                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 1, 2005
                             No. 04-15615                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

               D. C. Docket No. 02-00056-CR-ORL-19-DAB

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                  versus

ARNOLD DALE WIGGINS,

                                                   Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                           (September 1, 2005)


Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Arnold Dale Wiggins appeals his conviction for using a cellular telephone to

communicate a bomb threat in violation of 18 U.S.C. § 844(e). He argues that

there was insufficient evidence to support the jury’s conviction and that his motion

for a judgment of acquittal should have been granted. For the reasons stated more

fully below, we affirm the denial of his motion for a judgment of acquittal based on

the sufficiency of the evidence.

      The charging indictment alleged that Wiggins used his cell phone to

communicate a bomb threat to his employer, the Precision Engineering and

Construction Company (“PECC”) on or about June 1, 2001. A jury found him

guilty after a trial and Wiggins received a sentence of 18 months’ imprisonment.

      At trial, the government presented the testimony of Raeann Smith, a PECC

secretary on the pertinent date of June 1, 2001, whose job included answering the

telephone. She testified that the PECC work number was 813-754-7916, and that

on June 1, 2001, while answering the telephone, she received a call from someone

who said: “You’d better get your guys out of the Cape.1 I have a bomb, and it’s

going to go off.” Smith did not remember much about the voice, but told someone

during an investigative interview that she thought the voice sounded “like a black

guy.” She also recalled that the voice sounded muffled, “like maybe someone had



      1
          “The Cape” is an apparent reference to Cape Canaveral in Florida.

                                                2
their hand over the phone.” After receiving the call, Smith contacted “Brad,” the

owner of the company, and Brad picked up the phone for line 754-7916 and dialed

star 69 (*69) to retrieve the number of the last phone call made to that phone. On

cross-examination of Smith, the defendant, Wiggins, was asked to read the

statement allegedly made to Smith on June 1, and after the statement had been

read, Smith was unable to say for a fact that Wiggins’s voice matched the voice of

the caller who had phoned in the bomb threat.

      Next, the government called Brad Hite, one of PECC’s owners, who testified

that Smith is his secretary. Hite testified that in June 2001, PECC was doing

construction at Space Launch Complex 37 at Cape Canaveral Air Force Station

(“the Cape”) and using roughly 100-200 men employed from local union halls.

All of the workers selected were employees of PECC. According to PECC

records, Wiggins was employed by PECC in 2001. Hite testified that, on June 1,

2001, PECC received a phone call and the caller indicated that there was a bomb at

PECC’s job site at the Cape. Smith received the call, relayed the information to

Hite, and Hite dialed star 69 (*69) to find the caller’s number. Hite wrote the

number down and called “Mr. Farrell,” who was the superintendent in charge of

the job site at the Cape. On cross-examination, Hite stated that he never received

any reports or complaints regarding Wiggins or his work, nor did Hite have any



                                          3
communication with Wiggins. Hite admitted that, nearly seven months after the

bomb threat, Wiggins was suitable and eligible to be rehired.

         The government also called Richard Farrell, who was the project manager

at PECC’s Cape Canaveral project on June 1, 2001. Farrell estimated that maybe

50-100 persons were working for PECC that day, and testified that he received a

call from Hite on June 1, 2001, informing Farrell that there had been a phone call

indicating that a bomb was on-site. In response, Farrell contacted his client, and he

believed it was his secretary who placed a call to security. Farrell testified that he

seemed to remember Hite telling him that he had star 69'd the caller and provided

Farrell with the number, which he passed on to Washington Group (the client).

Farrell could not recall seeing Wiggins until the day of the bomb threat, and further

testified that he had recently become aware that Wiggins was rehired by PECC

several months after the bomb threat occurred. Farrell could also not recall having

received any sort of communications from Wiggins or any occasion on which

Wiggins had been reported as being disgruntled or upset at the company. Finally,

Farrell testified that the decision to hire Wiggins was part of a general request to

the union and, therefore, the company had no control over who the union would

send.

        The next witness was Judith Parish (formerly Judith Jinks), who worked as a



                                           4
security dispatcher at the Kennedy Space Center receiving, inter alia, all 911 and

emergency calls made at Space Launch Complex 37 at the Cape. Parish testified

that, on June 1, 2001, she received a 911 call from Complex 37 indicating that a

bomb threat had been called in. Parish was given the phone number of the phone

that had been used to call in the bomb threat, which she dialed, testifying that “it

sounded like somebody picked it up and hung up.” Parish called a second time,

and this time Wiggins answered and, when asked whether he had placed a bomb

threat, responded that he had not. Parish asked Wiggins to meet a captain “down at

the gate.” She stated that the number she called was 352-416-3530. On cross-

examination, Parish indicated that, after Wiggins answered the phone, he remained

on the phone and was cooperative at all times, but she could not recall whether or

not she had given a statement indicating that Wiggins sounded shocked to have

been suspected of making the call.

      Gary Hogeland, a criminal investigator at the Kennedy Space Center, also

testified regarding the events of June 1, 2001. That day, Hogeland was called to

respond to a bomb threat at Complex 37 and, upon arrival on the scene, was

informed that someone on the complex had called in the threat from a cell phone.

Eventually, the cell phone was brought to Hogeland, who delivered it to Air Force

Office of Special Investigation (“OSI”) agents without dialing any numbers,



                                           5
tampering with it, or turning it on in any way. Hogeland admitted that he could

neither identify the person who brought him the phone or the person to whom he

delivered the phone.

      After Hogeland had testified, the government called Wilfredo Torres-

Negron, a special agent with the OSI, whose job it is to investigate crimes at Air

Force facilities. His testimony established that the cell phone was delivered to OSI

agent Biel, and that the cell phone remained within the OSI’s chain of custody.

The phone was taken out of the evidence locker one time for photos to be taken of

it, and then remained locked up, in unchanged condition, until it was brought to

trial. Torres-Negron testified that he could not say whether the phone remained in

the evidence room during each change of custodian. The phone further left the

evidence room on one other occasion, and was removed by another evidence

custodian for additional photos to be taken, at which point the phone was turned on

to “look for the numbers.”

      The government then called Nextel Communications strategic care specialist

Cathy Casias, who handles billing issues for Nextel cell phone customers across

the United States. She testified that, after a customer places a cell phone call, that

call is automatically recorded by computer and logged into the customer’s account

within two hours. Casias accessed Wiggins’s account at the government’s



                                           6
direction, and Wiggins’s account showed that, on June 1, 2001, at 10:34 a.m., a

call was placed from phone number 352-516-4530 to phone number 813-754-7916

(PECC) in Plant City, Florida. On cross-examination, Casias admitted that

customers occasionally complain about calls showing up on their bills that they

didn’t make. However, with respect to Wiggins’s account, she testified that the

only way the computer could have made a mistake was if the cell phone number

itself had been cloned, and that Nextel’s security makes it difficult, although not

impossible, to clone a number.

      Also testifying was Michael Little, who works in Nextel’s Information

Technology department for records and billing. Little explained that, when a

Nextel caller places a call, all of the information is relayed to a “switch” where

information is logged as a record that Little’s “area” retrieves by logging into the

switch and then sending the information to a billing system that electronically

invoices the call record. Little further explained that Nextel operates on a digital,

as opposed to analog system, the importance being that in an analog system, it was

possible to “pick” a cell phone’s serial number and subscriber number from

airwaves generated by an analog system, enabling someone to “clone” or

“replicate” another subscriber within the same switch used to generate the original

call, thereby permitting the person to make phone calls billed to a bona fide



                                           7
subscriber. Since he had begun working with Nextel, Little could not recall ever

encountering a “true clone.” However, Little also testified that Nextel’s billing

system would “error out” an attempted “clone” call due to mismatches in certain

subscriber-related information. Finally, Little testified that Nextel’s phones record

a date and time stamp sent from a tower to the phone every time a number was

dialed from that phone, and if a call were made from a particular phone at 10:34

a.m. on June 1, 2001, that number would immediately become stamped in the

phone’s memory and remain unchanged.

      On cross-examination, Little stated that the computer used to generate

electronic billing records was not perfect and occasionally made mistakes. He also

testified that a cell phone’s memory is capable of storing at least the ten most

recently dialed numbers and that, after about ten calls had been made, the

subsequently dialed numbers would replace those in the memory, thus “purging”

the older numbers from the phone.

      Next, OSI Agent Douglas Biel testified that he was assigned to the Cape on

June 1, 2001, received a call that day to respond to a bomb threat that had been

called into the Cape and, upon arrival, learned that the bomb threat was false. As

part of the investigation, Biel received a cell phone from Gary Hogeland and

recorded the information on Air Force form 52, and based on that form, testified



                                           8
that the phone had been located at Patrick Air Force Base since June 1, 2001. Biel

testified that he had personally taken the phone apart for the purpose of taking

photographs of the phone and its components, and those photographs were

admitted at trial.

       While investigating, Biel and another agent interviewed Wiggins, who

indicated that he had been at work the morning of June 1 and made a few a phone

calls to his wife and his union hall. After returning from break between 9:00 a.m.

and 9:30 a.m., Wiggins stated that he had the phone in his possession the entire

time with a 10-15 second lapse to avoid an obstacle, at which time Wiggins took

the phone off of his work belt but had it in his eyesight the entire time. At no point

did Wiggins indicate that he had given his phone to a coworker. Wiggins

consented to the government’s search of his phone records.

       On cross-examination, Biel testified that, on June 1, 2001, Wiggins was not

employed by PECC, but rather by a different company, Precision Mechanical,

which did not receive a bomb threat. Biel admitted that, when he testified before

the grand jury, he made a mistake and gave the jury incorrect information

regarding Wiggins’s employer as of June 1, 2001. Biel also testified that nothing

in his investigation revealed Wiggins’s motive for calling in a bomb threat. He

further admitted that (1) he was not present when photographs of Wiggins’s phone



                                           9
and the phone’s screen depiction were taken; (2) he was aware that Adrianna

Vorderbruggen was the photographer; and (3) the reason why her name was never

listed on Air Force form 52 was because, pursuant to OSI policy, the only person

who could sign the phone out of custody was the evidence custodian, who at that

time was Torres-Negron. It was further shown that, at the time Biel testified before

the grand jury, he had indicated that there were no numbers stored in Wiggins’s

cell phone caller identification. However, Biel testified that his testimony before

the grand jury was inaccurate and a mistake, as the cell phone’s call history had

numbers stored in it. Biel also testified that Wiggins’s employer was not important

to the investigation and that all of the workers at the Pad that day were evacuated

and did not return to work.

      The government rested its case and Wiggins moved for a judgment of

acquittal pursuant to Fed.R.Crim.P. 29. Wiggins presented his own summary of

the government’s evidence and proceeded to argue that it was “not sufficient to

send this case to a jury so that they can guess and speculate as to the possibilities

out there.” Wiggins described those possibilities as follows: (1) Wiggins did it;

(2) someone else working with him did it; (3) the computer malfunctioned; and

(4) someone tampered with the phone and programmed the number in it after the

fact. Based on the foregoing, Wiggins argued:



                                           10
      Jurors aren’t asked to guess and to speculate. . . . [T]his evidence is
      not enough pointed at this defendant to go back to that jury. . . .
      [T]hey would have to guess, to speculate. They couldn’t come back
      and find this defendant guilty on that evidence. They could find
      easily that that phone was used, but they can’t find he used it. . . . It’s
      not their job to go back and connect the dots and guess and
      speculate. . . . I say to this court that [the] evidence is not here in this
      case today.

      The district court reserved ruling on the motion pending presentation to the

jury. Wiggins then took the stand to testify on his own behalf. In June 2001,

Wiggins worked as a pipefitter for a local union hall installing piping systems,

valves, and clean flow systems. The union hall itself offered jobs to Wiggins

depending on the demands of local contractors and, as a result, Wiggins often did

not know in advance how long a particular job would last. Wiggins admitted that

he had been convicted of a felony. In March and April of 2001, Wiggins was sent

to work for PECC, and he reported no problems with his work, calling PECC a

“great company.” The job ended on April 10, 2001, at which point Wiggins

obtained another job, and eventually, Wiggins was hired by PECC again in

December 2001.

      On June 1, 2001, Wiggins worked for Precision Mechanical at Launchpad

37 at the Cape. That morning, between 10:00 and 10:30 a.m., he was working

inside a small metal tower, standing on a ladder, and removing 50-60 pound iron

valves. Wiggins’s task was to hook the pipe valves on a rope and then lower them

                                            11
down to the ground a few feet at a time, avoiding the other pipes, conduits,

hangars, and mechanical systems. At one point, Wiggins climbed around a valve

and his “phone got hung up on the rope from the valve, so [he] took the phone off,

tossed it down to [his] partner’s foot and asked him to sit it down.” Wiggins

testified that he then dropped his phone down from three stories to “Foots,”

another pipefitter, who caught the phone and held on to the phone for maybe 10 to

15 seconds. Soon after, Wiggins’s boss told him that everyone was being

evacuated and, as he and the other crewmembers were leaving, Wiggins received a

phone call and lost the signal.

      After he regained a signal, Wiggins received another phone call from a

person he identified as Ms. Jinks (Parish) from Cape Canaveral security, asking

Wiggins if he had placed a bomb threat with that phone. Wiggins denied that he

had and then complied with Jinks’s instructions, describing his clothing and

agreeing to meet a security officer as requested. He testified that he was

interviewed and did his best to cooperate with the government’s investigation and

told agents about “Foots.” As to the government’s theory of motive, i.e., that

Wiggins wanted to start a long weekend early, Wiggins testified that he was

scheduled to work Friday, Saturday, Sunday, and Monday, and that he preferred

working on weekends because the pay was higher. Wiggins did not recall ever



                                          12
seeing Foots again and, while he was willing to state that it was possible that

someone else placed the bomb threat after he had relinquished control of his phone,

Wiggins was unwilling to do so because he did not know for certain whether that,

in fact, was what happened.

      On cross examination, the government questioned Wiggins regarding the

written statement he gave to investigators knowing that there had been a bomb

threat called in to the Cape and that investigators believed the call originated from

Wiggins’s phone. In that statement, Wiggins stated that, when his phone got

caught on the rope, he sat the phone down for a “split second,” and no mention was

made of “Foots.” Wiggins admitted that there was a difference between a split

second and 10-15 seconds and he agreed that the investigators should have been

aware that Foots had Wiggins’s phone in his possession if, in fact, it were true.

Wiggins further admitted that, after a full day had transpired, he again failed to

inform investigators that “Foots” had possession of Wiggins’s phone, stating that it

must have slipped his mind.

      Next, the government presented Wiggins with his old cell phone and, after it

had been turned on, Wiggins admitted that the call history revealed that, on June 1,

2001, one of the calls was received at 11:08 a.m. and that the number was 321-867-

7627, the number of the security dispatcher, Jinks (Parish). Wiggins did not



                                          13
dispute receiving that call. The phone also revealed that a phone call had been

made at 10:34 a.m. to 813-754-7916, and Wiggins admitted that the phone call had

been made to that number, which belonged to PECC. Finally, Wiggins admitted

that he had twice been convicted in state court for writing worthless checks. On

redirect, Wiggins reiterated that he had not phoned in a bomb threat and had no

idea how the bomb threat got called in. Wiggins rested his case and reserved his

Rule 29 motion for judgment of acquittal.

      After closing arguments, the district court instructed the jury regarding the

government’s burden of proof beyond a reasonable doubt, the equal weight to be

given to direct and circumstantial evidence, and the credibility of witnesses. The

jurors were instructed that, in order to convict Wiggins, the government had to

prove that he (1) made or caused to be made a threat to kill, injure, or intimidate

any individual or to unlawfully damage or destroy a building by means of fire or an

explosive; (2) used or caused to be used an instrument of commerce, such as a

telephone, to communicate the threat; and (3) did so knowingly and willingly. The

jury convicted Wiggins.

      The court then gave Wiggins a chance to argue his Rule 29 motion for

judgment of acquittal, and he adopted his original argument and further argued that

he worked for a different company than PECC at the time of the bomb threat. He



                                          14
also argued that he had taken the stand and denied making the call, a statement that

was essentially unrefuted by any direct evidence. Wiggins stated that none of the

circumstantial evidence proved that he dialed the number on the phone and,

therefore, the government had not proven that he was the caller, requiring that he

be acquitted. The court denied the motion and found that Wiggins’s testimony at

trial was different from the statement he made to investigators right after the bomb

threat had been made, giving the jury the right to choose whether to believe

Wiggins’s testimony. Because the inconsistencies gave the jury a reasonable basis

for disbelieving Wiggins, the court found that the jury had a reasonable basis for

entering the verdict that it did. Wiggins was sentenced to 18 months’

imprisonment.

      On appeal, Wiggins argues that the district court erred by denying his

motion for a judgment of acquittal because the evidence failed to show that

Wiggins made a bomb threat. He argues that the jury’s verdict was predicated on

unreasonable inferences and speculation based on circumstantial evidence,

meaning that the government did not satisfy the Due Process Clause’s requirement

that a defendant’s guilt be proven beyond a reasonable doubt. Wiggins argues that

the government was unable to show that Wiggins actually made the call or was on

the phone at the time of the bomb threat on June 1, 2001, and that the testimony



                                         15
indicating that Wiggins, who is white, sounded “like a black guy” and was

“shocked” undercut any inference to the contrary. Finally, Wiggins argues that the

government cannot rely on the fact that Wiggins testified in order to support his

conviction on appeal because the issue is whether the government established its

case in chief. If it were otherwise, Wiggins argues that he would, in essence, be

forced to give up his right to testify in order to preserve his sufficiency of the

evidence argument on appeal, which impermissibly would force defendants to

surrender one constitutional right for another.

      We review a challenge to the sufficiency of evidence de novo. United States

v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). A guilty verdict will not be

disturbed unless, “given the evidence in the record, no trier of fact could have

found guilt beyond a reasonable doubt.” Id. (quotation omitted). When evaluating

the sufficiency of the evidence, we examine “the evidence in the light most

favorable to the government, drawing all reasonable inferences and making all

credibility choices in the government's favor.” Id. Furthermore, “it is not

necessary that the evidence exclude every reasonable hypothesis of innocence or

be wholly inconsistent with every conclusion except that of guilt, provided that a

reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt. A jury is free to choose among the constructions of the



                                           16
evidence.” United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997).

Finally, we are “bound by the jury’s credibility determinations, and by its rejection

of the inferences raised by the defendant.” United States v. Peters, 403 F.3d 1263,

1268 (11th Cir. 2005).

      In order to convict Wiggins under 18 U.S.C. § 844(e), the government was

required to prove that Wiggins (1) used a telephone or other instrument affecting

interstate commerce; (2) made a threat concerning an attempt to kill, injure, or

intimidate any individual or to unlawfully damage or destroy any building by

means of fire or an explosive; and (3) did so willfully. See 18 U.S.C. § 844(e).

      The evidence in this case, taken in a light most favorable to the government,

supports a reasonable inference of guilt. Testimony at trial established that a call

was placed to PECC from a phone whose number was traced to Wiggins’s cell

phone and account with Nextel. The account records showed that a call was placed

from Wiggins’s phone, number 352-516-4530, to PECC, number 813-754-7916, at

10:34 a.m. on June 1, 2001. The phone’s “call history” also indicated that the call

was made. The caller stated that there was a bomb located at “the Cape,” or Cape

Canaveral. During an interview with OSI agents, Wiggins stated that he had the

phone in his possession or within eyeshot the entire morning. Finally, there was

testimony indicating the improbability that the phone call was generated from



                                          17
either a “cloned” number or was a “computer error” in light of the fact that the

phone itself had date stamped the phone call, date, and time.

      Wiggins argues that the jury could not have found him guilty beyond a

reasonable doubt based on this evidence because it lends nearly equal support to a

theory of guilt and a theory of innocence, citing Cosby v. Jones, 682 F.2d 1373,

1383 (11th Cir. 1982). This argument is misplaced. The evidence viewed in a

light most favorable to the government demonstrates only that the government did

not have a direct witness to Wiggins placing the phone call. This is not surprising

given the brevity of the phone call and the location from which the phone call was

made. Wiggins makes much of the fact that a witness testified that the caller

sounded “like a black guy” and that when asked about whether he had called in a

bomb threat, a witness said he “sounded shocked.” But that evidence does not

change the fact that Wiggins’s cell phone and cell phone account records

demonstrated that, on June 1, 2001, a phone call was made from his phone to

PECC, a phone call was made from security to his cell phone shortly thereafter,

and the cell phone was in his possession or eyeshot throughout the morning.

      Furthermore, Wiggins chose to testify on his own behalf, testifying that, at

some point that morning, just prior to being evacuated from the premises, he

dropped his phone 35 feet through pipes, conduits, hangars, and mechanical



                                         18
systems to “Foots,” who had the phone for at least 10-15 seconds before Wiggins

retrieved it. As we have held, “when a defendant chooses to testify, he runs the

risk that if disbelieved the jury might conclude the opposite of his testimony is

true.” United State v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). “[A] statement

by a defendant, if disbelieved by the jury, may be considered as substantive

evidence of the defendant's guilt.” Id. Here, it was the jury’s province to gauge

Wiggins’s credibility, and it was free to disbelieve his testimony. See Peters, 403

F.3d at 1270 (“[i]t is the jury’s prerogative to disbelieve a defendants

testimony. . . .” (quotation and citation omitted). Given that Wiggins’s testimony

conflicted with the statements he gave OSI agents and Wiggins had two prior

felony convictions for writing worthless checks (crimes of dishonesty), it was not

unreasonable for the jury to disbelieve Wiggins’s testimony or, for that matter, his

theory of innocence.

      Wiggins seeks to circumvent Brown by arguing that there was no

corroborative evidence to support an inference that Wiggins made the phone call.

See, e.g., United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002)

(holding that, under Brown, there must be some corroborative evidence in addition

to the defendant’s testimony to affirm a jury’s guilty verdict). This argument is

without merit. The government’s case, as noted above, proved that the call was



                                          19
made from Wiggins’s phone and, prior to Wiggins taking the stand, Agent Biel

testified that Wiggins had stated that the phone was in his possession or eyeshot at

all times during the morning of June 1, 2001. No mention was made of “Foots” or

the fact that someone other than Wiggins might have had possession of the phone

for a sufficient length of time to make the phone call. While there was no direct

witness to the phone call, the circumstantial evidence, taken in a light favorable to

the government, supported an inference that Wiggins, and not someone else, made

the phone call. This inference is a reasonable one, especially in light of testimony

establishing that it was highly improbable that the call was a computer error or

made from a “cloned” number. As noted above, the evidence need not exclude

every possible hypothesis of innocence. Thus, there was corroborating evidence

supporting a reasonable inference of guilt.

      Wiggins’s final argument is that the rule in Brown creates “an intolerable

situation wherein a criminal defendant is forced to give up his right to testify in

order to preserve a sufficiency of the evidence argument on appeal.” However, as

we noted in Brown, “a defendant who chooses to present a defense runs a

substantial risk of bolstering the Government’s case.” Brown, 53 F.3d at 314. “A

defendant whose motion for acquittal at the close of the Government’s case is

denied must decide whether to stand on his motion or put on a defense, with the



                                           20
risk that in so doing he will bolster the Government case enough for it to support a

verdict of guilty.” Id. (quotation and citation omitted). Wiggins could have

decided not to testify, but having chosen to do so, he ran the risk that the jury

might disbelieve his story. We conclude that Wiggins’s testimony, combined with

corroborative evidence viewed in a light most favorable to the government,

supported a reasonable inference of guilt. We, therefore, affirm Wiggins’s

conviction.

      AFFIRMED.




                                           21
