and Submitted July 11, 2019
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
Timothy J. Ohms (argued), Assistant United States Attorney;
Joseph H. Harrington, United States Attorney; United States
Attorney's Office, Spokane, Washington; for
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.
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.
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.
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.
panel addressed other issues in a memorandum disposition.
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.
GRABER, CIRCUIT JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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 ...