329 F.2d 572 (9th Cir. 1964), 18706, Seeber v. United States

Docket Nº:18706.
Citation:329 F.2d 572
Party Name:Harry Oliver SEEBER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:March 16, 1964
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 572

329 F.2d 572 (9th Cir. 1964)

Harry Oliver SEEBER, Appellant,

v.

UNITED STATES of America, Appellee.

No. 18706.

United States Court of Appeals, Ninth Circuit.

March 16, 1964

Page 573

Langerman & Begam and Frank Lewis, Phoenix, Ariz., for appellant.

C. A. Muecke, U.S. Atty., and Tom Karas, Asst. U.S. Atty., Phoenix, Ariz., for appellee.

Before HAMLEY, JERTBERG and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Harry Oliver Seeber (hereinafter the defendant) appeals from a judgment of conviction upon a jury verdict. The indictment contained four counts. The first three charged defendant with 'transmit(ting) in interstate commerce * * * communication(s) containing * * * threat(s) to injure the person of another * * * in violation of the Federal Extortion Act, 53 Stat. 743 (1939), particularly 1(a) thereof, (18 U.S.C. § 875(c)). The last charged the defendant and his wife jointly with a conspiracy to violate that section.

The conspiracy charge was eliminated at the conclusion of the government's case in chief, when the court granted Mrs. Seeber's motion for acquittal on the ground of lack of evidence. The trial of defendant continued and he was found guilty on all three substantive counts.

Defendant's points on appeal relate principally to rulings on evidence and the giving and refusal to give several instructions. They do not include an assignment that the evidence was insufficient to sustain the verdicts, and indeed the proof of defendant's guilt was overwhelming.

Thus it appears that during the night of March 2-3, 1962, the defendant made three telephone calls from Phoenix, Arizona to the home of Wm. Herbert Weese, in Barberton, Ohio, a suburb of Akron. During each conversation he expressly threatened to have 'Bill Weese' killed unless the latter repaid a debt of $10,000 that 'Bill' owed defendant's wife. Parenthetically, it later appeared that defendant in fact intended to call one Wm. Hayes Weese, but, by mistake, secured the telephone number of Wm. Herbert Weese and, for that reason, talked to the wrong persons. However, at the time neither he nor the others were aware of the error.

Mrs. Weese was alone when the first call came in. When her husband returned home they notified the local police, who responded by immediately sending

Page 574

Officer Francis to their home. While they were talking, the defendant made his second call; the officer answered and, with permission of Weese, identified himself to the caller as 'Bill Weese.' During the ensuing conversation defendant disclosed his identity and whereabouts. The third call was received by Mr. Weese himself. It was similar to the others, except Mrs. Weese joined in the conversation.

Defendant first complains of the admission into evidence, over his objection, of three completed 'toll slips.' The slips themselves were merely forms of the kind regularly employed by the telephone company in Phoenix to record the fact that long distance telephone calls were made. The notations that appeared on these slips, however, reflected that during the night in question calls had been placed and made from defendant's home to the Weese number in Akron (Barberton). The operators who put through the calls could not identify the person who made them, or state their source except insofar as the caller had supplied that information.

If there had been no other proof on the subject, save the testimony of the operators, then the slips, without any collateral proof tending to link defendant with the calls, lacked authenticity and should not have been admitted. But, as we recently held in Carbo v. United States, 314 F.2d 718, 743 (9th Cir. 1963), Appeal Pending, 'the connection between a telephone call and the caller may be established circumstantially'; and in this case there was ample proof, consisting of both circumstantial and direct evidence, to afford a foundation for their admission. Thus it appeared that defendant was arrested the same day the last of the calls was made. He was arrested in the living room of his home. At the same time, one of the F.B.I. agents went into an adjoining room and there, lying beside the telephone, he observed two notes on which were pencilled the name 'Wm. Hayes Weese,' the William Herbert Weese telephone number, and several statements similar to those the caller had made to Mr. and Mrs. Weese. On being shown the notes, the defendant admitted his authorship of them and further...

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