United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
JOHN H. ENGLAND, III, Magistrate Judge.
On June 8, 2015, this action came before the Court for trial. Special Assistant United States Attorney Erica Barnes, prosecuted the action for the government, and Assistant Federal Public Defenders Allison Case, Kevin L. Butler, and Deanna L. Oswald represented Defendant Dennis Shepheard. After the conclusion of testimony and argument, the Court took this matter under advisement and provided the parties an opportunity to submit additional briefing on the elements of the applicable statute.
The evidence establishes the following:
A. The Uncharged 2012 Incidents
In May of 2012, the defendant called Veterans Affairs ("VA") about a complaint he had about one of the administrative staff, a scheduling clerk, who he believed did not understand what she was supposed to do concerning the scheduling of an appointment.
The defendant was referred to Deborah Glenn, Administrative Officer in the Patient Care Services Department and a supervisor for that staff person. The defendant expressed his concerns, and Glenn explained that that particular staff person was new in her role and was in the process of training. In response, the defendant asserted this was a systemic problem in the VA and she should not just give him an answer to appease him. The call lasted for at least an hour, in which time Glenn explained she was not in a position to make systemic changes but offered to pass his concerns to her superiors. The defendant called back the next day, and Glenn explained she had addressed his issues to the extent she was able and could do nothing else for him. The defendant became very loud over the phone. He continued to call repeatedly, to the point Glenn stopped answering the calls and contacted security. In the end, he called seventeen times over two days. Glenn testified the calls frustrated her and made it hard to focus on her work. During one of the conversation with Glenn, the defendant asked her who her supervisor was and she referred him to Cynthia Frazier. At that point, the defendant started calling Frazier.
Cynthia Frazier is a Nurse Manager over several areas at the Birmingham VA hospital. During the initial call with Frazier, the defendant identified himself as Dennis Shepheard. Frazier again referred him to Glenn on the issue with the staff member but attempted to assist the defendant with the underlying issue by rescheduling his appointment to an earlier date closer to what he had expected. This call lasted forty-five minutes and Frazier believed she had solved the problem. However, the defendant continued to call and complain about the VA system generally. Frazier estimated the defendant made hundreds upon hundreds of calls after the initial call and that she spoke with him at least four or five times. In addition to referring him to Glenn, Frazier also referred the defendant to the patient advocate and told him the VA was working on improving its system. She told him there was nothing else she personally could do for him, and, in response, the calls became more demanding and forceful until Frazier felt threatened.
The defendant continued to call both Frazier's office and the dialysis unit over about a two week period, until Frazier notified Deputy Chief of Police Floyd Walfield of the frequent call's negative effects on the dialysis unit's ability to meet patient needs. The calls stopped after Walfield and Chief Nurse, Greg Eagerton, got involved. Eagerton acknowledged his concern and apologized for issue with the staff person, and the defendant testified that, after someone acknowledges the problem and make a commitment to address it, he has done all he can do. The defendant made no further calls regarding this issue.
B. The 2014-2015 Incidents
On December 19, 2014, the defendant called the Birmingham VA hospital about his travel pay and was transferred to Amy Ho, a voucher auditor at the hospital. He introduced himself and asked when his travel pay was processed. Ho told him his payment had been processed that morning and would be made by direct deposit instead of by check. The defendant became upset, asking how the VA had gotten his banking information. Ho informed him the VA had done a one-time match in 2012 for veterans who got travel pay. The defendant became more upset and began to cuss. She offered to have his information removed, but he declined, asking to speak with the privacy officer. Ho transferred him to privacy officer, Kim Moses. Later that day, the phone rang several more time with the Caller ID showing "Local 1." Ho testified she did not frequently receive calls from "Local 1, " but that is what came up each time the defendant called. She did not answer any other calls that day.
The defendant called again the following Monday. Ho asked him how she could help him, and he said she could answer his question. She responded that she had answered his question and there was nothing else she could do. When he started cussing again, she informed him she would disconnect the call if he continued. He did, and she ended the call. He called her thirty-eight times over the rest of the day.
Ho spoke with the defendant again on December 24, 2014. The first thing he told her was that he could do this all day long. She asked how she could help him, and he said she could answer his question. She said again that she had answered his question and there was nothing else she could do. When he began to cuss again, she gave him another warning. She asked him how she could help him, and he told her to answer his question. When she told him she had, he said he could care less if she went to hell, and she disconnected the call.
Due to the large number of calls from the defendant, Ho was unable to answer some calls from veterans and was forced to turn the volume down on her phone whenever she left her desk, ...