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United States v. Waggy

United States Court of Appeals, Ninth Circuit

September 5, 2019

United States of America, Plaintiff-Appellee,
v.
Robert Waggy, Defendant-Appellant.

          Argued and Submitted July 11, 2019

          Appeal from the United States District Court for the Eastern District of Washington No. 2:17-cr-00212-SAB-1 Stanley Allen Bastian, District Judge, Presiding

          Matthew Campbell (argued), Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant.

          Timothy J. Ohms (argued), Assistant United States Attorney; Joseph H. Harrington, United States Attorney; United States Attorney's Office, Spokane, Washington; for Plaintiff-Appellee.

          Eugene Volokh, Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California; Aaron H. Caplan, Loyola Law School, Los Angeles, California; for Amici Curiae American Civil Liberties Union of Washington, Pennsylvania Center for the First Amendment, and Professors Aaron H. Caplan and Eugene Volokh.

          Robert W. Ferguson, Attorney General; Megan D. Lin, Solicitor General's Office Fellow; Callie Castillo, Deputy Solicitor General; Office of the Attorney General, Olympia, Washington; for Amicus Curiae State of Washington.

          Before: A. Wallace Tashima, Susan P. Graber, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel affirmed a conviction under the Assimilative Crimes Act for felony telephone harassment in violation of Washington Revised Code section 9.61.230(1)(a), (b), arising from the defendant's repeated telephone calls to a Veterans Administration medical center.

         The defendant argued that section 9.61.230 violates the First Amendment as applied to him because he just wanted to talk about his medical care and the VA's unpaid bills, and didn't intend or want to harass the secretary who answered the calls. The panel held that section 9.61.230(1)(a) requires proof that the defendant specifically intended to harm the victim when initiating the call; and that as applied here, that requirement ensures that the defendant-who doesn't challenge the sufficiency of the jury's finding that he had the intent required by the statute-was convicted for his conduct, not for speech protected by the First Amendment.

         The panel addressed other issues in a memorandum disposition.

         Dissenting, Judge Tashima wrote that section 9.61.230(1) is unconstitutional under the First Amendment, as applied in this case, because it criminalizes speech that is-despite its vulgarity and harassing nature-public or political discourse protected by the First Amendment.

          OPINION

          GRABER, CIRCUIT JUDGE

         Defendant Robert Waggy repeatedly telephoned the Mann-Grandstaff Veterans Administration Medical Center ("Center"), a Department of Veterans Affairs ("VA") facility in Spokane, Washington. Some of those calls resulted in federal charges of telephone harassment in violation of Washington Revised Code section 9.61.230(1)(a), (b), which applies to federal land in Washington State through the Assimilative Crimes Act, 18 U.S.C. § 13. A jury convicted Defendant of two of the charges. On appeal, he argues primarily that the Washington statute violates the First Amendment as applied to his conduct. We disagree and affirm. We resolve Defendant's jury instruction claims in a memorandum disposition filed concurrently with this opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         Defendant, a Marine Corps veteran, has an extensive history with the Center. At various times, Defendant has been barred from the premises because of his disruptive behavior and frequent threats. He was previously convicted of harassment and trespass for incidents involving the Center. Because Defendant is not allowed on the premises, he receives VA-authorized medical care through private physicians instead. The VA also restricts Defendant's contact with the Center. Defendant has one point of contact whom he is permitted to call-a "Care in the Community" Supervisor-and the Center established a phone line specifically for Defendant's use.

         Defendant asserts that the VA owes him millions of dollars for various reasons and that, because the VA has failed to pay the debt, he is now the legal owner of the Center's land and facilities. Many of his telephone calls to VA employees addressed this dispute and his related threats to seize the Center by force.

         In April 2016, Defendant called the Center several times in one day. Each time, he dialed the Spokane VA's 1-800 number and asked to speak to the director. Defendant was transferred to the director's office. Sandra Payne, one of the Center's executive secretaries, answered the April 2016 calls, which underlie the charged counts.

         Defendant was charged with two counts of violating Washington Revised Code section 9.61.230(1)(c) (Counts 1 and 6); one count of violating section 9.61.230(1)(a), (c) (Count 2); two counts of violating section 9.61.230(1)(a), (b) (Counts 3 and 4); and one count of violating ...


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