United States v. Bozeman, 74-1021 Summary Calendar.

• Decision Date: 06 June 1974
• Docket Number: No. 74-1021 Summary Calendar.,74-1021 Summary Calendar.
• Parties: UNITED STATES of America Plaintiff-Appellee, v. Robert William BOZEMAN, Defendant-Appellant,
• Court: U.S. Court of Appeals — Fifth Circuit

495 F.2d 508 (1974)

UNITED STATES of America Plaintiff-Appellee, v. Robert William BOZEMAN, Defendant-Appellant,

No. 74-1021 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

June 6, 1974.

Edward A. Dempsey, Jr., Jacksonville, Fla. (Court-appointed), for defendant-appellant.

John L. Briggs, U. S. Atty., Howard T. Snyder, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Before GEWIN, GODBOLD and CLARK, Circuit Judges.

PER CURIAM:

Robert William Bozeman was tried and convicted on an information charging him with violating 18 U.S.C. § 875(c)¹ by making a telephonic threat on the life of one Lt. John William Acuff. On this appeal he argues that the evidence adduced at trial was insufficient to sustain his conviction. We affirm.

The factual background of this appeal is as follows. Bozeman, a merchant seaman whose documents had been revoked, filed an appeal for administrative clemency and for the return of his documents with the United States Coast Guard. During the pendency of this appeal, he on occasion discussed its progress with Lt. Acuff. On June 1, 1973 at approximately 11:30 A.M., Thomas Williams, a clerk-stenographer at the office of the Coast Guard commandant in Washington, D. C., received a phone call from a caller identifying himself as Robert William Bozeman. During the course of a fifteen minute conversation, the caller twice threatened to kill Lt. Acuff. That same afternoon, after Williams had informed his superiors of the call, the Washington Coast Guard office briefed the Jacksonville office on the threat. When Lt. Midgett of the latter office called Bozeman's mother's house in Clermont, Fla., someone identifying himself as Bozeman answered, and, after being asked about the Washington phone call, his response was, "if that is the only way I can get my documents back . . . to kill him, I guess I will have to do it." Subsequently, Bozeman visited Lt. Acuff's Jacksonville office. Two customs agents were present at the time² and one, Ledford, testified that he heard Bozeman say, "Acuff was a sorry excuse for a human being or a man and that he didn't deserve to live." Another agent, Dukes, testified that Bozeman said, "Acuff was a sorry excuse for a human being and he should be dead."

Bozeman argues that the trial judge erred in not granting his motion for an acquittal because the government's proof failed to show (1) he actually made the alleged threatening call of June 1; (2) that a threat was actually made; and (3) that the threat was made knowingly and intentionally. As to (2), Bozeman relies on Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); in which the defendant, alluding to the possibility of being drafted, stated to a discussion group at a political gathering, "if they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The Court held that "taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners laughter," this was not the sort of statement prescribed by 18 U.S.C. § 871(a).³ While it is true that the statements made to Lt. Midgett and in the hearing of the customs officers were phrased in conditional terms, the testimony of Williams makes it clear beyond cavil that the June 1 threat, the subject of this information, was express and unequivocable, to wit, "I will kill him." Considering this testimony in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1944), this statement meets the test of what amounts to a threat under 18 U.S.C. § 875(c), i. e., "this communication `in its context' would `have a reasonable tendency to create apprehension that its originator will act according to its tenor'," United States v. Holder, 302 F. Supp. 296, 301 (D.Montana 1969) aff'd 427 F.2d 715 (9th Cir. 1970), citing Landry v. Daley, 280 F.Supp. 938, 962 (D.C.Ill.1968).

As to (1), relying on United States v. Smith, 5 Cir., 433 F.2d 1266, cert. denied 401 U.S. 977, 91 S.Ct. 1206, 28 L.Ed.2d 328 (1970), Bozeman argues that since there was no proof either Williams or Midgett recognized his voice or that he was physically present in Clermont, Florida at the time of the June 1 call, the government failed to create a jury issue as to his identity as the caller. This issue is one often contested in 875(c) cases and "it is clear beyond dispute that identification of a telephone caller may be established by circumstantial evidence." United States v. Holder, supra; Spindler v. United States, 336 F.2d 678 (9th Cir. 1964); Seeber v. United States, 329 F.2d 572 (9th Cir. 1964). In Smith a voice identification and proof of Smith's physical presence near the phone booth to which the call was traced at about the time of the call were elements considered by the court as bearing on identity. However, our reading of Smith is that these are relevant considerations, not essential ones. In the instant case, Williams' testimony that the caller claimed to be Bozeman, telephone company records of a call from Bozeman's mother's house to a Washington Coast Guard number on the same date and at the same times as Williams testified the call was made; Midgett's testimony indicating an admission by someone identifying himself as Bozeman that he made the threatening call; and the customs agents' testimony...