c.a. no. 17-10299 united states of america, ) cr. no. 16 ... · in the united states court of...

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C.A. NO. 17-10299

UNITED STATES OF AMERICA, ) CR. NO. 16-00207 SOM

) (USDC-Hawaii)

Plaintiff-Appellee, )

vs. )

)

WILLIAM CLARK TURNER, )

)

Defendant-Appellant. )

_______________________________)

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

ANSWERING BRIEF OF PLAINTIFF-APPELLEE UNITED STATES

KENJI M. PRICE

United States Attorney

District of Hawaii

MARGARET C. NAMMAR

Assistant U.S. Attorney

Room 6-100, PJJK Federal Building

300 Ala Moana Blvd.

Honolulu, Hawaii 96850

Telephone: (808) 541-2850

Email: [email protected]

Attorneys for Plaintiff-Appellee

UNITED STATES OF AMERICA

Case: 17-10299, 03/30/2018, ID: 10820054, DktEntry: 27, of 61

1

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ................................................................................. i-iii

I. JURISDICTION, TIMELINESS OF APPEAL, AND

BAIL STATUS .............................................................................................. 1

II. ISSUES PRESENTED ................................................................................... 1

III. STATEMENT OF THE CASE ...................................................................... 2

A. Procedural History ............................................................................... 2

B. Statement of Facts ................................................................................ 3

C. Discussion of Legal Issues and Settling of Jury Instructions ............ 15

IV. SUMMARY OF ARGUMENT ................................................................... 26

V. ARGUMENT ............................................................................................... 28

A. The District Court Correctly Instructed The Jury On Count I,

Interference With A Flight Attendant ................................................ 28

1. The Instruction On Intimidation Is Not Reviewable

Under The Invited Error Doctrine ................................................ 28

a. Standard of Review ................................................................. 28

b. Discussion ................................................................................ 29

2. Assuming, Arguendo, That The Instruction On

Intimidation Is Reviewable, The District Court Did Not

Commit Plain Error In Defining Intimidation .............................. 30


2

TABLE OF CONTENTS (continued)

Page(s)


b. Discussion ................................................................................ 30

3. Assuming, Arguendo, That The Instruction On

Intimidation Is Reviewable, Because The Jury Instruction

Correctly Defined Intimidation Defense Counsel Was Not

Ineffective For Failing To Object ................................................. 38


b. Discussion ................................................................................ 39

4. The District Court Did Not Abuse Its Discretion By Including

The Mens Rea For The Charge Of Interference With A Flight

Attendant In The Jury Instruction Defining Intimidation ............ 40


b. Discussion ................................................................................ 41

B. Retroactive Misjoinder Resulting in Prejudicial Spillover Did

Not Occur And, Therefore, No Separate Limiting Instruction

Was Required ..................................................................................... 47


b. Discussion ................................................................................ 47

VI. CONCLUSION .............................................................................................. 52


i

TABLE OF AUTHORITIES

Case(s) Page(s)

Chapman v. California,

386 U.S. 18 (1967) ...................................................................................... 41

Johnson v. United States,

270 F.2d 721 (9th Cir. 1959) ....................................................................... 34

Johnson v. United States,

520 U.S. 461 (1997) .................................................................................... 30

Jones v. United States,

527 U.S. 373 (1999) .................................................................................... 30

Neder v. United States,

527 U.S. 1 (1999) .................................................................................. 41, 47

Strickland v. Washington,

466 U.S. 668 (1984) ............................................................................. 39- 40

United States v. Alsop,

479 F.2d 65 (9th Cir. 1973) ......................................................................... 33

United States v. Armijo,

5 F.3d 1229 (9th Cir. 1993) ................................................................... 30, 47

United States v. Bailey,

444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) ................................. 41

United States v. Burt,

143 F.3d 1215 (9th Cir. 1998) ............................................................. 28- 29

United States v. Compton,

5 F.3d 358 (9th Cir. 1993) .................................................................... 48- 49

United States v. Cuozzo,

962 F.2d 945 (9th Cir. 1992) ....................................................................... 51

United States v. Fernandez,

388 F.3d 1199 (9th Cir. 2004) .................................................................... 40


ii

TABLE OF AUTHORITIES (continued)

Case(s) Page(s)

United States v. Flores,

968 F.2d 1366 (1st Cir. 1992) ..................................................................... 38

United States v. Garcia,

729 F.3d 1171 (9th Cir. 2013) .................................................................... 34

United States v. Grossman,

131 F.3d 1449 (11th Cir. 1997) .................................................................. 42

United States v. Hicks,

980 F.2d 963 (5th Cir. 1992) ..................................................... 19, 33, 35, 42

United States v. Hui Hsiung,

778 F.3d 738 (9th Cir.) ......................................................................... 28- 29

United States v. Kilbride,

584 F.3d 1240 (9th Cir. 2009) .................................................. 30, 40, 41, 47

United States v. Lamott,

831 F.3d 1153 (9th Cir. 2016) .................................................................... 41

United States v. Lazarenko,

564 F.3d 1026 (9th Cir. 2009) ....................................................... 48, 50- 51

United States v. Loftis,

843 F.3d 1173 (9th Cir. 2016) .................................................................... 48

United States v. Lynch,

881 F.3d 812 (10th Cir. 2018) ............................................................. 41- 42

United States v. Marin-Cuevas,

147 F.3d 889 (9th Cir. 1998) ....................................................................... 47

United States v. Meeker,

527 F.2d 12 (9th Cir. 1975) .................................................................. passim

United States v. Moreland,

622 F.3d 1147 (9th Cir. 2010) .................................................................... 39


iii

TABLE OF AUTHORITIES (continued)

Case(s) Page(s)

United States v. Naghani,

361 F.3d 1255 (9th Cir. 2004) ........................................................ 31, 33, 35

United States v. Olano,

507 U.S. 725 (1993) .................................................................................... 30

United States v. Perez,

116 F.3d 840 (9th Cir. 1997) ................................................................ 28- 29

United States v. Tatoyan,

474 F.3d 1174 (9th Cir. 2007) .............................................................. 34, 40

United States v. Turner

CA. NO. 16-00207, 2017 WL 3431587 (D. Hawaii Aug. 8, 2017) .... 36- 38

United States v. Ubaldo,

859 F.3d 690 (9th Cir. 2017) ....................................................................... 34

United States v. Vebeliunas,

76 F.3d 1283 (2d Cir. 1996) ........................................................................ 51

United States v. Vizcarra-Martinez,

66 F.3d 1006 (9th Cir. 1995) ....................................................................... 48

Rule(s) and Statute(s) Page(s)

18 U.S.C. § 113 ....................................................................................................... 2

18 U.S.C. § 3231 ..................................................................................................... 1

18 U.S.C. § 3238 ..................................................................................................... 1

28 U.S.C. § 1291 ..................................................................................................... 1

28 U.S.C. § 2255 ................................................................................................... 39

49 U.S.C. § 1472 ................................................................................................... 32

49 U.S.C. § 46504 .......................................................................................... passim

49 U.S.C. § 46506 ................................................................................................... 2

Fed. R. Crim. P. 52 ................................................................................................ 30


1

ANSWERING BRIEF OF PLAINTIFF-APELLEE UNITED STATES

I. JURISDICTION, TIMELINESS OF APPEAL, AND BAIL STATUS

The district court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3238.

The district court entered a final judgment on June 9, 2017. (See ER1 45-49).

Defendant requested an extension and was granted an additional thirty days beyond

the original fourteen day requirement to file a notice of appeal. (See ER 41-42).

Defendant timely filed his notice of appeal on July 24, 2017. Id. This Court has

jurisdiction pursuant to 28 U.S.C. § 1291. The defendant remains free and is on

probation. (See ER 45-49).

II. ISSUES PRESENTED

1. Whether the instruction on intimidation is unreviewable under the

invited error doctrine because Defendant jointly, with the government, proposed

the instruction and waived his rights?

2. Assuming, arguendo, that the instruction on intimidation is

reviewable, whether the district court committed plain error in instructing the jury

on intimidation for the charge of interference with a flight attendant?

1 In this brief, “ER” refers to Defendant-Appellant’s Excerpts of Record.


2

3. Assuming, arguendo, that the instruction on intimidation is

reviewable, if the district court committed plain error in instructing the jury on the

element of intimidation, then was defense counsel ineffective for failing to object

to the instruction?

4. Whether including the mens rea for the charge of interference with a

flight attendant in the jury instruction defining intimidation, instead of in the jury

instruction that set forth the elements of the offense was an abuse of the district

court’s discretion?

5. Whether the district court committed plain error by failing to give the

jury a separate limiting instruction, after it removed the pilot from Count I?

III. STATEMENT OF THE CASE

A. Procedural History

On March 23, 2016, Defendant-Appellant William Clark Turner was

charged in an indictment with one count of interference with flight crew members

and attendants, in violation of 49 U.S.C. § 46504, and two counts of simple assault,

in violation of 18 U.S.C. § 113 and 49 U.S.C. § 46506. (ER 85-88). The case

proceeded to a jury trial on February 7, 2017. (ER 89). After approximately

three days of testimony followed by less than one day of deliberations, the jury

found the defendant guilty of interference with the flight attendant and not guilty of


3

the two counts of simple assault. (ER 572, 574-77). Defendant was sentenced to

probation for a term of three years. (ER 45-50). Judgment of conviction was

entered on June 9, 2017. (ER 45-50).

B. Statement of Facts

In the Spring of 2016, Defendant started an altercation (ER 121) aboard

American Airlines Flight 7, while it was in flight from Dallas-Fort Worth to Maui.

(ER 115). Defendant ultimately caused the cockpit to go on lockdown (ER 137-

38, 290) and interfered with the flight attendant’s ability to perform her duties.

(ER 140).

Defendant was traveling with a female companion, Tamara Thompson.

(ER 379, 453). Ms. Thompson was seated by the window in 28A, next to

Defendant who was assigned to the aisle seat 28B. (ER 126, 336, 409, 487).

Christina Mulberry and Robin Adams were also passengers on the flight. (ER

208, 252). Mrs. Mulberry was traveling with her husband and was seated just

across the staggered aisle from Defendant in 28C. (ER 126, 209, 336, 456). Ms.

Adams was traveling alone and was seated across the staggered aisle from Mrs.

Mulberry and directly in front of Defendant in 27B. (ER 126, 252). Prior to this

flight the two women had never met. (ER 212, 254).

Just over halfway through the flight, Mrs. Mulberry and Ms. Adams engaged

in conversation. (ER 211, 254-55). Shortly after the women began speaking,


4

Defendant ripped his headphones out of his ears, leaned forward in the aisle, and

began yelling and swearing at the two women. (ER 212-13, 255). Defendant

asked them if they knew proper plane etiquette and told them to “shut the fuck up”

and that it was rude to talk across the aisle on an airplane. (ER 213, 255). Ms.

Adams replied that she did not know that there were rules about talking on an

airplane. (ER 256, 278). She sat there for a minute and then turned around in her

seat and told Defendant that he was an “asshole.” (ER 256).

Defendant, who is six feet tall (ER 488), got up out of his seat, walked

forward and pointed his finger in Ms. Adams’s face, an inch or two from her nose.

(ER 256, 278-79). Ms. Adams told him to get his “fucking finger” out of her face

and blew at his finger. (ER 256). She testified that she never spit at him, rather,

she just blew air in an effort to get his finger out of her face. (ER 258).

Defendant then told Ms. Adams, “I’m going to break your fucking neck.” (ER

257). Ms. Adams replied, “Not if I break yours first.” (ER 257). Ms. Adams

further testified that at some point Defendant pushed her seat hard enough to send

her forward into the seat in front of her. (ER 257-58).

Mrs. Mulberry recalled that when Defendant sat down in his chair he was

kicking the back of Ms. Adams’s chair. (ER 220). However, she was not sure

the degree of force that he was using to do so. (ER 220). Mrs. Mulberry

remembered Ms. Adams turning around to Defendant and saying, “You have


5

rudely asked us to shut the fuck up. I’m kindly asking you to stop kicking my

chair.” (ER 220). At some point, a nearby male flight attendant went to get help.

(ER 214).

Mrs. Mulberry sat in her seat shocked and extremely nervous. (ER 214).

A female flight attendant, Lena Goralska, approached and asked what was going

on. (ER 215). Defendant told the flight attendant that the women did not have

proper plane etiquette and did not know how to keep their “mouths fucking shut.”

(ER 215). He demanded to be moved from his seat. (ER 215). Ms. Goralska

asked the women to just look forward and not talk to each other. (ER 215). Ms.

Goralska then left the area.

Mrs. Mulberry’s husband had just awoke from sleeping and Mrs. Mulberry

laid her head on her husband’s shoulder and whispered in his ear. (ER 215-16).

Shortly thereafter, Defendant jumped up out of his chair again and got in Mrs.

Mulberry’s face. (ER 216-17). He pointed his fingers at her face, and in an

aggressive tone of voice said, “What part of shut the fuck up don’t you understand?

I asked you to stop fucking talking.” (ER 216-17). Defendant then spit on Mrs.

Mulberry’s forehead. (ER 217). She wiped the spit off and stated, “You just spit

on me. Get out of my face.” (ER 217). Defendant responded, “If that’s the least

that I do to you, you better be fucking happy.” (ER 218).


6

While Ms. Adams did not actually see Defendant spit in Mrs. Mulberry’s

face, she saw Mrs. Mulberry wiping her face and heard her say to Defendant, “You

just spit on me.” (ER 259). To which she heard Defendant reply, “I’ll fucking do

it again too.” (ER 259).

Mrs. Mulberry’s husband told Defendant to just have a seat and calm down.

(ER 218). Defendant responded by threatening that he was going to kick Mr.

Mulberry’s “ass” when they got off the plane. (ER 218). Mrs. Mulberry then

stood up to go to the restroom and wash her hands. (ER 218). As she started to

walk to the restroom she held onto the chairs as she walked because she was

concerned that Defendant would strike her from behind. (ER 220). Defendant

asked if she was going to get a flight attendant and called her a “cunt.” (ER 219).

Mrs. Mulberry testified that when she reached the restroom it appeared that flight

personnel had been observing the incident. (ER 219). They inquired as to what

was going on. (ER 219). The pilot also asked her a few questions and made the

decision to move her to a different seat. (ER 219).

At the time of the altercation, Ms. Goralska had been a flight attendant for

approximately twenty years. (ER 108, 109). Ms. Goralska testified that

Defendant came to her attention approximately two and a half to three hours before

landing. (ER 120). They had just finished the second beverage service and she

was putting items back in the galley. (ER 120, 121). When she looked up the


7

aisle, she noticed that one of the male flight attendants had not yet finished his

beverage service and a passenger was standing in the aisle by his cart. (ER 121).

The male flight attendant moved his cart past the passenger and upon reaching Ms.

Goralska, he notified her that there was an altercation going on with the man in the

aisle and that he was yelling and screaming. (ER 121, 158-59).

Ms. Goralska went up to find out what was going on. (ER 121). When she

got there, Defendant was standing up facing the back of the plane and was yelling

back and forth at two female passengers that were sitting in front of him. (ER

121). Defendant was telling the women that they did not know how to keep their

“fucking mouth shut” and that they did not know how to “fucking behave on the

plane.” (ER 123, 133). Ms. Goralska tried to find out what had started the

altercation, Defendant just complained that they were talking too loud and would

not keep their “fucking mouth shut.” (ER 123, 133). While Ms. Goralska tried to

assess the situation, she asked Defendant to sit down. (ER 124). Defendant was

not compliant at all with her request and it took approximately ten to fifteen

minutes for him to finally sit down. (ER 124).

Ms. Goralska instructed the two female passengers to not add anything

further so as not to reignite the situation. (ER 128). She further told them that if

something else does happen to get the flight attendant immediately. (ER 128).

Within five to ten minutes another passenger came to the back and notified Ms.


8

Goralska that Defendant had engaged the women again and was still complaining.

(ER 129). Ms. Goralska went to address the situation again. (ER 129). At the

same time, the male flight attendant, who had initially notified her of the

altercation, relayed the information to the lead flight attendant who in turn notified

the cockpit of what was transpiring in the cabin. (ER 129). Ms. Goralska

indicated that this was an unusual situation because typically when there is a

conflict on the plane and the flight attendant talks to a person, then it can easily be

solved after that one conversation. (ER 129).

Ms. Goralska testified that when she approached Defendant the second time

he seemed even more enraged. (ER 132). He continued to swear and complain

about the two women. (ER 132). Ms. Goralska spoke with the women who

informed her that Defendant had threatened them. (ER 132). She stated that

Defendant was very antagonistic towards Mrs. Mulberry. (ER 132). Ms.

Goralska testified that Defendant was continuously using the word “fucking” in

every sentence directed at both Mrs. Mulberry and Ms. Adams. (ER 133).

Defendant continued to make threats against the women and Mrs. Mulberry’s

husband. (ER 133). Ms. Goralska stated that she could not get Defendant to sit

down and she was becoming alarmed that he was not being compliant or

responding to her. (ER 133). She stated that she then saw Defendant lean back

and spit at Mrs. Mulberry’s face. (ER 133). Ms. Goralska testified that at that


9

point she realized she was unsure of what Defendant was capable of doing. (ER

134).

She quickly notified the other flight attendants so that they could report the

information to the cockpit and attempt to get the situation contained before it

escalated even further. (ER 134). Defendant would not listen to her and he was

not being compliant. (ER 134). Ms. Goralska decided she had no other choice

but to move the women to different seats. (ER 134). Ms. Goralska located a

gentleman with an athletic build, who she felt that she could use as a buffer, and

had him switch seats with Ms. Adams. (ER 134, 181). After that, she realized

that the flight crew and one of the other flight attendants had already worked out

that Mr. and Mrs. Mulberry would be moved to the cockpit crew rest seats in the

forward part of the cabin. (ER 135). Ms. Goralska stated that Mrs. Mulberry was

crying and visibly upset and her husband remained calm and was consoling her.

(ER 135).

After she finally got the women moved, Ms. Goralska kept a visual eye on

Defendant and continued to check on him for the remainder of the flight. (ER

135-36, 171). Ms. Goralska described Defendant’s demeanor throughout the

entire incident as unpredictable, volatile, and very uncertain. (ER 136). She

assumed he was capable of doing physical harm to someone. (ER 136). She

further testified that the entire incident with Defendant, including having to


10

continue to monitor him until they landed in Maui, lasted a total of approximately

two hours. (ER 136).

Ms. Goralska testified that upon receiving the information regarding the

altercation with Defendant, the captain, Chris Maracchini, made the decision to

forfeit the crew rest seats so that they could relocate the Mulberrys. (ER 137).

At that time, the captain also made the decision to go on cockpit lockdown. (ER

137-38). Cockpit lockdown is when the cockpit door is locked and remains

closed. (ER 138). When the cockpit is on lockdown the pilots do not take

restroom breaks or mandated crew rest breaks and all pilots remain secured behind

the cockpit door. (ER 138). Cockpit lockdown is generally not lifted until the

flight lands and the aircraft is secured. (ER 138).

At no time did Ms. Goralska see anyone, including Ms. Adams or Mrs.

Mulberry, spit on Defendant. (ER 139-40). Nor did Defendant ever report to

Ms. Goralska that anyone spit on him. (ER 140). Ms. Goralska was concerned

that Defendant was capable of physically harming the women, as he had certainly

threatened to harm them. (ER 140). Ms. Goralska was “intimidated” by

Defendant’s unpredictability and his volatile behavior. (ER 141). She testified

that in her now twenty-one years as a flight attendant she had never encountered a

situation in flight as serious as this one. (ER 141).


11

There were a total of seven flight attendants working the flight that day.

(ER 130). At the time of the altercation with Defendant, one of the flight

attendants was dealing with a sick passenger, three were on break, one was in first

class, and one was communicating with the cockpit. (ER130). This left only Ms.

Goralska available in the cabin to handle flight attendant duties. (ER 131).

However, because of Defendant’s actions, Ms. Goralska was unable to perform

any of her assigned duties, which included answering call lights, assisting the other

flight attendants, and performing cabin walk-throughs. (ER 140). Because Ms.

Goralska was having to handle the disturbance with Defendant, and all other flight

attendants were occupied, there was no one else left to perform any flight attendant

duties. (ER 131). Defendant consumed her entire time from her initial approach

during the altercation until the flight landed in Maui. (ER 140).

There were three pilots aboard the aircraft that day. (ER 284, 292). Chris

Maracchini was the captain and pilot in command. (ER 288). Captain

Maracchini had been flying the plane since take off. (ER 291-92). It was just

about time for him to take his scheduled break when he was first notified of the

disturbance with Defendant. (ER 289, 292). The flight attendants provided the

captain with Defendant’s name and seat number and told the captain they were

trying to resolve the situation but had been unable to do so. (ER 289, 290).


12

The captain received another call that the situation was escalating. (ER

290). He was informed that there was some spitting that occurred and that

Defendant shoved or kicked the back of the seat in front of him, which thrust the

lady in the seat forward into the seat in front of her. (ER 290). Eventually, one

of the flight attendants and the captain concluded that the altercation had reached a

level that necessitated going into cockpit lockdown. (ER 290).

During a cockpit lockdown, the cockpit is shut off and there is no longer any

routine movement between the cockpit and the cabin, including receiving meals

and going to the restroom. (ER 291, 293). All three of the pilots were required

to be in the cockpit. (ER 292). As a result of being in cockpit lockdown, Captain

Maracchini was forced to be in the cockpit flying the plane for the entire

approximately eight hour flight without a break. (ER 293-94). Thus, upon

landing he was extremely fatigued. (ER 293).

Defendant testified in his own defense along with his travel companion,

Tamara Thompson. (ER 371, 446). Prior to arriving at the airport to board the

flight to Maui, Ms. Thompson had just left her job as a nurse at the hospital where

she had worked a 12-hour night shift. (ER 377). Ms. Thompson planned on

sleeping on the flight. (ER 408). About an hour after the plane took off she

started to nod off to sleep. (ER 408). She awoke when Defendant, whom she

was leaning on, arose from his seat. (ER 410). When she looked up, Defendant


13

was standing in the aisle talking to a female passenger. (ER 410). Eventually a

female flight attendant came over and separated Defendant and the other passenger

and they both sat back down. (ER 413).

Ms. Thompson further stated that Defendant was then trying to get the flight

attendant’s attention to let her know what was going on. (ER 414). Ms.

Thompson stated that the flight attendant was not listening to Defendant and

literally got in his face and every time he tried to talk she would “shush” him and

make the motion of an alligator mouth with her hand. (ER 414-16). Ms.

Thompson stated that the flight attendant then left to try and make other seating

arrangements and absolutely nothing happened while she was away. (ER 419).

She testified that the flight attendant eventually moved the other passengers and

the remainder of their flight was peaceful. (ER 422-23, 429). Ms. Thompson

stated that she felt the situation was uncomfortable for everyone, but was contained

to Defendant, the two female passengers, and the flight attendant. (ER 423-24).

Defendant admitted to getting out of his seat and confronting the two female

passengers in front of him. (ER 459). He acknowledged that he was the only

individual involved that got up out of his seat. (ER 491-92). He denied spitting

in anyone’s face. (ER 470). Rather, he testified that Ms. Adams, the woman

sitting in front of him in 27B, spit in his face. (ER 462-64).


14

Defendant stated that the flight attendant became involved in the situation

and asked him to sit down. (ER 465-66). When he tried to explain the situation

to the flight attendant, she started doing an alligator motion at him with her hand.

(ER 466). Defendant said that he finally gave up and “let [the flight attendant]

feel like she was getting a little more control of herself.” (ER 467). He described

the flight attendant as “mildly hysterical” and stated he told her that “these people

have to be moved.” (ER 467).

Federal Bureau of Investigation Special Agent Joel Rudow responded to the

pilot’s and airline’s request for law enforcement presence upon landing, due to the

altercation that had occurred onboard with Defendant. (ER 333). Upon arriving

at the Maui airport, Special Agent Rudow met and spoke with the airport police

who had already conducted preliminary interviews of passengers and the flight

crew. (ER 334). Special Agent Rudow then conducted interviews of Mr. and

Mrs. Mulberry, Ms. Adams, and Defendant. (ER 334-35).

Special Agent Rudow did not interview Ms. Thompson because the airport

police had already done so. (ER 343). Ms. Thompson told the airport police that

she was asleep and did not wake up until the incident had concluded and, therefore,

she had nothing to contribute. (ER 343). Special Agent Rudow also interviewed

Captain Maracchini and flight attendant Lena Goralska over the telephone the


15

same day because they had left the airport by the time Special Agent Rudow had

arrived. (ER 334).

Defendant told Special Agent Rudow that he was very angry that the women

had not accommodated his request to be quiet. (ER 337). He stated that he was

the only individual that stood up during the altercation (ER 337-39); Ms. Adams

blew at him and he threatened to break her neck if she did it again (ER 337); he

was annoyed at the fact that Mr. Mulberry told him to sit down and was speaking

to him (ER 337-38); he told Mr. Mulberry, “What are you going to do? Are you

going to kick my butt, because I’ll kick your butt.” (ER 338); and he never spit in

anyone’s face. (ER 338). Additionally, Defendant never reported that anyone

spit in his face. (ER 338). Special Agent Rudow testified that during his

interview with Defendant he was very agitated and tense. (ER 339). He also

stated that Defendant was being difficult and made him nervous. (ER 339).

C. Discussion of Legal Issues and Settling of Jury Instructions

Prior to the commencement of trial, the parties filed joint proposed jury

instructions. (ER 75-84). Proposed Special Joint Jury Instruction No. 1 set forth

the charged offense of interference with flight crew members and attendants and

the elements that the government must prove beyond a reasonable doubt.2 (ER

2 PROPOSED SPECIAL JOINT JURY INSTRUCTION NO. 1: The defendant is

charged in Count 1 of the indictment with interference with flight crew members


16

77). Proposed Special Joint Jury Instruction No. 3 explained intimidation.3 (ER

79).

At trial, after the close of the government’s case-in-chief, defense counsel

made an oral motion for judgment of acquittal on all counts. (ER 357). Defense

counsel argued that with respect to the actus reus of interfering with a flight crew,

and attendants in violation of Section 46504 of Title 49 of the United States Code.

In order for the defendant to be found guilty of that charge, the government must

prove each of the following elements beyond a reasonable doubt:

First, that the defendant was on an aircraft in flight in the special aircraft

jurisdiction of the United States;

Second, that the defendant knowingly assaulted or intimidated a flight crew

member or flight attendant of the aircraft; and

Third, that such assault or intimidation interfered with the performance of the

duties of a flight crew member or flight attendant of the aircraft or lessened the

ability of a member or attendant to perform those duties.

3 PROPOSED SPECIAL JOINT JURY INSTRUCTION NO. 3: The term

“intimidate” has several meanings: it means the use of words or actions to place

another person in reasonable apprehension of bodily harm either to that person or

to another. It also means the use of words or actions to make another person

fearful or make that person refrain from doing something that the person would

otherwise do, or do something that the person would otherwise not do or interfere

with or lessen their ability to do something.

One person in a group can be intimidated by threats directed at the group in

general. The government does not have to prove that the crew member or flight

attendant was in fact frightened for his or her own physical safety in order to find

that the defendant performed the criminal act of intimidation. It is sufficient that

the conduct and words of the defendant would place an ordinary, reasonable person

in fear. Pattern Criminal Jury Instructions, 11th Cir. 103 (2003); United States v.

Meeker, 527 F.2d 12, 15 (9th Cir. 1975).


17

there had not been credible testimony to conclude that the defendant knowingly

interfered with the flight crew. (ER 357).

The district court thereafter had questions with regard to the pilot. (ER 360-

61). The district court stated that the interference need not have been intended.

(ER 361). In other words, the government did not have to show that Defendant

intended to interfere with the pilot’s performance of the pilot’s duties to satisfy that

element. (ER 361). However, the district court stated that it did not hear any

evidence that Defendant knew the pilot was involved. (ER 361). The district

court stated that it was inclined to think that Defendant knowingly intimidated the

flight attendant and interfered with the flight attendant’s performance of her duties,

as well as that he interfered with the pilot’s performance of his duties. (ER 361).

But the district court was not aware of any evidence presented that Defendant

knew the pilot had been notified. (ER 361).

The district court further asked counsel for the government, “doesn’t the

defendant have to have had some way to know that the pilot would learn of this

and likely reasonably react? And what is the word ‘knowingly’ doing in [the

proposed jury instruction and trial brief] before intimidated a flight crew member

unless the defendant had to have knowledge that this was having some impact.”

(ER 364). Counsel for the government stated that having done additional

research, counsel was concerned that the word “knowingly” did not need to be


18

included as an element, as it was set forth in the Proposed Special Joint Jury

Instruction No. 1, after all. (ER 366). The district court agreed that “knowingly”

is not in the statute but stated that it may well be in case law. (ER 366).

However, the district court was not sure where counsel got the language from.

(ER 366-67).

Defense counsel stated that he understood the district court’s reasoning.

(ER 367). Defense counsel further stated, “I agree with Your Honor with respect

to the interpretation of flight crew as a pilot that the defendant has to knowingly –

even if there is no knowingly, which I don’t agree with, the defendant has to do

something to the flight crew and then there has to be some sort of act.” (ER 367).

The district court stated that although the word knowingly is in the government’s

trial brief and Proposed Special Jury Instruction No. 1 (ER 77), it is not in 49

U.S.C. § 46504 or in the cases cited in support of the proposed instruction. (ER

368). The district court further stated the government “might come back to me

tomorrow and say, We made our burden worse than it needed to be by putting that

word in; we want to take it out. I don’t know what they are going to do, but I

would like to get to the bottom of this. It’s important for me to instruct the jury

correctly.” (ER 368).

The district court took under advisement the issue of whether the

government could proceed with Count 1 based on the pilot having been intimidated


19

and interfered with. (ER 368). The district court denied the defense motion with

respect to Count 1, insofar as Count 1 involved intimidation and interference with

a flight attendant. (ER 368-70). The district court also denied the defense motion

with respect to Counts 2 and 3. (ER 370).

That evening the government filed Government’s Proposed Amended

Special Jury Instruction No. 1 (ER 73), in which the word “knowingly” was

removed from the second element of the interference charge.4 (ER 71-74, 390).

The following morning the court reconvened to address the outstanding legal

issues prior to continuing with the testimony in Defendant’s case. (ER 390).

Because the issues regarding the Government’s Proposed Amended Special Jury

Instruction No. 1 were so related to the pending portion of the motion for judgment

4 GOVERNMENT’S PROPOSED AMENDED SPECIAL JURY INSTRUCTION

NO. 1: The defendant is charged in Count 1 of the indictment with interference

with flight crew members and attendants in violation of Section 46504 of Title 49

of the United States Code. In order for the defendant to be found guilty of that

charge, the government must prove each of the following elements beyond a

reasonable doubt:

First, that the defendant was on an aircraft in flight in the special aircraft

jurisdiction of the United States;

Second, that the defendant assaulted or intimidated a flight crew member or

flight attendant of the aircraft; and

Third, that such assault or intimidation interfered with the performance of the

duties of a flight crew member or flight attendant of the aircraft or lessened the

ability of a member or attendant to perform those duties. United States v. Hicks,

980 F.2d 963, 973 (5th Cir. 1992); see also United States v. Meeker, 527 F.2d 12,

14 (9th Cir. 1975).


20

of acquittal, the district court merged the jury instructions discussion with its

consideration of the remaining portion of the defense motion. (ER 392).

The district court stated that the inclusion of the word “knowingly” in the

second element of the interference charge in Proposed Special Joint Jury

Instruction No. 1 served to highlight the issue about whether the government could

prove Count 1 vis-à-vis the pilot. (ER390). The district court went on to explain

that deleting the word “knowingly,” as in Government’s Proposed Amended

Special Jury Instruction No. 1, removes the highlight, but it does not remove the

problem. (ER 390). The district court stated that the problem exists twofold.

(ER 390).

First, the district court stated that the flight crew member or attendant who is

the subject of the second element (intimidation) must be the flight crew member or

attendant who is the subject of the third element (interference). (ER 391).

“[Y]ou cannot say a pilot was intimidated and that interfered with the flight

attendant’s performance of her duties or vice versa.” (ER 391). In other words,

“you can’t just mix and match these people.” (ER 392). Both parties agreed with

the district court’s conclusion that the flight crew member or attendant who is the

subject of the second element must also be the subject of the third element and,

thus, with respect to Government’s Proposed Amended Special Jury Instruction

No. 1, the word “a” should be modified to be “the.” (ER 395).


21

Second, the issue remained as to whether the government could proceed

with Count 1 by saying that Defendant intimidated a pilot. (ER 396). The

district court stated its concern is that there has to be some volitional act by

Defendant that he either knew would affect the pilot or that a reasonable person

doing what Defendant was consciously doing would have known would affect the

pilot. (ER 397). The district court stated, “I don’t think it is a common

expectation on the part of a passenger that a pilot is roaming the aisles of an

airplane.” (ER 398). “[T]here’s no evidence that [Defendant] had any suspicion

that the pilot had the slightest inkling of what [Defendant] was doing 28 rows away

from the cockpit.” (ER 398). The district court went on to state that it needed

some connection between Defendant and the pilot to say that the second element,

that Defendant intimidated a pilot, is satisfied. (ER 398).

Looking at Proposed Special Joint Jury Instruction No. 3 (ER 79), which

defined intimidation, the district court asked, “What did he do to place, meaning

knowing or intending or reasonably expecting that it would place the pilot in

reasonable apprehension?” (ER 399). “So what did he do for the purpose of

making the pilot fearful? Because ‘to make’ has a purpose in it. You did

something for a purpose. You said something to make the pilot fearful for the

purpose of making the pilot fearful.” (ER 399). The district court went on to

state that even if the word “knowingly” was removed from the elements


22

instruction, the government would still have to show with evidence that Defendant

intimidated the pilot. (ER 400). The district court further stated that

“intimidation, even if you take the word ‘knowingly’ out, has some purposeful

action in it that somehow requires some consciousness on his part that the pilot

was in some way affected or [] at the very least . . . [that] it would have been

reasonable for him to think that the pilot would have been affected.” (ER 400).

The district court kept the pilot portion of the motion for judgment of

acquittal under advisement and proceeded with the remainder of the trial

testimony. (ER 405). At the conclusion of Defendant’s case, the parties resumed

discussions, off-the-record, regarding the pilot portion of the motion for judgment

of acquittal and the jury instructions. (ER 498). The parties then put the results

of the off-the-record conference on the record. (ER 499).

The district court started with what it referred to as its “form instructions.”

(ER 499). Of the form instructions, most were given by agreement, including the

second instruction to the jury, which was on page 2 of the jury instructions5 and

stated that all of the instructions should be considered as a whole.6 (ER 51, 499-

5 The district court’s jury instructions were not numbered, thus, when referring to

the instructions given by the district court the government is referencing the

instruction by the page number at the bottom of the instruction and/or by citing to

the appropriate page in the Excerpts of Record.

6 You, as jurors, are the judges of the facts. But in determining what happened in


23

501). The district court then moved on to what it referred to as the “special

instructions.” (ER 501). As to Government’s Proposed Amended Special Jury

Instruction No. 1, the district court stated “I do believe that the second element of

the crime which requires that the defendant intimidated an airline employee

requires some kind of consciousness on the part of the defendant, at the very least

the defendant should have reasonably known that a particular airline employee

would be intimidated. And in this case I have ruled that any reference to a flight

crew member, to the extent that is a reference to a pilot, is not supported by

evidence that came out during the trial.” (ER 502). The district court noted that

Defendant’s sole objection is the deletion of the word “knowingly” in the second

element. (ER 503). The district court further stated that “the word ‘knowingly’

was not in the statute and, in any event, appeared to be subsumed in the very nature

this case – that is, in reaching your decision as to the facts– it is your sworn duty

to follow the law I am now defining for you.

You must follow all of my instructions as a whole. You have no right to

disregard or give special attention to any one instruction, or to question the wisdom

or correctness of any rule I may state to you. That is, you must not substitute or

follow your own notion or opinion as to what the law is or ought to be. It is your

duty to apply the law as I give it to you, regardless of the consequences.

It is also your duty to base your verdict solely upon the testimony and

evidence in the case, without sympathy, bias, or prejudice. That was the promise

you made and the oath you took before being accepted by the parties as jurors in

this case, and they have the right to expect nothing less. (ER 51, 518) (emphasis

added).


24

of intimidation as defined later in the instructions. So I did not think including the

word in special instruction number one served any purpose.” (ER 504).

Defense counsel stated his objection to the removal of the word “knowingly”

and also said that he understood that the language is absent from the statute. (ER

504). The district court then asked defense counsel “if the concept of what the

mens rea is is adequately stated in special instruction number three?” (ER 504).

Defense counsel replied, “Yes.” (ER 504).

Counsel for the government objected to the instruction as proposed by the

district court only in so far as it removed the pilot, and the district court stated its

reasons for ultimately removing the pilot from Count 1. (ER 505-06). This

instruction, which began as Government’s Proposed Amended Special Jury

Instruction No. 1, was modified by the court and became the court’s jury

instruction at page 11. (ER 60). Proposed Special Joint Jury Instruction No. 3

was given as modified by agreement, except that the government objected to the

removal of the pilot. (ER 506-07, 79; see also ER 62). Defendant made no

objection. (ER 507). This instruction, as modified by the court, became the

court’s jury instruction at page 13. (ER 62). Proposed Special Joint Jury

Instruction No. 4 was also modified by the court and given by agreement. (ER

507, 80; see also ER 63).


25

After settling the jury instructions, the district court completed its ruling on

Defendant’s motion for judgment of acquittal. (ER 511). The district court

entered judgment of acquittal insofar as Count 1 related to the pilot. (ER 511).

Count 1, however, remained in issue insofar as the flight attendant was concerned.

(ER 511).

Prior to closing arguments, the district court distributed the written

instructions to the jurors and orally instructed the jury by reading all twenty-one

instructions. (ER 517-28, 50-70). As to the charge in Count 1, interference with

a flight attendant, the district court instructed the jury as follows:

The defendant is charged in Count 1 of the indictment

with interference with a flight attendant on or about

March 14, 2016, in violation of Section 46504 of Title 49

of the United States Code. In order for the defendant to

be found guilty of that charge, the government must

prove each of the following elements beyond a

reasonable doubt:

First, that the defendant was on an aircraft in flight

in the special aircraft jurisdiction of the United States;

Second, that the defendant intimidated a flight

attendant of the aircraft; and

Third, that such intimidation interfered with the

performance of the duties of the flight attendant of the

aircraft or lessened the ability of the attendant to perform

those duties.

(ER 523-24, 60).


26

The district court further explained the “intimidation” element to the jury as

follows:

A flight attendant may be “intimidated” by the use of

words or actions that place the flight attendant in

reasonable apprehension of bodily harm, either to the

flight attendant or to another, or by the use of words or

actions that make the flight attendant fearful or make that

flight attendant refrain from doing something that the

flight attendant would otherwise do, or do something that

the flight attendant would otherwise not do, or interfere

with or lessen the flight attendant’s ability to do

something.

One person in a group can be intimidated by

threats directed at the group in general. The government

does not have to prove that the flight attendant was in

fact frightened for her own physical safety in order to

prove that the defendant performed the criminal act of

intimidation. It is sufficient that the conduct and words

of the defendant would place an ordinary, reasonable

person in fear.

(ER 524-25, 62).

IV. SUMMARY OF ARGUMENT

Prior to trial, Defendant, jointly with the government, submitted proposed

jury instructions to the district court. Proposed Special Joint Jury Instruction No.

3 on intimidation, submitted by the parties, was ultimately adopted by the district

court with very minor modifications and without objection from Defendant. This

instruction became the court’s jury instruction at page 13. Defendant now alleges


27

this instruction was flawed. Because Defendant waived his rights, the instruction

on intimidation is not reviewable under the invited error doctrine.

Nevertheless, should this Court find it is reviewable, the district court’s

instruction on intimidation was correct. The instruction was carefully reasoned

and comprehensive. In correctly defining intimidation, the instruction tracked the

language of the statute and followed Ninth Circuit case law. Thus, the district

court did not commit plain error. Additionally, defense counsel was fully engaged

in discussions regarding the jury instructions and the relevant law. Because the

district court correctly defined intimidation, defense counsel was not ineffective for

failing to object to the instruction.

Interference with a flight attendant is a general intent crime. General intent

crimes require that the act be volitional. While the district court may have not

worded the instructions as specifically requested by Defendant, Defendant agreed

that the instruction on intimidation required the jury to find the requisite mens rea.

Viewing the instructions as a whole, the requisite mens rea was covered and the

issue is merely one of wording. Thus, the district court did not abuse its discretion

in formulating the jury instructions. Moreover, even assuming the standard of

review on this issue were de novo, to the extent there was error, it was harmless

beyond a reasonable doubt. There is ample evidence in the record that Defendant


28

was fully aware of what he was doing and aware that the flight attendant was being

affected by his actions.

Finally, all of the evidence presented at trial was relevant and inextricably

intertwined with the charge of interference with the flight attendant. There was no

prejudice to Defendant. Defendant did not request a limiting instruction, nor was

a separate limiting instruction appropriate in this case. The district court did not

commit plain error. Accordingly, Defendant’s conviction should be affirmed.

V. ARGUMENT

A. The District Court Correctly Instructed The Jury On Count 1,

Interference With A Flight Attendant

1. The Instruction On Intimidation Is Not Reviewable Under The

Invited Error Doctrine

a.) Standard of Review

If a defendant proposed a jury instruction that is given by the district court,

which he later on appeal alleges is flawed, this Court denies review of that

instruction under the invited error doctrine. United States v. Hui Hsiung, 778 F.3d

738, 747 (9th Cir.), cert. denied, 135 S.Ct. 2837 (2015); United States v. Burt, 143

F.3d 1215, 1217 (9th Cir. 1998); United States v. Perez, 116 F.3d 840, 844 (9th

Cir. 1997) (en banc). The invited error doctrine is limited to situations where the

defendant has waived his rights, as opposed to merely forfeited them. Burt, 143


29

F.3d at 1217 (citing Perez, 116 F.3d at 842). Waiver occurs “if the defendant

considered the controlling law and ‘in spite of being aware of the applicable law,

proposed or accepted a flawed instruction.’” Id. (quoting Perez, 116 F.3d at 845).

b.) Discussion

This Court should deny review of the instruction on intimidation. The

instruction given by the district court on intimidation (ER 62) was submitted by

Defendant, jointly with the government, prior to trial as Proposed Special Joint

Jury Instruction No. 3. (ER 79). The district court made very minor

modifications to the proposed instruction, which are irrelevant to the issues on

appeal, and Defendant made no objections. (See ER 506-07). Defense counsel

had ample time to review and consider the law and the jury instruction prior to

submitting it to the district court. Additionally, defense counsel participated in

lengthy discussions with the district court and counsel for the government about

the relevant law and the jury instructions and could have objected prior to the court

instructing the jury. (ER 360-69, 390-405, 499-513).

Because Defendant had knowledge of the controlling law and proposed the

instruction, which he now alleges is flawed, he has waived his rights. See Hui

Hsiung, 778 F.3d at 747; Burt, 143 F.3d at 1217; Perez, 116 F.3d at 844.

Accordingly, this Court should deny review of the instruction under the invited

error doctrine.


30

2. Assuming, Arguendo, That The Instruction On Intimidation Is

Reviewable, The District Court Did Not Commit Plain Error In

Defining Intimidation


Jury instructions to which the defendant did not object at trial are reviewed

for plain error. United States v. Kilbride, 584 F.3d 1240, 1247 (9th Cir. 2009); see

also Fed. R. Crim. P. 52(b); Jones v. United States, 527 U.S. 373, 389 (1999);

Johnson v. United States, 520 U.S. 461, 467 (1997); United States v. Olano, 507

U.S. 725, 731-732 (1993). Plain error review requires the Court to find that (1)

there was an error, (2) the error was plain, and (3) the error affects substantial

rights. Kilbride, 584 F.3d at 1247. If the Court finds all three conditions, it can

then exercise its discretion to correct the forfeited error. Id. This Court,

however, should do so only if the error “seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Id. “Improper jury instructions will

rarely justify a finding of plain error.” United States v. Armijo, 5 F.3d 1229, 1232

(9th Cir. 1993).

b.) Discussion

Even assuming the instruction on intimidation is reviewable, the district

court did not commit plain error in instructing the jury on intimidation. The

district court’s instruction on intimidation was carefully reasoned and


31

comprehensive. It tracked the language of the statute and was crafted directly

from case law and a relevant model instruction.

Title 49, United States Code, Section 46504 provides, in relevant part:

An individual on an aircraft in the special aircraft

jurisdiction of the United States who, by assaulting or

intimidating a flight crew member or flight attendant of

the aircraft, interferes with the performance of the duties

of the member or attendant or lessens the ability of the

member or attendant to perform those duties . . . shall be

fined under title 18, imprisoned for not more than 20

years, or both.

49 U.S.C. § 46504.

The elements of the offense are: (1) the defendant was on an aircraft in

flight in the special aircraft jurisdiction of the United States; (2) the defendant

intimidated a flight attendant of the aircraft; and (3) in doing so, interfered with the

performance of the duties of the flight attendant or lessened the ability of the

attendant to perform those duties. See United States v. Naghani, 361 F.3d 1255,

1262 (9th Cir. 2004).

The Ninth Circuit does not have a model instruction for the offense of

interference with flight crew members and attendants. The most current version

of the Eleventh Circuit model instruction regarding intimidation under 49 U.S.C. §

46504 provides:

To “intimidate” someone is to intentionally say or do

something that would cause a person of ordinary


32

sensibilities to fear bodily harm. It’s also to say or do

something to make another person fearful or make that

person refrain from doing something that the person

would otherwise do – or do something that the person

would otherwise not do.

Eleventh Circuit Pattern Jury Instructions (Criminal Cases), O118 (2016 ed.).

A prior version of the model instruction provides:

The term “intimidate” has several meanings: It means the

use of words or actions to place another person in

reasonable apprehension of bodily harm either to that

person or to another. It also means the use of words or

actions to make another person fearful or make that

person refrain from doing something that the person

would otherwise do, or do something that the person

would otherwise not do.

Eleventh Circuit Pattern Jury Instructions (Criminal Cases), 103 (2003 ed.).

In United States v. Meeker, 527 F.2d 12, 13 (9th Cir. 1975), this Court

affirmed Meeker’s conviction on three counts of interference with flight crew

members in violation of 49 U.S.C. § 1472(j), the predecessor statute to § 46504.

This Court held that interference with flight crew members is a general intent

crime. Id. at 14. In construing the term “intimidation” this Court stated,

One person in a group can be intimidated by threats

directed at the group in general. Nor is proof that the

victim was in fact frightened for his own physical safety

required in order to find that a defendant performed the

criminal act of intimidation. It is sufficient that the

conduct and words of the accused would place an

ordinary, reasonable person in fear.


33

Id. at 15 (citing United States v. Alsop, 479 F.2d 65, 66-67 (9th Cir. 1973)); see

also Naghani, 361 F.3d at 1260 n.3 (intimidation defined as words and conduct

that would place an ordinary reasonable person in fear).

The defendants in United States v. Hicks, 980 F.2d 963, 965 (5th Cir. 1992),

were also convicted of interference with the flight crew in violation of the

predecessor statute. On appeal, they argued that the court wrongly defined

“intimidation.” Id. at 972-73. The district court’s jury instruction read, “In

considering whether the actions of the Defendant(s) amounted to intimidation, you

are instructed that it is sufficient if the words and conduct of the Defendant(s)

would place an ordinary, reasonable person in fear.” Id. at 972. In holding that

the jury was correctly instructed on the definition of “intimidation,” the Fifth

Circuit stated that the definition given, “to place a person in fear,” was the most

commonly understood dictionary definition. Id. at 973. The Fifth Circuit further

stated that “[w]hile intimidation may result from words or conduct that may

directly threaten, it is commonly understood that a person may intimidate another

without actually making a direct or even veiled threat.” Id.

Here, the district court explained the “intimidation” element to the jury as

follows:

A flight attendant may be “intimidated” by the use of

words or actions that place the flight attendant in

reasonable apprehension of bodily harm, either to the


34

flight attendant or to another, or by the use of words or

actions that make the flight attendant fearful or make that

flight attendant refrain from doing something that the

flight attendant would otherwise do, or do something that

the flight attendant would otherwise not do, or interfere

with or lessen the flight attendant’s ability to do

something.

One person in a group can be intimidated by

threats directed at the group in general. The government

does not have to prove that the flight attendant was in

fact frightened for her own physical safety in order to

prove that the defendant performed the criminal act of

intimidation. It is sufficient that the conduct and words

of the defendant would place an ordinary, reasonable

person in fear.

(ER 524-25, 62).

The district court’s instruction is very similar to the Eleventh Circuit pattern

instructions and the language in 49 U.S.C. § 46504. See United States v. Ubaldo,

859 F.3d 690, 706 (9th Cir. 2017) (district court’s instructions tracked the language

of the statute); United States v. Garcia, 729 F.3d 1171, 1177 (9th Cir. 2013)

(noting that “an instruction tracking a statute is generally not erroneous”); United

States v. Tatoyan, 474 F.3d 1174, 1179-80 (9th Cir. 2007) (“instructions given by

district court, which carefully tracked the language of [the statute], were not

‘misleading or inadequate’”); Johnson v. United States, 270 F.2d 721, 725 (9th Cir.

1959) (instruction that tracks a statute is generally not erroneous). Furthermore,

the language in the second paragraph comes directly from Ninth Circuit case law.


35

See Meeker, 527 F.2d at 15; Naghani, 361 F.3d at 1260 n.3. Just as this Court

held in Meeker and Naghani and the Fifth Circuit held in Hicks, here, the district

court properly defined intimidation as “placing a person in fear” or “making a

person fearful.” See Meeker, 527 F.2d at 15; Naghani, 361 F.3d at 1260 n.3;

Hicks, 980 F.2d at 973.

In his appeal, Defendant argues that the jury instruction on intimidation was

flawed in two respects: (1) that it allowed the jury to find intimidation without a

finding that the flight attendant have feared bodily injury, and (2) that it conflated

the intimidation and interference elements. Both arguments lack merit.

First, Defendant argues that the definition of intimidation was overly broad

and would have allowed a finding of intimidation even where the flight attendant

simply intervened in an unremarkable passenger dispute. Defendant misinterprets

the given jury instruction and United States v. Meeker, 527 F.2d 12 (9th Cir. 1975).

Moreover, the current Eleventh Circuit model instruction that Defendant argues

supports his position does not actually exclude intimidation of a flight attendant

with respect to the flight attendant’s fear for another’s well-being, nor does Ninth

Circuit case law. Both versions of the Eleventh Circuit model instruction are not

limited to one strict definition. Rather, just like the district court’s instruction,

they provide examples of what it means to intimidate.

Contrary to Defendant’s argument, the district court’s instruction would not


36

sweep up as interference “a case of a pilot unnecessarily sauntering back to the

cabin to intermeddle officiously in a heated dispute between passengers.” Meeker,

527 F.2d at 15. As the district court correctly stated in its Order Denying “Motion

for Bail Pending Appeal” and Addressing Argument that Jury Instruction

Erroneously Defined “Intimidation,” Defendant appears to “be stretching the

caution in Meeker.” United States v. Turner, No. 16-00207, 2017 WL 3431587, at

*3 (D. Hawaii Aug. 8, 2017). In Meeker, this Court was referring to a situation in

which a crew member might act unnecessarily to “intermeddle officiously” in a

passenger dispute. 527 F.2d at 15; Turner, 2017 WL 3431587, at *3. “This is

hardly a prohibition on finding intimidation when an employee engaged in

performing her duties is doing her very duty in trying to deal with a dispute

between passengers.” Turner, 2017 WL 3431587, at *3.

Furthermore, the evidence at trial revealed that this was not just a heated

dispute between passengers in which the flight attendant merely separated the two

groups and resolved the situation. The evidence at trial showed that Defendant

intimidated the flight attendant. The evidence showed that the altercation with

Defendant occurred on an airplane in flight where passengers were in close

proximity to one another and could not simply leave the area. (ER 115).

Defendant, a six foot tall man, yelled, cursed, and threatened to physically injure

other passengers. (ER 121, 158-59, 133, 488). He spit in a woman’s face and


37

shoved another woman’s chair. (ER 217, 257-58). Defendant was not compliant

with the flight attendant (ER124) and she was unsure of what he was capable of

doing. (ER 134). The flight attendant testified that she was “intimidated” by

Defendant’s unpredictability and at how volatile his behavior was. (ER 141).

The flight attendants notified the cockpit of the altercation and as a result of

Defendant’s actions, the cockpit went on lockdown. (ER 129, 134, 138).

Defendant himself testified that the flight attendant was involved and he even

referred to her as being “mildly hysterical.” (ER 465-67).

Defendant made threats of bodily harm. Defendant’s words and actions on

the airplane certainly would have caused an ordinary reasonable person to be in

fear. Even if there was any error at all in the district court’s formulation of the

jury instruction, it was not clear or obvious.

Defendant’s argument that the intimidation instruction improperly conflated

intimidation and interference is likewise without merit.

The district court’s instruction required a finding of intimidation as separate

from the requirement that the intimidation actually interfered with the flight

attendant’s performance of her duties. As the district court also stated in its Order

Denying “Motion for Bail Pending Appeal” and Addressing Argument that Jury

Instruction Erroneously Defined “Intimidation,” “‘intimidation’ and ‘interference’

refer to a change from what a person might ordinarily do or not do.” Turner, 2017


38

WL 3431587, at *4. “[T]he elements involve the difference between ‘affect’ and

‘effect.’ ‘Intimidation’ goes to how the flight attendant is affected; ‘interference’

goes to the ‘effect’ on the flight attendant’s duties.” Id.

While the elements of “intimidation” and “interference”

are explained with similar language to describe certain

behavior, that behavior must be viewed from two

different perspectives. It is those different perspectives

that render these elements distinct.” See United States v.

Flores, 968 F.2d 1366, 1371 (1st Cir. 1992) (interpreting

a predecessor statute and concluding that the assault and

interference elements are separate but essential elements

of the charged crime because an assault on a flight

attendant does not necessarily interfere with that flight

attendant’s duties)).

Turner, No. 16-00207, 2017 WL 3431587, at *5.

The district court did not err in instructing the jury on intimidation. Even if

there was any error at all in the district court’s formulation of the jury instruction,

it was not clear or obvious. As set forth above, there was overwhelming evidence

at trial showing that Defendant knowingly intimidated the flight attendant and

thereby interfered with the performance of her duties. Thus, there was no

substantial effect on Defendant’s rights.

3. Assuming, Arguendo, That The Instruction On Intimidation Is

Reviewable, Because The Jury Instruction Correctly Defined

Intimidation Defense Counsel Was Not Ineffective For Failing To

Object



39

Claims of ineffective assistance of counsel are generally raised in a habeas

corpus proceeding, pursuant to 28 U.S.C. § 2255, rather than on direct appeal.

United States v. Moreland, 622 F.3d 1147, 1157 (9th Cir. 2010). While not

preferred, this Court may consider claims of ineffective assistance where “the

record on appeal is sufficiently developed to permit determination of the issue.”

Id. (citation omitted).

b.) Discussion

Defendant proposed and did not object to the very jury instruction he now

alleges is flawed. Review of this instruction is precluded under the invited error

doctrine. Nevertheless, even assuming this Court finds that it is reviewable, as set

forth above, the district court correctly defined intimidation. Thus, counsel cannot

be ineffective for failing to object to a proper jury instruction.

A defendant claiming ineffective assistance of counsel must demonstrate

(1) that counsel’s actions were outside the wide range of professionally competent

assistance, and (2) that defendant was prejudiced by reason of counsel’s actions.

Strickland v. Washington, 466 U.S. 668, 687-90 (1984).

Here, the jury instruction defining intimidation was correct. Defense

counsel had ample time to review and consider the law and the jury instruction

prior to submitting it to the court. Additionally, defense counsel participated in

lengthy discussions with the court and counsel for the government about the


40

relevant law and the jury instructions. (ER 360-69, 390-405, 499-513). There

has been no demonstration that failing to object to the intimidation instruction in

light of the instructions as a whole is outside the range of professionally competent

assistance. Moreover, Defendant cannot show prejudice as required under

Strickland.

As set forth above, no matter how intimidation was defined, there was

overwhelming evidence that Defendant intimidated the flight attendant.

Accordingly, defense counsel was not ineffective for failing to object to the

instruction on intimidation.

4. The District Court Did Not Abuse Its Discretion By Including The

Mens Rea For The Charge Of Interference With A Flight

Attendant In The Jury Instruction Defining Intimidation


This Court reviews de novo the question of whether a jury instruction

misstates an element of an offense. Kilbride, 584 F.3d at 1247. The district

court’s formulation of jury instructions is reviewed for an abuse of discretion. Id.

“In reviewing jury instructions, the relevant inquiry is whether the instructions as a

whole are misleading or inadequate to guide the jury’s deliberation.” United

States v. Tatoyan, 474 F.3d 1174, 1179 (9th Cir. 2007) (quoting United States v.

Fernandez, 388 F.3d 1199, 1246 (9th Cir. 2004)). An omission or misstatement

of an element of an offense in the jury instructions is constitutional error, which


41

requires reversal unless the error is harmless beyond a reasonable doubt. Kilbride,

584 F.3d at 1247. A constitutional error is harmless when it appears “beyond a

reasonable doubt that the error complained of did not contribute to the verdict

obtained.” Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)).

b.) Discussion

The district court’s instructions on interference with the flight attendant,

when viewed as a whole, required the jury to find the requisite mens rea. The

district court did not abuse its discretion in formulating the jury instructions.

“Few areas of criminal law pose more difficulty than the proper definition of

the mens rea required for any particular crime.” United States v. Lamott, 831 F.3d

1153, 1156 (9th Cir. 2016) (citing United States v. Bailey, 444 U.S. 394, 403, 100

S.Ct. 624, 62 L.Ed.2d 575 (1980)). The distinction between general and specific

intent has caused a significant amount of confusion. Id. at 1156. A specific

intent crime requires the government to prove that the defendant subjectively

intended or desired the proscribed act or result. Id. “By contrast, a general intent

crime requires only that the act was volitional (as opposed to accidental), and the

defendant’s state of mind is not otherwise relevant.” Id.; see also United States v.

Lynch, 881 F.3d 812, 815 (10th Cir. 2018) (§ 46504 characterized as general intent

statute, one acts voluntarily or intentionally, not by mistake or accident).


42

In drafting 49 U.S.C. § 46504, Congress’ goal was “to deter the commission

of crimes” that might normally be considered minor, but when carried out on an

aircraft in flight “would endanger the lives of many.” Meeker, 527 F.2d at 14.

“The primary danger to be averted is not the formation of a specific intent to

interfere with aircraft operations but the criminal act of an assault, intimidation or

threat upon airline personnel during flight.” Id. Thus, 49 U.S.C. § 46504 is

construed as a general intent crime. Id.; see also Hicks, 980 F.2d at 974

(Congress’ failure to use a term such as “willfully,” “intentionally,” or

“knowingly,” in the statute, makes it clear that general intent is all that is

required.); United States v. Grossman, 131 F.3d 1449, 1452 (11th Cir. 1997)

(holding that § 46504 defines a general intent crime); Lynch, 881 F.3d at 817

(“Nothing in the plain language of the statute implies that an additional specific

intent mens rea should be read into the ‘intimidation’ element.”).

In United States v. Hicks, the Fifth Circuit noted that the trial “court’s charge

essentially tracked the language of the statute, with the exception of requiring that

the jurors find that appellants ‘knowingly’ intimidated the crew members. . . . As

the charge read, it only required a specific intent to intimidate, not a specific intent

to interfere.” 980 F.2d at 973. As the Fifth Circuit observed, the trial court

added the term “knowingly” to the intimidation charge even though it was not in

the statute. See id. To prove intimidation within the meaning of § 46504, “[i]t is


43

sufficient that the conduct and words of the accused would place an ordinary,

reasonable person in fear.” Meeker, 527 F.2d at 15 (citations omitted).

Here, the district court was cognizant of the required mens rea and submitted

instructions to the jury, which included the correct mens rea. In fact, the district

court’s reason for removing the pilot from the jury’s consideration was because the

district court believed that the second element of the offense “requires some kind

of consciousness on the part of the defendant,” and the district court ruled that as to

the pilot this was not supported by the evidence that came out at trial. (ER 502).

As the district court stated, both the phrase “to place” and “to make” as set forth in

the jury instruction on intimidation mean knowing or intending or having a

purpose. (ER 399). Meaning that the instruction required that the actor did

something on purpose and not accidentally or mistakenly. There was no evidence

at trial that suggested that Defendant was not aware of the flight attendant or of

what he was doing.

Furthermore, in response to defense counsel’s objection to removing the

word “knowingly” from the instruction, the district court stated, “I do believe that

the second element of the crime which requires that the defendant intimidated an

airline employee requires some kind of consciousness on the part of the defendant,

at the very least the defendant should have reasonably known that a particular

airline employee would be intimidated.” (ER 502). The district court further


44

stated that “the word ‘knowingly’ was not in the statute and, in any event, appeared

to be subsumed in the very nature of intimidation as defined later in the

instructions. So I did not think including the word in special instruction number

one7 served any purpose.” (ER 504). The district court then asked defense

counsel if “the concept of what the mens rea is is adequately stated in special

instruction number three?”8 Id. To which defense counsel replied, “Yes.” Id.

The jury instructions on interference with the flight attendant may not have

set forth the mens rea in exactly the manner Defendant requested but Defendant

ultimately agreed that the mens rea was covered in the instruction on intimidation.

And for good reason. After all, the submitted instruction made clear that

Defendant had to make or place another in fear. Additionally, the district court

instructed the jurors that they must follow all of the court’s instructions as a whole.

(ER 51, 518). Thus, when viewed as a whole, the instructions required the jury to

find the requisite mens rea. Accordingly, the district court did not abuse its

discretion in formulating the jury instructions.

Moreover, even assuming the standard of review on this issue were de novo,

7 Special instruction number one regarding the charge of interference with a flight

attendant, as modified by the court, became the district court’s instruction at page

11. See ER 60 and 77.

8 Special instruction number three defining intimidation, as modified by the court,

became the district court’s instruction at page 13. See ER 62 and 79.


45

to the extent there was error, it was harmless beyond a reasonable doubt. There is

ample evidence in the record that Defendant was fully aware of what he was doing

and aware that the flight attendant was being affected by his actions.

Looking solely at Defendant’s testimony, there can be no question that his

words and actions were purposeful and that he knew the flight attendant was aware

of the events that were transpiring. Given the environment in which this occurred,

and the words and actions of Defendant, a reasonable person should have known

that his words and actions would be intimidating. Defendant testified that he got

out of his seat, entered the aisle, and confronted the two women that were sitting in

front of him. (ER 459). He testified that he was the only individual involved that

got up out of his seat. (ER 491-492). Defendant knew that the flight attendant

became involved as he admitted that she had asked him to sit down and that he told

her she had to move the other passengers. (ER 465-468). Defendant stated that

he “let [the flight attendant] feel like she was getting a little more control of

herself” and that she was “mildly hysterical.” (ER 467). Finally, Defendant also

admitted that he threatened a female passenger that he would break her neck. (ER

495).


46

Other witnesses also confirm that Defendant was aware of what he was

doing and that he knew the flight attendant was aware of the events that were

transpiring. Ms. Thompson stated that the female flight attendant came over and

separated Defendant and the other passengers. (ER 413). She stated that

Defendant was trying to get the flight attendant’s attention and that she eventually

moved the other passengers. (ER 414, 422-23). Ms. Thompson also stated that

she felt the situation was uncomfortable for everyone but was contained to

Defendant, the two female passengers, and the flight attendant. (ER 423-24).

Ms. Goralska testified that when she approached Defendant the second time

he seemed even more enraged. (ER 132). He continued to swear and make

threats against the other passengers. (ER 132-33). She stated that she could not

get Defendant to comply with her requests and she was becoming alarmed and

realized she was unsure of what Defendant was capable of doing. (ER 133-34).

Ms. Goralska was concerned that Defendant was capable of physically harming the

women, as he had certainly threatened to harm them. (ER 140). Ms. Goralska

was intimidated by Defendant’s volatile behavior that was directed at the two

women and by his unpredictability. (ER 141).

Given all of this evidence, a reasonable jury could easily conclude that

Defendant knew what he was doing, knew the flight attendant was involved and

aware of what was happening, and that Defendant’s words and actions were


47

purposeful. Thus, even if the district court erred in the formulation of the

instruction, this Court should affirm Defendant’s conviction because there is

overwhelming evidence that supports, beyond a reasonable doubt, that the jury

verdict would have been the same absent the error. See Neder, 527 U.S. at 17.

B. Retroactive Misjoinder Resulting in Prejudicial Spillover Did Not

Occur And, Therefore, No Separate Limiting Instruction Was

Required


The failure to offer or request a limiting instruction is reviewed for plain

error. United States v. Marin-Cuevas, 147 F.3d 889, 892-93 (9th Cir. 1998)

(citing United States v. Armijo, 5 F.3d 1229, 1232 (9th Cir. 1993). Plain error

review requires the Court to find that (1) there was an error, (2) the error was plain,

and (3) the error affects substantial rights. Kilbride, 584 F.3d at 1247. If the

Court finds all three conditions, it can then exercise its discretion to correct the

forfeited error. Id. This Court, however, should do so only if the error “seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Id.

b.) Discussion

Defendant was charged with one count of interference with the flight crew

members and attendants, not two separate counts. Despite the fact that the district

court ultimately removed the pilot from the jury’s consideration, the evidence was


48

properly admitted, retroactive misjoinder is not applicable, there was no prejudicial

spillover and, therefore, no separate limiting instruction was required.

“Retroactive misjoinder arises where joinder of multiple counts was proper

initially, but later developments—such as a district court’s dismissal of some

counts for lack of evidence or an appellate court’s reversal of less than all

convictions—render the initial joinder improper.” United States v. Lazarenko,

564 F.3d 1026, 1043 (9th Cir. 2009) (internal quotations and citations omitted).

Retroactive misjoinder is inapplicable here. Rather, the evidence at issue is

inextricably intertwined with the charge. This Court has held that evidence is

inextricably intertwined with the crime with which the defendant is charged when

“it constitutes a part of the transaction that serves as the basis for the criminal

charge,” or when it is necessary “to permit the prosecutor to offer a coherent and

comprehensible story regarding the commission of the crime.” United States v.

Loftis, 843 F.3d 1173, 1177-78 (9th Cir. 2016) (quoting United States v. Vizcarra-

Martinez, 66 F.3d 1006, 1012-13 (9th Cir. 1995)).

In United States v. Compton, 5 F.3d 358, 360 (9th Cir. 1993), the defendant

was charged with attempted air piracy and interference only with the duties of a

flight crew member. At trial, evidence was presented that Compton not only

interfered with the duties of the flight crew when he handed a hijacking note to the

flight attendant to give to the captain of the plane, but also the duties of the flight


49

attendant. Id. On appeal, Compton argued that by introducing evidence that he

interfered with the duties of the flight attendant, the government had constructively

amended the indictment, which he argued was per se prejudicial. Id. In rejecting

Compton’s argument this Court stated, “It is difficult to imagine how the

prosecution could have explained the events of the flight without bringing in

evidence showing that Compton interfered with the flight attendant’s duties in

addition to those of the flight crew.” Id.

Here, similarly, the evidence presented at trial relating to the pilot was

inextricably intertwined with the offense of interference with the flight attendant.

It not only served as part of the basis of the charge but also was part of the

comprehensive story of what occurred on that plane as a result of Defendant’s

words and actions. The evidence was relevant and necessary because it

established the impact that Defendant’s words and actions had on the flight

attendant. It tended to prove that Defendant in fact intimidated the flight attendant

and she was concerned for the safety of other passengers.

As the flight attendant testified, usually when there is a conflict on the plane

it can easily be resolved by having a simple conversation. (See ER 129).

Although the defense tries to paint a picture that the conflict merely lasted a few

minutes and was easily solved by a simple discussion with the flight attendant, this

was not the evidence at trial. The flight attendant, Ms. Goralska testified that


50

initially Defendant was not compliant at all. (ER 124). He had threatened to

physically harm other passengers and was very antagonistic towards them. (ER

132). Defendant was unpredictable and volatile and the flight attendant was

unsure of what he was capable of doing. (ER133-34, 136). Thus, she felt it was

necessary to notify the pilot of the altercation. (ER 133-34). Due to Defendant’s

behavior, Ms. Goralska had to move the other passengers away from Defendant

into other seats. (ER 137). Because the flight was full she testified that the

captain forfeited his crew rest seat so that the other passengers could sit there.

(ER 137). The fact that the flight attendant felt she had to notify the pilot of the

situation and the plane was put on lockdown demonstrated the severity of the affect

of Defendant’s conduct on the flight attendant. This was highly relevant to the

issue of whether she was, in fact, intimidated.

Even assuming retroactive misjoinder is applicable, Defendant was not

prejudiced by the evidence relating to the pilot who was later dismissed from

Count 1.

“A claim of prejudicial spillover cannot succeed unless a defendant proves

prejudice so pervasive that a miscarriage of justice looms.” United States v.

Lazarenko, 564 F.3d 1026, 1043 (9th Cir. 2009) (internal quotations and citations

omitted). In determining whether a defendant was prejudiced by “spillover”

evidence, this Court considers the following five factors: (1) whether the


51

evidence was so inflammatory that it would tend to cause the jury to convict on the

remaining counts; (2) the degree of overlap and similarity between the dismissed

and remaining counts; (3) a general assessment of the strength of the government’s

case on the remaining counts; (4) whether the trial court diligently instructed the

jury; and (5) whether there is evidence, such as the jury’s rendering of selective

verdicts, to indicate that the jury compartmentalized the evidence. Lazarenko, 546

F.3d at 1044 (citing United States v. Vebeliunas, 76 F.3d 1283, 1294 (2d Cir.

1996); United States v. Cuozzo, 962 F.2d 945, 950 (9th Cir. 1992)).

Applying the five-factor test set forth by this Court in Lazarenko, all five

factors weigh against Defendant. The testimony relating to the pilot’s back issues,

his fatigue, and the fact that he was unable to use the restroom due to Defendant’s

actions was not inflammatory. The degree of overlap was great as to the

remaining part of Count 1 and not very similar at all to the counts relating to the

assaults on the passengers. As set forth in detail above, the government’s case on

the count of conviction was strong. The district court appropriately tailored all of

the jury instructions relating to the charge in Count 1 to interference and

intimidation of the flight attendant only, thereby essentially issuing a limiting

instruction. Finally, as to the fifth factor, the jury clearly demonstrated that it

could compartmentalize the evidence that Defendant claims should have been


52

excluded since it found that the government did not prove Defendant’s guilt

beyond a reasonable doubt as to the two assault counts.

There is no problem of prejudicial spillover when, as in this case, Defendant

stood trial alone, was involved in the entire altercation, there was no inflammatory

evidence, the jury instructions were appropriately tailored, and the jury showed

that it could clearly compartmentalize the evidence. Accordingly, there was no

error and certainly no plain error.

VI. CONCLUSION

For all of the foregoing reasons, Defendant-Appellant William Turner’s

appeal should be denied and his conviction should be affirmed.

DATED: March 30, 2018, Honolulu, Hawaii.

KENJI M. PRICE

United States Attorney

District of Hawaii

By s/ Margaret C. Nammar

MARGARET C. NAMMAR


Attorneys for Plaintiff-Appellee

UNITED STATES OF AMERICA


STATEMENT OF RELATED CASES

Pursuant to Rule 28-2.6 of the United States Court of Appeals for the Ninth

Circuit, Appellee United States of America, by and through its undersigned

attorney, hereby certifies that it is unaware of any other pending cases related to

this appeal.

DATED: March 30, 2018, at Honolulu, Hawaii.

By s/ Margaret C. Nammar

MARGARET C. NAMMAR



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