                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-1998

United States v. Tobin
Precedential or Non-Precedential:

Docket 97-5304




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Filed August 25, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5304

UNITED STATES OF AMERICA

v.

KATHLEEN TOBIN
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Cr. No. 95-00121)

Argued on: March 10, 1998

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

(Opinion Filed: August 25, 1998)

       Kenneth M. Tuccillo (Argued)
       139 Southside Avenue
       Hastings, NY 10706

       Counsel for Appellant



_________________________________________________________________

* The Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.
       George S. Leone
       Chief of Appeals
       Allan Tananbaum (Argued)
       Assistant U.S. Attorney
       Office of United States Attorney
       970 Broad Street
       Room 502
       Newark, NJ 07102

       Counsel for Appellee

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. S 1951. She also claims that the indictment
should have been dismissed pursuant to the Speedy Trial
Act, 18 U.S.C. S 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. S 1951; three counts of making interstate
telephone calls threatening to injure the person of another,
in violation of 18 U.S.C. S 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. S 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

                               2
of $1000 within a one-year period, in violation of 18 U.S.C.
S 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. S 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

                                3
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
_________________________________________________________________

1. Tobin obtained these numbers by calling the telephone company and
posing as an employee in the repair department or as an anxious parent
seeking the new number. Bell Atlantic traced these calls to Tobin's
residence in Queens.

                                4
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. S 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
_________________________________________________________________

2. Tobin also obtained numerous fraudulent calling card accounts in
other people's names, including Cirignano's. This was the basis of the
seven counts of trafficking in and using unauthorized telephone calling
cards and the one count of possessing 15 or more unauthorized calling
cards with the intent to defraud. No issues have been raised in this
appeal regarding these charges.

                                5
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 (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. 1984)
(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

                                6
Concepts, 140 F.3d at 524-25. In Viacom, a corporate raider
engaged in what is referred to as "greenmail," i.e., the
raider amassed Viacom stock and threatened a corporate
takeover unless the company purchased his stock at a
premium over the market price. The Viacom court held that
this threat did not constitute a violation of the Hobbs Act
because Viacom did not have a preexisting right to be free
from the threat of a takeover. 747 F. Supp. at 213.

Tobin argues that, under the caselaw cited above, she
was entitled to a jury instruction about the claim-of-right
defense. She is in error. The caselaw focuses on whether
the victim of the extortionate activity had a preexisting right
to be free from the threats invoked, and here Tobin's
victims plainly possessed such a right. Tobin's actions went
far beyond the hard bargaining tactics utilized in Brokerage
Concepts and Viacom. Tobin did not threaten to pursue
legal action to enforce the oral contract that she claimed
existed. Rather, she threatened unrelated lawsuits alleging
sexual harassment; she circulated flyers proclaiming that
"Monroe is dead;" and she threatened Cirignano that

       Club owners are not booking you in New York City . . . .
       Nobody wants you. You're washed up. You'll see what
       happens when all these directories come out and
       you're listed under my company name, and I get calls,
       you're finished. You're history, the band's over. That's
       exactly what I'll tell them. All the fan mail that I get,
       goes right back, telling them, the band is non-existent.

App. at 2399.

Moreover, Cirignano and his associates certainly had the
right to be free from Tobin's campaign of telephone
harassment. As previously noted, Tobin made innumerable
telephone calls to Cirignano's pager and home telephone, as
well as to his parents, his girlfriend, and others. No matter
how often these individuals changed their telephone
numbers and requested that they be kept unlisted, Tobin
obtained those numbers and began the harassment anew.
Tobin's actions -- unlike those in Brokerage Concepts and
Viacom -- are certainly within the purview of the Hobbs
Act.

                               7
In view of the evidence regarding Tobin's conduct, the
district judge did not err in refusing to give a claim-of-right
instruction to the jury. It was entirely appropriate for the
district court to decide that the evidence precluded the
instruction as a matter of law. In Sturm, 870 F.2d at 773,
the court found as a matter of law that the claim of right
instruction was inapplicable because a debtor did not have
the right to charge a creditor for locating collateral.3 In the
present case, Tobin did not have the right to seek to enforce
her alleged oral contract through a campaign of telephone
terrorism. The claim of right instruction was clearly
unwarranted, and the district court did not err in refusing
to instruct the jury on the defense.4

B. Tobin's next argument is that the district court erred
in refusing to dismiss the indictment under the Speedy
Trial Act, 18 U.S.C. S 3161(c)(1), because more than 70
non-excludable days elapsed from the date of her
indictment on March 14, 1995, to the commencement of
her trial on September 3, 1996. Specifically, Tobin argues
that 21 days elapsed from March 24, 1995, through April
27, 1995, and that 54 days elapsed from December 7,
1995, through January 31, 1996, for a total of 75 days. She
further points to eight days that elapsed from June 24,
1996, through July 3, 1996. The government concedes that
these last eight days were non-excludable.
_________________________________________________________________

3. In Sturm, the victim was the creditor of the defendant and had
repossessed the defendant's airplane. The defendant sought to seek a fee
from the creditor for locating the airplane's logbooks.

4. Tobin also argues that the district court erred in not repeating the
definition of "knowing and wilfully" each time the district court
discussed
the Hobbs Act counts. Tobin does not contest that the district court
properly instructed the jury as to the definition of the terms. Since
Tobin
did not object to the charge at trial, this issue is reviewed only for
plain
error. See Fed. R. Crim. P. 52(b).

Given that the mens rea elements of "knowing and wilfully" applied to
several offenses within the jury charge, it was not necessary for the
court
to define the terms each time they appeared. See United States v. Lake,
No. 97-7462, slip op. at 10-11 (3d Cir. 1998); United States v. Sokolow,
91 F.3d 396, 409-10 (3d Cir. 1996) (where district court properly defined
scienter, it was not plain error not to repeat the definition each time
the
issue arose).
8
The government argues that Tobin's argument fails
because the time period from January 11, 1996, through
January 31, 1996, was excludable in its entirety. 5 Working
backwards from January 31, 1996, the government
maintains that January 31 is excludable because Tobin
filed motions on that day, thereby stopping the clock. 18
U.S.C. S 3161(h)(1)(F). The period between January 24,
1996, and January 30, 1996, is excludable, the government
contends, because Tobin's attorney met with Pretrial
Services on January 24 and discussed Tobin's refusal to
comply with the magistrate judge's order to undergo a
mental evaluation. (The magistrate judge had ordered the
evaluation on March 25, 1995.) Because Tobin refused to
comply with the earlier order, the district court ordered a
competency hearing on January 25, 1996. At that hearing,
the government argued that Tobin was in flagrant violation
of the order to undergo psychiatric evaluation. The
government contends that its argument at the hearing was
the functional equivalent of a motion and thereby stopped
the clock from January 25, 1996, through January 31,
1996, while the motion was pending.

The time period from January 11, 1996, through January
24, 1996, is excludable, the government argues, because
Tobin's counsel told Pretrial Services and the government
that Tobin's petition for a writ of certiorari challenging the
magistrate judge's order regarding the psychiatric
evaluation order had been denied. The government argues
that she should have immediately submitted to the
evaluation, but she did not do so. Rather, her attorney
asked for two weeks so that he could make arrangements
for Tobin to be evaluated and could try to convince her to
comply. The government argues that this time period
should be excluded because the delay was due solely to
Tobin's intransigence and not to any fault on the
_________________________________________________________________

5. Tobin argues that the government waived this argument by not
presenting it in the government's briefs below. This is incorrect. The
government clearly raised this argument to the district court and the
court accepted this argument in denying Tobin's Speedy Trial motion.
App. at 560-62. In any event, because our affirmance of the decision
below can be premised on any legitimate ground, even one not advanced
below, Tobin's waiver argument fails.

                               9
government's part. Cf. United States v. Bey, 499 F.2d 194
(3d Cir. 1974) (in Sixth Amendment speedy trial context,
time caused by defendant's failure to submit to court-
ordered psychiatric examination was excludable from the
analysis). The government contends that because the time
period from January 11, 1996, through January 31, 1996,
was excludable in its entirety, only 35 days elapsed from
December 7, 1995, through January 10, 1996. This results
in a total of 64 non-excludable days before trial.

The government's arguments are persuasive. Although
there was never a formal motion, the government did, in
effect, move to have Tobin comply with the competency
evaluation that had been ordered in March of 1995.
Moreover, since the order had been in effect for more than
ten months and Tobin had yet to comply, it is unreasonable
to include the two-week delay that had been requested by
Tobin's counsel in order to convince her to comply with a
court order that had been challenged without success in
the Supreme Court. Although Bey, supra, involved a speedy
trial claim under the Sixth Amendment, rather than the
Speedy Trial Act, we nevertheless find Bey's reasoning to be
apposite and persuasive. A defendant's unwillingness to
comply with a valid competency examination order should
not be counted against the government. Since only 35 days
should be included, along with the eight- and 21- day
periods that the government concedes, only 64 days
elapsed. As a result, the district court did not err in
refusing to dismiss the indictment on Speedy Trial Act
grounds.

C. Tobin next argues that the district court erred in
admitting into evidence various audio tapes that had
purportedly come from William Cirignano's telephone
answering machine and contained threatening messages
from Tobin. The government laid a foundation for the
admission of the tapes through Cirignano, and defense
counsel requested the opportunity to voir dire Cirignano
about how the tapes had been made. During the voir dire,
Cirignano denied having edited the tapes. After voir dire,
defense counsel stated that he had no further questions,
and the tapes were received into evidence.

                                10
After the government had rested, Tobin called an expert
witness who testified that one of the messages on one of the
13 tapes had been edited, contrary to Cirignano's
testimony. The expert explained that the tape could not
have been made on an answering machine, as Cirignano
testified, since the tape was in stereo and answering
machines are monaural. Moreover, the expert pointed to
breaks in the sound that were visible on the tape itself after
application of magnetic developing fluid. After the expert
testified, defense counsel did not object to the prior
admission of the tape at issue. Rather, he argued during
summation that Cirignano had lied about the making of the
tapes and was therefore an incredible witness.

In considering Tobin's argument regarding the admission
of the tape, we must first decide what standard of review to
apply. Tobin argues that our review is plenary, while the
government argues that we should not consider the issue at
all, since Tobin's attorney affirmatively waived the issue at
trial. It is not entirely clear from the record that Tobin's
attorney affirmatively waived the issue. We will not exercise
plenary review, however, because Tobin did not object to
the admission of the tapes. Because there was no objection,
we will limit our review to plain error.

Tobin's evidentiary argument fails to meet the plain error
standard because it is clear that, even if the district court
erred in admitting the suspect tape, this error did not affect
substantial rights. See Fed. R. Crim. P. 52(b). Indeed, the
error, if any, was harmless. The court received into
evidence 13 tapes containing 131 messages. Even if the one
questionable tape had been excluded, there remained 126
messages, including 95 from Cirignano's answering
machine. Even if the district court erred in admitting the
altered message, or even the entire tape, there were still so
many other messages that inculpated Tobin that the error
was harmless. Moreover, an unaltered version of the
message that the expert had claimed had been edited was
present on one of the other tapes that had been admitted
into evidence.6 Finally, any attack on the authenticity of the
_________________________________________________________________

6. Tobin has no specific basis to attack the tape containing the unaltered
or "long" version of the message at issue. Her expert testified, regarding
this latter tape, that "I didn't authenticate that particular tape, but in
listening I found [it] to be true [that the message was an answering
machine message that was received and recorded in its entirety]." App.
at 1463.

                               11
one tape should not spill over onto the other tapes, since
there was no evidence that there were any problems with
the other tapes. See United States v. Haldeman, 559 F.2d
31, 109 (D.C. Cir. 1976) (18 1/2 minute gap on one tape
"hardly shows that other tapes, on which no erasures were
present, were not authentic").

D. Tobin's last claim regarding her trial is that she was
afforded ineffective assistance of counsel. However, claims
of ineffective assistance of counsel are ordinarily not
cognizable on direct appeal. United States v. DeRewal, 10
F.3d 100, 103 (3d Cir. 1993). The proper mechanism for
challenging the efficacy of counsel is through a motion
pursuant to 28 U.S.C. S 2255. We therefore decline to
address this issue.

E. Tobin's final claim is that the district court erred in
applying U.S.S.G. S 2B3.2 (Extortion by Force or Threat of
Injury or Serious Damage) instead of S 2B3.3 (Blackmail
and Similar Forms of Extortion).7 We hold, however, that
the district court properly applied S 2B3.2 to Tobin's
conduct.

The commentary to S 2B3.2 states that:

       This guideline applies if there was any threat, express
       or implied, that reasonably could be interpreted as one
       to injure a person or physically damage property, or
       any comparably serious threat, such as to drive an
       enterprise out of business. Even if the threat does not
       in itself imply violence, the possibility of violence or
       serious adverse consequences may be inferred from the
       circumstances of the threat or the reputation of the
       person making it. An ambiguous threat, such as"pay
       up or else," or a threat to cause labor problems,
       ordinarily should be treated under this section.

U.S.S.G. S 2B3.2, Application Note 2 (1995 ed.) (emphasis
added). Tobin contends that S 2B3.2 does not apply since
Monroe was not an economically viable entity, in that the
band played only six to ten gigs a year and barely broke
even on those gigs it did play.
_________________________________________________________________

7. The Base Offense Level under S 2B3.2 is 18; the Base Offense Level
under S 2B3.3 is 9.

                                12
Tobin cites United States v. Inigo, 925 F.2d 641 (3d Cir.
1991), for the proposition that in order for S 2B3.2 to apply,
the threat to the viability of the entity must be of
tremendous economic magnitude in absolute terms. In
Inigo, a group of textile workers attempted to extort $10
million from E.I. Dupont de Nemours and Company, Inc.,
("Dupont"), threatening that they would compete with
Dupont in Spandex manufacturing using trade secrets
stolen from the company. This court held that U.S.S.G.
S 2B3.2 did not apply to this conduct because it did not
threaten the existence of the victim. Tobin interprets Inigo
to mean that a threat that is of lesser magnitude in
absolute terms than that in Inigo will not trigger S 2B3.2.
We reject Tobin's interpretation of Inigo. We understand
Inigo to mean that the threat that the defendants would
compete with a multi-billion dollar corporation in one of its
manufacturing areas if they were not given $10 million was
not a threat to drive that enterprise out of business.
Clearly, if the victim had been a "mom-and-pop"
proprietorship with revenues of $1 million and a single line
of business, a threat such as the one in Inigo coupled with
a demand for $10 million would have been sufficient to
trigger S 2B3.2.

The Sixth Circuit's decision in United States v. Williams,
952 F.2d 1504 (6th Cir. 1991), lends support to the district
court's application of S 2B3.2. In Williams, defendants
threatened the victims with voting to block a rezoning
proposal if the local sheriff was not bribed. Indeed,
defendants told the developers that their project was "dead"
if they did not provide a consulting fee of $250,000.
Although the amount requested was far less than the $10
million demanded by the defendants in Inigo, and the
amount the victims were at risk of losing was only a few
million dollars, the Sixth Circuit held that S 2B3.2 applied.

In sum, in determining whether S 2B3.2 should be
applied, the focus is on the economic effect on the
particular victim, not the absolute magnitude of the threat.
Here, Tobin's actions threatened the viability of the band. If
she had carried out the destructive course of action that
she threatened (and indeed, implemented to a certain
extent), the band would have faced the reasonable

                               13
probability of its demise.8 The district court thus properly
applied U.S.S.G. S 2B3.2 to Tobin's conduct.

III.

We have considered all of Tobin's claims and find them to
be without merit. For the reasons discussed above, we
affirm the judgment of conviction and sentence imposed by
the district court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

8. We note also that the Sentencing Guidelines do not limit S 2B3.2 to
"profit-generating enterprises." There is nothing in the language of the
Guideline or the commentary to suggest that the provision is limited in
the way Tobin suggests.
                                14
