of 47'U.S.C. § 223(1)(B) and seven counts of making harassing interstate telephone calls in which conversation ensued in violation of 47 U.S.C. § 223(1)(D).² We affirm appellant’s conviction on all counts, but we discuss only appellant’s contentions as to the constitutionality and construction of 47 U.S.C. § 223 and the propriety of a lesser-included offense charge in conjunction with an instruction on 18 U.S.C. § 875(c).

I

On February 13, 1975, a federal grand jury in the Western District of Wisconsin returned a two-count indictment³ charging appellant with making a threatening telephone call to Richard Hatlen on August 5, 1974, a felony, in violation of 18 U.S.C. § 875(c) and with making repeated harassing interstate calls between May 5, 1974 and February 9, 1975, a petty offense, in violation of 47 U.S.C. § 223(1)(D). On appellant’s motion, the case was transferred from the Western District of Wisconsin to the Eastern District of Pennsylvania on May 20, 1975.

On June 17, 1975, the appellant filed a motion to dismiss count II of the indictment as insufficient and vague. The Government agreed that count II was inartfully drawn. Accordingly, on August 26, 1975, a 16-count superseding indictment was returned by a grand jury in the Eastern District of Pennsylvania charging violations of 18 U.S.C. § 875(c) and 47 U.S.C. §§ 223(1)(B) and (1)(D). Specifically, counts I, II and V charged threatening calls to Richard Hatlen in violation of 18 U.S.C. § 875(c). Count IV charged a threatening call to the U.S. Attorney in the Western District of Wisconsin, also in violation of § 875(c). Counts III, VI, VII, VIII, IX, X, XII, XIII, XV and XVI charged repeated harassing calls to Richard and Elizabeth Hatlen in violation of 47 U.S.C. § 223(1)(D). Count XIV charged repeated harassing calls to Mrs. Mary Simmons, contrary to § 223(1)(D). Count XI charged anonymous calls to the Hatlens in violation of 47 U.S.C. § 223(1)(B).

On October 30, 1975, counts I, II and III were dismissed for lack of a speedy trial. On March 3, 1976, the court granted the Government’s motion pursuant to 18 U.S.C. § 4244 for a competency determination. On March 30, 1976 on the basis of a psychiatrist’s report, the trial judge found Lampley competent to stand trial.

On July 23, 1976, after numerous postponements of the trial date at the request of the defense, the case proceeded to trial on counts IV through XVI of the indictment. Judgments of acquittal were granted as to counts IV, X, XII and XIII. On August 2, 1976, the jury returned guilty verdicts on the remaining counts, convicting Lampley on count V, a felony count, and counts VI, VII, VIII, IX, XI, XIV, XV and XVI. On September 9, 1976, Judge Becker sentenced the appellant to a five year term of probation on count V and like concurrent probationary terms on the remaining counts.

II

The facts in this ease constitute a bizarre tale of a romantic obsession. In 1951 in Nashville, Tennessee, the appellant briefly dated Elizabeth Hatlen before her marriage, their relationship terminating after a few weeks. The relationship had an enduring effect on the appellant, however, for in the summer of 1969 he called Elizabeth in Evansville, Wisconsin, where she lived with her husband Richard Hatlen and their four children. The appellant told her that he could not get her out of his mind, that he had spent a rough 17 years for which she was at fault and that he wanted to see her again. When she refused, he told her that he would make life miserable for her. Thereupon, the appellant launched from his home in Pennsylvania a telephonic assault on the Hatlens and others, unleashing a barrage of incessant and subsequently abusive telephone calls which continued, with periods of intermission, into 1975. During the period in question on this appeal, May through December 1974 and January through March 1975, the appellant made an average of 10-12 calls per week to the Hatlen home.

Lampley would often make operator assisted calls, and while the operator placed the call, he would shout obscenities over the operator’s voice or ask “Are you ready to talk,” or “Can I speak to my daughter, Judy.” In addition, Lampley would place collect calls to “my wife, Elizabeth Lampley,” and when Elizabeth Hatlen refused to accept charges, she could hear the appellant speaking in the background.

Richard Hatlen, Elizabeth’s husband, and Mary Simmons, Elizabeth’s mother, also became the focus of the appellant’s spleen. On August 5, 1974, the appellant placed a call to the Hatlens wherein Richard heard the appellant shout over the operator, “I have been hired by your wife to kill you.” This threat constituted the basis of appellant’s conviction on count V.

In 1974 and 1975, Mrs. Simmons received a multitude of harassing calls from the appellant at her home in Hollow Rock, Tennessee. On January 9,1975, Lampley called her at least three times — 1:30 a. m., 2:05 a. m. and 2:10 a. m. Each time Lampley spoke a few words and Mrs. Simmons, recognizing his voice, hung up. After the third call, Mrs. Simmons took her phone off the hook. This series of calls was the basis of appellant’s conviction under count XIV.

Taking the stand in his own defense, Lampley testified that after 1971 he had only made one call to the Hatlens, the one to Richard on August 5, 1974, but he denied threatening Richard’s life. The thrust of Lampley’s defense was that his prosecution was the result of a plot on the part of the Hatlens, the United States Attorney, the Department of Justice, the Federal Bureau of Investigation, and the United States District Court to silence his activities in exposing corruption in government.

Ill

The appellant has raised several questions as to the constitutionality and construction of 47 U.S.C. § 223. First, he asserts that § 223(1)(D) is violative of the First Amendment because it fails to specify that the requisite ensuing conversation must contain harassing language. Without such requirement, he reasons, one may be convicted for a mere attempt to communicate in violation of the right of free speech, and, therefore, the court’s failure to charge that harassing conversation is a requirement to conviction is ground for reversal.

The appellant has not claimed, nor could he successfully do so, that it is beyond the power of the Congress to impose criminal sanctions on the placement of interstate telephone calls to harass, abuse or annoy. Not all speech enjoys the protection of the first amendment, Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and in enacting § 223 the Congress had a compelling interest in the protection of innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives. See H.R.No.1109, Interstate and Foreign Commerce Committee, U.S.Code Cong. and Admin.News, p. 1915 (1968); United States v. Darsey, 342 F.Supp. 311 (E.D.Pa.1972).

The appellant argues that § 223(1)(D) must be read to require the use of harassing language to avoid the unconstitutional criminalization of mere attempts to communicate. However, that section requires that punishable conduct be made with the intent “solely to harass any person at the called number.” Whether or not the actual conversation contains harassing language may be relevant to the question of intent. However, the nature of the conversation can have no bearing on the constitutionality of the section since its narrow intent requirement precludes the proscription of mere communication.

Since harassing conversation is not necessary to save the section from unconstitutionality, and since the proscription of calls intended to harass in which no abusive language is .used is consistent with both congressional intent and the language of § 223(1)(D), the district court properly refused appellant’s request to charge on the necessity of harassing language.

The section’s specific intent requirement renders unconvincing appellant’s second claim that §§ 223(1)(B) and (D) are unconstitutionally vague. It has long been true that

[t]he Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. . . . [W]here the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.

Screws v. United States, 325 U.S. 91, 101-02, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). The appellant cannot claim confusion about the conduct proscribed where, as here, the statute precisely specifies that the actor must intend to perform acts of harassment in order to be culpable.

Next the appellant raises questions as to the meaning of the element of ensuing conversation under § 223(1)(D). He asserts that the conversation requirement cannot be met unless the caller speaks and the party called verbally responds. Thus, appellant contends that on an operator-assisted call, if only the operator speaks, there has been no ensuing conversation within the meaning of § 223(1)(D), and that it was error for the trial court to refuse appellant’s charge⁴ to this effect.

It is clear that when the operator places a call at the behest of the caller, the operator is acting as the agent of the caller for purposes of contacting the party called. Where the caller acts with sole intent to harass, the words spoken through his agent, the operator, are readily attributable to him. It was not the intention of Congress to permit the person who abuses telephonic communication to evade liability under § 223(1)(D) by the device of placing only operator-assisted calls. Nor is it necessary, as appellant suggests, that the call recipient verbally respond to the operator’s words. Communication sufficient to constitute “conversation” occurs when the operator speaks to the listening recipient.

In his final point directed to the construction of § 223(1)(D), the appellant raises the issue of what constitutes a single offense of “repeated telephone calls.” He urges that the indictment charging many counts of repeated harassing calls to the Hatlens was multiplicitous, reasoning that the conduct charged in separate counts was of a repetitious and continuing nature, and since the statute prohibits “repeated telephone calls,” all such conduct should have been the subject of a single count. For this reason the appellant argues that the trial court erred in denying his motion to require the government to elect from among the § 223(1)(D) counts.

The conclusion that the indictment was multiplicitous in charging appellant with more than one § 223(1)(D) offense arising out of his calls to the Hatlens would result in a modification of the_ judgment below to reflect not seven but two convictions for violation of § 223(1)(D) — one involving the calls to the Hatlens and one arising out of the calls to Mrs. Simmons. Lampley’s sentences were all concurrent and under the concurrent sentence doctrine we may exercise our discretion not to rule on the issue of multiplicitousness. Under that doctrine an appellate court may avoid the resolution of legal issues affecting less than all of the counts in an indictment where at least one count has been upheld and the sentences are concurrent. Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Cury, 313 F.2d 337, 342 (3d Cir. 1963). The doctrine clearly involves a matter of discretion, Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), and should not be applied where there is a significant risk of greater adverse collateral consequences from multiple convictions. United States v. Daley, 564 F.2d 645, 647 n.2 (2d Cir. 1977). That the doctrine has continuing vitality seems clear. It has very recently been applied by the Supreme Court, Barnes v. United States, supra,⁵ and only a short while ago was recognized by this court without any question as to its validity. United States v. Keller, 512 F.2d 182, 185 n.8 (3d Cir. 1975).⁶

Under the judgments below, Lampley stands convicted of a felony in violation of 18 U.S.C. § 875(c); one petty offense in violation of 47 U.S.C. § 223(1)(B) and seven petty offenses in violation of 47 U.S.C. § 223(1)(D). Because we can see no appreciable risk of greater collateral consequences flowing from eight rather than three petty offense convictions, we choose to exercise our discretion under the concurrent sentence doctrine and do not reach the issue of multiplicitousness. We add that appellant was not prejudiced at the trial from the multiple count treatment of his calls to the Hatlens, for whether this conduct was alleged in one or several counts, the government’s evidence would have been the same. Thus, all of the convictions under § 223(1)(D) will be affirmed.

Finally,⁷ we turn to appellant’s contention that in instructing the jury on count V,⁸ the felony count predicated on 18 U.S.C. § 875(c), the trial court wrongfully denied appellant’s request for a lesser-included offense charge under 47 U.S.C. § 223(1)(B). The latter statute prohibits the making of a telephone call without disclosing one’s identity with intent to threaten.

Section 875(c) proscribes the transmission “in interstate commerce [of] any communication containing any threat to kidnap any person or any threat to injure the person of another.” Section 223(1)(B) provides that it is a crime to “make a telephone call, whether or not conversation ensues, without disclosing [one’s] identity and with intent to annoy, abuse, threaten, or harass any person at the called number.” The maximum sanction under § 875(c) is a $1,000 fine and five years’ imprisonment, while that under § 223(1)(B) is a $500 fine and six months’ imprisonment. The defense submitted a request to charge⁹ on the lesser-included offense which was rejected on grounds that there was no evidence of the “without disclosing identity” element of § 223(1)(B).

We agree that the appellant was not entitled to the requested lesser-included offense charge. The test for determining which verdicts a jury may return under Rule 31(c), F.R.Cr.P., and, thus, which offenses should be included in the charge, is set forth in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). Government of Virgin Islands v. Carmona, 422 F.2d 95, 100 (3d Cir. 1970). Sansone provides that

. [i]n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie[s] it . . . [is] entitled to an instruction which would permit a finding of guilt of the lesser offense . . . (Citation omitted) A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.

380 U.S. at 349-50, 85 S.Ct. at 1009. A lesser-included offense charge is inappropriate where, upon examination of the relevant statutes, it appears that the offense claimed to be lesser-included contains an additional element not part of the allegedly inclusive offense. Government of Virgin Islands v. Parrilla, 550 F.2d 879 (3d Cir. 1977); Government of Virgin Islands v. Smith, 558 F.2d 691, 695 (3d Cir. 1977).

The appellant asserts that § 223(1)(B) is lesser-included within § 875(c). However, the former offense contains an element, non-disclosure of identity, which is not required under the latter. Appellant’s argument that the non-disclosure element is not always required for a § 223(1)(B) offense and, hence, that § 223(1)(B) can be lesser-included is not convincing. The trial judge properly refused the defense’s request to charge.

The judgment appealed from will be affirmed.

1 . 18 U.S.C. § 875(c) provides:

Whoever transmits in interstate commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

2 . 47 U.S.C. § 223 provides:

Whoever—

(1) in the District of Columbia or in interstate or foreign communication by means of telephone—

(A) makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent;

(B) makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, of harass any person at the called number;

(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or

(D) makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or

(2) knowingly permits any telephone under his control to be used for any purpose prohibited by this section, shall be fined not more than $500 or imprisoned not more than six months, or both.

3 . This indictment represented the second time that criminal charges have been brought against appellant for misuse of the telephone. On July 7, 1971, the United States Attorney for the Western District of Wisconsin filed a criminal information against him charging conduct similar to that which is the subject of the instant case. Upon Lampley’s agreement to cease making harassing calls and to undergo psychiatric treatment, the United States Attorney caused that information to be dismissed on September 5, 1972.

4 . The text of the requested charge is as follows: In determining whether “conversation ensued” during each of the repeated telephone calls in each count, you must find that Mr. Lampley himself spoke during the telephone call and that he was heard by some person at the called number. I further instruct you that any words spoken by an operator in attempting to make the call would not constitute “conversation ensuing” during a repeated telephone call. So for example, if an operator said “Collect call from Mr. Lampley” or “Person to person call from Mr. Lampley” or other similar words, and the person at the called number hung up the telephone this would not constitute “conversation” within the meaning of this law.

5 . See also United States v. Romano, 382 U.S. 136, 138, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).

6 . The doctrine was not applied as a matter of discretion.

7 . We shall not discuss four arguments raised in appellant’s brief because upon consideration we find them to be totally devoid of merit. These contentions are as follows: (1) that the trial judge erroneously denied the appellant’s motion for a mistrial upon the prosecutor’s attempt during summation to draw an adverse inference from the defense’s failure to call a certain witness; (2) that the court-appointed counsel’s refusal to call certain witnesses whom appellant deemed important to his defense constituted incompetency of counsel entitling appellant to a new trial; (3) that the appellant was denied his right to a speedy trial; and (4) that the trial judge should have disqualified himself on account of bias against the appellant. We note that the latter three arguments were raised by counsel for the appellant pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

8 . The concurrent sentence doctrine does not operate as jurisdictional bar to consideration of challenges to multiple convictions, although one conviction is valid and concurrent sentences have been imposed. Benton v. Maryland, 395 U.S. 784, 787-91, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Here it is appropriate to consider appellant’s challenge to the felony conviction although his § 223(1)(D) convictions have been affirmed because violation of probation would subject appellant to a considerably greater prison term for the felony than for the § 223 offenses.

9 . The defense made the following request to charge:

With regard to Counts IV and V, if you are left with a reasonable doubt whether the words allegedly spoken by Mr. Lampley as recited in the indictment were in fact said by him, but that he made both of the telephone calls in question in interstate commerce and did so without disclosing his identity with the intent of threatening the person at the called number, then (if you find each of these elements beyond a reasonable doubt) you may convict him of an offense under 47 U.S.C. § 223(1 )(B) which I shall refer to as “Making A Telephone Call With The Intent To Threaten.”