United States v. Waggy, No. 18-30171 (9th Cir. 2019)
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The Ninth Circuit affirmed defendant's conviction under the Assimilative Crimes Act for felony telephone harassment in violation of Washington Revised Code section 9.61.230(1)(a),(b). Defendant's conviction stemmed from his repeated telephone calls to a Veterans Administration medical center.
Washington Revised Code section 9.61.230(1)(a) requires proof that the defendant specifically intended to harm the victim when initiating the call. As applied here, the panel held that the requirement ensures that defendant was convicted for his conduct, not for speech protected by the First Amendment. Therefore, the panel rejected defendant's claim that the statute violated his First Amendment rights because he just wanted to talk about his medical care and the VA's unpaid bills, and did not intend to harass or want to harass the secretary who answered the calls.
Court Description: 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. UNITED STATES V. WAGGY 3
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