Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 75-511).
Gibbons and Weis, Circuit Judges, Meanor,*fn* District Judge.
Appellant, Franklin D. Lampley, appeals from a judgment of conviction entered in the United States District Court for the Eastern District of Pennsylvania on one count of making a threatening interstate telephone call in violation of 18 U.S.C. § 875(c),*fn1 one count of making anonymous harassing interstate telephone calls in violation of 47 U.S.C. § 223(1)(B) and seven counts of making harassing interstate telephone calls in which conversation ensued in violation of 47 U.S.C.§ 223(1)(D).*fn2 We affirm appellant's conviction on all counts, but we discuss only appellant's contentions as to the constitutionality and construction of 47 U.S.C. § 223 and the propriety of a lesser included offense charge in conjunction with an instruction on 18 U.S.C. § 875(c).
On February 13, 1975, a federal grand jury in the Western District of Wisconsin returned a two-count indictment*fn3 charging appellant with making a threatening telephone call to Richard Hatlen on August 5, 1974, a felony, in violation of 18 U.S.C. § 875(c) and with making repeated harassing interstate calls between May 5, 1974 and February 9, 1975, a petty offense, in violation of 47 U.S.C. § 223(1)(D). On appellant's motion, the case was transferred from the Western District of Wisconsin to the Eastern District of Pennsylvania on May 20, 1975.
On June 17, 1975, the appellant filed a motion to dismiss count II of the indictment as insufficient and vague. The Government agreed that count II was inartfully drawn. Accordingly, on August 26, 1975, a 16-count superseding indictment was returned by a grand jury in the Eastern District of Pennsylvania charging violations of 18 U.S.C. § 875(c) and 47 U.S.C. §§ 223(1)(B) and (1)(D). Specifically, counts I, II and V charged threatening calls to Richard Hatlen in violation of 18 U.S.C. § 875(c). Count IV charged a threatening call to the U.S. Attorney in the Western District of Wisconsin, also in violation of § 875(c). Counts III, VI, VII, VIII, IX, X, XII, XIII, XV and XVI charged repeated harassing calls to Richard and Elizabeth Hatlen in violation of 47 U.S.C. § 223(1)(D). Count XIV charged repeated harassing calls to Mrs. Mary Simmons, contrary to § 223(1)(D). Count XI charged anonymous calls to the Hatlens in violation of 47 U.S.C. § 223(1)(B).
On October 30, 1975, counts I, II and III were dismissed for lack of a speedy trial. On March 3, 1976, the court granted the Government's motion pursuant to 18 U.S.C. § 4244 for a competency determination. On March 30, 1976 on the basis of a psychiatrist's report, the trial judge found Lampley competent to stand trial.
On July 23, 1976, after numerous postponements of the trial date at the request of the defense, the case proceeded to trial on counts IV through XVI of the indictment. Judgments of acquittal were granted as to counts IV, X, XII and XIII. On August 2, 1976, the jury returned guilty verdicts on the remaining counts, convicting Lampley on count V, a felony count, and counts VI, VII, VIII, IX, XI, XIV, XV and XVI. On September 9, 1976, Judge Becker sentenced the appellant to a five year term of probation on count V and like concurrent probationary terms on the remaining counts.
The facts in this case constitute a bizarre tale of a romantic obsession. In 1951 in Nashville, Tennessee, the appellant briefly dated Elizabeth Hatlen before her marriage, their relationship terminating after a few weeks. The relationship had an enduring effect on the appellant, however, for in the summer of 1969 he called Elizabeth in Evansville, Wisconsin, where she lived with her husband Richard Hatlen and their four children. The appellant told her that he could not get her out of his mind, that he had spent a rough 17 years for which she was at fault and that he wanted to see her again. When she refused, he told her that he would make life miserable for her. Thereupon, the appellant launched from his home in Pennsylvania a telephonic assault on the Hatlens and others, unleashing a barrage of incessant and subsequently abusive telephone calls which continued, with periods of intermission, into 1975. During the period in question on this appeal, May through December 1974 and January through March 1975, the appellant made an average of 10-12 calls per week to the Hatlen home.
Lampley would often make operator assisted calls, and while the operator placed the call, he would shout obscenities over the operator's voice or ask "Are you ready to talk," or "Can I speak to my daughter, Judy." In addition, Lampley would place collect calls to "my wife, Elizabeth Lampley," and when Elizabeth Hatlen refused to accept charges, she could hear the appellant speaking in the background.
Richard Hatlen, Elizabeth's husband, and Mary Simmons, Elizabeth's mother, also became the focus of the appellant's spleen. On August 5, 1974, the appellant placed a call to the Hatlens wherein Richard heard the appellant shout over the operator, "I have been hired by your wife to kill you." This threat constituted the basis of appellant's conviction on count V.
In 1974 and 1975, Mrs. Simmons received a multitude of harassing calls from the appellant at her home in Hollow Rock, Tennessee. On January 9, 1975, Lampley called her at least three times - 1:30 a.m., 2:05 a.m. and 2:10 a.m. Each time Lampley spoke a few words and Mrs. Simmons, recognizing his voice, hung up. After the third call, Mrs. Simmons took her phone off the hook. This series of calls was the basis of appellant's conviction under count XIV.
Taking the stand in his own defense, Lampley testified that after 1971 he had only made one call to the Hatlens, the one to Richard on August 5, 1974, but he denied threatening Richard's life. The thrust of Lampley's defense was that his prosecution was the result of a plot on the part of the Hatlens, the United States Attorney, the Department of Justice, the Federal Bureau of Investigation, and the United States District Court to silence his activities in exposing corruption in government.
The appellant has raised several questions as to the constitutionality and construction of 47 U.S.C. § 223. First, he asserts that § 223(1)(D) is violative of the First Amendment because it fails to specify that the requisite ensuing conversation must contain harassing language. Without such requirement, he reasons, one may be convicted for a mere attempt to communicate in violation of the right of free speech, and, therefore, the court's failure to charge that harassing conversation is a requirement to conviction is ground for reversal.
The appellant has not claimed, nor could he successfully do so, that it is beyond the power of the Congress to impose criminal sanctions on the placement of interstate telephone calls to harass, abuse or annoy. Not all speech enjoys the protection of the first amendment, Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 86 L. Ed. 1031, 62 S. Ct. 766 (1942), and in enacting § 223 the Congress had a compelling interest in the protection of innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives. See H.R. No. ...