U.S. v. Tobin

• Decision Date: 25 August 1998
• Docket Number: No. 97-5304,97-5304
• Citation: 155 F.3d 636
• Parties: UNITED STATES of America, v. Kathleen TOBIN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 636

155 F.3d 636

UNITED STATES of America, v. Kathleen TOBIN, Appellant.

No. 97-5304.

United States Court of Appeals Third Circuit.

Argued March 10, 1998.

Decided Aug. 25, 1998.

Kenneth M. Tuccillo (Argued), Hastings, NY, for Appellant.

George S. Leone, Chief of Appeals, Allan Tananbaum (Argued), Assistant U.S. Attorney, Office of United States Attorney, Newark, NJ, for Appellee.

Before: STAPLETON and ALITO, Circuit Judges, and SHADUR, Senior District Judge ^*

OPINION OF THE COURT

ALITO, Circuit Judge:

Kathleen Tobin appeals her conviction and sentence in a criminal case. She argues that the district court erroneously denied her request for a "claim-of-right" jury instruction regarding an alleged violation of the Hobbs Act, 18 U.S.C. § 1951. She also claims that the indictment should have been dismissed pursuant to the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), that the district court erred in admitting certain tape recordings, that her trial counsel was ineffective, and that she was sentenced under the wrong provision of the Sentencing Guidelines. For the reasons discussed below, we affirm Tobin's conviction and sentence.

I.

Tobin was charged in a 14-count indictment with one count of interfering with interstate commerce by extortion and threatened physical violence, in violation of the Hobbs Act, 18 U.S.C. § 1951; three counts of making interstate telephone calls threatening to injure the person of another, in violation of 18 U.S.C. § 875(c); two counts of making threatening interstate telephone calls with the intent of extorting a thing of value from another person, in violation of 18 U.S.C. § 875(d); seven counts of trafficking in and using unauthorized telephone calling cards with the intent to defraud and thereby obtaining services valued in excess of $1000 within a one-year period, in violation of 18 U.S.C. § 1029(a)(2); and one count of possessing 15 or more unauthorized calling cards with the intent to defraud, in violation of 18 U.S.C. § 1029(a)(3). She was tried before a jury and was convicted on all counts except those charging the making of interstate telephone calls that threatened to injure the person of another.

The facts in this case, when properly viewed in the government's favor in light of Tobin's conviction by the jury, are relatively simple. William Cirignano was the leader of a New Jersey-based rock band named "Monroe." The band never had a business manager, and therefore Cirignano generally booked the band's "gigs" himself. In August or September of 1993, Tobin contacted Cirignano and sought to be hired as Monroe's booking agent. Tobin claimed to have contacts with clubs outside of the New York/New Jersey area in which Monroe usually performed.

Cirignano was initially receptive to Tobin's approach, but after two meetings he changed his mind. The second meeting took place at a club at which Tobin claimed to be hosting a birthday party. Tobin had claimed that Cirignano could meet the different bands that she represented, but none of the musicians at the club knew Tobin. When Cirignano introduced Tobin to Rick Seymour, Monroe's bass player, Tobin claimed that she was already representing Monroe and that she had lined up many shows for the band. Cirignano and Seymour felt uncomfortable with the situation and wanted to leave. Tobin demanded that Cirignano drive her home from the club, and when he refused, she became angry. Cirignano and Seymour then slipped away behind Tobin's back.

Tobin immediately commenced a protracted campaign of telephone harassment. Soon after Cirignano left the club, she paged him about 12 times. His answering machine on his home telephone line had messages that were vulgar and intimidating. One message threatened: "I have your [expletive deleted] for a year. I own you. I will do whatever I want with you." Tobin also stated: "You don't know who you are [expletive deleted] with. And I own you.... I put too much time and effort into your band." These telephone calls continued at all hours of the day and night for several months without respite.

Moreover, Tobin went far beyond vulgarity and annoyance and included extortionate threats in her messages. She threatened that she would file suit against Cirignano and would assert that he filed false charges against her, exposed himself to her, and demanded sex. She also threatened to report to the Internal Revenue Service that he was not declaring income that he earned in his business of chauffeuring women who worked in "go-go" bars.

Tobin also started a campaign of harassment against Cirignano's family and friends. Cirignano lived with his parents, and there were three separate telephone lines in the house. Tobin called all three lines dozens of times a day, and she also called Cirignano's uncles in Minnesota and Texas. She claimed to have information about the Cirignano family's credit history and their property interests. Cirignano's family changed all three numbers repeatedly, but Tobin always obtained the new numbers even though they were unlisted. ¹

Tobin also telephoned Jodi Kaplan, Cirignano's girlfriend. In her first week of calling, Tobin called Kaplan ten times a day. Tobin told Kaplan that Cirignano was a crack cocaine dealer and that the police had Kaplan's house under surveillance. Tobin also claimed that Kaplan was liable as an accomplice for what she claimed was Cirignano's harassment of Tobin, and Tobin said that she had notified the Federal Bureau of Investigation about Kaplan's role in the affair. Tobin threatened to sue Kaplan and Cirignano for federal civil rights violations. In addition, Tobin left anti-Semitic slurs on Kaplan's answering machine and taunted Kaplan about Kaplan's father's terminal illness.

Tobin also threatened Cirignano with physical violence. Tobin left messages for Cirignano intimating that he should get bodyguards and claiming that she was somehow connected to an outlaw biker gang that would kill him. She declared: "I am coming to find you," and she said that Cirignano would wind up "hanging from a [expletive deleted] tree."

Of particular relevance to this appeal are Tobin's threats to destroy the band. Tobin claimed that she had listed herself as Monroe's representative and that when clubs called to book gigs, she was going to tell them that the band was "over" and "non-existent." Tobin faxed a letter that said that "Monroe sucks and Billy [Cirignano] is a five-foot-four-inch troll, tattooed 35-year-old lo[ ]ser. Monroe is dead." Tobin also followed through on her threats by terrorizing a club promoter so that he dropped Monroe from a billing that had previously been arranged by the band. On another occasion, Tobin told Cirignano that she would have him arrested if he and the band played at a particular club. As a result, Monroe canceled that performance. Tobin had also threatened the club owner, who independently told Cirignano that it would not have been advisable for the band to play that gig. ²

Tobin was arrested on March 23, 1995. Her jury trial commenced on September 3, 1996, and on September 20, 1996, the jury convicted her of all charges except making interstate telephone calls that threatened to injure the person of another, in violation of 18 U.S.C. § 875(c). On April 30, 1997, she was sentenced to a 46 month term of imprisonment, to be followed by three years of supervised release. This appeal followed.

II.

A. Tobin's first argument is that the district court erred in denying her request for a "claim-of-right" jury instruction. The claim-of-right defense to a Hobbs Act violation requires that the government prove that the defendant did not have a legitimate claim to the thing of value that is the subject of the alleged extortionate act and that the defendant knew that he or she did not have such a claim. See, e.g., United States v. Sturm, 870 F.2d 769, 773 (1st Cir.1989) ("for purposes of the Hobbs Act, the use of legitimate economic threats to obtain property is wrongful only if the defendant has no claim-of-right to that property"). The defense is derived from the Supreme Court's decision in United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973), in which the Court held that threats and violence that occurred during the course of a labor strike were not covered by the Hobbs Act because the striking workers had a legitimate right to the things of value that they ultimately received. The Court relied in part on legislative history that pointed to the exclusion of labor violence from the purview of the Hobbs Act.

This circuit, as well as many others, originally limited the claim-of-right defense to the particular context in which it was decided, namely, labor-management conflicts. See United States v. Agnes, 753 F.2d 293, 297-99 (3d Cir.1985) (limiting Enmons to "create a claim-of-right defense only in those situations in which the use of force is expressly identified by Congress as being outside the purview of the Hobbs Act"); United States v. Cerilli, 603 F.2d 415 (3d Cir.1979) (no claim of right defense outside of the labor violence context). Recently, however, this court adopted the reasoning of the First Circuit's Sturm decision and held that the claim-of-right defense applies to non-labor cases, so long as the threats involved are purely economic. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494 (3d Cir.1998). The court held that, in a case in which the alleged perpetrator makes purely economic threats, there is no violation of the Hobbs Act unless the victim had a preexisting right to be free of the economic fear that the defendant utilized. Id. at 526.

As an example of a case in which the claim-of-right defense applies, the Brokerage Concepts panel cited Viacom Int'l v. Icahn, 747 F.Supp. 205 (S.D.N.Y.1990) aff'd on other grounds, 946 F.2d 998 (2d Cir.1991). See Brokerage Concepts, 140 F.3d at 524-25. In Viacom, a corporate raider engaged in what is referred to as "greenmail," i.e., the raider...