U.S. v. Oxendine, 75--3352

• Decision Date: 10 March 1976
• Docket Number: No. 75--3352,75--3352
• Citation: 531 F.2d 957
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Richard OXENDINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 957

531 F.2d 957

UNITED STATES of America, Plaintiff-Appellee, v. Robert Richard OXENDINE, Defendant-Appellant.

No. 75--3352.

United States Court of Appeals, Ninth Circuit.

March 10, 1976.

John P. Fadgen (argued), Las Vegas, Nev., for defendant-appellant.

Raymond D. Pike, Asst. U.S. Atty. (argued), South Las Vegas, Nev., for plaintiff-appellee.

OPINION

Before ELY and HUFSTEDLER, Circuit Judges, and SMITH, ^* District Judge.

PER CURIAM:

Defendant was convicted on two counts of interstate communication of threats in violation of 18 U.S.C. § 875(c). The threats were directed at one Smith, a Federal Communications Commission inspector. We hold that prosecutions under 18 U.S.C. § 875(c) do require proof of a transmission in interstate commerce. ¹

The only problem before the court is whether there was evidence from which a jury might find that the threats had in fact been transmitted across the Nevada state line into either Arizona or California. The defendant owned a transmitter with a measured output of three watts which was capable of sending messages 20 to 25 miles. The Arizona and California borders are 35 and 45 miles respectively distant from Las Vegas, the point of transmission.

On April 20, 1975, at about 2:45 P.M., defendant was heard talking to the 'California kid' located in what the Government witnesses assumed to be the Lake Mead area. Some parts of Lake Mead are in Arizona and some parts of it are in Nevada. Somewhat later on April 20th, but before 7:10 P.m., there were transmissions recorded between defendant and some unidentified person as follows:

'Hey how about it one more time Florida, how about that Bikini State,'

And, following a break, the following:

'Oh you got that double six ², Las Vegas, Nevada, go ahead.' (TR p. 107)

From this it is sought to be inferred that defendant was talking to someone in Florida.

A three-watt transmitter could, under proper skip conditions, send a signal much farther than the borders of Arizona and California. Skip phenomena occur when a radio signal bounces off of the ionosphere back to earth, and they are dependent upon the existence of particular atmospheric conditions. Skip conditions did prevail at 2:45 P.M. on April 20th, and if it be assumed from the references to 'Florida' and 'Bikini State' that defendant's signal was reaching Florida, it is consistent with the evidence that it did reach there by reason of a skip.

The Government does not attempt to support its case on the theory that by reason of a skip the signals in question were carried across a state line. However, the Government witnesses did not note the existence of skip conditions at the time of the 7:10 P.M. transmission on April 20th, or at any time on April 19th, and defendant testified that such conditions were not present.

If a linear amplifier were used in connection with the transmitter, the signals would reach a distance of 50 to 150 miles. There is evidence from which the jury might have found that on the dates of the threats the defendant did in fact own an amplifier. If the evidence supports a finding that the amplifier was being used in the broadcasts of April 19th and 20th, then the evidence was sufficient. Otherwise it was not.

Two FCC agents, who were monitoring the defendant's broadcasts, inspected his home on April 16, 1975, and neither was able to testify that a transmitter and an amplifier were being used in conjunction with one another on that date. The defendant testified that he owned an amplifier on April 19th and 20th and admitted that he had at times made use of it, and at one time said he was positive that it was not in line on April 19th and 20th. Later, in response to the direct question, 'Do you know whether or not it was in line on the 16th?' he answered, 'I doubt it.' (TR p. 224) Later, to another question, 'Mr. Oxendine, I'm merely trying to clarify this, you're positive you didn't have an amplifier on the 19th?' he responded, 'I doubt very much if I had any amplifier hooked up on the 19th or the 20th.' (TR p. 233)

The Government, in support of its case, relies on the testimony of Inspector Smith, testifying in rebuttal as follows:

Q On the 16th was there, do you remember if there was a particular gauge that based upon experience in reading gauges and relative wattage that would indicate whether or not a power source or transmission was operating in excess of four watts?

A Well, based on my experience, while we were locating the station, I observed that they had, a signal strength meter was indicating that it was a rather strong signal, probably more than four watt station; yes.

MR. PIKE: All right. I have nothing further.

Pardon me, what would that indicate if it were in excess of four watts?

A That would indicate that the station was operating with either a transmitter that had higher output power than four watts or Linear Amplifier that put out more than four watts. (TR pp. 235--36)

The foregoing is the only evidence as to the output of the transmitter at any time prior to May 4. On...