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
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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
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TABLE OF CONTENTS (continued)
Page(s)
a. Standard of Review ................................................................. 30
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
a. Standard of Review ................................................................. 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
a. Standard of Review ................................................................. 40
b. Discussion ................................................................................ 41
B. Retroactive Misjoinder Resulting in Prejudicial Spillover Did
Not Occur And, Therefore, No Separate Limiting Instruction
Was Required ..................................................................................... 47
a. Standard of Review ................................................................. 47
b. Discussion ................................................................................ 47
VI. CONCLUSION .............................................................................................. 52
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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
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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
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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
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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.
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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
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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,
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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
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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).
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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
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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.
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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
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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
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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).
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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).
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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
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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).
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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
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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
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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).
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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
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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
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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).
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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).
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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
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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
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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).
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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).
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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).
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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
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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
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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
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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.
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2. Assuming, Arguendo, That The Instruction On Intimidation Is
Reviewable, The District Court Did Not Commit Plain Error In
Defining Intimidation
a.) Standard of Review
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
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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
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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.
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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
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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.
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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
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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
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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
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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
a.) Standard of Review
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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
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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
a.) Standard of Review
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
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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).
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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
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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
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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.
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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).
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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
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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
a.) Standard of Review
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
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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
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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
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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
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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
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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
Assistant U.S. Attorney
Attorneys for Plaintiff-Appellee
UNITED STATES OF AMERICA
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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
Assistant U.S. Attorney
Case: 17-10299, 03/30/2018, ID: 10820054, DktEntry: 27, Page 59 of 61
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CERTIFICATE OF SERVICE
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When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certifr that I electronically filed the foregoing with the Clerk of the Court for theUnited States Court of Appeals for the Ninth Circuit by using the appellate CN4/ECF systemon (date)
Participants in the case who are registered CM/ECF users will be served by the appellateCM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. Ihave mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched itto a third parry commercial carrier for delivery within 3 calendar days to the followingnon-CM/ECF participants :
Signature (use "s/" format)
Case: 17-10299, 03/30/2018, ID: 10820054, DktEntry: 27, Page 61 of 61