In U.S. v. Eckhardt, No. 95-12211 (Oct. 4, 2006), the Court affirmed convictions of violating the Communications Decency Act, 47 U.S.C. § 223.
The Court rejected the argument that § 223(a)(1)(C)’s prohibition on "annoying, abusive, harassing, or threatening" telephone calls infringed the First Amendment and was unconstitutionally vague. Here, the "overarching purpose" of Eckhard 200 "sexually laced" calls in one year to a victim was "to harass and to frighten." This type of speech is not constitutionally protected. The statute was not too vague because "citizens need not guess what terms such as ‘harass’ and ‘intimidate’ mean."
The Court also rejected a sufficiency challenge to the convictions for violating § 223(a)(1)(A), which criminalizes "obscene" use of a telecommunications device. The Court concluded that Eckhardt’s phone calls were obscene. His "scant comments about union activity were incidental inclusions in his attempt to annoy and harass."
The Court rejected a Rule 404(b) challenge to the admission of phone calls made 10 years earlier than, and three years after, the charged phone calls. The Court noted that recordings of these calls were admissible to prove the identity of the caller (which Eckhard contested). Further, proof of a prior conviction of similar conduct was admissible to "show a criminal purpose."
The Court also rejected a challenge to improper comments during the prosecutor’s closing, finding them to limited to demonstrate a trial replete with errors. Moreover, the weight of the evidence would have led to a conviction regardless of the prosecutor’s statements.
The Court further rejected a challenge to the jury instruction which added the words "lewd, lascivious, filthy or indecent" to the definition of obscenity. Though recognizing that the words were not in the statute, and that Eckhardt correctly asked that they be removed from the jury instruction, the Court found that the words did not impair Eckhard’s chosen defense, which was that he did not make the alleged phone calls. The Court also rejected a challenge to the jury instruction based on their failure to charge proof of specific intent. The Court noted that Eckhardt had not challenged the instruction at trial. Further, the hundreds of obscene phone calls would allow any reasonable juror to find an intent to harass.
Turning to sentencing, the Court upheld the district court’s reliance on uncharged phone calls, which occurred 10 years earlier than the charged offenses, as a basis for enhancing the sentence. Noting the failure of counsel to object at sentencing, and the lack of precedent interpreting the Guidelines in this specific context, the Court held that any error would not be "plain."
