                                         PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                    __________

                       No. 13-4400
                       ___________

       GOVERNMENT OF THE VIRGIN ISLANDS

                             v.

                EARL A. VANTERPOOL,
                          Appellant
                   ______________

      ON APPEAL FROM THE DISTRICT COURT
             OF THE VIRGIN ISLANDS
           (D.C. Cr. No. 3-05-cr-00064-001)
          Chief Judge: Hon. Curtis v. Gómez1
         District Judge: Hon. Raymond Finch2
                    ______________

                   Argued May 13, 2014
1
 Judge Wilma A. Lewis is the current Chief Judge of the
District Court of the Virgin Islands.
2
 While Judge Julio A. Brady, Judge of the Superior Court,
Division of St. Croix, sat on the panel that considered this
matter, he retired before the decision was issued.
                      ______________

Before: RENDELL, FUENTES, GREENAWAY, JR., Circuit
                     Judges.

            (Opinion Filed: September 12, 2014)



Kyle R. Waldner, Esq. [ARGUED]
Quintairos, Prieto, Wood & Boyer
Suite 10
1000 Blackbeard’s Hill
St. Thomas, VI 00802

             Counsel for Appellant

Kimberley L. Salisbury, Esq. [ARGUED]
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802

             Counsel for Appellee

                      _____________

                        OPINION
                      _____________




                              2
     GREENAWAY, JR., Circuit Judge.


            Earl Vanterpool was prosecuted and convicted under
     V.I. Code Ann. tit. 14, § 706(1) (“Section 706”) for obsessive
     phone calls and faxes to his ex-girlfriend, Jacqueline Webster.
     On appeal, we are asked to consider three issues: (1) whether
     Section 706 is unconstitutional under the First Amendment;
     (2) whether Vanterpool has shown that his trial counsel’s
     performance amounted to an ineffective assistance of counsel
     under the Sixth Amendment; and (3) whether there was
     sufficient evidence in the record to support Vanterpool’s
     multiple convictions.

             While we find that the First Amendment challenge
     would have been viable had it been raised during trial, the
     plain error standard that we are obligated to apply in this case
     precludes any grant of the relief sought. By virtue of trial
     counsel’s failure to preserve the First Amendment challenge,
     however, the prejudice prong of the Strickland test is
     satisfied. Because the record is insufficiently developed for
     us regarding whether trial counsel’s performance fell below
     professional norms, we shall remand and order that an
     evidentiary hearing be held to determine whether the
     performance of Vanterpool’s trial counsel did indeed fall
     below the Strickland standard.



I.          FACTS AND PROCEDURAL HISTORY

           In May 2004, Jacqueline Webster expressed a desire to
     end her relationship with Earl Vanterpool because Vanterpool
     had become possessive and called her frequently. Despite




                                    3
this issue, the two continued to be in contact with each other
and did not officially end their relationship until November
2004.

       After the end of the relationship, Vanterpool continued
to make numerous calls to Webster’s phone, and started
sending her faxes. Vanterpool would, at times, call Webster
as often as six or seven times an hour. (App. 49, 52.)
Webster informed Vanterpool that she wanted him to stop
communicating with her, to no avail.

       Following her unsuccessful attempts to stop
Vanterpool’s communications, Webster went to the police
station to file a report. At the police station, Webster was
assisted by Sergeant Boynes of the Virgin Islands Police
Department. While Webster was speaking with Boynes at the
station, Vanterpool called her multiple times. During one
such call, Webster handed the phone to Sergeant Boynes, who
informed Vanterpool that he was not supposed to be calling
Webster and that if he continued to call her, he would be
arrested. Vanterpool continued to contact Webster through
both phone and fax.

       As a result of his behavior, the Government of the U.S.
Virgin Islands (“Government”) brought four charges against
Vanterpool: (1) one count of harassment by telephone
occurring on or about January 6, 2005, in violation of V.I.
Code Ann. tit. 14, § 706(1) and V.I. Code Ann. tit. 16, §
91(b)(10); (2) one count of harassment by telephone
occurring on or about December 21, 2004, in violation of V.I.
Code Ann. tit. 14, § 706(1) and V.I. Code Ann. tit. 16, §
91(b)(10); (3) one count of harassment by written
communication occurring on or about January 6, 2006, in
violation of V.I. Code Ann. tit. 14, § 706(1) and V.I. Code




                              4
       Ann. tit. 16, § 91(b)(10); and (4) one count of harassment by
       written communication on or about December 21, 2004, in
       violation of V.I. Code Ann. tit. 14, § 706(1) and V.I. Code
       Ann. tit. 16, § 91(b)(10).

              Vanterpool and Webster both testified at the ensuing
       bench trial presided over by Judge Brenda Heller of the
       Superior Court of the Virgin Islands. The Superior Court
       found Vanterpool guilty on all four counts; thereafter,
       Vanterpool filed a timely appeal. The Appellate Division of
       the District Court of the Virgin Islands (“District Court”), in a
       per curiam opinion, affirmed Vanterpool’s convictions.
       Vanterpool filed this timely appeal.

 II.          JURISDICTION

             The District Court had jurisdiction under V.I. Code
       Ann. tit 4, § 33 and this Court has jurisdiction under 28
       U.S.C. § 1291 and 48 U.S.C. § 1613a(c).

III.          ANALYSIS

       A. First Amendment Challenge

               Vanterpool argues that Section 706 is unconstitutional
       under the First Amendment of the Constitution of the United
       States. Section 706, in relevant parts, criminalizes the actions
       of anyone who “with intent to harass or alarm another person
       . . . communicates with a person, anonymously or otherwise,
       by telephone, or by telegraph, mail or any other form of
       written communication, in a manner likely to harass or
       alarm[.]” V.I. Code Ann. tit. 14, § 706(1). It is uncontested
       that this constitutional challenge was not raised in the
       proceedings below, and therefore, the standard of review is




                                      5
plain error. See United States v. Marcus, 560 U.S. 258, 262
(2010). Because this standard substantially limits the type of
scrutiny that we may apply to Vanterpool’s First Amendment
challenge, we now review the plain error standard in detail.

       Federal Rule of Criminal Procedure 52(b) provides a
court of appeals with a limited power to correct errors that
were forfeited because they were not timely raised in district
court. Fed. R. Crim. P. 52(b) (“Plain errors or defects
affecting substantial rights may be noticed although they were
not brought to the attention of the court.”). Under this
standard, “an appellate court may, in its discretion, correct an
error not raised at trial only where the appellant demonstrates
that (1) there is an ‘error’; (2) the error is ‘clear or obvious,
rather than subject to reasonable dispute’; (3) the error
‘affected the appellant’s substantial rights, which in the
ordinary case means’ it ‘affected the outcome of the district
court proceedings’; and (4) ‘the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.’” United States v. Marcus, 560 U.S. at 262.

        The Supreme Court has elaborated upon the “clear or
obvious” standard in the seminal case of United States v.
Olano, 507 U.S. 725, 731-37 (1993). There, the Court
clarified that a “court of appeals cannot correct an error
pursuant to Rule 52(b) unless the error is clear under current
law.” Id. at 734. Applied to the present case, if the statute
was unconstitutional, then the District Court would have
committed error when it applied the statute; but even so, we
could reverse only if the error were plain under current law.

       While this Court has not expressly commented on this
issue, our sister circuits have denied relief when an appellant
has raised a constitutional challenge to a statute for the first




                               6
time on appeal. See, e.g., United States v. Dedman, 527 F.3d
577, 592 (6th Cir. 2008) (“[T]he district court did not commit
plain error in applying the Arkansas marriage statute even
assuming that the statute is unconstitutional.”); United States
v. Gore, 154 F.3d 34, 42-43 (2d Cir. 1998) (“[E]rror is plain if
it is clear or obvious under current law . . . [or] so egregious
and obvious as to make the trial judge and prosecutor derelict
in permitting it, despite the defendant’s failure to object.”)
(internal quotation marks omitted); United States v. Wright,
466 F.2d 1256, 1259 (2d Cir. 1972) (“It is fair to say that the
facial unconstitutionality of the wiretap statute does not leap
from the pages of the United States Reports. The question is
‘at least sufficiently close’ to take it out of the realm of plain
error.”). We find these cases to be persuasive.3

       Here, even if the Virgin Islands statute is
unconstitutional, it was far from being “clear under current
law.” See Olano, 507 U.S. at 734. From a review of reported
cases, it appears that Section 706 had never been challenged
before, let alone construed by a court at the time of
3
  While there has been an instance where a court of appeals
was satisfied that a constitutional challenge to a statute
satisfied the plain error standard, see United States v.
Knowles, 29 F.3d 947, 950-52 (5th Cir. 1994), that case is
easily distinguishable. In that case, the Fifth Circuit issued
United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1993)
while Knowles was being appealed. Unlike the circumstances
at issue here, the Supreme Court had expressly left this
question open. See Olano, 507 U.S. at 734 (“We need not
consider the special case where the error was unclear at the
time of trial but becomes clear on appeal because the
applicable law has been clarified.”).




                                7
Vanterpool’s trial.4 Therefore, the plain error review standard
does not permit us to reach the constitutional challenge.5

B. Ineffective Assistance of Counsel Claim

        Vanterpool argues that his trial lawyer’s performance
fell below the standard of effective assistance in violation of
the Sixth Amendment of the Constitution of the United
States.

       We first discuss whether we will review the ineffective
assistance claim on direct appeal, given that this Court, in
general, does not entertain a claim of ineffective assistance of

4
 It appears that there had only been one reported case citing
Section 706 at the time of the trial for the present case. That
case, however, did not construe the statute because the claim
on the complaint relating to the statute was dismissed. See
James v. James, No. 1987/342, 1988 WL 142612 (D.V.I.
Dec. 19, 1988).
5
  We do not suggest that a constitutional challenge to a statute
can never succeed on plain error review, but only that, in this
instance, the unconstitutionality of the statute was
insufficiently clear for us to strike it down under the plain
error standard. Cf. United States v. Cole, 567 F.3d 110, 117
(3d Cir. 2009) (“Neither the absence of circuit precedent nor
the lack of consideration of the issue by another court
prevents the clearly erroneous application of statutory law
from being plain error.”) (internal citation and quotation
marks omitted). Also, it should be self-evident that nothing
that we pronounce today forecloses future litigants from
challenging the constitutionality of the statute.




                               8
counsel on direct appeal. See, e.g., United States v. Givan,
320 F.3d 452, 464 (3d Cir. 2003). Among the reasons that
such a claim is not usually cognizable on direct appeal is the
very important fact that there will not, in the typical case,
exist a record developed enough to assess the efficacy of
defense counsel. See United States v. Jake, 281 F.3d 123,
132 n.7 (3d Cir. 2002).

        Although we re-affirm this Court’s general practice,
we find that the unique circumstances here warrant review on
direct appeal. Specifically, Vanterpool is unlikely to meet the
“in custody” requirement to bring a collateral habeas petition
pursuant to a 28 U.S.C. § 2254 claim.6 The Supreme Court
has interpreted the statutory language under § 2254 as
requiring that the habeas petitioner be “in custody” under the
conviction or sentence under “attack at the time his petition is
filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989)
(emphasis added). Here, Vanterpool is no longer “in
custody” within the meaning of the habeas statute.
Vanterpool was never incarcerated, as his sentence was
suspended, and he presumably completed probation in 2008.
Moreover, his restraining order was fully discharged when
Vanterpool completed his probation. The controlling Virgin
Islands Code provides that “[t]he defendant’s liability for any
fine or other punishment imposed as to which probation is
granted, shall be fully discharged by the fulfillment of the
terms and conditions of probation.” 5 V.I. Code Ann. tit. 5, §
3711(a) (emphasis added). Even if we construe an undated
6
  We do not render an opinion on the availability of habeas,
but discuss the issue here from a predictive standpoint as part
of our reasoning as to whether to consider the ineffectiveness
claim on direct review.




                               9
trial court restraining order as a permanent restraining order,
such a “punishment imposed as to which probation is
granted” was “fully discharged” when Vanterpool completed
his three-year probation.7

       This leaves remand as the prudential route. It is worth
noting here that our general aversion to entertaining a claim
for ineffective assistance on direct appeal is to (1) benefit
from the trial court’s fact finding; and (2) protect the
defendant from prematurely bringing the claim, thereby
sparing him from having res judicata attach to the ineffective
assistance claim. See United States v. Cooke, 110 F.3d 1288,
1299 (7th Cir. 1997) (“This Court’s reluctance to consider
ineffective assistance claims on direct appeal stems, of
course, from the fact that such claims are very unlikely to find
any factual support in the trial record and an adverse
7
  Of course, the “in custody” language has not required that a
petitioner be physically confined in order to challenge his
sentence via a habeas corpus petition.           In Jones v.
Cunningham, 371 U.S. 236, 241-42 (1963), for example, the
Supreme Court held that a prisoner who had been placed on
parole was still “in custody” under his unexpired sentence.
However, the Supreme Court has repeatedly emphasized that
custody requires a showing of “severe restraints on individual
liberty,” which is unlikely to be found when the sentence
imposed for the conviction has fully expired. See Maleng v.
Cook, 490 U.S. at 491 (“We have never held . . . that a habeas
petitioner may be ‘in custody’ under a conviction when the
sentence imposed for that conviction has fully expired at the
time his petition is filed. Indeed, our decision in Carafas v.
LaVallee, [391 U.S. 234, 238 (1968)] strongly implies the
contrary.”).




                              10
determination on direct appeal will be res judicata in any
subsequent collateral attack.”).

        Here, neither rationales apply: a trial court’s fact
finding is only available on direct appeal, and there is no risk
of res judicata applying since collateral relief is unavailable.
Indeed, while this Court has not spoken much on this subject,
other circuits have recognized that restrictions on the
defendant’s ability to seek habeas relief constitute grounds to
review ineffectiveness claims on direct appeal. See, e.g.,
United States v. Doe, 365 F.3d 150, 153 (2d Cir. 2004)
(“AEDPA’s restrictions on a prisoner’s ability to seek more
than one federal habeas petition presented ‘a significant
reason’ not to dismiss ineffective assistance claims raised on
direct review in favor of collateral attack under section
2255.”). The inability of Vanterpool to challenge his
conviction on collateral attack is a matter of critical
importance here. If an ineffective assistance claim is
unavailable both on direct appeal and collateral attack, we are
essentially eviscerating a constitutional right by a way of
tolerating instances where an individual would get convicted
under a presumably unconstitutional state statute, leaving him
with no recourse.

       We emphasize that we are not abandoning our typical
practice of eschewing consideration of ineffective assistance
claims on direct appeal. However, where, as here, a district
court most probably would not have the opportunity to fact-
find on collateral attack, there is no principled reason to
follow a discretionary procedure that we developed to ensure
that factual records are developed before we review
ineffective assistance claims. Cf. United States v. Rashad,
331 F.3d 908, 911 (D.C. Cir. 2003) (“[W]e reject the
Government’s premise that our remand practice on direct



                              11
appeal should be curtailed in order to give effect to the
statutory restriction upon a defendant’s ability to launch a
second collateral challenge to his conviction.”); United States
v. Leone, 215 F.3d 253, 257 (2d Cir. 2000) (“[W]e choose to
exercise our discretion to remand to the district court for
further fact-finding rather than to dismiss the appeal and force
the appellant to use up his only habeas petition.”).

      Therefore, we proceed to review the merits of
Vanterpool’s ineffective assistance of counsel claim.

       1. Right to Counsel: Overview

        The Sixth Amendment recognizes the right to the
assistance of counsel because it envisions counsel playing a
role that is critical to the ability of the adversarial system to
produce just results. See Strickland v. Washington, 466 U.S.
668, 684-85 (1984). The Supreme Court has set forth a two-
part test for evaluating the claim that he was denied his Sixth
Amendment right to effective assistance of counsel. First,
“the defendant must show that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688;
see also Hill v. Lockhart, 474 U.S. 52, 57 (1985). This
inquiry “is necessarily linked to the practice and expectations
of the legal community.” Padilla v. Kentucky, 559 U.S. 356,
366 (2010). But a “fair assessment of attorney performance
requires [us] . . . to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689.

       Second, a defendant must prove prejudice. The
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, “the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694. A reasonable probability is a probability sufficient to




                               12
undermine confidence in the outcome. That requires a
“substantial,” not just “conceivable,” likelihood of a different
result. See Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)
(internal quotation marks omitted). “This standard ‘is not a
stringent one[.]’” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir.
2001) (quoting Baker v. Barbo, 177 F.3d 149, 154 (3d Cir.
1999)). We examine the prejudice prong first, followed by
the reasonableness prong.8

       2. Prejudice

       Of various theories offered by Vanterpool, the theory
that ineffective assistance resulted from his counsel’s failure
to “challenge the constitutionality of Section 706” deserves
our scrutiny.9 (See Appellant Br. 28.)




8
  This Court has “endorsed the practical suggestion in
Strickland to consider the prejudice prong before examining
the performance of counsel prong[.]” United States v. Booth,
432 F.3d 542, 546 (3d Cir. 2005).
9
   Although we find that this theory is sufficient to
demonstrate the prejudice prong, we also note that the record
is replete with statements by trial counsel that raise questions
about his competency. (See, e.g., App. 134 (“I really don’t
know what to say. Mr. Vanterpool says he wants to have a
trial so we had a trial.”); App. 135 (“At this point there is no
real rationality to it. . . . He just seems to be incapable of
understanding that a person is telling him that they no longer
want to have contact with him.”).)




                              13
       The First Amendment, applicable to the U.S. Virgin
Islands through the Organic Act,10 states that “Congress shall
make no law . . . abridging the freedom of speech . . . .” U.S.
Const. amend. I. Although the rights guaranteed by the First
Amendment are not absolute, as a general matter, the
Government may not limit or prohibit speech. See Ashcroft v.
Free Speech Coalition, 535 U.S. 234, 245 (2002) (“As a
general principle, the First Amendment bars the government
from dictating what we see or read or speak or hear.”).

       Vanterpool makes three constitutional challenges to
Section 706 under the First Amendment. First, Vanterpool
argues that the statute was unconstitutionally vague as applied
to him. Second, Vanterpool argues that the statute was
unconstitutionally vague on its face. Finally, he argues that
the statute was unconstitutionally overbroad. Of these
challenges, we only need to analyze the overbreadth
challenge to show that there would have been a reasonable
probability that the outcome would have been different.

       The constitutional guarantees of freedom of speech
forbid the states to punish the use of words or language not
within “narrowly limited classes of speech . . . .” Chaplinsky
v. New Hampshire, 315 U.S. 568, 571 (1942). Even as to
such a class, however, because “the line between speech

10
   “[T]he Organic Act guarantees to the inhabitants of the
islands in the very language of the First Amendment to the
Constitution of the United States the same freedom of speech
and of the press which is safeguarded to the inhabitants of the
United States by the First and Fourteenth Amendments.”
People of Virgin Islands v. Brodhurst, 148 F.2d 636, 643 (3d
Cir. 1945).




                              14
unconditionally guaranteed and speech which may
legitimately be regulated, suppressed, or punished is finely
drawn[,]” Speiser v. Randall, 357 U.S. 513, 525 (1958), “[i]n
every case the power to regulate must be so exercised as not,
in attaining a permissible end, unduly to infringe the
protected freedom,” Cantwell v. Connecticut, 310 U.S. 296,
304 (1940). In other words, the statute must be carefully
drawn or be authoritatively construed to punish only
unprotected speech and not be susceptible to application to
protected expression. Because First Amendment freedoms
need breathing space to survive, government may regulate in
the area only with narrow specificity. Nat’l Ass’n for
Advancement of Colored People v. Button, 371 U.S. 415, 433
(1963). To prevail upon such a challenge, especially in a case
involving conduct as well as speech, the overbreadth of the
statute “must not only be real, but substantial,” in relation to
the legitimate coverage of the statute.          Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973).

       The Government points to our precedent in United
States v. Lampley to uphold the constitutionality of Section
706. Lampley, which involved a person charged under the
federal telephone harassment statute, 47 U.S.C. § 223,
involved a “bizarre tale of a romantic obsession” involving a
breakup and a launch of “a telephonic assault . . . unleashing a
barrage of incessant and subsequently abusive telephone
calls.” United States v. Lampley, 573 F.2d 783, 786 (3d Cir.
1978). Lampley asserted that the statute violated the First
Amendment because it failed to specify that the requisite
ensuing conversation must contain harassing language. This
Court rejected such a claim, reasoning that the statute’s
specific intent requirement rendered unconvincing Lampley’s
claim, since it has long been true that “[w]here the




                              15
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.”
Id. at 787 (quoting Screws v. United States, 325 U.S. 91, 101-
02 (1945)).

       A close examination of the statutory language of
Section 706, along with the actual charges brought against
Vanterpool reveals, however, that Lampley is distinguishable
from this case. Importantly, unlike the federal telephone
harassment statute, the Virgin Islands statute seeks to regulate
not only conduct associated with the use of the telephone, but
also “written communications.”11 The Virgin Islands statute,
moreover, regulates not only conduct “solely intending to
harass” but any conduct “intending to harass,” broadly
sweeping to regulate a wide variety of expressive speech.12

11
  The record makes clear that Counts III and IV are charges
for “writing in a manner likely to harass or alarm her.” (App.
38 (emphasis added).)
12
   The version of the federal statute discussed in Lampley
criminalized anyone who “makes repeated telephone calls,
during which conversation ensues, solely to harass any person
at the number called[.]” Lampley, 573 F.2d at 791 (quoting
47 U.S.C. § 223 (1)(D) (1976) (internal quotation marks
omitted). The Virgin Islands statute, on the other hand,
criminalizes the actions of anyone who “with intent to harass
or alarm another person . . . communicates with a person,
anonymously or otherwise, by telephone, or by telegraph,
mail or any other form of written communication, in a manner
likely to harass or alarm[.]” V.I. Code Ann. tit. 14, § 706(1).




                              16
        Here, the record indicates that the letters sent by
Vanterpool are forms of written communications that fall
within the category of protected speech. (See, e.g., App. 150
(“I still love you and thanks. I forgive you like the Lord
forgive [sic.] us in order to make it into his Kingdom.”).)
Vanterpool’s communications do not fall into one of the
defined categories of unprotected speech such as defamation,
incitement, obscenity, or child pornography. 13 Ashcroft v.
Free Speech Coal., 535 U.S. 234, 246 (2002). Nor do they
constitute unprotected “true threats,” because they are not
“serious expression[s] of an intent to commit an act of
unlawful violence to a particular individual or group of
individuals.” Virginia v. Black, 538 U.S. 343, 344 (2003).
Rather, they are the kind of communicative speech that
implicates the First Amendment. See Jed Rubenfeld, First
Amendment’s Purpose, 53 Stan. L. Rev. 770, 777 (2001).
Indeed, Vanterpool’s faxed letters are at best communications
people might find distasteful or discomforting. While the
Government has undoubtedly a legitimate interest in
protecting persons against unwarranted invasion of privacy by
others, see, e.g., Miller v. California, 413 U.S. 15 (1973), the
Supreme Court has also made very clear that such
communications are fully protected speech. See Texas v.
Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock
principle underlying the First Amendment, it is that the

13
   First Amendment protection applies as much to written
materials sent through the mails, as it does to verbal
communications. See Lamont v. Postmaster General of the
United States, 381 U.S. 301, 305 (1965) (stating that “the use
of the mails is almost as much a part of free speech as the
right to use our tongues”).




                              17
government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or
disagreeable.”).

        Section 706 is especially repugnant to the First
Amendment because past romantic relationships or family
conflicts often lead to unsatisfactory, unpleasant discourse
that still falls under the protection of the First Amendment.
See United States v. Darsey, 342 F. Supp. 311, 314 (E.D. Pa.
1972) (“Up to a point these are the normal risks of human
intercourse, and are and should be below the cognizance of
the law.”).       The State may not abridge one’s First
Amendment freedoms merely to avoid annoyances. Coates v.
Cincinnati, 402 U.S. 611, 615 (1971). “The ability of
government, consonant with the Constitution, to shut off
discourse solely to protect others from hearing it is, in other
words, dependent upon a showing that substantial privacy
interests are being invaded in an essentially intolerable
manner.” Cohen v. California, 403 U.S. 15, 21 (1971).
Moreover, the First Amendment protects more than just
amiable communications. See, e.g., Norwell v. City of
Cincinnati, 414 U.S. 14, 15-16 (1973). A harassment statute
should be carefully tailored to avoid constitutional
vulnerability on the grounds that it needlessly penalizes free
speech.

        Therefore, had Vanterpool’s attorney raised the issue
to the trial court, Section 706 would likely have been found
unconstitutional. By virtue of his trial counsel’s failure to
preserve a viable First Amendment challenge, Vanterpool has
satisfied the second prong of the Strickland test.

      3. Trial Counsel’s Performance




                              18
       “[T]he proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal
quotation marks omitted). A fair assessment of counsel’s
performance requires that every effort be made to eliminate
the distorting effects of hindsight, reconstruct the
circumstances of counsel’s challenged conduct, and evaluate
the conduct from counsel’s perspective at the time. See
Marshall v. Hendricks, 307 F.3d 36, 105-06 (3d Cir. 2002).
Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action “might be considered sound trial strategy.” Strickland,
466 U.S. at 689 (internal quotation marks omitted).

        The reasonableness of counsel’s performance is to be
evaluated from counsel’s perspective at the time of the
alleged error and in light of all the circumstances. Id. at 689.
In making the competency determination, the court “should
keep in mind that counsel’s function, as elaborated in
prevailing professional norms, is to make the adversarial
testing process work in the particular case.” Id. at 690.
Because that testing process generally will not function
properly unless defense counsel has done some investigation
into the prosecution’s case and into various defense strategies,
the Supreme Court has stated that “counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
Id. at 691.

       There are several competing factors at play here. In
favor of Vanterpool’s position, there were cases from other



                              19
jurisdictions at the time of the trial that found similar statutes
unconstitutional. See, e.g., United States v. Popa, 187 F.3d
672, 674-78 (D.C. Cir. 1999) (holding that the federal
telephone harassment statute was unconstitutionally vague);
Walker v. Dillard, 523 F.2d 3, 4 n.1 (4th Cir. 1975) (holding
that the Virginia statute making it illegal to “curse or abuse
anyone, or use vulgar, profane, threatening or indecent
language over any telephone” was facially overbroad). This
fact is important because this Court has held that counsel’s
failure to raise a personal-use argument at sentencing
constituted ineffective assistance of counsel based on
precedents from our sister circuits. See Jansen v. United
States, 369 F.3d 237, 241, 243-44 (3d Cir. 2004) (“At the
time of sentencing the Courts of Appeals for the Seventh and
Ninth Circuits had held that drugs possessed for personal use
may not be included in calculating a Guideline sentence for
possession with intent to distribute under U.S.S.G. § 2D1.1. .
. . The conclusion that counsel’s performance was ineffective
is not based on hindsight. The decisions [of our sister circuits]
were readily available to him.”). Thus, if trial counsel’s
failure to raise a First Amendment challenge is attributable to
an ignorance of the law, Vanterpool would have a valid
ineffective assistance claim. As the Supreme Court recently
re-affirmed, “[a]n attorney’s ignorance of a point of law that
is fundamental to his case combined with his failure to
perform basic research on that point is a quintessential
example of unreasonable performance under Strickland.”
Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).

       Undermining Vanterpool’s claim, on the other hand, is
our precedent in Lampley construing a similarly-worded (yet
substantively different) federal statute. United States v.
Lampley, 573 F.2d 783 (3d Cir. 1978). This case, along with




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a number of cases from other jurisdictions upholding the
constitutionality of similar statutes,14 could have suggested to
reasonably competent trial counsel that a First Amendment
challenge would be unsuccessful. If Vanterpool’s counsel
had considered the issue, and had determined from either a
merits-based or strategic standpoint that the challenge to the
statute should not be pursued, we might have greater
difficulty in concluding that his representation was sub-
standard. We cannot, however, determine this on the record
provided to us given that the facts necessary for the
consideration of this issue were not explored at trial and are in
need of further development. Therefore, because we find that
there are not sufficient facts in this record for Vanterpool to
meet the first prong, we find that remand is appropriate.

C. Sufficiency of the Evidence

       Vanterpool argues that there was insufficient evidence
to permit the jury to find that Vanterpool’s conduct
constituted a violation of Section 706. Critical to his position
is the argument that the government “failed to prove that
Vanterpool had the requisite ‘intent to harass or alarm another
person[.]’” (Appellant Br. 47.)

      This argument is unavailing. Under Supreme Court
precedent, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any

14
  See, e.g., State v. Hagen, 558 P.2d 750, 752 (Ariz. Ct. App.
1976); see also Wayne F. Foster, Validity, Construction, and
Application of State Criminal Statutes Forbidding Use of
Telephone to Annoy or Harass, 95 A.L.R.3d 411 (1979)
(collecting cases).




                               21
      rational trier of fact could have found the essential elements
      of the crime beyond a reasonable doubt.” Jackson v.
      Virginia, 443 U.S. 307, 319 (1979). In reviewing the
      sufficiency of the evidence, “we must view the evidence in
      the light most favorable to the Government[.]” United States
      v. Pearlstein, 576 F.2d 531, 534 (3d Cir. 1978). As this Court
      has pronounced, a district court’s verdict will be overturned
      “only when the record contains no evidence, regardless of
      how it is weighted, from which the jury could find guilt
      beyond a reasonable doubt.” United States v. Miller, 527
      F.3d 54, 62 (3d Cir. 2008) (quoting United States v. Thayer,
      201 F.3d 214, 218-19 (3d Cir. 1999)).

             Here, there is enough evidence in this record to find
      that Vanterpool violated Section 706. Vanterpool admitted in
      court that the repeated telephone calls were placed by him,
      and Vanterpool did not contest that these calls and letters
      were sent even after being told by the police and Webster that
      the communications were not welcome.              Because the
      reviewing court must treat all of the incriminating evidence as
      true and credible, the Government has presented sufficient
      evidence that Vanterpool violated the statute. See United
      States v. Lore, 430 F.3d 190, 203-04 (3d Cir. 2005).

IV.         CONCLUSION

            For the reasons set forth above, we will vacate and
      remand this case for further proceedings in accord with this
      opinion.




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